Sometimes fraud only gets you into trouble, my friends.
Ochoa-Amaya illegally enters the United States (with his parents) in 1985, when he's 7 years old. Seven years later, in 1992, Ochoa-Amaya's father -- who's a lawful permanent resident -- files a visa petition on behalf of his wife and children, including Ochoa-Amaya. But five years later, in 1997, Ochoa-Amaya effectively terminates this petition (as applied to him, anyway) once he married a U.S. citizen. Since now he's entitled to adjustment of status on his own account, based upon his marriage to a U.S. citizen.
Sounds fine, right? Except for one thing. Do you find it just a tiny bit fishy that the bride chosen by Ochoa-Amaya -- who was 19 years old at the time -- was a spunky 74 year-old U.S. citizen? Perhaps true love knows no boundaries? Or maybe -- just maybe -- something else is at work here.
As it happens, a couple of months after he "marries" his 74 year-old bride, Ochoa-Amaya gets caught crossing the border illegally (after returning from Mexico from, sadly enough, his brother's funeral). This would be no problem, right, since he's married to a U.S. citizen. Except for one thing. One of the dangers of marrying a 74 year-old in order to obtain citizenship is the very real possibility that your spouse might die before the INS adjusts your status. Which, indeed, happens here. Which in turn means that Ochoa-Amaya is up (a smelly) creek without the proverbial paddle. He would have had his status adjusted due to his father's application if he hadn't gotten married; indeed, the rest of his siblings became lawful permanent residents in that way. But since he went the marriage route, his status as a child doesn't work anymore, and once his spouse dies, that route to lawful status doesn't work either. Which means that Ochoa-Amaya gets deported, and Judge Trott affirms.
There's another way to look at what transpired here, of course. Perhaps true love -- a love so strong that it both survived and flourished notwithstanding the flouting of social convention and intense public scorn -- between the 19-year old Ochoa-Amaya and his 74 year-old soulmate led, in the end, to tragedy, including the banishment of Ochoa-Amaya from country he's known and loved since he was 7 years old.
That's a possibility, obviously. And, if so, a tragic lesson. But, honestly, I think that the more likely lesson to be learned is that fraud doesn't pay. And that's one that makes me far less sad.
Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.
Friday, December 29, 2006
Comer v. Schriro (9th Cir. - Dec. 29, 2006)
Three months ago, when this opinion was published, I said that it wouldn't be around that long, and would be taken en banc shortly.
And, today, so it was.
It'll take a miracle draw for Judge Ferguson's opinion not to be reversed. And, even then, it would only last for as long as it took the Supreme Court to grant certiorari.
And, today, so it was.
It'll take a miracle draw for Judge Ferguson's opinion not to be reversed. And, even then, it would only last for as long as it took the Supreme Court to grant certiorari.
Thursday, December 28, 2006
U.S. v. Sandoval-Mendoza (9th Cir. - Dec. 27, 2006)
These are some of the best lines that Judge Kleinfeld has written in a long time. And that's saying a lot, because he writes pretty darn well.
He's talking about an order by the district court (Judge Jensen, up in Oakland) that barred defendant's counsel from talking to his client during an overnight recess. Which was designed to avoid any influence on the defendant's testimony, but which nonetheless directly collided with the defendant's Sixth Amendment right to counsel. Here's what Judge Kleinfeld said regarding whether this order was constitutional:
"This is a difficult question. Cross examination best exposes the truth when a witness must answer questions unaided. Coaching may vitiate its value. But it is hard to see how a defendant and his lawyer can communicate without implicit coaching. The Seventh Circuit suggests that 'the judge may instruct the lawyer not to coach his client' but may not prohibit discussion of the client’s testimony. But that is not a workable rule, because coaching is implicit in any discussion of a defendant’s testimony, even if the defendant’s lawyer tries his best to avoid coaching."
That seems exactly right to me. One might well be able to find fault with the rule that Judge Kleinfeld accordingly adopts -- which permits brief no-discussion orders (e.g., during recesses) but not overnight bans -- which, like any bright-line rule, is both over- and underinclusive. But his insight regarding the inevitable nature of coaching as inherent in virtually every meaningful attorney-client communication (particularly during trial) seems spot on.
I wrote an entire law review article in the Kentucky Law Journal ("Coaching Witnesses") with my colleague Fred Zacharias on this precise topic, and I don't think that anything that I wrote anywhere in the article is as good as the paragraph by Judge Kleinfeld. Great job, Andrew.
(Two other brief points. First, I'm only speaking for myself: Fred wrote much better stuff in the article than I did. Second, Judge Kleinfeld's opinion is great, but it did take him over a year and a half after the oral argument to write this 21-page missive. That's a lot of time. Even for a great, and somewhat difficult, opinion.)
He's talking about an order by the district court (Judge Jensen, up in Oakland) that barred defendant's counsel from talking to his client during an overnight recess. Which was designed to avoid any influence on the defendant's testimony, but which nonetheless directly collided with the defendant's Sixth Amendment right to counsel. Here's what Judge Kleinfeld said regarding whether this order was constitutional:
"This is a difficult question. Cross examination best exposes the truth when a witness must answer questions unaided. Coaching may vitiate its value. But it is hard to see how a defendant and his lawyer can communicate without implicit coaching. The Seventh Circuit suggests that 'the judge may instruct the lawyer not to coach his client' but may not prohibit discussion of the client’s testimony. But that is not a workable rule, because coaching is implicit in any discussion of a defendant’s testimony, even if the defendant’s lawyer tries his best to avoid coaching."
That seems exactly right to me. One might well be able to find fault with the rule that Judge Kleinfeld accordingly adopts -- which permits brief no-discussion orders (e.g., during recesses) but not overnight bans -- which, like any bright-line rule, is both over- and underinclusive. But his insight regarding the inevitable nature of coaching as inherent in virtually every meaningful attorney-client communication (particularly during trial) seems spot on.
I wrote an entire law review article in the Kentucky Law Journal ("Coaching Witnesses") with my colleague Fred Zacharias on this precise topic, and I don't think that anything that I wrote anywhere in the article is as good as the paragraph by Judge Kleinfeld. Great job, Andrew.
(Two other brief points. First, I'm only speaking for myself: Fred wrote much better stuff in the article than I did. Second, Judge Kleinfeld's opinion is great, but it did take him over a year and a half after the oral argument to write this 21-page missive. That's a lot of time. Even for a great, and somewhat difficult, opinion.)
U.S. v. Lee (9th Cir. - Dec. 27, 2006)
Sometimes one can figure out how an opinion's going to come out merely by reading the first sentence or paragraph -- by the way the author has deliberately framed the question.
So when one reads the first sentence of this opinion by Judge Trott, one might have a keen sense of how the rest of the opinion is going to go:
"This appeal raises the issue of whether a person arrested in American Samoa for allegedly committing federal crimes in American Samoa may be tried and convicted in the United States District Court for the District of Hawaii ('District Court')."
So one might well think that, upon reading this sentence, the conviction is going to be reversed. But you'd be wrong. Remember: This is Judge Trott. And it's a criminal case. It's going to take a lot more than this to reverse. Sure, the crime was entirely committed in American Samoa, and had nothing whatsoever to do with Hawaii. But that's nonetheless where the federal government shipped Lee for trial -- 2300 miles away. Which makes it the proper venue.
P.S. - Lee is not a nice guy. At all. Feel free to read the opinion to learn about his sweatshop, and enslavement of foreign workers, and more.
So when one reads the first sentence of this opinion by Judge Trott, one might have a keen sense of how the rest of the opinion is going to go:
"This appeal raises the issue of whether a person arrested in American Samoa for allegedly committing federal crimes in American Samoa may be tried and convicted in the United States District Court for the District of Hawaii ('District Court')."
So one might well think that, upon reading this sentence, the conviction is going to be reversed. But you'd be wrong. Remember: This is Judge Trott. And it's a criminal case. It's going to take a lot more than this to reverse. Sure, the crime was entirely committed in American Samoa, and had nothing whatsoever to do with Hawaii. But that's nonetheless where the federal government shipped Lee for trial -- 2300 miles away. Which makes it the proper venue.
P.S. - Lee is not a nice guy. At all. Feel free to read the opinion to learn about his sweatshop, and enslavement of foreign workers, and more.
Wednesday, December 27, 2006
U.S. v. Baldrich (9th Cir. - Dec. 27, 2006)
If memory (and very brief research) serves me well, this is the first published opinion by Judge Ikuta. It's also a pretty good one, and reads like she's been writing them for years.
Welcome to the Ninth Circuit, Sandra! We're glad to have you.
Welcome to the Ninth Circuit, Sandra! We're glad to have you.
People v. Zachery (Cal. Ct. App. - Dec. 27, 2006)
You've got to read this one. To encourage you to do so, I'll not only note that it's less than 20 double-spaced pages, but also entice you with the contents of its first paragraph:
"In this case, we discuss the obligation of a trial court clerk to accurately record the sentence pronounced by the judge in a criminal proceeding. Here, the court clerk included in the minutes and the abstract of judgment some provisions that were not in the judge’s pronouncement of sentence. This was error, which was compounded by the fact the judge erroneously sentenced defendant on a count for which he was not convicted. We also shall address the judge’s remark, on the record and in open court, that this court is a 'kangaroo court.'"
Let's just say that Justice Sims is not too fond of what went on below. At all. Both substantively and as a matter of tone. Indeed, Justice Sims slams the trial judge -- Judge K. Peter Saiers of the San Joaquin Superior Court -- so hard, including a sentence that appears almost purposefully amenable for use by a challenger the next time Judge Saiers has to run for reelection ("The truth of the matter is that Judge K. Peter Saiers has wasted taxpayers’ dollars."), that Justice Hull concurs separately to say that while he agrees that Judge Saiers violated the California Code of Judicial Ethics, he can't sign onto the rest of the discussion.
Regardless, this is not a huge Christmas present for Judge Saiers. And demonstrates no love lost between the Third District and Judge Saiers. Either way.
There are some other really interesting things about the opinion as well that Justice Sims doesn't directly mention, including but by no means limited to the apparent frequency of (impermissible) post-sentence "additions" by the Clerk.
But the only additional issue that I wanted to mention at any length is the procedural history of the case and what it might say about the nature of criminal appeals as well as the quality of appointed criminal appellate counsel.
