Lindsay v. Lewandowski (Cal. Ct. App. - May 31, 2006)

Hmmm. I don't know about this one. And the more I think about it, the less I probably agree with it.

There are two opinions, both of which are interesting. First, Justice Bedsworth writes a majority opinion that reverses an award reached at a "binding mediation" agreed to by the parties. He does so by first holding that the parties didn't actually agree to binding mediation because there were two different forms of the settlement agreement, one of which said that any dispute would be "return[ed] to the mediator for final resolution" and another that said that any dispute would be "return[ed] to the mediatior for final resolution by binding arbitration." These are different things, Justice Bedsworth says, so there's no agreement.

But, first, I probably disagree on the merits; if a dispute is returned for final resolution by the mediator, it is by definition "binding arbitration". Hence the parties agreed. Second, the parties also mutually used the term "binding mediation" in a different portion of the agreement, so, again, there's an agreement. Third, if there was any doubt, the mediator testified -- without apparent contradiction -- that he routinely oversees settlement agreements like this, that he explains to the parties what's meant by binding mediation, and that the parties here agreed to this procedure. That seems enough for me. Finally, CCP 664.6 expressly allows resolution of factual disputes in order to enforce written or in-court oral settlements. So why can't the judge below make a permissible factual finding -- amply supported by the record -- that the parties did, in fact, agree to send any disputes to the mediator for final resolution? Seems more than reasonable to me.

So I don't think the "they didn't agree" argument works. Then Justice Bedsworth argues that while some might argue that binding mediation is a good thing, there really aren't any rules for it, yet another reason not to enforce any agreement to such a process. He says: "If binding mediation is to be recognized, what rules apply? The arbitration rules, the court-ordered mediation rules, the mediation confidentiality rules, or some mix? If only some rules, how is one to chose? Should the trial court take evidence on the parties’ intent or understanding in each case? A case-by-case determination that authorizes a “create your own alternate dispute resolution” regime would impose a significant burden on appellate courts to create a body of law on what can and cannot be done, injecting more complexity and litigation into a process aimed at less."

This is a reasonable argument, but I think it's nonetheless wrong. Parties can -- and do -- create their own arbitration processes, and "binding mediation" is no different in this regard. AAA and JAMS/Endispute, for example, have their own individual procedures, to which parties uniformly agree and to which courts have no problem binding the parties. So if we can create and enforce such procedures, we can create idiosyncratic -- and other party-driven -- procedures as well. If the parties want to agree that any disputes get resolved by a turtle race, why can't they? If parties want to agree that any disputes get resolved by a mutual friend, who will resolve the dispute after viewing an interpretive dance performed by both sides, what's the problem? Yes, the judiciary will have to "review" these individual processes, and perhaps resolve disputes about what the parties agreed upon. But we already do this with other "formal" private arbitration processes. And the Republic has somehow survived.

Moreover, there are darn, darn good reasons to enforce precisely the type of "binding mediation" provision that existed here. Justice Sills concurs and notes -- largely correctly, in my mind -- that "binding mediation" is in fact a misnomer, and is merely a kinder, gentler public relations word for a particular type of arbitration -- that it's not really a mediation. True enough. But sometimes there's a reason to use softer, gentler words. I also somewhat agree with the remainder of Justice Sills' concurrence, which explores some of the dangers of binding mediation (e.g., the agreed-upon involvement of a mediator as a backstop arbitrator). But only to a degree; a large part of me disagrees as well. Yes, there are potential problems with such a practice. But there are also major advantages as well; e.g., a substantial reduction in transaction costs as well as resolution by an officer in whom both parties have faith. So, sure, we shouldn't impose binding mediation on the parties. But neither should we prohibit parties from agreeing to it, nor fail fail recognize its many advantages.

My reaction to this case is undoubtedly informed by my own personal experiences. For example, last year, I represented a party in a trademark lawsuit in Delaware that was resolved after a day-long mediation before a federal magistrate and in which the parties agreed to refer all subsequent disputes (of which, of course, there were eventually several) for resolution by the magistrate. Absent such an agreement, there's a real risk that there would have been no settlement; moreover, the involvement of the magistrate in subsequent disputes resolved these matters expeditiously and at minimum cost. It was undoubtedly a rational -- indeed, essential -- means of resolution. Sure, we didn't call it "binding mediation". But that's essentially what it was. Similarly, in a less formal matter, I was also the "intermediary" last year between two warring groups of friends who were in the midst of breaking up their law firm. I was the informal (but recognized) "mediator" in this process, and absent my (incredibly extensive) involvement in the dispute, I'm totally positive that the matter would have promptly degenerated into massive, prolonged, and ugly litigation. Again, at the end of the process, all of the parties agreed that any disputes over either the resulting agreement or the breakup would be submitted to me for resolution. Did the parties expressly agree upon any rules or procedures? No. That was left to me -- I did not feel the need (nor did they) for the parties to spend time any money identifying which specific procedures that would be used in the event subsequent disputes arose.

In both cases, I think that the agreement to "binding" resolution by the mediator was the right call; indeed, I'm sure of it. Does such a process potentially result in some of the downsides identified by Justices Bedsworth and Sills? Sure. But that's why the selection of such a procedure -- like the selection of any other adjudicative procedure -- should be carefully evaluated by the parties. But once they've selected a process, and when (as here) it's a reasonable one, we should affirm and enforce it. So, in the end, I think I disagree with this opinion. It's smart. It's reasonable. It's intelligent. But it's also wrong.

Pinto v. City of Visalia (Cal. Ct. App. - May 25, 2006)

Who needs soap operas?! Check out the first dozen or so pages of this opinion, or even the whole thing. You couldn't write anything fictional that was more interesting. Sex, cops, lying: all good stuff. Check it out.

I'm not going to ruin for you by telling you what the case is about, something that is revealed only slowly in the opinion. I'll just say that it's not what you typically think of when you think: Visalia.

Edmonds v. Hammett (9th Cir. - May 25, 2006)

I'm definitely going to talk about this case at length. Which involves a probate matter filed in federal court (!) that concerns a member of an Indian tribe in a Department of Interior probate proceeding, and that revolves around whether state or federal evidence laws apply in such proceedings. Exciting!!

Just kidding. Sure, the case involves a substantial dispute, and one in which Judge O'Scannlain (who writes the majority opinion) disagrees with Judge Gould (who dissents). But come on. Not even I can get excited about whether federal or state evidence rules apply in Department of Interior will contests. And that's saying a lot. A lot.

Let me leave you only with this paragraph, a snippet from Judge Gould's dissent: "I would certify [the two dispositive issues] to the Washington State Supreme Court for its binding decision . . . . The majority dismisses certification in its footnote 10 . . . . The majority errs in its view of this certification statute. If the Washington State Supreme Court does not wish to accept a certified question, it will pass. Yet the Washington State Supreme Court, with its keen eye for discerning justice, may wish to address directly the issue . . . . [I]t is ill-advised [for the majority] to apply Washington law without such an exception before permitting the state’s highest court to step in and decide the matter for us."

As Count Rugen said to Westley: "Well-spoken, sir." Even if one disagrees with Judge Gould's conclusion, this is a nice -- and cognet -- passage.

Benitez v. Garcia (9th Cir. - May 23, 2006)

How tough is it to get this one right?!

The United States wants to extradite Cristobal Benitez from Venezuela. But Venezuela -- like several other nations -- won't extradite anyone who might possibly face either a death sentence or life in prison. And the Treaty that the U.S. and Venezuela entered into in 1922 says that Venezuela can condition extradition on receiving an assurance that the death penalty and/or life imprisonment won't be imposed. Which Venezuela expressly does here, and when the Venezuela Supreme Court approves the extradition of Benitez, it says that it does so only on the condition that California (who wants to prosecute him) "shall not . . . impose[] a penalty involving [the] death penalty or life imprisonment or punishment depriving his freedom for more than thirty years.” Pretty clear, right? (To make it even clearer, after getting the decision from the Venezuela Supreme Court, the Ministry of Foreign Affairs in Venezuela then extradited Benitez “conditioned to the understanding that [Benitez] will not be sentenced to . . . life in prison or incarceration for more than thirty (30) years.”)

Well, needless to say, California promptly convicts Benitez and sentences him to 15 years to life. At which point Benitez says: "Hey! You said you wouldn't sentence me to life! That was a condition of the extradition." To which the California Attorney General responds: "Ha ha ha! Fooled you!"

Okay, just kidding. Actually, the California Attorney General responds: "Sorry, my man. California law requires a sentence of 15 to life for murder. Treaty or no. So that's what you'll get." (Plus, as you might imagine, asserts a number of other defenses as well.)

At which point Benitez files a pretty darn straightforward state habeas petition, which basically just says: "You promised that you wouldn't sentence me to anything more than 30 years, or impose a life sentence, but you did so anyways. That's a violation of the 1922 Treaty with Venezuela, as well as the express conditions of my extradition. Sentence me to what you promised." A sufficiently clear, concise, and cogent argument that doesn't require much thought. And yet that the California courts routinely and uniformly reject, holding that because 15 to life is the requisite sentence for murder under California law, that's what Benitez properly received.

Finally, the federal courts get involved, on habeas. Initially, Judge Sabraw, who's down here in the Southern District of California, is of no help to Benitez, because even though Judge Sabraw thinks that the petition might have some merit, he concludes that the petition is not ripe, since Benitez hasn't actually served 30 years yet. Who knows? Maybe he'll die or be released from prison within the permissible time? Who knows? So, Judge Sabraw concludes, the petition isn't ripe.

This is a colorable -- if perhaps a bit heartless -- argument. Though one that doesn't long detain Judge D.W. Nelson, who writes this opinion reversing Judge Sabraw and granting the habeas petition. The conditions of extradition expressly preclude the U.S. from "imposing" a sentence of life or more than 30 years. And that's precisely what California did. Hence, the issue is ripe. And, on the merits, Benitez is entitled to relief. So that is what Judge Nelson orders the district court to do.

I agree with Judge Nelson. The issue is ripe, not only as a textual matter, but also consistent with precedent. Among other things, there a clear interest in a prisoner knowing what his sentence is. It's not premature for Benitez to obtain assurance that once he's served 30 years in prison, he's free -- that California can't keep him in prison for longer than that (assuming he doesn't commit any more crimes). Hence the matter is ripe. And, contrary to what the California courts (shamefully) held, on the merits, Benitez is unquestionably entitled to relief. Yes, California law provides for 15 years to life for murder. But, in this case, that conflicts with the Treaty between Venezuela and the United States. And if one takes even a brief look at the Constitution, you'll notice that treaties -- alongside federal law -- are the "Supreme Law of the Land".

When, as here, a Treaty conflicts with California law, guess which one wins? I'll give you a hint: It's not the law of California. That it took this long for a judicial tribunal to so hold should be embarrassing to the California courts, and doesn't reflect favorably upon the (already not-very-goodlooking) state habeas jurisprudence of these tribunals.

One final point. The attorney who successfully represented Benitez before the Ninth Circuit was Barbara Kay Strickland, an attorney who practices down here in San Diego. Someone who had previously been disbarred and, subsequently, readmitted. Something to keep in mind alongside the contemporary debate surrounding the proposed permanent disbarment of lawyers.

POSTSCRIPT - I got a very nice telephone call from one of the participants in this case (I'll keep his identity confidential, just in case) who thought that the matter was a lot more complicated that my post -- or the Ninth Circuit's opinion -- made it appear. His take was (1) that the state courts did address the merits, and that the "California law trumps" argument was merely an alternative holding, and (2) that the real issue is that the U.S. didn't agree to the conditions "imposed" by Venezuela (though he would say that Venezuela didn't impose any, and merely handed Benitez over subject to the U.S. conditions), and hence that the statements by Venezuela cited by the Ninth Circuit aren't dispositive (and may, indeed, be utterly irrelevant). After an informative and very enlightening conversation with him, I'm still not sure that the Ninth Circuit doesn't get it right, but think that there are indeed deeper issues that probably deserve to be addressed. Though, in my mind, I'm disposed to think that if Venezuela says -- as I still think they pretty clearly did -- that the conditions of extradition are X, if you go ahead and receive the prisoner, those are the conditions. In other words, that it's the expressed conditions of the extraditing country that are probably dispostive, rather than the "conditions" (though he would say "assurances") imposed by the country requesting extradition. Otherwise, among other things, we get into precisely the sort of contractual "who thought what" analysis that exists here and that we don't want.

Friery v. Los Angeles USD (9th Cir. - May 24, 2006)

This one is just rushing to judgment. (Not.)

The case concerns whether a school district's race-conscious transfer policy is unconstitutional. The matter was fully briefed in 2001. And the Ninth Circuit had oral argument in 2002. Later that year, they certified some questions to the California Supreme Court, which promptly denied the certification. Then almost a year passes. At which point the panel orders supplemental briefing. Then yet another year passes, at which point the panel stays the case pending a contemporary en banc case. Then another 18 months then passes, at which point the panel orders some more supplemental briefing. Then, in April 2006, the panel holds yet another oral argument.

And now, in this opinion, rather than actually decide the case -- because the appeal has only been pending for five years, after all -- the panel remands the case back to the district court to decide various standing issues (and also, in footnote two, suggests that, while it's at it, the district court might consider additional abstention and supplemental jurisdiction issues as well). To which my reaction is, well, sure, we definitely want to make sure there's Article III standing. I'm all for that. But this issue has existed in the case since the beginning. Maybe we should have done that first; say, back in 2002? After all, why all the briefings and arguments and stays on the merits if we're not even sure about constitutional standing?

As this case continues on its leisurely pace to decide whether a continuing district policy is unconstitutional, one might perhaps mention an old adage. "Justice delayed is justice denied."

Let's speed this puppy up, okay?

Vacek v. USPS (9th Cir. - May 24, 2006)

I did a double- and then triple-take when I read this case. It's a strange one indeed.

The underlying issue isn't all that complicated. You've got to exhaust your administrative remedies before you file a suit under the FTCA (Federal Tort Claims Act). So when Anton Vacek (allegedly) gets hit by a United States Postal Service truck, he hires an attorney, who (allegedly) promptly sends the USPS an administrative claim form. All of which is well and good. Except the USPS claims that they never received the form. So when the statute of limitations thereafter expires, and Vacek files suit, the USPS gets the lawsuit dismissed because the limitations period had run and Vacek has failed to exhaust. A result with special force here because the failure to timely exhaust is a precondition of the waiver of sovereign immunity by the United States.

Fair enough. But Vacek responds: "Mailbox Rule". The claim is timely when I put it in the mailbox, even if you claim not to have received it. But the "majority" opinion -- more on that later -- responds: "Nope. That's not the rule. The U.S. has to have actually received the form for exhaustion to apply. We've got Ninth Circuit precedent that so holds. It controls. Affirmed."

So here are the funny/interesting things about the case. First, on an utterly superficial level, isn't it funny that the USPS gets out of being sued because it lost the claim form?! Ho ho ho. Sure, Vacek's attorney could have sent it certified mail, and/or promptly followed up (within the limitations period) when no response from the USPS was forthcoming. And should have. But still. "We ran you over then lost your mail. Either one is bad enough. But, together, it means you can't sue us. Sorry, baby. Better luck next time." Too funny.

Second, so there's this prior Ninth Circuit precedent -- a case called Bailey -- that basically holds that plaintiff loses (by rejecting the mailbox rule). How funny is it that neither side cited this case in their briefs?! That's not a particularly impressive piece of information regarding the talents of counsel for the USPS, AUSA Abraham Simmons (a Georgetown Law graduate). Plus, counsel for Vacek -- Harold J. Truett (a USF Law graduate) -- hardly comes out smelling like a rose either. When a member of the panel mentions Bailey at oral argument, Vacek responds that this precedent is "a killer case for the government," and also says that "I recall sitting and reading the dissent and hoping that would become the rule of the circuit.”