In the end, the Court of Appeal holds that there were numerous (indeed, egregious) errors below. But notice what has to transpire before we get there. Notwithstanding these plethora of errors, the counsel appointed to represent defendant on appeal -- William Davies -- filed a Wende brief, stating that he had reviewed the record and found no even arguable issues in favor of defendant on appeal. It was only the Court of Appeal who found these issues, and after receiving the Wende brief filed by Davies, asked him to file a supplemental brief on no less than eight separate issues; in essence, to do the job he'd be appointed (and paid) to do to begin with. And which, in the end, did indeed result in a substantial amount of relief for the defendant.
The upshot of this process depends upon whether you view the glass as half empty or half full. One way to view it is to say that this proves that the Court of Appeal takes its obligations seriously upon receipt of Wende brief s-- which they get all the time -- and often identifies issues that counsel has overlooked. But the other way to interpret what transpired here is to say that the Court of Appeal's particular interest in this case was probably purely derivative of the trial court's comment that the Court of Appeal was a "kangeroo court" and that the lesson to be learned is less that the Court of Appeal is incredibly diligent than that appointed criminal appellate lawyers often are not.
I could talk more about this case, but I've said more than enough at this point. Plus, I have to pick up my brother Chris from the airport in 15 minutes. Let me just close by quoting the transcript below in which the trial judge -- again, Judge Saiers -- talks to the defendant about whether to take the plea deal. The Court of Appeal doesn't reach the issue because it requires a habeas brief (since there was no certificate of probable cause granted by the trial court), but read what follows and decide whether you think that Judge Saiers was impermissibly coercive in convincing the defendant to take the plea. And whether comments like this by the trial (e.g., sentencing) judge prior to trial are a good thing:
"THE COURT: How are you doing today, Don?
THE DEFENDANT: Alive. Trying to do all right.
THE COURT: Don, you know what I’ve offered you in this case, don’t you? Low-term double, strike one strike. You’re facing 25 to life. The 245(C) isn’t that strong a count, but the 2800.2 is open and shut. You were going through red lights and stop signs, 50 miles an hour. I mean, there’s not a jury anywhere that’s not going to convict you.
Do you want to spend the rest of your life in prison?
THE DEFENDANT: No, not really, I mean --
THE COURT: Well, then, you should take the four year offer.
[Prosecutor]: Four, I thought it was six years.
THE COURT: It’s low-term, doubled. What’s low-term?
[Defense Counsel]: Well, low-term is three.
THE COURT: Then it is six years.
Six is still better than life. I mean, I think it’s a no[-]brainer.
[Discussion of work credits]
THE COURT: So, you’d have to do four years, eight months on a six-year sentence, Don. And you already have one and a half years in. You have a year of actual credit, half a year of good time credit.
So, what do you want to do, get out when you’re close to 70, or get out when you’re 51? That’s your choice. And on the 2800.2, you don’t have a defense, Don."
In the end, I'm happy to see what eventually transpired in the Court of Appeal. But am very displeased both by what transpired below as well as by what was necessary before justice prevailed above.
"In this case, we discuss the obligation of a trial court clerk to accurately record the sentence pronounced by the judge in a criminal proceeding. Here, the court clerk included in the minutes and the abstract of judgment some provisions that were not in the judge’s pronouncement of sentence. This was error, which was compounded by the fact the judge erroneously sentenced defendant on a count for which he was not convicted. We also shall address the judge’s remark, on the record and in open court, that this court is a 'kangaroo court.'"
Let's just say that Justice Sims is not too fond of what went on below. At all. Both substantively and as a matter of tone. Indeed, Justice Sims slams the trial judge -- Judge K. Peter Saiers of the San Joaquin Superior Court -- so hard, including a sentence that appears almost purposefully amenable for use by a challenger the next time Judge Saiers has to run for reelection ("The truth of the matter is that Judge K. Peter Saiers has wasted taxpayers’ dollars."), that Justice Hull concurs separately to say that while he agrees that Judge Saiers violated the California Code of Judicial Ethics, he can't sign onto the rest of the discussion.
Regardless, this is not a huge Christmas present for Judge Saiers. And demonstrates no love lost between the Third District and Judge Saiers. Either way.
There are some other really interesting things about the opinion as well that Justice Sims doesn't directly mention, including but by no means limited to the apparent frequency of (impermissible) post-sentence "additions" by the Clerk.
But the only additional issue that I wanted to mention at any length is the procedural history of the case and what it might say about the nature of criminal appeals as well as the quality of appointed criminal appellate counsel.
In the end, the Court of Appeal holds that there were numerous (indeed, egregious) errors below. But notice what has to transpire before we get there. Notwithstanding these plethora of errors, the counsel appointed to represent defendant on appeal -- William Davies -- filed a Wende brief, stating that he had reviewed the record and found no even arguable issues in favor of defendant on appeal. It was only the Court of Appeal who found these issues, and after receiving the Wende brief filed by Davies, asked him to file a supplemental brief on no less than eight separate issues; in essence, to do the job he'd be appointed (and paid) to do to begin with. And which, in the end, did indeed result in a substantial amount of relief for the defendant.
The upshot of this process depends upon whether you view the glass as half empty or half full. One way to view it is to say that this proves that the Court of Appeal takes its obligations seriously upon receipt of Wende brief s-- which they get all the time -- and often identifies issues that counsel has overlooked. But the other way to interpret what transpired here is to say that the Court of Appeal's particular interest in this case was probably purely derivative of the trial court's comment that the Court of Appeal was a "kangeroo court" and that the lesson to be learned is less that the Court of Appeal is incredibly diligent than that appointed criminal appellate lawyers often are not.
I could talk more about this case, but I've said more than enough at this point. Plus, I have to pick up my brother Chris from the airport in 15 minutes. Let me just close by quoting the transcript below in which the trial judge -- again, Judge Saiers -- talks to the defendant about whether to take the plea deal. The Court of Appeal doesn't reach the issue because it requires a habeas brief (since there was no certificate of probable cause granted by the trial court), but read what follows and decide whether you think that Judge Saiers was impermissibly coercive in convincing the defendant to take the plea. And whether comments like this by the trial (e.g., sentencing) judge prior to trial are a good thing:
"THE COURT: How are you doing today, Don?
THE DEFENDANT: Alive. Trying to do all right.
THE COURT: Don, you know what I’ve offered you in this case, don’t you? Low-term double, strike one strike. You’re facing 25 to life. The 245(C) isn’t that strong a count, but the 2800.2 is open and shut. You were going through red lights and stop signs, 50 miles an hour. I mean, there’s not a jury anywhere that’s not going to convict you.
Do you want to spend the rest of your life in prison?
THE DEFENDANT: No, not really, I mean --
THE COURT: Well, then, you should take the four year offer.
[Prosecutor]: Four, I thought it was six years.
THE COURT: It’s low-term, doubled. What’s low-term?
[Defense Counsel]: Well, low-term is three.
THE COURT: Then it is six years.
Six is still better than life. I mean, I think it’s a no[-]brainer.
[Discussion of work credits]
THE COURT: So, you’d have to do four years, eight months on a six-year sentence, Don. And you already have one and a half years in. You have a year of actual credit, half a year of good time credit.
So, what do you want to do, get out when you’re close to 70, or get out when you’re 51? That’s your choice. And on the 2800.2, you don’t have a defense, Don."
In the end, I'm happy to see what eventually transpired in the Court of Appeal. But am very displeased both by what transpired below as well as by what was necessary before justice prevailed above.
People v. Boudames (Cal. Ct. App. - Dec. 22, 2006)
Getting audited by the California Board of Equalization for underreporting the amount of sales tax you owe for your business? Here's how to make it better: Try to bribe the auditor.
Or maybe not.
Or maybe not.
Tuesday, December 26, 2006
Sangha v. La Barbara (Cal. Ct. App. - Dec. 26, 2006)
When I went into work this morning, I had no idea that it was a holiday. Which apparently explained why the University was deserted. Not that much work gets done there over the holiday break anyway, mind you. But, in light of the mass desertion, I did a couple of hours of work and then went home for some well-earned "vacation" time. If that's what you can call dealing with a five-year old, a three-year old, and a two-month old.
Apparently, however, the entire world didn't take a vacation, which explains at least in part this case. In which Justice Aronson holds that in order to establish a legal malpractice claim against your attorney in a criminal case, you have to show not only that you're actually innocent of the offense for which you were convicted, but also that you were innocent of every lesser included offense as well.
The underlying "actual innocence" requirement is manifestly a results-oriented departure from normal causation principles in the first place, so I'm not sure that Justice Aronson's holding is in any way incoherent. But let's realize what this means. Let's say, for example, that your terrible attorney -- really, really terrible -- performed so incompetently that you were convicted of first degree murder and sentenced to 250 years to life. Even though all that you really did was spit on a guy's shoe. Like I said, your attorney was really, really bad.
Sorry. No malpractice lawsuit. Even if you could prove, beyond a shadow of a doubt, that all you did was to spit on a guy's shoe, and that the reason that you were convicted was because your crappy attorney told you that spitting on a shoe counted as "murder" in Califonia. Tough luck for you. Because you're still guilty of spitting, which is technically battery, which is a lesser included offense of murder. So no malpractice claim.
The results can get even more absurd -- I was thinking, for example, of a scenario where you were convicted of murder but all you really did was to litter, and a court might well hold that leaving a dead body around was litter too, so you can't sue as long as you threw a popsicle stick on the ground. But whatever. It's a silly doctrine to begin with, and one need not go to the ends of the Earth to prove the point.
Just watch out the next time you litter or spit. And hire -- or be appointed -- an incompetent attorney at your peril.
P.S. - The criminal defense attorney who was allegedly incompetent here was Vincent La Barbera, who practices down here (or, from my perspective, up there) in Santa Ana. Who's got a much nicer head of hair than mine!
Apparently, however, the entire world didn't take a vacation, which explains at least in part this case. In which Justice Aronson holds that in order to establish a legal malpractice claim against your attorney in a criminal case, you have to show not only that you're actually innocent of the offense for which you were convicted, but also that you were innocent of every lesser included offense as well.
The underlying "actual innocence" requirement is manifestly a results-oriented departure from normal causation principles in the first place, so I'm not sure that Justice Aronson's holding is in any way incoherent. But let's realize what this means. Let's say, for example, that your terrible attorney -- really, really terrible -- performed so incompetently that you were convicted of first degree murder and sentenced to 250 years to life. Even though all that you really did was spit on a guy's shoe. Like I said, your attorney was really, really bad.