Uh, dude. Can you try a little harder to, say, win -- rather than lose -- your case at oral argument?! Since the panel can't turn the dissent in Bailey into law, how about -- oh, I don't know -- trying to distinguish this adverse authority? It's hardly an ironclad or on-point precedent. Calling it a "killer" and reflecting upon your desperate hope that in a parallel universe the dissent has one more vote doesn't particularly help. In fact, it pretty clearly hurts.

Third, and finally, now that I've somewhat insulted both counsel -- sorry about that, guys -- let me turn my attention to the panel. Three more men, I might add. On the merits, I've got no problem with the various holdings in the case. Precedent is what precedent is. Fair enough.

But what's the deal with the "majority" and "concurring" opinions and their makeup?! How does this make any sense at all? Let me explain.

Judge Wallace writes the "majority" opinion. He says something very simple: (1) that the prior Ninth Circuit precedent in Bailey controls, and (2) that Bailey was rightly decided. (See, e.g., Majority Opinion at 5749: "Nor do we think Bailey was wrongly decided. Bailey directly controls."). Okay. I'm on that. Then comes Judge Thomas' concurrence. Which also says something very simple: (1) I agree that the prior Ninth Circuit precedent in Bailey controls, but (2) I think that Bailey was wrongly decided. (See, e.g., Concurrence at 5751: "[B]ecause I believe Bailey was incorrectly decided, I write separately to urge re-examination of the Bailey
rule.").

Now, all of this makes sense, right? But here's the kicker: The third member of the panel, Judge Hawkins, joins Judge Thomas' concurrence. What?! This makes no sense. Wallace only has one vote. He can't write what all of the judges on the panel call the "majority" opinion unless he gets another vote for his opinion. But where's it coming from?! Not from Thomas, who (1) nowhere says that he's joining any part of Judge Wallace's opinion, and (2) who expressly disagrees with (and hence does not join) Judge Wallace's central conclusion that Bailey was properly decided. And not from Hawkins either, who both agrees with Thomas and who joins his concurrence. So where's the second vote?!

My only intuition is that Judge Wallace writes the "majority" opinion because Hawkins or Thomas (or both) joins it. But, logically, this can't be. You can't join and agree with a "majority" opinion that says "Bailey is correctly decided" and yet simultaneously write (or join and agree) with a "concurrence" that says "Bailey is wrongly decided". It's either X or non-X. You gotta choose. You can't join both!

So, anyway, I'm at a loss on this one. It seems to me like the "concurrence" by Hawkins and Thomas is actually the majority opinion and that Judge Wallace's "majority" opinion is actually a concurrence. Either that or that one or both of Hawkins and Thomas are agreeing that both X and non-X are true. And, if that's the case, thankfully, they both are conspiring to make sure that the world doesn't know for such which one of them holds such a logically disparate belief.

This is one for the ages. 2-1, where the 1 wins. You gotta love the Ninth Circuit.

U.S. v. Casch (9th Cir. - May 24, 2006)

Judge Noonan: Could you please modify this opinion to change the ninth paragraph? There are two problems with it; one substantive, one technical.

The substantive (and more important) one first. The ninth paragraph purports to address a difficult venue problem. But I don't really find the paragraph very responsive at all. The indictment charged the defendant with conspiracy to distribute methamphetamine and cocaine "in the District of Idaho or elsewhere," and various witnesses testifies to drug purchases by defendant in both Idaho and Washington. But the Venue Clause of Article III ("The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed. . . .") doesn't permit a conviction in Idaho for conduct in another venue (e.g., Washington). And the jury instructions told the jury only that they needed to find that defendant performed one of the offenses specified in the indictment, not that this offense had to occur in Idaho. Which seems like a constitutional venue problem with both the indictment as well as the trial.

Here's Judge Noonan's sole response to this argument (i.e., the entirety of paragraph nine):

"Casch contends that the indictment charging him with offenses committed 'in the District of Idaho or elsewhere' permitted the jury, uninstructed as to venue, to convict him on crimes committed in Washington. Casch characterizes this result as a constructive amendment of the indictment. But there was no 'complex of facts' presented at trial 'distinctly different from those in the indictment.' United States v. Adamson, 291 F.3d 606, 615 (9th Cir. 2006). Nor was there a fatal variance. Id."

Huh? First, at a minimum, don't you need support for those final two sentences, not merely a conclusion? Second, I'm not sure that this is really a response at all (or, for that matter, even a very good explication of defendant's argument). Adamson reversed a conviction. This case doesn't. Don't you need to explain why? Third -- and this is admittedly a minor point, but as long as you're changing things -- Adamson was a 2002 case, not a 2006 case. So go ahead and change the citation: replace "(9th Cir. 2006)" with "(9th Cir. 2002).

There's some more stuff in here that's a little troubling; for example, the remaining harmless error analysis (e.g., the typical "Yeah, we violated the Constitution, but I think you're guilty anyway."). Not that I'm saying that Judge Noonan is wrong. He may well be right here; indeed, I think he probably is. But the opinion needs a little better analysis that it presently contains. Particularly paragraph nine.

We'll see if he changes it a bit. Hopefully more than merely correcting the miscitation.

People v. R.T.P. (Cal. Ct. App. - May 23, 2006)

This is an outstanding -- and simultaneously disturbing -- opinion by Justice Hollenhorst.

The outstanding part is that the opinion itself is excellent. The opinion is easy to read, contains excellent (and common sense) analysis, and expresses (in my mind) precisely the proper amount of outrage -- not too much, not too little. It's a fantastic opinion that's definitely worth a read. Indeed, my only problem with the opinion is that there's a parenthesis at the end of footnote 3 that shouldn't be there. Apart from removing this typo, I can't think of a way to make the opinion any better.

The disturbing part is what transpired in the underlying case. Basically you have a prosecutor -- Kelton Tobler -- who committed a plethora of fairly extreme ethical violations and then "creatively testified" about what he had previously done. So much so that both the trial court and the Court of Appeal found parts of the prosecutor's testimony entirely uncredible; for example, the prosecutor's testimony that when he called the defendant as a witness in the unrelated murder trial, the prosecutor had "no idea" that defense counsel would try to cross-examine defendant about his prior criminal records and conduct. Yeah, right. (As the trial court spontaneously exclaimed when the prosecutor made this assertion, "How could it not occur to you that it wouldn’t come up? I mean, that’s just -- that’s Defense Counsel 1A, for crying out loud.") Kelton: Is this really what they taught you to do at BYU, and then at BYU Law School?! Come on.

It won't do justice to Justice Hollenhorst's opinion to attempt to summarize it, so I'll just strongly encourage you to read it yourself. To give you a tenor of the discussion, here's a quote from page 20: "The prosecutor’s casual, if not cavalier, disregard of defendant’s right to representation during a discussion of potential concessions and then calling defendant as a key witness at a preliminary hearing without the resence of his counsel is highly disturbing, as is the prosecutor’s failure to recognize any impropriety in such discussions."

Finally, I very much concurred in the remedy adopted by Justice Hollenhorst. Defendant was sentenced to 25 to life under the "Three Strikes" law for directing an undercover officer to where he could buy a $40 rock of crack. Based upon what the prosecutor did, the defendant wanted this offense dismissed. Justice Hollenhorst refused to do so, but nonetheless remanded, stating that the proper remedy would be a "creative" one -- and I agree -- that would give the defendant the benefit of the bargain he would have received but for the unethical (and unconstitutional) conduct of the prosecutor. So if, in return for his testimony, the defendant would have received, for example, a plea that would have reduced his sentence to 10 years, that's what should happen. Seems right to me.

Great opinion, Justice Hollenhorst. (Now amend it and remove that typo.) :-)

Ford v. Polaris Industries (Cal. Ct. App. - May 18, 2006)

Watch out when you ride those personal watercraft.

Not surprisingly, the water that it uses as propulsion jets out at really quickly. But I never knew how quickly. Neither did Susan Ford, who was riding one of those things when she fell off backwards. Which I'm sure often happens.

But Ford lands in a particularly devastating way. The jet nozzle that shoots out the water comes close -- very close -- to her anus, if only for a split second. Which, to use the chilling words of Justice Reardon, literally "tore apart her internal organs".

When this happens, the water apparently enters the anus and shoots through your body, ripping everything to shreds. When this happened to Ford, she immediately vomited and passed out, floating (thank goodness for the life preserver) in a pool of her own blood. She was then airlifted to the UC Davis Medical Center and required "massive resuscitation" to survive. She spent ten days in the hospital, and when she learned what had happened to her insides, she "basically fell apart." She has to use a colostomy bag for the rest of her life. She has to urinate through a catheter. "Her lower right torso and leg are numb from nerve damage. " And you can imagine how this has affected her recreational and sex life. Not good. Not good at all.

As you might imagine, Ford sues for her injuries, and recovers almost $400,00 in economic damages and around $3.3 million in noneconomic damages. The theory is design defect against the manufacturer, and the defendant appeals, principally claiming primary assumption of the risk. But Justice Reardon, in this opinion, upholds the jury verdict. I see people riding these things all the time. Be careful.

I didn't know that this stuff could happen. Word to the wise.

Fields v. Palmdale School District (9th Cir. - May 17, 2006)

This one is hilarious. Simply hilarious. In part because it's fairly rare. And in part because of both the tenor and content of what it says.

This is the latest installment of the (somewhat) high-profile case in which a bunch of parents sued when their kids were given various sex tests in a Palmdale, California public elementary school. Back in November 2005, my old boss, Judge Reinhardt, issued this opinion, in which he upheld the 12(b)(6) dismissal of the lawsuit.

At which point there was a fair amount of attention paid to the controversy -- as well as Judge Reinhardt's opinion -- both in legal circles and in the press. To which the plaintiffs wisely respond by promptly getting a new lawyer, backing themselves up with several amici, and filing a petition for rehearing en banc. Note: They don't file for a petition for rehearing. They know they ain't getting anywhere with Judge Reinhardt. So they go directly over his head.

At that point, reading between the lines, one gets the definite sense that the petition is getting a fair amount of attention from the Ninth Circuit. As these things sometimes do. Various exchanges are going back and forth amongst the judges in connection with what's likely an en banc call. Again, these things happen. At which point the judge who issued the opinion typically defends it internally, other judges attack it, and then you take a vote. Simple.

But what's funny here is that Judge Reinhardt does something a little different. Instead of merely addressing the matter internally, he decides -- in light of the petition for rehearing en banc -- to issue a new opinion nostra sponte. Now, mind you, he's not amending and replacing the old opinion. That one stays. Rather, all that he's basically doing in the new opinion is essentially responding to the petition for rehearing en banc, as well as some of the various issues that his colleagues have (presumably) raised internally in connection with the en banc call. True, in connection with this response, he also modifies a couple of sentences in the first opinion, in part (again) to placate his detractors. But the prinipal point -- and it's just funny to read -- of the new opinion is to (1) defend his original opinion, and (2) defeat the call for en banc review. Which usually is far, far from what happens. Sure, sometimes you amend your opinion in response to a petition for rehearing. Sure, often you defend your opinion in response to a petition for rehearing en banc. But rarely, rarely, rarely do you write something like this, which directly responds -- at length -- to the particularlized attacks on your opinion. And that ends with: "The Opinion filed November 2, 2005, is REAFFIRMED."

Anyway, read this one. Its tone is very funny, and sounds exactly like Judge Reinhardt speaks in chambers. When something this unusual comes along, it's definitely worth a read. Rarely do Ninth Circuit judges sound so much like advocates. Too funny.

In Re Freeman (Cal. Supreme Court - May 18, 2006)

Wow.

Freeman is sentenced to death. He makes an unusual claim: that the trial judge had an impermissible ex parte communication with the prosecutor, and in which the judge told the prosecutor that he should be using his peremptory challenges to excuse Jews from the jury, allegedly because the judge did not believe that Jews would be willing to impose the death penalty. After which, Freeman alleges, the prosecutor did just that, and impermissibly struck three jurors from the panel because he perceived them to be Jewish.

What's even more unusual is the evidence that Freeman has to support his assertions. A declaration from the prosecutor himself, in which he admits both that the ex parte communication occurred and that he thereafter struck the three jurors on account of their race. As I said: Wow.

Some will be more surprised -- and others less surprised -- at the final piece of this puzzle. Notwithstanding this confession, the California Supreme Court unanimously refuses to grant relief.

The Court agrees with the special master that the prosecutor, John Quatman -- who is currently retired in Montana -- was simply lying about all of these things. Now, based upon what the Court says, I tend to agree that Quatman was probably (1) ethically challenged as a prosecutor, (2) wanted to win far too much, and (3) had a strong dislike of various people in the Alameda County District Attorney's Office. Okay.

But what the California Supreme Court doesn't at all credibly explain -- at least in my mind -- is why Quatman would lie about this. The Court says that Quatman hated a number of people in his old office. Sure. I agree with that. So I see why he'd perhaps make up lies about them. Maybe he'd say that they expressly directed him to excuse Jewish jurors. That'd be an entirely credible lie, and would "get back" at them for the things (real or imagined) that they did to him.

But why attack Judge Golde?! Who went to Quatman's wedding, for God's sake, and with whom Quatman was indisputably a friend?! Why would Quatman drag Judge Golde's memory -- he had died several years earlier -- through the mud, with incredibly devastating allegations, on behalf of someone who Quatman prosecuted and who Quatman presumably continues to think deserves to die?! I just totally don't get it. At all.

The Court's story about how Quatman would want to "get back" at his old office by telling such a tale simply doesn't make sense. You don't make up a baldfaced lie about your dead friend simply to "get back" at your enemies in a way that, really, utterly fails to reflect poorly on them at all. That just doesn't make sense to me. And that the California Supreme Court would say, yeah, we're totally confident that there was no impropriety here -- confident enough to put a man to death -- is also a conclusion that's difficult for me to stomach.

Oh. One more thing. Regardless of whether the conversation took place, Quatman admits that he struck three jurors because they were Jewish. A result that is entirely consistent with the State's assessment of Quatman's character: ethically challenged, wanted to win too much, etc. What's the Court's response? "Well, there's no real evidence that these jurors were actually Jewish." Other, of course, than their Jewish-sounding names and the fact that Quatman admits that he struck them because he thought they were Jewish!!

This one is interesting. You don't read these every day. A prosecutor who admits to illegal misconduct. And a Court that refuses to believe the confession.

Interesting, to say the least.

U.S. v. Diaz-Argueta (9th Cir. - May 16, 2006)

Be careful what you wish for.

I recently kidded the Ninth Circuit -- good-naturedly, of course -- for taking a holiday in mid-May and not issuing any published opinions for five straight days. At which point the Ninth Circuit promptly responded by issuing a single opinion on May 16, 2006. This case. With which I fairly strongly disagree.

There are several problems with the opinion, but I'll simply discuss one. Precedential (and a little sentencing)backdrop first. If you are a deported alien thereafter found in the United States, you'll receive a much higher sentence if you were previously convicted of various felonies; generally, crimes of violence. It thus makes a big difference whether your prior conviction -- often in state court -- was for a felony and/or a crime of violence. But how do you know whether the defendant has been previously so convicted? Do you look at merely the offense for which he was convicted, or the actual facts?

Well, that's a complicated issue, but the Supreme Court decided a case last year called Shepard v. United States. That's a case in which the defendant had previously pled guilty to burglary, but it was unclear whether that counted as a crime of violence, since burglary can (for example) be either of an occupied residence -- in which case it would count -- or, say, an unoccupied commercial store (in which case it wouldn't). So the mere crime for which he was convicted doesn't tell you. Well, the state in Shepard tried to introduce a police report about the underlying crime in order to prove that, yes, it was actually a conviction for a crime of violence. But the Supreme Court didn't let them do it. Unless defendant pleads to those particular facts, they said, you can't use that evidence to try to retry the case. Unless he pleads to it, essentially, it doesn't count.