Sorry. No malpractice lawsuit. Even if you could prove, beyond a shadow of a doubt, that all you did was to spit on a guy's shoe, and that the reason that you were convicted was because your crappy attorney told you that spitting on a shoe counted as "murder" in Califonia. Tough luck for you. Because you're still guilty of spitting, which is technically battery, which is a lesser included offense of murder. So no malpractice claim.
The results can get even more absurd -- I was thinking, for example, of a scenario where you were convicted of murder but all you really did was to litter, and a court might well hold that leaving a dead body around was litter too, so you can't sue as long as you threw a popsicle stick on the ground. But whatever. It's a silly doctrine to begin with, and one need not go to the ends of the Earth to prove the point.
Just watch out the next time you litter or spit. And hire -- or be appointed -- an incompetent attorney at your peril.
P.S. - The criminal defense attorney who was allegedly incompetent here was Vincent La Barbera, who practices down here (or, from my perspective, up there) in Santa Ana. Who's got a much nicer head of hair than mine!
Friday, December 22, 2006
People v. Isom (Cal. Ct. App. - Dec. 21, 2006)
Once again, I must first go on record. I do not support touching little girls. It's bad. It's wrong. Don't do it.
Everyone clear on that? Good.
Now, with that in mind, take a look at this case. Which concerns Jeffrey Allen Isom. Who's definitely messed up in the head. On July 3, 2003 (the day before Independence Day), he's hanging out in a grocery store when he sees a 12-year old girl standing with her grandmother looking at birthday cards. So he walks past her and, while doing so, slides his hand across her bottom for a second, and then keeps on walking down the aisle. The girl promptly tells her grandmother that a man just accidentally touched her bottom, and that's that. Then, a short time later, he again walks by the same 12-year old girl and slides his hand across her bottom, and this time also adds a little pinch. During roughly the same time period, Isom sees a 10-year old girl who's with her own grandmother in a different aisle, and he goes up to the 10-year old and gives her a surreptitious pinch on her bottom as well.
Isom then promptly leaves the store, and is sitting in the parking lot when the two grandmothers -- having been told what just transpired by their granddaughters -- compare notes and call the police, who arrest Isom in the parking lot. Isom is subsequently convicted for his two butt-pinches and one butt-slide.
Which, I hasten to add, is precisely as it should be. That's the easy part. But let me ask you the harder query. What should Isom's sentence be? Sure, sure, I know. It depends on his priors, his mental state, the nature of the pinches, etc. etc. But based upon what you know, what would you do with the guy? Order treatment? Probation? 90 days in jail? A year in prison? Multiple years? What? Would it make a difference to your conclusion were you to know that if the girls had been over 14 years of age, the three touchings could only have been charged as misdemeanors? What's the appropriate result?
Do you have your answer? Good. Now let me tell you what Isom's actual sentence was. 115 years to life. Which Justice Hull affirms against multiple challenges on appeal.
There's a lot of good stuff in this case, including a very interesting discussion regarding whether certain (highly prejudicial) uncharged conduct was properly admitted. Don't forget to also read Justice Blease's dissent, which is excellent as well.
It's a great case to get you thinking. Regardless of the merits of the holding, I'm glad they decided to publish it.
Everyone clear on that? Good.
Now, with that in mind, take a look at this case. Which concerns Jeffrey Allen Isom. Who's definitely messed up in the head. On July 3, 2003 (the day before Independence Day), he's hanging out in a grocery store when he sees a 12-year old girl standing with her grandmother looking at birthday cards. So he walks past her and, while doing so, slides his hand across her bottom for a second, and then keeps on walking down the aisle. The girl promptly tells her grandmother that a man just accidentally touched her bottom, and that's that. Then, a short time later, he again walks by the same 12-year old girl and slides his hand across her bottom, and this time also adds a little pinch. During roughly the same time period, Isom sees a 10-year old girl who's with her own grandmother in a different aisle, and he goes up to the 10-year old and gives her a surreptitious pinch on her bottom as well.
Isom then promptly leaves the store, and is sitting in the parking lot when the two grandmothers -- having been told what just transpired by their granddaughters -- compare notes and call the police, who arrest Isom in the parking lot. Isom is subsequently convicted for his two butt-pinches and one butt-slide.
Which, I hasten to add, is precisely as it should be. That's the easy part. But let me ask you the harder query. What should Isom's sentence be? Sure, sure, I know. It depends on his priors, his mental state, the nature of the pinches, etc. etc. But based upon what you know, what would you do with the guy? Order treatment? Probation? 90 days in jail? A year in prison? Multiple years? What? Would it make a difference to your conclusion were you to know that if the girls had been over 14 years of age, the three touchings could only have been charged as misdemeanors? What's the appropriate result?
Do you have your answer? Good. Now let me tell you what Isom's actual sentence was. 115 years to life. Which Justice Hull affirms against multiple challenges on appeal.
There's a lot of good stuff in this case, including a very interesting discussion regarding whether certain (highly prejudicial) uncharged conduct was properly admitted. Don't forget to also read Justice Blease's dissent, which is excellent as well.
It's a great case to get you thinking. Regardless of the merits of the holding, I'm glad they decided to publish it.
Thursday, December 21, 2006
People v. Rasmuson (Cal. Ct. App. - Dec. 21, 2006)
Wow. This one is close.
When I read the first paragraph of the opinion, which described the two molestation offenses for which the defendant (Kenneth Rasmuson) was incarcerated and declared a sexually violent predator (SVP), my strong reaction was: "No way I would let this dude out."
But then I read the subsequent dozen pages of the opinion, which described the treatment that Rasmuson had received, his reaction to taking Lupron (and its effects), the details of the CONREP program, and the testimony of the various psychiatrist at Atascadero State Hospital. At which point my reaction was: "If this dude doesn't qualify to be let out, then no one qualifies to be let out."
In the end, my feelings remain profoundly and deeply mixed. Read the opinion and see what you think. It seems like a very tough call to me.
When I read the first paragraph of the opinion, which described the two molestation offenses for which the defendant (Kenneth Rasmuson) was incarcerated and declared a sexually violent predator (SVP), my strong reaction was: "No way I would let this dude out."
But then I read the subsequent dozen pages of the opinion, which described the treatment that Rasmuson had received, his reaction to taking Lupron (and its effects), the details of the CONREP program, and the testimony of the various psychiatrist at Atascadero State Hospital. At which point my reaction was: "If this dude doesn't qualify to be let out, then no one qualifies to be let out."
In the end, my feelings remain profoundly and deeply mixed. Read the opinion and see what you think. It seems like a very tough call to me.
Wednesday, December 20, 2006
People v. Dutra (Cal. Ct. App. - Dec. 20, 2006)
Sometimes you read an opinion and say: "Wow. I wish I could write nearly half as well as this." Which was my reaction to this opinion by Justice Morrison.
It's not that Justice Morrison said anything that was substantively entralling or doctrinally complex. It's just that he said it so well.
Excellent job, Fred. I'm impressed. And envious.
P.S. - I also thought that it was pretty subtle for Justice Morrison to say that the defendant, a young college student, was an accessory in the murder because she "fell under the spell" of the killer, who was the victim's wife). Rather than saying, as further reading suggests, that the defendant, Sarah Dutra, might well have been having a lesbian affair with her. I liked that. No reason to sensationalize things.
At least in the pages of the California Reporter. Blogs, of course, are different.
You can read more about the story in this medium-profile murder case if you'd like.
It's not that Justice Morrison said anything that was substantively entralling or doctrinally complex. It's just that he said it so well.
Excellent job, Fred. I'm impressed. And envious.
P.S. - I also thought that it was pretty subtle for Justice Morrison to say that the defendant, a young college student, was an accessory in the murder because she "fell under the spell" of the killer, who was the victim's wife). Rather than saying, as further reading suggests, that the defendant, Sarah Dutra, might well have been having a lesbian affair with her. I liked that. No reason to sensationalize things.
At least in the pages of the California Reporter. Blogs, of course, are different.
You can read more about the story in this medium-profile murder case if you'd like.
Tuesday, December 19, 2006
Boonyarit v. Payless Shoesource (Cal. Ct. App. - Dec. 19, 2006)
It's pretty rare that you see an appeal that exclusively concerns the entitlement to a whopping $585.75 in costs. If only because the attorneys' fees (and costs!) you spend in filing and perfecting an appeal are way, way more than the underlying cost award.
But this case nonetheless entails precisely such an appeal.
In the end, plaintiff prevails -- for hypertechnical reasons -- and succeeds in getting the cost award vacated. At least for now; as I read it, it's quite possible that defendant could cure the deficiency and obtain costs by filing a new request in the trial court. On the upside, plaintiff obtains her costs on appeal. So let's hope that the case now goes away. As we used to say, I can't believe that it's worth all the fussin' and fightin'.
On the merits, the opinion is actually somewhat important, and relates to when (and how) the defendant can file its request for costs when the plaintiff files an amended complaint that omits the defendant as a party. It's not as easy as one might think, and, as here, it's easy to mess it up.
Read the opinion for more. It's only seven (double-spaced) pages, and it's an easy read.
But this case nonetheless entails precisely such an appeal.
In the end, plaintiff prevails -- for hypertechnical reasons -- and succeeds in getting the cost award vacated. At least for now; as I read it, it's quite possible that defendant could cure the deficiency and obtain costs by filing a new request in the trial court. On the upside, plaintiff obtains her costs on appeal. So let's hope that the case now goes away. As we used to say, I can't believe that it's worth all the fussin' and fightin'.
On the merits, the opinion is actually somewhat important, and relates to when (and how) the defendant can file its request for costs when the plaintiff files an amended complaint that omits the defendant as a party. It's not as easy as one might think, and, as here, it's easy to mess it up.
Read the opinion for more. It's only seven (double-spaced) pages, and it's an easy read.
Levine v. Smith (Cal. Ct. App. - Dec. 18, 2006)
I generally comment, at least briefly, about any significant opinion that involves a successful malpractice suit against a California attorney. If only because they highlight the dangers associated with, for example, zoning out of your law practice and hiding in a cave. While the cases around you collapse.