Fair enough. Now a brief statutory backdrop. Here in California, we have these things called "wobblers" -- crimes that, at the discretion of the court, can be treated either as felonies or as misdemeanors. Remember, this totally matters if you're a deported alien, since if you were previously convicted of a felony, you get much more time in federal prision, whereas if you were previously convicted of a misdemeanor, you don't. So it's a big deal how your offense was treated. Under California law, if the court elects to treat the offense as a felony (at least in cases, as here, of assault with a deadly weapon), it must sentence the defendant to 2-4 years in state prison. By contrast, under that same law, if the court elects to treat the offense as a misdemeanor, it must (1) sentence the defendant to a county jail, rather than state prison, and (2) the commitment can be only for 6-12 months. Got it? Felonies require more time (years), and are served in prison; misdemeanors require less time, and are served in jail.

So that brings us to the present case. Diaz-Argueta is a deported alien found in the United States. He's been --as you probably have guessed by now -- previously convicted on a wobbler assault charge in California state court. The district court will sentence him to a lot of time in federal prison if the wobbler was a felony, but will sentence him to a lot less if the wobbler was treated as a misdemeanor. So which one was it?

Well, it was totally up to the discretion of the California state court. What'd they do? Well, we know only one thing about what they did. But it's a pretty darn important thing. We know the sentence that he received for the offense. He was sentenced to 109 days. In county jail. Which he served. Remember: Felonies require a sentence of 2-4 years. And are served in state prison. Whereas misdemeanors require sentences that are, as here, only months long, and are served in county jails.

So which one was it? Has the government proved that he was previously convicted of a felony?

Answer: No way. He was obviously convicted of a misdemeanor. That's why he didn't serve 2-4 years, as required by the statute if he had been convicted of a felony. And that's why he served his time in a county jail, which occurs only if it's a misdemeanor, not a felony. Given these facts, there's simply no doubt that the defendant was previously convicted of misdemeanor, rather than a felony.

But the Ninth Circuit holds otherwise.

Judge Noonan says: Well, under a different provision of California law, Section 17(b) of the Penal Code, there are several (in fact, five) specified ways that an offense can be a misdemeanor. The first of them -- and the one that most closely applies here -- is "[a]fter a judgment imposing a punishment other than imprisonment in a state prison." That's applicable here, right, since the defendant was sentenced to jail, rather than prison? No, says Judge Noonan, since the defendant admitted at oral argument that even though he was sentenced, there was (for whatever reason) technically no "judgment" issued. So, Judge Noonan holds, Section 17(b) doesn't apply, and therefore you're guilty of a felony.

Three quick points. First, that's a hypertechnical -- and seemingly meaningless -- distinction. Even if there was no formal "judgment", there was something that sentenced him to county jail, and whatever that was surely counts as a judgment, at least in my mind. If whatever was issued was enough to deprive him of his liberty -- whether minute order, oral command, or pronouncement upon high -- it counts as a judgment, since it was used to put him in the pokey. So Section 17(b) should apply. Second, and independently, even if I'm wrong about (1), who cares? It's still a misdemeanor, and we know that because (a) he was sentenced to jail rather than prison, (b) he was sentenced to months, rather than years, and (c) as a matter of law, neither (a) nor (b) could be true if it was a felony. So we know it's a misdemeanor, because it had to be. Finally, even if neither (1) nor (2) is true, Judge Noonan's reliance upon Section 17(b) is meritless because it's not exclusive. Yes, Section 17(b) says that an offense "is a misdemeanor for all purposes under the following circumstances," and then lists five of them. But nowhere does Section 17(b) does this statute say that it is only a misdemeanor if one of those five particular circumstances applies. In other words, Section 17(b) is sufficient, but is not necessary, in order to classify an offense a misdemeanor. And let me give you an example. An offense is a misdemeanor if it has to be a misdemeanor; for example, when -- as here -- the offense was a wobbler and had to be treated as a misdemeanor in order to result in the sentence that was imposed.

There are more problems with the opinion, but I've already gone on long enough. Suffice it to say that I am in strong disagreement with this resolution. And I say so notwithstanding my sincere respect for the members of the panel (Fletcher, Noonan, and Tashima) who rendered it. It's a bad, and wrong, opinion. He simply was not previously convicted of a felony. And to hold otherwise simply punishes someone for something that he has not done. He's innocent of being convicted of a prior felony, and yet they're punishing him for it anyway. Which is fundamentally not right.

POSTSCRIPT - I received a couple of incredibly bright e-mails from readers about this one. All of which both helped me to clarify -- and refine -- my thoughts on the matter as well as were deeply informative. In the end, I'm convinced that I was wrong when I concluded that the offense was necessarily treated as a misdemeanor; instead, that it's possible -- although you have to go far beyond the Ninth Circuit's opinion to figure this out -- that the sentence was a felony but that the prison sentence was suspended and the defendant sentenced to jail as a condition of probation. That said, it's also possible (as I said) that the offense was a misdemeanor, and I am more convinced than ever that without looking at the minute order, you cannot tell one way or the other whether this case was a felony or a misdemeanor, notwithstanding Section 17(b). Which in turn means, as was my initial reaction, that the prosecution didn't prove (by a preponderance of the evidence or otherwise) that the defendant was convicted of a felony, since the only evidence adduced at trial is equally consistent with treatment as either a felony or misdemeanor, so he shouldn't have been sentenced that way.

One more post-thought, on another track. My revisiting the issue has also convinced me that what happens here is that the panel -- who's able to see the minute order -- knows that he's been convicted of a felony, and for that reason wants to reach the "right" result, but feels like it can't do so given the Supreme Court's opinion in Shepard. Now, as I said, I don't actually think that Shepard is dispositive, but the panel seems convinced otherwise. So what they do is -- consciously or not -- come up with an analysis of Section 17(b) that's off the mark, but that allows them to reach the "just" result. Obviously, I don't think that's the way one should decide cases. And the panel would likely agree. But I think that these things happen sometimes, and that this case may be the perfect example. No one with whom I've talked thinks that the panel's analysis here is particularly good or helpful, even if they agree with the outcome. I think the panel saw what seemed like an easy way out (Section 17(b)) and ran with it, with their eyes partially blinded by the central piece of evidence -- the minute order -- that they felt they weren't entitled to rely upon, and yet couldn't in fact entirely ignore. Judges, and even smart judges, are human. I think you see evident proof of that here.

Kim v. Yi (Cal. Ct. App. - May 15, 2006)

It's not too late, Justice Armstrong. This is a good opinion. Nice, tight, short (8 double-spaced pages), well-argued, and seemingly correct. Something of which to be reasonably proud.

All except the final paragraph. Which it a bit embarrassing, in addition to being somewhat off the mark. Take my advice: Delete it. It'll make the opinion better. Much.

The issue is a fairly straightforward one. When X and Y settle a jointly-filed personal injury case for a lump-sum, unallocated settlement of $Z, who decides upon the allocation of $Z between X and Y: a judge or a jury? Justice Armstrong answers: a judge. Seems reasonable. I'm fine with that. Yes, I could perhaps quibble, but Justice Armstrong does a good job of convincing me that he's right.

But then there's the stinking final paragraph. Which -- after otherwise cogent analysis -- supports the result with the following "analysis": "This cannot be construed as a proceeding in which anyone is being prosecuted for anything. Indeed, at oral argument on the Yi parties' motion in limine, all counsel and the court spent some time puzzling over the proper arrangement of parties in the courtroom if there was a jury, trying to determine who would sit at plaintiffs' table, with the "plaintiffs" sign, given that in any real sense, all parties were plaintiffs, and none were defendants."

Uh, dude. Like a little confusion over where everyone should sit could somehow be relevant to -- much less dispositive of -- your constitutional and statutory right to a jury trial. We have, and solve, similar problems all the time. Who's the "plaintiff" in a declaratory relief action? Who sits where when all that's left at trial are competing cross- and counterclaims? And -- most analogously of all -- what happens when it's an interpleader action, where (as here) all of the parties are on the same side (e.g., are all defendants)?

We deal. Where you sit is utterly irrelevant to whether you have a right to a jury. So is what you're called. So not only is Justice Armstrong's final paragraph both tangential and ancillary to his otherwise cogent analysis, but it's also utterly irrelevant. Which is a shame, and a bad way to end an otherwise good opinion.

Take it out. You'll be glad you did. I promise.

Nothing v. Nothing (9th Cir. - May 12-15, 2006)

I didn't know that the middle of May was a holiday of some sort. But I guess I was wrong. Since the last time the Ninth Circuit issued a published opinion was five days ago.

Uh, aren't we, like, paying you guys? Come on. Get it together. Crank some stuff out.

P.S. - And I don't want to hear some lame excuse like nothing interesting has been worth publishing lately. You'll notice that doesn't ever stop me. So it certainly shouldn't stop you.

So I demand that you drop and give me me 20 (published opinions in the next two weeks). Otherwise I'll cry.

People v. King (Cal. Supreme Court - May 15, 2006)

We all know the Marbury v. Madison move from our basic Constitutional Law class: Let Party X win but, in deciding in their favor, articulate a holding that Party X will totally hate. The unanimous opinion by Justice Kennard in this case is a classic example of a less well-known, but equally tactical (and effective), move: Refuse to adopt Party X's position, and ostensibly make arguments that demonstrate the injustice of such a result, but adopt an alternative doctrine that appears opposite to the one advanced by Party X and yet that actually results in precisely the same result.

Here are the facts of the case. Defendant (allegedly) possesses a fairly short rifle. It's over two feet long (24+ inches), which may facially appear somewhat bulky, but California makes it a crime to possess any rifle that's less than 26 inches long. (Note: We're talking about overall length here, not the length of the barrel.) So the defendant gets prosecuted for having a rifle that's less than two inches shorter than allowed. Defendant claims not only that the rifle wasn't his (it was in a common area, etc.), but also that even if he possessed it, he didn't know that this weapon was overly short. He's not claiming ignorance of the law -- though assuredly he would have mentioned that fact as well -- but rather that even if he did know the law, he didn't know that the rifle was in fact less than 26 inches. So, he argues, he didn't have the mens rea to establish the offense.

But the prosecution responds that the statute is basically a strict liability offense; that once the prosecution has established possession, it doesn't matter whether or not you knew that the rifle was too short. It's like a prosecution for, say, selling adulterated food: a public welfare offense that doesn't require any proof that you knew that what you were doing was illegal; e.g., the underlying (adulterated or illegal) nature of the product.

The Court of Appeal disagrees, and reverses the conviction. The California Supreme Court takes up the case and starts out with ten pages of fairly cogent analysis that rejects the prosecution's position that you're guilty just because you possess the weapon. This is not a strict liability offense (vis-a-vis mens rea), the Court holds, and a contrary result would be both inconsistent with the statute as well as unfair. You can't convict someone just because they possess an illegal weapon. That wouldn't be right. Fair enough.

So then, after slamming the prosecution for ten pages, the Court then quickly -- and with virtually no analysis -- articulates its alternative doctrine. Yes, the prosecution has to show mens rea (take that!), but all that they have to show is that the defendant knew that the weapon was short. Not that it was illegally short; e.g., not that the weapon was under 26 inches. Just that the weapon, to use the Court's own language, "was unusually short." To make clear, "the defendant need not know the rifle's actual dimensions." He gets convicted merely if he's aware that the weapon seems fairly short. Again, remember, "the prosecution need not prove that the defendant knew there was a law against possessing the item, nor that the defendant intended to break or violate the law." Just that the rifle seemed short.

So, in the end, you have basically the precise result that the State argued for, albeit adopted in a manner that makes it appear that its position has been rejected. Yeah, the prosecution has to establish mens rea. But they can do so in a way that's utterly, utterly easy: just knowing that the rifle appears short is good enough. And if you doubted the practical effect of this doctrine, look no further than the single paragraph of the opinion in which the Court applied this new test to the facts of the case. Sure, the court below erroneously didn't require the prosecution to prove any mens rea whatsoever. But this was harmless error, because just by looking at a rifle that's around24 inches long anyone can tell that it's a bit short. So conviction affirmed.

In other words, no, it's not enough that the defendant merely knowingly possess a 26 inch rifle. You have to show that he knew it was a 26 inch rifle. But any rifle that's anywhere near 26 inches is so obviously short that this fact alone establishes the necessary statutory knowledge that the weapon is illegal.

Nice trick. One for the books.

People v. Boyer (Cal. Supreme Ct. - May 11, 2006)

I don't see how anyone -- on either side of the issue -- can be legitimately happy with this state of affairs.

Richard Boyer allegedly commits a murder in 1982. He's convicted and sentenced to death in 1984. But the confession admitted at his first trial was obtained in violation of Miranda, so in 1989, the California Supreme Court reverses his conviction and remands for a new trial. At which point he's again convicted and sentenced to death. At which point there's another automatic appeal to the California Supreme Court. Which, in this opinion, unanimously affirms his conviction and death sentence.

So now it's 2006. 24 years after the murder. So even after bypassing the California Court of Appeal (twice), Boyer's been on death row for 22 years. And he still hasn't even started his California habeas petitions, much less has he begin his federal habeas petition(s). Don't forget the United States Supreme Court as well, which can step in at any point along the line.

As a result, 24 years after the murder, and after 22 years in prison, Boyer's still got a long, long way to go until there's even the slightest risk that he's actually going to be executed. So we're looking at 30 years, minimum, until he's potentially killed by the state for what he's done. With the resulting (1) delay, (2) expense, and (3) change in Boyer, who may well be a substantially different person at the time of his execution than he was 30 years ago when he committed the crime.

As astute readers may well know, there's an ongoing debate between (in particular) Justices Breyer and Thomas about whether such lengthy delays might make imposition of the death penalty in such cases unconstitutionally cruel and unusual. Justice Breyer likes to dissent from the denial of certiorari in such cases, Justice Thomas likes to concur in the denial to insult on Justice Breyer, and Justice Stevens likes to make a "statement" respecting these denials that notes that the denial isn't an expression on the merits. That's the dance that's been performed for quite a while now. And I see no reason why it won't happen here also -- except, of course, that there's a darn good chance that Boyer, Breyer, Stevens, and/or Thomas will be dead before this particular dance actually takes place in Boyer's case.

Ah, the death penalty. The very best part of American jurisprudence.

U.S. v. Rutledge (9th Cir. - May 11, 2006)

Whoops!

The district court enters a preliminary injunction seizing the assets of a company that's controlled by Rutledge, who has just been indicted for (among other things) mail and wire fraud. Rutledge appeals, asserting that the seizure was unjustified. The case gets briefed, and oral argument is on June 15, 2005.

So far, so good. Lots of time passes, and eventually, on February 14, 2006, the panel issues its opinion, which reverses the seizure. Okay, fine. Here's the problem: Coincidentally, one week earlier, on February 6, 2006, Rutledge had pled guilty in the district court, and part of his plea agreement related to the seizure. But no one had (yet) told the panel, which was why they issued their opinion one week previously. Oops! So now the government -- which lost the appeal -- moves to dismiss the opinion as moot. Rutledge opposes the motion, in part because he'd like the appeal (which he won) to remain good law, and perhaps also a little bit out of spite, since he's probably pretty darn irate he didn't wait another week to finalize the plea, since he probably could have gotten a better deal had he done so.

"Damn it!" says the panel. "All that work for naught." It now vacates the opinion as moot in light of the guilty plea that had been entered one week earlier. And all that work to finish up the opinion goes down the toilet. Oh well. That's the way the cookie crumbles sometimes.