Like here. Actually, this case involves a $2.5 million default judgment, so doesn't actually address the merits. But what I gather from the prior disciplinary record of the defendant, Lawrence G. Smith -- who's been disciplined three separate times in the past couple of years, who twice forgot or failed to pay his bar dues, and who's currently ineligible to practice law -- that's apparently what transpired.
Fortunately, for Mr. Smith, anyway, the default judgment against him was reversed by Justice Yegan on a procedural technicality. So that's one adverse consequence that will go away, at least for now. Hopefully he can get his life together.
Still, the case is a cautionary tale.
P.S. - One more thing. The caption and the opinion lists the defendant as "Lawrence G. Smith", but the counsel lists "Lawrence O. Smith" as appearing pro per. Let's change that.
Like here. Actually, this case involves a $2.5 million default judgment, so doesn't actually address the merits. But what I gather from the prior disciplinary record of the defendant, Lawrence G. Smith -- who's been disciplined three separate times in the past couple of years, who twice forgot or failed to pay his bar dues, and who's currently ineligible to practice law -- that's apparently what transpired.
Fortunately, for Mr. Smith, anyway, the default judgment against him was reversed by Justice Yegan on a procedural technicality. So that's one adverse consequence that will go away, at least for now. Hopefully he can get his life together.
Still, the case is a cautionary tale.
P.S. - One more thing. The caption and the opinion lists the defendant as "Lawrence G. Smith", but the counsel lists "Lawrence O. Smith" as appearing pro per. Let's change that.
Monday, December 18, 2006
In Re Burton (Cal. Supreme Ct. - Dec. 18, 2006)
It's been almost 24 years since the murder. And Andre Burton has just now finished exhausting his state remedies. And doesn't seem to hasn't even started the federal habeas process.
Two dozen years of litigation, with another dozen or so to go. Ah, death penalty jurisprudence. The high point of our judicial system.
Two dozen years of litigation, with another dozen or so to go. Ah, death penalty jurisprudence. The high point of our judicial system.
People v. Brandon (Cal. Ct. App. - Dec. 15, 2006)
Want to know what being a pimp -- as well as a prostitute for a pimp -- is really like? Then read the first twenty pages of this opinion by Justice Turner.
My sense is that this is a pretty accurate account of both how pimping works as well as how young women -- sometimes very young -- get turned out. It's a very different story than the one churned out by Hollywood. Although the one thing that television and movies apparently get right is the role of Greyhound bus stations in the practice.
I once watched an excellent documentary on pimping a couple of years ago, which had extensive interviews of both pimps and their prostitutes, which was consistent with everything I read in Justice Turner's opinion. Let's just say it isn't a glamorous life. At all.
My sense is that this is a pretty accurate account of both how pimping works as well as how young women -- sometimes very young -- get turned out. It's a very different story than the one churned out by Hollywood. Although the one thing that television and movies apparently get right is the role of Greyhound bus stations in the practice.
I once watched an excellent documentary on pimping a couple of years ago, which had extensive interviews of both pimps and their prostitutes, which was consistent with everything I read in Justice Turner's opinion. Let's just say it isn't a glamorous life. At all.
Friday, December 15, 2006
Wakefield v. Bohlin (Cal. Ct. App. - Dec. 15, 2006)
Call me nutty. Call me crazy. Call me absurd. Call me way, way too interested in civil procedure. But I think the California Supreme Court should take this case up.
The essential question -- among many in the case -- revolves around who's the prevailing party when plaintiff wins at trial but recovers zero due to setoffs from other settling defendants. Justice McAdams writes a very well written, well-structured, and lengthy (28-page) opinion that says it's plaintiff. Justice Mihara authors a dissent that's half the size and concludes it's the defendant. There's also some interesting stuff in there about whether the wife is a prevailing party when she wins at trial but her husband doesn't, and Justice McAdams concludes that she's not (necessarily).
This is an important issue. It happens all the time. It often involves, as here, a cost and fee award that's several times the amount of the underlying judgment.
It's important enough for the California Supreme Court to decide the issue.
The essential question -- among many in the case -- revolves around who's the prevailing party when plaintiff wins at trial but recovers zero due to setoffs from other settling defendants. Justice McAdams writes a very well written, well-structured, and lengthy (28-page) opinion that says it's plaintiff. Justice Mihara authors a dissent that's half the size and concludes it's the defendant. There's also some interesting stuff in there about whether the wife is a prevailing party when she wins at trial but her husband doesn't, and Justice McAdams concludes that she's not (necessarily).
This is an important issue. It happens all the time. It often involves, as here, a cost and fee award that's several times the amount of the underlying judgment.
It's important enough for the California Supreme Court to decide the issue.
People v. Johnson (Cal. Ct. App. - Dec. 14, 2006)
Here's one way to spend the rest of your life in prison. It's simultaneously kind of funny and yet deeply sad.
It starts out in a regular way. Eric Johnson is convicted in March 1993 of indecent exposure and sentenced to 16 months in prison. Fair enough. Keep it in your pants. If you don't, off to jail you go.
Then, when he's in prison, he just can't stop. Maybe the guy has watched too many prison porn movies -- who knows. For whatever reason, he and just can't keep his hands off himself. So, as a result of his subsequent repeated -- and relentless -- masturbation while incarcerated (and in front of other people), in October 1994, he's convicted of 17 additional counts of indecent exposure, and on that basis sentenced to an additional 12 years 4 months in prison. Yikes.
He's hardly finished, however. In October 2000, he's convicted of an additional eight counts based upon his public maturbation while incarcerated at Pelican Bay, and sentenced to another 5 years 4 months. And then in February 2004 he's convicted of another ten counts -- again for public masturbation in prison -- which adds another 4 years 8 months. Then in November 2005 he's busted yet again; apparently, they don't even bother to charge him with all the various times he's done it, and merely convict him of (and sentence him to) a single additional count even though the sole witness testifies to several additional times he's done it as well.
I mean, dude. KEEP YOUR HANDS OFF YOURSELF! Or, at a very minimum, turn off most of the lights, or cover yourself with a blanket, or do something other than spank in public. You were only sentenced to 16 months for what you did on the outside. But you're now looking at twenty-three plus years in prison solely based upon your inability to keep it to yourself while in your cell.
That's a freakishly long amount of time. Which made me think a couple of additional thoughts as well.
First, how screwed up is this guy? Answer(of course): A lot. Second, does anyone ever think or raise the fact that this guy may have -- and let me go out on a huge limb here -- deep psychological problems?! What about getting this guy some treatment? He's clearly not getting any better in prison, after all. You might even want to take a shot at pleading not guilty by reason of insanity, even though that's very hard to win. In my mind, there's no doubt whatsoever that the guy has something seriously, deeply wrong with him. It just doesn't make sense to do what he's doing. At all. Third, does anyone else have a sense that we're spending (indeed, largely wasting) a massive, massive amount of money on Mr. Can't Stop Touching This Thing? It costs over $35,000/year, after all, to keep a high security inmate like him in prison, so we're basically going to spend over a million dollars to -- and this seems ironic -- keep him in a precisely the place that consistently impels him to reoffend.
Couldn't we do something like pay $200,000 to give him a nice condo -- with really good blinds -- and spend $100/month to get him all the porn cable channels and high speed internet access? Then do something good with the extra $800,000? Yeah, yeah, I know: We can't actually do that, of a whole series of good reasons. Still, it just seems bizarre to me that we're spending a million dollars to keep a guy in prison just so he can, well, spank some more in prison, at which point we give him additional years in prison. Am I the only one who finds that a little strange?
Fourth, if you really are an "institution" man, this seems like a pretty good way to stay in prison, eh? No need to stick a knife to Heywood's throat like Brooks did in The Shawshank Redemption. That could actually hurt someone. Just play with yourself in public. That'll do the trick. Perhaps even be more fun.
Finally -- and I hesitate to say this -- but given his history and offenses, I had to laugh at the guy's last name. Apropos, no?
The only think funnier would have been if his first name was Richard.
It starts out in a regular way. Eric Johnson is convicted in March 1993 of indecent exposure and sentenced to 16 months in prison. Fair enough. Keep it in your pants. If you don't, off to jail you go.
Then, when he's in prison, he just can't stop. Maybe the guy has watched too many prison porn movies -- who knows. For whatever reason, he and just can't keep his hands off himself. So, as a result of his subsequent repeated -- and relentless -- masturbation while incarcerated (and in front of other people), in October 1994, he's convicted of 17 additional counts of indecent exposure, and on that basis sentenced to an additional 12 years 4 months in prison. Yikes.
He's hardly finished, however. In October 2000, he's convicted of an additional eight counts based upon his public maturbation while incarcerated at Pelican Bay, and sentenced to another 5 years 4 months. And then in February 2004 he's convicted of another ten counts -- again for public masturbation in prison -- which adds another 4 years 8 months. Then in November 2005 he's busted yet again; apparently, they don't even bother to charge him with all the various times he's done it, and merely convict him of (and sentence him to) a single additional count even though the sole witness testifies to several additional times he's done it as well.
I mean, dude. KEEP YOUR HANDS OFF YOURSELF! Or, at a very minimum, turn off most of the lights, or cover yourself with a blanket, or do something other than spank in public. You were only sentenced to 16 months for what you did on the outside. But you're now looking at twenty-three plus years in prison solely based upon your inability to keep it to yourself while in your cell.
That's a freakishly long amount of time. Which made me think a couple of additional thoughts as well.
First, how screwed up is this guy? Answer(of course): A lot. Second, does anyone ever think or raise the fact that this guy may have -- and let me go out on a huge limb here -- deep psychological problems?! What about getting this guy some treatment? He's clearly not getting any better in prison, after all. You might even want to take a shot at pleading not guilty by reason of insanity, even though that's very hard to win. In my mind, there's no doubt whatsoever that the guy has something seriously, deeply wrong with him. It just doesn't make sense to do what he's doing. At all. Third, does anyone else have a sense that we're spending (indeed, largely wasting) a massive, massive amount of money on Mr. Can't Stop Touching This Thing? It costs over $35,000/year, after all, to keep a high security inmate like him in prison, so we're basically going to spend over a million dollars to -- and this seems ironic -- keep him in a precisely the place that consistently impels him to reoffend.
Couldn't we do something like pay $200,000 to give him a nice condo -- with really good blinds -- and spend $100/month to get him all the porn cable channels and high speed internet access? Then do something good with the extra $800,000? Yeah, yeah, I know: We can't actually do that, of a whole series of good reasons. Still, it just seems bizarre to me that we're spending a million dollars to keep a guy in prison just so he can, well, spank some more in prison, at which point we give him additional years in prison. Am I the only one who finds that a little strange?
Fourth, if you really are an "institution" man, this seems like a pretty good way to stay in prison, eh? No need to stick a knife to Heywood's throat like Brooks did in The Shawshank Redemption. That could actually hurt someone. Just play with yourself in public. That'll do the trick. Perhaps even be more fun.
Finally -- and I hesitate to say this -- but given his history and offenses, I had to laugh at the guy's last name. Apropos, no?
The only think funnier would have been if his first name was Richard.
Thursday, December 14, 2006
People v. Garcia (Cal. Ct. App. - Dec. 14, 2006)
I like this opinion by Justice Yegan a lot. It's very short (six double-spaced pages). It has a tone that you don't usually see in judicial opinions, and one that I think is appropriate -- at least in cases like this one. I think that in parts Justice Yegan may be a tiny bit naive, but overall, I really liked what I read.
Take the time. The opinion is definitely worth the five minutes it takes to read.
Take the time. The opinion is definitely worth the five minutes it takes to read.
U.S. v. Juvenile Male (9th Cir. - Dec. 14, 2006)
I always knew that forfeiture and in rem actions were captioned by the name of the property; for example, U.S. v. $23,865 (and the like). But, for people, I always thought we either used their initials or gave them a fictitious name; e.g., U.S. v. B.E, or U.S. v. John Doe. But then I read this case.
Which is fine. But I wonder where it stops? What's next? U.S. v. Slightly Overweight Man Who Really Needs a Shower and Can't Run a Seven Minute Mile?
Which is fine. But I wonder where it stops? What's next? U.S. v. Slightly Overweight Man Who Really Needs a Shower and Can't Run a Seven Minute Mile?
Wednesday, December 13, 2006
Wells Fargo Bank v. BCBU (Cal. Ct. App. - Oct. 27, 2006)
Faculty meetings are amongst the worst part of this job. And today's rare mid-week faculty meeting has put me in an exhausted, sleep-deprived funk.
So I thought I'd harken back to this case. Which just proves that -- as in faculty meetings -- sometimes it's best to keep your mouth shut. Lest you be proven to be even more of a fool than everyone already thinks you are.
Here's the entirety of the amendment that Justice Bedsworth adds to his opinion. Undoubtedly to the chagrin of attorney Kevin Monson -- a double BYU graduate (with a prior public reproval) -- who filed the petition for rehearing and who likely wishes that he hadn't:
"In a late petition for rehearing, B.C.B.U. raises a new argument, that section 9403 does not apply because it became operative on July 1, 2001, after the December 2000 assignment to Wells Fargo. Unfortunately, like the petition for rehearing which raised it for the first time, it comes too late (the petition for rehearing was 7 days late). An argument may not be raised for the first time in a petition for rehearing. (See, e.g., Reynolds v. Bement (2005) 36 Cal.4th 1075, 1092.) Moreover, section 9403 is based on former section 9206 (set out in footnote 6 above), and the former rule was the same as the present one, that is, a waiver of defenses against an assignee is enforceable save for defenses good against a holder in due course.”
Short, sweet, and to the point. And harsh, but in a nice(ish) way.
So I thought I'd harken back to this case. Which just proves that -- as in faculty meetings -- sometimes it's best to keep your mouth shut. Lest you be proven to be even more of a fool than everyone already thinks you are.
Here's the entirety of the amendment that Justice Bedsworth adds to his opinion. Undoubtedly to the chagrin of attorney Kevin Monson -- a double BYU graduate (with a prior public reproval) -- who filed the petition for rehearing and who likely wishes that he hadn't:
"In a late petition for rehearing, B.C.B.U. raises a new argument, that section 9403 does not apply because it became operative on July 1, 2001, after the December 2000 assignment to Wells Fargo. Unfortunately, like the petition for rehearing which raised it for the first time, it comes too late (the petition for rehearing was 7 days late). An argument may not be raised for the first time in a petition for rehearing. (See, e.g., Reynolds v. Bement (2005) 36 Cal.4th 1075, 1092.) Moreover, section 9403 is based on former section 9206 (set out in footnote 6 above), and the former rule was the same as the present one, that is, a waiver of defenses against an assignee is enforceable save for defenses good against a holder in due course.”
Short, sweet, and to the point. And harsh, but in a nice(ish) way.
Tuesday, December 12, 2006
U.S. v. Luong (9th Cir. - Dec. 12, 2006)
Two interesting things about this case.
First, although the opinion only parenthetically refers to it, the facts of the case involve something that I don't recall having seen before: The "different sovereign" exception to the Double Jeopardy Clause being employed by the government to circumvent an adverse search and seizure ruling. Here, the defendant gets indicted in a California state court on a drug charge, but the state trial court court holds that the warrant wasn't supported by probable cause (and the good faith exception didn't apply), so suppresses the evidence, and the California Court of Appeal affirms. At which point the U.S. responds by indicting the defendant in federal court, on the basis of the same evidence that had been suppressed in state court, and asking the federal court to allow it in even though the state court hadn't. No privity, after all (or at least allegedly), so res judicata doesn't apply.
Neat trick, huh?
Second, Judge Tevrizian suppresses the evidence again, and the government appeals to the Ninth Circuit. At which point the panel -- which consists of Judges Fletcher, Ferguson, and Callahan -- has to decide whether to suppress. Remember, the state trial court, the state appellate court, and the district court have all held that the evidence was unlawfully seized. As, in the end, does the majority. But one judge dissents. Can you guess who it is?
I think you can. Not that s/he doesn't make some tolerable points. But I think that the majority -- and all the other judges -- are nonetheless correct.
Rarely do you see a judge on the Ninth Circuit be a fair piece more right-of-center than the California state court in a criminal case. But it happens here. So it's memorable.
First, although the opinion only parenthetically refers to it, the facts of the case involve something that I don't recall having seen before: The "different sovereign" exception to the Double Jeopardy Clause being employed by the government to circumvent an adverse search and seizure ruling. Here, the defendant gets indicted in a California state court on a drug charge, but the state trial court court holds that the warrant wasn't supported by probable cause (and the good faith exception didn't apply), so suppresses the evidence, and the California Court of Appeal affirms. At which point the U.S. responds by indicting the defendant in federal court, on the basis of the same evidence that had been suppressed in state court, and asking the federal court to allow it in even though the state court hadn't. No privity, after all (or at least allegedly), so res judicata doesn't apply.
Neat trick, huh?
Second, Judge Tevrizian suppresses the evidence again, and the government appeals to the Ninth Circuit. At which point the panel -- which consists of Judges Fletcher, Ferguson, and Callahan -- has to decide whether to suppress. Remember, the state trial court, the state appellate court, and the district court have all held that the evidence was unlawfully seized. As, in the end, does the majority. But one judge dissents. Can you guess who it is?
I think you can. Not that s/he doesn't make some tolerable points. But I think that the majority -- and all the other judges -- are nonetheless correct.
Rarely do you see a judge on the Ninth Circuit be a fair piece more right-of-center than the California state court in a criminal case. But it happens here. So it's memorable.
U.S. v. Peters (9th Cir. - Dec. 12, 2006)
Check out the final paragraph of this (very short) per curiam opinion.
Can you really increase the sentence of a criminal defendant on appeal when the United States hasn't cross-appealed? I didn't think you could, and would have been pretty confident that I was right. Though that's precisely what the court -- without virtually any substantive analysis -- does here.
I'm pretty sure that increasing a criminal sentence on appeal is very different from the two cases the court cites in support of doing so. The first case reduced a criminal sentence on appeal by striking a conspiracy conviction that violated double jeopardy -- an issue that the defendant raised on appeal. That's worlds apart from unilaterally increasing a sentence when the U.S. doesn't appeal. The second involved a civil action in which the court again reduced a judgment, yet again on the basis of an argument raised by the defendant on appeal. That one's a galaxy apart from what the court does here.
Sure, it's only another week or two in prison for the defendant. But it's still weird (and, for Mr. Peters, not fun at all). I don't recall seeing something like this before. And it seems wrong to me.
POSTSCRIPT - I was interested enough in this case to look at it a bit more this afternoon. And, indeed, the Court of Appeals can't do this -- or at least I'm pretty darn sure it can't. So I don't think that last sentence will (or should) be around for long.
Can you really increase the sentence of a criminal defendant on appeal when the United States hasn't cross-appealed? I didn't think you could, and would have been pretty confident that I was right. Though that's precisely what the court -- without virtually any substantive analysis -- does here.
I'm pretty sure that increasing a criminal sentence on appeal is very different from the two cases the court cites in support of doing so. The first case reduced a criminal sentence on appeal by striking a conspiracy conviction that violated double jeopardy -- an issue that the defendant raised on appeal. That's worlds apart from unilaterally increasing a sentence when the U.S. doesn't appeal. The second involved a civil action in which the court again reduced a judgment, yet again on the basis of an argument raised by the defendant on appeal. That one's a galaxy apart from what the court does here.
Sure, it's only another week or two in prison for the defendant. But it's still weird (and, for Mr. Peters, not fun at all). I don't recall seeing something like this before. And it seems wrong to me.
POSTSCRIPT - I was interested enough in this case to look at it a bit more this afternoon. And, indeed, the Court of Appeals can't do this -- or at least I'm pretty darn sure it can't. So I don't think that last sentence will (or should) be around for long.
Monday, December 11, 2006
S.J. v. Issaquah School Dist. No. 411 (9th Cir. - Dec. 11, 2006)
Shucks. I spent all that time during the last week writing the final exam for my Civil Procedure class, which was given to the students at 8:30 a.m. this morning. And then, one hour later, the Ninth Circuit publishes a single opinion for the day: this one. Which, had they published it on Friday, would have saved me a ton of time. Since it's a great final examination in its own right, and concerns whether, in an action arising under federal law in which a federal court borrows the state statute of limitations, the court also borrows the state's time period for service of process as well.
Erie. Rules 3 and 4(m). Federal common law. All the good stuff. It would have been an excellent exam.
To make things even more interesting, it's an exam that Chief Judge Lasnik (up in the Western District of Washington) flunked. But Judge Rymer sets him right. And writes an opinion that gets an A.