People v. Shazier (Cal. Ct. App. - May 8, 2006)

Crickey. There's some strong language about the prosecutor in Justice Rushing's opinion in this case, which reverses on grounds of prosecutorial misconduct. Fortunately (for the prosecutor), the offending party isn't named. But yikes. I wouldn't want to be him/her.

I'm not (as you might imagine) a huge fan of prosecutorial misconduct, but I honestly didn't think that what the prosecutor did was all that bad here. Admittedly, after reading Justice Rushing's opinion, I agree that it was misconduct. But wow, there's some harsh language in there.

I'll summarize the case -- which isn't all that long (nine double-spaced pages) -- fairly quickly. It's a (an?) SVP (Sexually Violent Predator) case, and -- under controlling (and entirely proper) precedent -- the jury's not supposed to be told what happens if they find that the defendant is a SVP. We basically don't want the jury to know that if they say he's a SVP, he'll simply go to a hospital, on the theory that this might convince the jury to say to itself: "Oh, what's the harm; maybe he's an SVP, maybe he isn't, but he seems pretty crazy, so let's just send him to the hospital regardless." We just want the jury to find the facts, without thinking about what the ultimate punishment/consequence of their decision might or might not be. Seems reasonable to me.

So the defendant files a couple of in limine motions, which the trial court grants, telling the prosecutor not to tell the jury that the defendant goes into a hospital if the jury concludes that he's a SVP. But the prosecutor -- for whatever reason -- makes multiple not-so-thinly-veiled references to the fact that if the jury finds that the defendant is a SVP, he'll go to the hospital. Maybe the prosecutor is doing this deliberately, and maybe not. Here's, inter alia, what the prosecutor says:

“[Y]ou’re not supposed to let penalty or punishment factor into your decision. You’re not supposed to let the consequences of your decision factor into your decision. And that’s a difficult thing to do. But you should all do it, and let me tell you one reason why. And that is that if you do speculate about the consequences of your decision, you’re probably going to guess wrong. And I’m not trying to insult anybody here, but let me just tell you it’s best if you don’t speculate about what the consequences will be, and then you can ask afterwards. We can talk about it afterwards. It’s no secret. . . . The defense has had some testimony about how difficult a place Atascadero State Hospital is. It’s a stressful environment, that sort of thing. And that testimony is intended at least in part to make you think sympathetically towards the [defendant]. . . . [Y]ou should not make a decision based on what you think it’s going to be like for the [defendant] in Atascadero State Hospital. That’s not for you.”

So at least ostensibly, the prosecutor was saying "Don't think about where the defendant will go when deciding whether he's a SVP." But, at least allegedly, what the prosecutor is really saying is: "Don't think about where the defendant will go. You might think he's going to prison, but you'd be wrong. He'd just be going to the State Hospital for treatment."

There's more good stuff (and more details) in the actual opinion. But, to make a not-very-long story not-very-short (my forte), Justice Rushing doesn't at all think that the prosecutor's statements are of the "innocent" sort. Here's a flavor of what Justice Rushing says about the prosecutor: "We find the prosecutor’s comments here to be deceptive and reprehensible in addition to being in direct contravention of the trial court’s orders." Ouch. Further: "We are especially troubled by the fact that the prosecutor made the comments after not one but two in limine orders that he not make reference to the consequences of a true finding. In spite of the court orders, however, the prosecutor specifically told the jury in his final, rebuttal argument in no uncertain terms 'you should not make a decision based on what you think it’s going to be like for [defendant] in Atascadero State Hospital.' (Italics added.) We agree with defendant’s trial counsel that such statement made it 'crystal clear to this jury. Don’t worry about [defendant], he’s just going to the hospital. He’ll get his treatment.'”

Lesson for the day: Don't blatantly violate the court's orders in a deliberate attempt to prejudice the defendant. You might hack off the Court of Appeal. And they'll be mean to you.

That said, Supplemental Lesson: At least they won't say who you are. But people in your office will know, and that probably won't look good on your permanent record, Chip.

Mukthar v. Latin American Security Service (Cal. Ct. App. - May 8, 2006)

This is an excellent opinion by Justice Flier. It's short (ten double-spaced pages) and yet, even within such confined limits, is sufficiently comprehensive to seem clearly and unassailably correct. Which is something that I rarely feel.

Justice Flier reverses a grant of summary judgment entered against a 7-11 cashier who was punched in the face by a patron and who subsequently sued the security service that was contractually obligated to have a security guard present but whose guard was inexplicably absent from his post. Justice Flier's well-written opinion is replete with statements that just totally ring true to me. Here's but one example:

"We disagree with the trial court that it is conjectural whether a 'security guard could have prevented the attack on the Plaintiff.' The issue is whether it is a question of fact whether the woman would have struck Mukthar in the face, if an armed, uniformed security guard, equipped with a baton and handcuffs, would have stood next to Mukthar. (There is no dispute about the fact that the guard’s station was at the door, where Mukthar was standing when he was struck.) We think the inferences are not evenly balanced on this issue. It is more likely than not that the woman would not have hit Mukthar in the face in the close proximity of an armed guard who had the ready means at hand to respond physically to violence. Be that as it may, it is not for us to decide this question of fact, which is consigned to the trier of fact."

Doesn't this paragraph seem both relevant and completely right?! It does to me, anyway. Justice Flier also does a very good job of distinguishing facially adverse precedent quickly and persuasively.

A great example of a short, but comprehensive and well-argued, opinion. Great job.

People v. Chatman (Cal. Supreme Ct. - May 8, 2006)

Virtually every death penalty case is depressing, of course. But this one hit me harder than most.

Read the first ten pages, which describe the facts. It's short, and gives one a flavor for the wasted lives here. I'm sure that it also struck me that the sole witness to the crime was the three-year old son of the defendant, who saw his father stab the victim (who was working in a Photo Drive-Up store in San Jose) 51 times and who subsequently testified to what he saw. How utterly, utterly depressing.

United States v. TRW Rifle (9th Cir. - May 5, 2006)

Ah, semantics. You've got to love it. Or at least you do if you're a lawyer. Because sometimes, that's how we make our living. By arguing about, distorting, and sometimes manufacturing linguistic meaning.

But, thankfully, judges are often pretty bright. As Judge McKeown is here. She writes an excellent opinion that delves deeply -- way, way deeply -- into precisely what it means for a present-day rifle to be able to be "readily restored" to its former capacity as a machine gun. Because what's riding on this issue is whether this particular rifle /machine gun gets retained by the United States or returned to its owner. And, thereafter, no doubt pried from the owner's cold, dead hands.

But, in the end, that shall never be. Because Judge McKeown (rightly) holds that the rifle in question can indeed be readily restored to its machine gun beginnings, and hence that the United States gets to keep it.

Three quick, utterly tangential, questions:

(1) Why does it seem that every Ninth Circuit case that involves the seizure of a weapon is litigated by an attorney in -- of all places -- Fairfax, Virginia?! Take a gander at this case, way back in July 2005, which involved an entirely different weapon and a different owner of the weapon, and yet the attorney for the claimant was the same: Richard Gardiner, Esq., of Virginia. I can only guess that Mr. Gardiner is "Mr. Firearm" -- the go-to guy whenever the feds grab your weapon and you want it back. (That said, I'm not so sure that Mr. Gardiner is enjoying his trips out West, since he's lost every case in the Ninth Circuit that I've seen from him. I'm sure he does a lot better in his hometown Fourth Circuit!)

(2) Why is it worth litigating this appeal, which undoubtedly cost far more than the gun in question could ever be worth? That was the same question that I posed back in July 2005, and a reader gave a darn good (and plausible) answer, so I'll link to it here. Guns. They're worth the expenditure of whatever social resources we can possibly spend on making sure that a wide, wide variety are readily available.

(3) Anyone else wonder what exactly is going happen to the gun in question? Notice how the gun came to be in the first place: it was an old M-14 machinegun that the military decommissioned and, when it did so, it cut the receiver into two pieces with a blowtorch. That way it wasn't a machinegun anymore. But then, after the receiver was cut into two, the U.S. sold it to MK Specialties, which promptly welded these two pieces back together. So now the U.S. has reacquired the weapon. What's it going to do now? Knowing our government, it'll cut the receiver into two pieces, sell it again to someone like MK Specialties as scrap, and then we'll be back in the same glorious place all over again!