Erie. Rules 3 and 4(m). Federal common law. All the good stuff. It would have been an excellent exam.
To make things even more interesting, it's an exam that Chief Judge Lasnik (up in the Western District of Washington) flunked. But Judge Rymer sets him right. And writes an opinion that gets an A.
Friday, December 08, 2006
Carson v. Billings (9th Cir. - Dec. 8, 2006)
Did you know that the reasonable rate for the typical, very experienced civil rights lawyer in Montana is a mere $150/hour? Indeed, that extremely experienced employment attorneys in Big Sky Country typically charge only $125, $130, and $140/hour? I definitely did not.
That's nonetheless what I learned from this case. Which affirmed a decision by the district court that rejected the effort by plaintiff's counsel to obtain a reasonable hourly fee of between $195-$205/hour after successful prosecution of a federal sex discrimination claim against the Billings, Montana Police Department.
I know many lawyers in Southern California who wouldn't take a dump for $150/hour. Much less for $125/hour. Indeed, I know several paralegals who are billed out at more.
Surprising. But I guess markets are markets. You learn something new every day.
Montana ain't California. 'Nuff said.
That's nonetheless what I learned from this case. Which affirmed a decision by the district court that rejected the effort by plaintiff's counsel to obtain a reasonable hourly fee of between $195-$205/hour after successful prosecution of a federal sex discrimination claim against the Billings, Montana Police Department.
I know many lawyers in Southern California who wouldn't take a dump for $150/hour. Much less for $125/hour. Indeed, I know several paralegals who are billed out at more.
Surprising. But I guess markets are markets. You learn something new every day.
Montana ain't California. 'Nuff said.
Citizens to Save California v. FPPC (Cal. Ct. App. - Dec. 8, 2006)
Citizens to Save California vs. The California Fair Political Practices Commission. With Governor Arnold Schwarzenegger intervening to join the battle against the FPPC.
Arnold and Citizens to Save California win. And Justice Raye affirms. Holding that the FPPC didn't have the statutory power to close a loophole that allowed candidates to circumvent the Political Reform Act by using "ballot measure" committees controlled by the candidate to amass election contributions.
California is saved. Let the celebration begin.
Arnold and Citizens to Save California win. And Justice Raye affirms. Holding that the FPPC didn't have the statutory power to close a loophole that allowed candidates to circumvent the Political Reform Act by using "ballot measure" committees controlled by the candidate to amass election contributions.
California is saved. Let the celebration begin.
Thursday, December 07, 2006
People v. Russell (Cal. Ct. App. - Nov. 21, 2006)
What a boring, lazy day. Not for me, mind you: I was busy as a beaver preparing my Civ Pro exam. Not as busy as my students who were studying for the exam, most likely, but still busy. But a boring, lazy day for the appellate judiciary in California. Only one published opinion by the Ninth Circuit and two published opinions by the California Court of Appeal. None of which are at all scintillating. Sadly.
So my mind wandered back to this case from a couple of weeks ago. Which is a rarity. Because it is exceptionally unusual for me to read an appellate opinion and think: "Hey, you know, I think that the defendant is actually innocent." Cold record. Viewed in the light most favorable to the prosecution. All that stuff. Plus the fact that I'm pretty sure that most of the people convicted by a jury are, in fact, guilty.
But -- and, believe me, this stunned me as much as anyone else -- I really did think when I read this opinion that Phillip Russell was, in fact, probably innocent of the offense. Or, at a minimum, that there was totally reasonable doubt as to whether he was guilty.
You'll have to read the entire opinion for yourself to see if I'm crazy. Which I admit is a distinct possibility. But basically the case involves a homeless guy (Phillip Russell) who stumbles across a broken-down, non-working motorcycle that's leaning against a chain link fence next to some trash cans at the back of a motorcycle repair shop. Russell figures the owner has abandoned it -- probably because the cost to fix the chopper is more than it's worth -- so he takes it; after all, the cycle is next to the trash cans, and the shop doesn't leave the motorcycles it's fixing out at night. Moreover, the motorcyle both doesn't work and has registration tags that have expired almost two years previously.
Three weeks later, cops doing a routine sweep of a homeless camp stumble upon the chopper (which, from checking the tags, they learn has been reported stolen) next to a tent. Russell enters the camp shortly thereafter, and one of the cops asks Russell whose bike it is, and Russel says "Mine." So after they cuff and Mirandize him, Russell -- who's eager to talk -- tells them the story about how he found the bike. He also says that, shortly after he got the bike, we was stopped by a cop for a traffic violation and told that earlier cop the whole story as well; at that point, the bike hadn't even been reported stolen. And the earlier cop pretty much confirms this testimony. Moreover, the day after being stopped, Russell -- who had now obtained the owner's registered address from the cop -- shows up at the apartment building listed on the registration to try to get the "owner" to sign over the pink slip for the "abandoned" chopper. But registered owner hasn't lived there for 18 months, so Russell strikes out. All of these events are confirmed by the testimony of the apartment manager, who talked to Russell that day and who was the one who told Russell that the owner didn't live there anymore.
That's basically it. So what do you think? To me, the stuff that Russell did -- finding the bike where and how he did, looking for the registered owner, fixing it up, etc. -- are totally consistent with his (entirely reasonable) story about thinking the bike was abandoned. But the court doesn't instruct on a reasonable "mistake of fact" (or "claim of right") defense, and so on the instructions that are given, Russell is found guilty of felony receipt of stolen property. Moreover, although he's given time served, at that point, he's already spent a year-plus in jail; because, as you might have figured, this homeless guy can't make bail.
So I really do think that this guy sounds totally innocent; or, at a minimum, that no reasonable jury could have found (on proper instructions) that there was no reasonable doubt. There is just way, way too much evidence corroborating Russell's (entirely reasonable) story. Parenthetically, not only do I think that an innocent man might well have spent over a year in prison, but I also find it somewhat appalling that the Attorney General argued that the error here was harmless because the evidence showed that Russell was clearly guilty beyond a reasonable doubt. What an utter crock. Justice McAdams properly rejects that argument, and reverses the conviction, but I would have been much harsher about this argument. Which I don't find at all plausible, or even the slightest bit funny.
So that was my take. As I said, I'm no softie, and don't usually think we're dealing with innocent people on appeal. But this case is different. See whether or not you agree.
So my mind wandered back to this case from a couple of weeks ago. Which is a rarity. Because it is exceptionally unusual for me to read an appellate opinion and think: "Hey, you know, I think that the defendant is actually innocent." Cold record. Viewed in the light most favorable to the prosecution. All that stuff. Plus the fact that I'm pretty sure that most of the people convicted by a jury are, in fact, guilty.
But -- and, believe me, this stunned me as much as anyone else -- I really did think when I read this opinion that Phillip Russell was, in fact, probably innocent of the offense. Or, at a minimum, that there was totally reasonable doubt as to whether he was guilty.
You'll have to read the entire opinion for yourself to see if I'm crazy. Which I admit is a distinct possibility. But basically the case involves a homeless guy (Phillip Russell) who stumbles across a broken-down, non-working motorcycle that's leaning against a chain link fence next to some trash cans at the back of a motorcycle repair shop. Russell figures the owner has abandoned it -- probably because the cost to fix the chopper is more than it's worth -- so he takes it; after all, the cycle is next to the trash cans, and the shop doesn't leave the motorcycles it's fixing out at night. Moreover, the motorcyle both doesn't work and has registration tags that have expired almost two years previously.
Three weeks later, cops doing a routine sweep of a homeless camp stumble upon the chopper (which, from checking the tags, they learn has been reported stolen) next to a tent. Russell enters the camp shortly thereafter, and one of the cops asks Russell whose bike it is, and Russel says "Mine." So after they cuff and Mirandize him, Russell -- who's eager to talk -- tells them the story about how he found the bike. He also says that, shortly after he got the bike, we was stopped by a cop for a traffic violation and told that earlier cop the whole story as well; at that point, the bike hadn't even been reported stolen. And the earlier cop pretty much confirms this testimony. Moreover, the day after being stopped, Russell -- who had now obtained the owner's registered address from the cop -- shows up at the apartment building listed on the registration to try to get the "owner" to sign over the pink slip for the "abandoned" chopper. But registered owner hasn't lived there for 18 months, so Russell strikes out. All of these events are confirmed by the testimony of the apartment manager, who talked to Russell that day and who was the one who told Russell that the owner didn't live there anymore.
That's basically it. So what do you think? To me, the stuff that Russell did -- finding the bike where and how he did, looking for the registered owner, fixing it up, etc. -- are totally consistent with his (entirely reasonable) story about thinking the bike was abandoned. But the court doesn't instruct on a reasonable "mistake of fact" (or "claim of right") defense, and so on the instructions that are given, Russell is found guilty of felony receipt of stolen property. Moreover, although he's given time served, at that point, he's already spent a year-plus in jail; because, as you might have figured, this homeless guy can't make bail.
So I really do think that this guy sounds totally innocent; or, at a minimum, that no reasonable jury could have found (on proper instructions) that there was no reasonable doubt. There is just way, way too much evidence corroborating Russell's (entirely reasonable) story. Parenthetically, not only do I think that an innocent man might well have spent over a year in prison, but I also find it somewhat appalling that the Attorney General argued that the error here was harmless because the evidence showed that Russell was clearly guilty beyond a reasonable doubt. What an utter crock. Justice McAdams properly rejects that argument, and reverses the conviction, but I would have been much harsher about this argument. Which I don't find at all plausible, or even the slightest bit funny.
So that was my take. As I said, I'm no softie, and don't usually think we're dealing with innocent people on appeal. But this case is different. See whether or not you agree.
Wednesday, December 06, 2006
Williams v. Costco Wholesale Corp. (9th Cir. - Dec. 6, 2006)
Three points about this case.
First, it proves how even fairly intelligent judges can make simple -- but critical -- mistakes even on largely straightforward civil procedure issues. Here, Williams files a state court class action against Costco, which removes based upon federal question jurisdiction. Williams then amends to drop the federal claims (and adds some additional state claims), but the amended complaint also makes clear that diversity jurisdiction exists. Williams moves to remand, and Judge Jones does so. Which, as the Ninth Circuit per curiam opinion rightly holds, constitutes error. You can't do that if there's diversity jurisdiction, even if the presence of such jurisdiction only became clear post-removal (i.e., as a result of the amended complaint). You don't make the defendant file two removals, including one when the case is already in federal court. The first removal is good enough, and the district court can't remand even after the federal claims are dropped because there's original (diversity) jurisdiction.
Exactly right.
Second, the case also proves (1) how long even easy federal civil appeals take in the Ninth Circuit, and (2) as a result of (1), how important it is for both judges and lawyers to get these things right in the first place. The suit here (judging from its state docket number) was filed in state court way back in 2002. The appeal was filed in 2003. It's now the very end of 2006. And only now is the case even getting back to federal court. So it will be 2007 before the lawsuit returns to the district court. And so even five years after the lawsuit was filed, we're essentially back to the first 30 days of the case as far as the federal system is concerned. For a totally simple appeal in which the panel basically writes: "This is easy. Totally wrong. Duh. Reversed."
Five years of delay based upon a simple procedural mistake. Which highlights (1) how long civil appeals take in the Ninth Circuit (even easy ones), as well as (2) the substantial benefit to lawyers -- and their clients -- of taking the time to think about and understand civil procedure issues at the outset of the litigation. The five-year delay here could almost certainly have been avoided had plaintiff either (1) gone ahead and figured out he was stuck in federal court to begin with, and been happy there, or, if possible, (2) left out the federal claims (and made sure that diversity jurisdiction didn't exist, perhaps by finding a different class representatives) at the outset. But that didn't happen. Hence the five years of wasted time, as well as lots of lost effort and money. A telling tale.
Finally, with all due respect to my friends on the Ninth Circuit, can we perhaps speed things up a bit? Sure, I know we're currently blaming the Clerk/workload/Congress/whatever for the three-year delay between filing the appeal and the oral argument. But what about the delay here post-oral argument? The appeal was, after all, totally easy; indeed, the panel not only wrote a per curiam opinion, but also (harshly) called the district court's interpretation "nonsensical". With such an easy case, should it really take four months -- from August 16 to December 6 -- to crank out the four paragraph opinion here? I mean, a month a paragraph: should it really take that long?
Sure, they were fine paragraphs. But I think that we could have probably finished this one a little faster.
Just trying to help.
First, it proves how even fairly intelligent judges can make simple -- but critical -- mistakes even on largely straightforward civil procedure issues. Here, Williams files a state court class action against Costco, which removes based upon federal question jurisdiction. Williams then amends to drop the federal claims (and adds some additional state claims), but the amended complaint also makes clear that diversity jurisdiction exists. Williams moves to remand, and Judge Jones does so. Which, as the Ninth Circuit per curiam opinion rightly holds, constitutes error. You can't do that if there's diversity jurisdiction, even if the presence of such jurisdiction only became clear post-removal (i.e., as a result of the amended complaint). You don't make the defendant file two removals, including one when the case is already in federal court. The first removal is good enough, and the district court can't remand even after the federal claims are dropped because there's original (diversity) jurisdiction.
Exactly right.
Second, the case also proves (1) how long even easy federal civil appeals take in the Ninth Circuit, and (2) as a result of (1), how important it is for both judges and lawyers to get these things right in the first place. The suit here (judging from its state docket number) was filed in state court way back in 2002. The appeal was filed in 2003. It's now the very end of 2006. And only now is the case even getting back to federal court. So it will be 2007 before the lawsuit returns to the district court. And so even five years after the lawsuit was filed, we're essentially back to the first 30 days of the case as far as the federal system is concerned. For a totally simple appeal in which the panel basically writes: "This is easy. Totally wrong. Duh. Reversed."
Five years of delay based upon a simple procedural mistake. Which highlights (1) how long civil appeals take in the Ninth Circuit (even easy ones), as well as (2) the substantial benefit to lawyers -- and their clients -- of taking the time to think about and understand civil procedure issues at the outset of the litigation. The five-year delay here could almost certainly have been avoided had plaintiff either (1) gone ahead and figured out he was stuck in federal court to begin with, and been happy there, or, if possible, (2) left out the federal claims (and made sure that diversity jurisdiction didn't exist, perhaps by finding a different class representatives) at the outset. But that didn't happen. Hence the five years of wasted time, as well as lots of lost effort and money. A telling tale.
Finally, with all due respect to my friends on the Ninth Circuit, can we perhaps speed things up a bit? Sure, I know we're currently blaming the Clerk/workload/Congress/whatever for the three-year delay between filing the appeal and the oral argument. But what about the delay here post-oral argument? The appeal was, after all, totally easy; indeed, the panel not only wrote a per curiam opinion, but also (harshly) called the district court's interpretation "nonsensical". With such an easy case, should it really take four months -- from August 16 to December 6 -- to crank out the four paragraph opinion here? I mean, a month a paragraph: should it really take that long?
Sure, they were fine paragraphs. But I think that we could have probably finished this one a little faster.
Just trying to help.
Tuesday, December 05, 2006
Calvert v. County of Yuma (Cal. Ct. App. - Dec. 5, 2006)
I can't believe that I slogged through the 36-page opinion in this case even after I read the following opening paragraph:
"This appeal involves the Surface Mining and Reclamation Act of 1975. (SMARA; Pub. Resources Code, § 2710 et seq.) Our principal conclusion is that if an entity claims a vested right pursuant to SMARA to conduct a surface mining operation that is subject to the diminishing asset doctrine, that claim must be determined in a public adjudicatory hearing that meets procedural due process requirements of reasonable notice and an opportunity to be heard. We give this conclusion limited retroactive effect. We shall affirm the judgment with certain modifications."
But I did. And my brain still hurts.
There's 30 minutes of my life I'll never get back.
"This appeal involves the Surface Mining and Reclamation Act of 1975. (SMARA; Pub. Resources Code, § 2710 et seq.) Our principal conclusion is that if an entity claims a vested right pursuant to SMARA to conduct a surface mining operation that is subject to the diminishing asset doctrine, that claim must be determined in a public adjudicatory hearing that meets procedural due process requirements of reasonable notice and an opportunity to be heard. We give this conclusion limited retroactive effect. We shall affirm the judgment with certain modifications."
But I did. And my brain still hurts.
There's 30 minutes of my life I'll never get back.
Doe v. Kamehameha Schools (9th Cir. - Dec. 5, 2006)
Sometimes the composition of the en banc court doesn't especially matter (see, e.g., here), or the votes aren't entirely predictable (see, e.g., here).
But then there are cases like this one. And, boy, what a case. The question is whether preferences for Native Hawaiian students discriminate on the basis of race in violation of 42 U.S.C. sect. 1981. Judge Bybee wrote a panel opinion (which I discuss here) concluding that they might, and to the shock of no one, the Ninth Circuit voted to take the case en banc.
At which point the en banc court votes 8-7 to uphold the preferences. In a series of opinions that spans 100-plus (single-spaced) pages and that contains a majority opinion, a concurrence, and four separate dissents.
Judge Graber writes the majority opinion, and does so both colorfully and with a distinct sense of history. And Judge Bybee -- who authored the very well-written panel opinion -- reprises this role in the principal dissent.
Everyone does a very good job here of articulating their distinct vision. In the end, however, it's a case where one need merely count the votes. And in which the draw made a huge difference. The eight-member majority consists entirely of Carter and Clinton appointees (interestingly, each of the three of the remaining active Carter appointees -- Schroeder, Pregerson, and Reinhardt -- were on the panel). By contrast, the seven dissenters were almost exclusively Republican appointees: both of the remaining active Reagan appointees (Kozinski and O'Scannlain) as well as both of the remaining active Bush I appointees (Rymer and Kleinfeld) were on the panel, and they were joined by a couple of Bush II appointees. So there was a sharp -- and very predictable -- ideological split here, with the only exception being Judge Tallman's decision to join the dissent.
So a very close 8-7 vote in which the draw made a huge difference.
Parenthetically, I very much agree with Judge Kozinski when he says, on page 109, that "the question is close and ours may not be the last word." I wouldn't at all be surprised to see the Supreme Court take this one up.
But then there are cases like this one. And, boy, what a case. The question is whether preferences for Native Hawaiian students discriminate on the basis of race in violation of 42 U.S.C. sect. 1981. Judge Bybee wrote a panel opinion (which I discuss here) concluding that they might, and to the shock of no one, the Ninth Circuit voted to take the case en banc.
At which point the en banc court votes 8-7 to uphold the preferences. In a series of opinions that spans 100-plus (single-spaced) pages and that contains a majority opinion, a concurrence, and four separate dissents.
Judge Graber writes the majority opinion, and does so both colorfully and with a distinct sense of history. And Judge Bybee -- who authored the very well-written panel opinion -- reprises this role in the principal dissent.
Everyone does a very good job here of articulating their distinct vision. In the end, however, it's a case where one need merely count the votes. And in which the draw made a huge difference. The eight-member majority consists entirely of Carter and Clinton appointees (interestingly, each of the three of the remaining active Carter appointees -- Schroeder, Pregerson, and Reinhardt -- were on the panel). By contrast, the seven dissenters were almost exclusively Republican appointees: both of the remaining active Reagan appointees (Kozinski and O'Scannlain) as well as both of the remaining active Bush I appointees (Rymer and Kleinfeld) were on the panel, and they were joined by a couple of Bush II appointees. So there was a sharp -- and very predictable -- ideological split here, with the only exception being Judge Tallman's decision to join the dissent.
So a very close 8-7 vote in which the draw made a huge difference.
Parenthetically, I very much agree with Judge Kozinski when he says, on page 109, that "the question is close and ours may not be the last word." I wouldn't at all be surprised to see the Supreme Court take this one up.
Monday, December 04, 2006
U.S. v. Tuff (9th Cir. - Dec. 4, 2006)
All of my friends with boatloads of valuable stock options -- and there are, surprisingly enough, an increasing number of them -- should read this opinion by Judge Goodwin. Which involves how the Ninth Circuit will tax nonqualified stock option compensation.
Be forewarned, however: You're not going to like the answer.
Be forewarned, however: You're not going to like the answer.
Friday, December 01, 2006
Oaks Management Corp. v. Superior Ct. (Cal. Ct. App. - Nov. 30, 2006)
There's no way in the universe I'm going to comment extensively upon this opinion. Yes, it's an interesting case involving the disqualification of a prominent San Diego law firm for conflict reasons. Yes, it's got some interesting facts, and players, and doctrine. Yes, it's significant, particularly for those of us who teach and opine -- not to mention care -- about professional responsibility issues.