Nah, I'm sure that would never happen.

Cheryl P. v. Superior Court (Cal. Ct. App. - May 5, 2006)

Whenever I think that a particular case is difficult, I need only remind myself that there are other cases that are far, far harder. Like this one.

Read the first ten pages, which recite the facts, and tell me what exactly the right call is here, and how one can possibly be supremely confident about that fact. Basically you have a mother and father who are clearly and unambiguously devoted to their child, but they're homeless, and also undervalue the child's need for dental care (he's two years old) and vaccinations. So when the State finds the parents sleeping on a sidewalk, with the child between them, and can't wake up the parents, the state takes the child away from them. At which point the parents (especially the father) go ballistic, and are incredibly angry at the State, and can't seem to get over their anger (i.e., in Justice McConnell's apt description, they adopt a garrison mentality) over having their child taken from them. Which in turn only makes the State less willing to give the child back, because (after all) the parents aren't cooperating with the State. That said, the parents are in fact making progress, and have both rented an apartment at this point and also successfully participated in various reunification programs. But the State is, at the same time, totally concerned that the parents are a flight risk, because they can't seem to get over their anger at the State, and also continue not to understand (or at least "respect") why the State has taken their child away from them. But, after all, the State took their kid away. How do you expect the parents to feel? Happy? Yes, of course, it would be better if they understood, and moved beyond their anger, and better still if they appreciated -- or at least pretended to appreciate -- what the State did. But that's a lot to expect, isn't it? Wouldn't we all have a natural tendency to adopt precisely what the parents here adopted: an "us versus them" mentality? Is that really reason enough to permanently take their kids away?

Oh, one more thing. Meanwhile, the parents give birth to another child. Which the State promptly takes away as well, on the ground that since they took the first kid away, and since the parents aren't making the requisite progress on the first kid, the same is probably going to be true for the second kid as well. Which, I imagine, only makes the parents even angrier, right? From their perspective, their kids have been entirely unjustly taken away from them, merely because they're homeless. No wonder they're flight risks, since the State (I think rightly) perceives that if you give the kids back, even temporarily, the parents will flee with them.

So what do you do? Giving the kids back seems to risk at least some sort of danger to them, especially since the parents are so consumed by anger that they can't seem to recognize that they've done anything wrong. At the same time, the parents are acting precisely like we should expect many parents to act when their children are (in their mind) unjustly taken away. Yes, it would be great if they could feel -- or at least pretend to feel -- that the State was acting properly: that way, we could be more certain (or at least pretend to be more certain) that the parents will change. But what if they don't? Is that sufficient reason to take their children away from them forever? And, similarly, to deprive the children of a life with their biological parents? Even when, as here, yes, the child suffered harm, but it's far, far from a situation of clear-cut abuse?

This is a real toughie. At least for me. Maybe others have a different perspective. And, quite frankly, the ultimate disposition of the present appeal -- which involves only the second child, and which is decided upon somewhat hypertechnical grounds -- doesn't particularly help with regards to the proper resolution of the underlying question. What do you do in a situation like this? What's the best call?

I'm just entirely unsure. These are the hardest of cases. I just don't know where I come out.

Merrill Lynch v. ENC Corp. (9th Cir. - May 4, 2006)

The only opinion issued by the Ninth Circuit today is a civil procedure case. And an interesting one, about the intersection of interpleader, necessary and indispensable parties, sovereign immunity, and the way in which the seized assets of Ferdinand Marcos are to be distributed. So you think it'd be totally exciting.

Sadly, however, Judge Noonan's opinion is written really, really badly. I'm not talking about the substance or the holding, which involve extremely fact-dependent issues, and as to which I hold no particularly strong opinions. I'm referring instead to the structure, organization, and language of the opinion. It's just really not very good.

Sorry, Judge Noonan. This is far from your best work.

Jonah R. v. Carmona (9th Cir. - May 2, 2006)

Willie. Who loves you, baby? I do. As should we all.

There's no one better on the Ninth Circuit than Judge Fletcher at writing an opinion that avoids an absurd an unjust result that might seemingly be compelled by precedent. No one. He's simply a master at it, and I (and others) am and should be totally jealous of him in this regard.

Here's a perfect example of what I'm talking about. Jonah's a kid who spends 35 months in detention before he's sentenced to 30 months. For everyone else in the universe, that means you're unambiguously free: We call it "time served". You were sentenced to 30 months but you've already served 35. A no-brainer. Except that, here, the Bureau of Prisons says: "Nope. Doesn't apply to juveniles. Your 35 months wasn't 'custody' but was essentially only 'confinement' instead. You get to serve the full 30 as well. Enjoy."

A crazy result, right? Except that, when you look at the underlying statutes, this interpretation doesn't seem so crazy. Indeed, it was a district court's interpretation of these statutes that prompted the BoP to adopt this policy and to apply it to Jonah. And that also convinced the district court to rely on this prior holding and to uphold the BoP's policy.

But along comes my man, Willie Fletcher. And strikes it down. In a cogent, well-written, and (to me) entirely persuasive opinion. Jonah's 35 months was 35 months. When you're sentenced to 30 and have already done 35, you're free, regardless of your age. It's a just result that is supported by an excellent opinion. Written by a master of the form.

Well done, William.

Mattel, Inc. v. Bryant (9th Cir. - May 2, 2006)

Civil procedure. Oh, how I've missed you during my sojourn on the East Coast. And how welcome it is to confront you once again upon my return. Landing gear touched down at 2:10 p.m. and blogging about civil procedure at 4:00. The undiluted joy of it all.

The good thing about Judge Noonan's opinion in this case is that it's short, short, short. Six paragraphs. That's it.

The bad thing about it is that it's wrong, wrong, wrong. At least IMHO. Amazing that you can make so many mistakes so quickly. (And, in precisely that regard, did I mention that I love civil procedure?)

The issue here involves Rule 19 (in particular, necessary and indispensable parties) as well as supplemental jurisdiction (28 U.S.C. sect. 1367). Judge Noonan quickly messes up both of them.

First, Judge Noonan essentially holds that a party isn't indispensable under Rule 19 when, absent collusion with the plaintiff, it simply declares that it is not indispensable. ("When, as in this case, collusion with the plaintiff is manifestly absent, a defendant intervenor’s declaration that it is not indispensable satisfies any concern that a decision in its absence would have prejudiced it."). Uh, with all due respect, no. Parties can (and do) make such claims tactically; for example, here, when the intervenor wants to be in federal court, so wants the Rule 19 analysis to come out in a particular way. The truth is the truth. You judge whether or not a party is indispensable not by what the party says, but rather by what the facts actually establish. Otherwise there's too great a risk of manipulation. Wrong rule. Messes up Rule 19. Sorry.

Second, Judge Noonan also holds that supplemental jurisdiction exists over claims against a nondiverse intervenor even though the statute expressly states that supplemental jurisdiction doesn't exist over claims made by a plaintiff (as here) against a party (as here) added pursuant to Rule 24. Judge Noonan holds that this is the case because Section 1367(b) 0nly removes supplemental jurisdiction when such claims would be "inconsistent with Section 1332" (i.e., the diversity statute), and because some common law precedent that predated Section 1367 allowed claims against a nondiverse (nonindispensable) Rule 24 intervenor, such claims are not "inconsistent with Section 1332" and hence are allowed under Rule 1367. Sorry, but with all due respect, wrong again. The last clause of Section 1367(b) does not incorporate the common law; rather, it refers to things like the complete diversity requirement, which is clearly violated by (as here) the assertion of a claim by a California P against a California D. Section 1367 was not intended to codify the common law, and instead displaces it in a number of places. The last clause of Section 1367 simply doesn't do what Judge Noonan believes it does.

Civil procedure. It ain't easy. But it's important. And, in this one, Judge Noonan messes it up a bit.