But my own conflicts are simply too great. Not that I'm connected to (or had even heard about) this lawsuit, which involves a condo conversion project in Fallbrook. That's not the problem. It's instead that the matter (1) involves the diqualification of a law firm with huge USD ties (Thorsnes Bartolotta McGuire); (2) arises out of a $1,000,000-plus loan made by MTT Partners (which, I believe, is part of a substantial planned gift to USD) to the plaintiff; (3) concerns a disqualification motion won by two USD Law School graduates (Donald English and Christy Yee) against another USD Law School graduate (Daral Mazzarella); and (4) arose before a trial judge (Judge Enright) before whom I'm shortly scheduled to appear.
So I ain't gonna touch this one with a ten foot pole.
Except, perhaps, to say two brief things. First, I think that Justice McConnell's opinion adopts the right approach and attitude to disqualification motions; practical, reasonable, sensible, and balanced. That's something I definitely like. Second, the list of counsel includes a "Brendan E. Ozanne". However, doesn't Brandan's middle name actually begin with a "K"? I think it does.
But my own conflicts are simply too great. Not that I'm connected to (or had even heard about) this lawsuit, which involves a condo conversion project in Fallbrook. That's not the problem. It's instead that the matter (1) involves the diqualification of a law firm with huge USD ties (Thorsnes Bartolotta McGuire); (2) arises out of a $1,000,000-plus loan made by MTT Partners (which, I believe, is part of a substantial planned gift to USD) to the plaintiff; (3) concerns a disqualification motion won by two USD Law School graduates (Donald English and Christy Yee) against another USD Law School graduate (Daral Mazzarella); and (4) arose before a trial judge (Judge Enright) before whom I'm shortly scheduled to appear.
So I ain't gonna touch this one with a ten foot pole.
Except, perhaps, to say two brief things. First, I think that Justice McConnell's opinion adopts the right approach and attitude to disqualification motions; practical, reasonable, sensible, and balanced. That's something I definitely like. Second, the list of counsel includes a "Brendan E. Ozanne". However, doesn't Brandan's middle name actually begin with a "K"? I think it does.
In Re K.W. (Cal. Ct. App. - Nov. 21, 2006)
No published opinions by the California Court of Appeal today. Not a single published opinion by the Ninth Circuit either.
I didn't know that today was a three-day holiday weekend. Or has everyone in the judiciary just decided that the first day of December is a freebie?
The break nonetheless does allow me to go back and write about a couple of cases in the last couple of weeks that I had brief thoughts about but which nonetheless did not mention. Like this one.
You know there's utterly nothing good -- nothing at all -- that's going to come out of a fact pattern that includes this paragraph:
"In late February 2004 Tabitha, then 14 years old, gave birth to K.W. A day after the birth, Tabitha tested positive for marijuana metabolites. Tabitha was not responsive to the newborn; hospital staff had to wake up Tabitha to feed K.W., and once awakened, she soon went back to sleep even though the baby continued to cry. As a result, a nurse had to feed the baby."
A case from San Diego. How depressing.
I didn't know that today was a three-day holiday weekend. Or has everyone in the judiciary just decided that the first day of December is a freebie?
The break nonetheless does allow me to go back and write about a couple of cases in the last couple of weeks that I had brief thoughts about but which nonetheless did not mention. Like this one.
You know there's utterly nothing good -- nothing at all -- that's going to come out of a fact pattern that includes this paragraph:
"In late February 2004 Tabitha, then 14 years old, gave birth to K.W. A day after the birth, Tabitha tested positive for marijuana metabolites. Tabitha was not responsive to the newborn; hospital staff had to wake up Tabitha to feed K.W., and once awakened, she soon went back to sleep even though the baby continued to cry. As a result, a nurse had to feed the baby."
A case from San Diego. How depressing.
Thursday, November 30, 2006
In Re Jaime P. (Cal. Supreme Ct. - Nov. 30, 2006)
Justice Baxter is on the losing end of this 6-1 decision, in which Justice Chin patiently (and I believe rightly) concludes that the California Supreme Court's earlier holding in In re Tyrell J. should be overruled, and that warrantless searches of juvenile probationers without reasonable suspicion aren't permissible when the police search them unaware of the probation search condition.
Justice Baxter's dissent isn't perhaps too surprising, since he voted in the majority in In re Tyrell J. itself. Still, I think that even Justice Baxter should agree that the legal landscape has changed since then, including (and especially) as a result of the United States Supreme Court's opinion earlier this year in Samson -- a case from California, no less. You gotta change you mind when the world around you changes, my friend.
It was a good day for Justice Kennard, who wrote the dissent in In re Tyrell J. Sometimes you're vindicated over time. Even if it takes, as here, a decade or so for the rest of the world to realize that you're right.
Congratulations, Joyce.
P.S. - Guess whether "Jaime" is a boy or girl. Ready? Yep, you're right. Boy. Boy gangbanger with a gun, no less.
Justice Baxter's dissent isn't perhaps too surprising, since he voted in the majority in In re Tyrell J. itself. Still, I think that even Justice Baxter should agree that the legal landscape has changed since then, including (and especially) as a result of the United States Supreme Court's opinion earlier this year in Samson -- a case from California, no less. You gotta change you mind when the world around you changes, my friend.
It was a good day for Justice Kennard, who wrote the dissent in In re Tyrell J. Sometimes you're vindicated over time. Even if it takes, as here, a decade or so for the rest of the world to realize that you're right.
Congratulations, Joyce.
P.S. - Guess whether "Jaime" is a boy or girl. Ready? Yep, you're right. Boy. Boy gangbanger with a gun, no less.
Morgan v. Canady (9th Cir. - Nov. 30, 2006)
Look, I like our woodsy next-to-next-door neighbor to the North as much as anyone. Seattle, clouds, the constant rain. It's all good.
That said, I think Judge Clifton goes overboard in this opinion. Which makes a single amendment. Which, in its substantive entirety, reads as follows:
"[C]hange 'California' to 'Washington'."
No, thank you.
That said, I think Judge Clifton goes overboard in this opinion. Which makes a single amendment. Which, in its substantive entirety, reads as follows:
"[C]hange 'California' to 'Washington'."
No, thank you.
U.S. v. Lopez (9th Cir. - Nov. 30, 2006)
I liked the composition of this one. Which affirms a decision of a USD Law School graduate (Judge Napoleon Jones) in a case argued by a USD Law School graduate AUSA (Timothy Salel) and a USD Law School graduate federal defender (Chase Scolnick). So USD Law School all around.
Not on the panel, though. Which consisted of graduates from Yale (Judge Graber), UCLA (Judge Wardlaw), and McGeorge (Judge Rawlinson). And was, parenthetically, an all-woman panel. Which isn't something you see every day.
Not on the panel, though. Which consisted of graduates from Yale (Judge Graber), UCLA (Judge Wardlaw), and McGeorge (Judge Rawlinson). And was, parenthetically, an all-woman panel. Which isn't something you see every day.
Wednesday, November 29, 2006
Cassady v. Morgan Lewis Bockius (Cal. Ct. App. - Nov. 29, 2006)
Sorry for the late post today, but I was in a deposition in Los Angeles all day, and then had to drive back to San Diego (in rush hour LA/OC/SD traffic, mind you) in order to get back to USD in time to participate in the "Battle of the Brains" competition and thereby demonstrate that the faculty's intellectual prowess vis-a-vis our students is greatly, greatly exaggerated. Which we did. In spades. (Though, to toot our own horn, we prevailed in the end. Thanks largely, I think, to the "Supreme Court" category of questions, which -- not surprisingly -- we were pretty good at, thank you very much. E.g., Ruth Bader's the second oldest on the Court, not Nino.)
I did get a chance to read today's cases, however. Lots of stuff that could only marginally keep my interest, though, as usual, I slogged through it nonetheless. This case was fairly interesting, however, both from a lawyer-watching perspective as well as from the perspective of learning something that might actually help the most important people in the world; namely, us. Justice Aldrich's opinion is all about (1) The lawsuit by Los Angeles attorney Ralph Cassady against his former employer, Morgan, Lewis & Bockius, and (2) the legal standards by which attorneys are entitled to indemnification (including defense costs) from their former law firms for malpractice lawsuits against them (pursuant to Labor Code sect. 2802).
In other words, if you're an associate (or even otherwise employed by a law firm), and you are sued for malpractice based upon something you did at the firm -- whether meritoriously or not -- does your law firm have to defend you, or can they hang you out to dry? As, indeed, Morgan Lewis did to Mr. Cassady here.
I'll leave you in suspense. Read the opinion. It's got a lot of good stuff. Or at least read it if and when you ever get sued. Or, perhaps, if and when you're thinking "I'm tired. I don't feel like doing my job very well today, and want to go home. If I screw up, and get sued, can I at least make my law firm defend and indemnify me?"
(The answer, by the way, is: Maybe. Shocking, I know. Read the opinion for more!)
I did get a chance to read today's cases, however. Lots of stuff that could only marginally keep my interest, though, as usual, I slogged through it nonetheless. This case was fairly interesting, however, both from a lawyer-watching perspective as well as from the perspective of learning something that might actually help the most important people in the world; namely, us. Justice Aldrich's opinion is all about (1) The lawsuit by Los Angeles attorney Ralph Cassady against his former employer, Morgan, Lewis & Bockius, and (2) the legal standards by which attorneys are entitled to indemnification (including defense costs) from their former law firms for malpractice lawsuits against them (pursuant to Labor Code sect. 2802).
In other words, if you're an associate (or even otherwise employed by a law firm), and you are sued for malpractice based upon something you did at the firm -- whether meritoriously or not -- does your law firm have to defend you, or can they hang you out to dry? As, indeed, Morgan Lewis did to Mr. Cassady here.
I'll leave you in suspense. Read the opinion. It's got a lot of good stuff. Or at least read it if and when you ever get sued. Or, perhaps, if and when you're thinking "I'm tired. I don't feel like doing my job very well today, and want to go home. If I screw up, and get sued, can I at least make my law firm defend and indemnify me?"
(The answer, by the way, is: Maybe. Shocking, I know. Read the opinion for more!)
Tuesday, November 28, 2006
Vulovic v. Robinson (Cal. Ct. App. - Nov. 28, 2006)
I'm somewhat (and increasingly) hesitant to call someone a bit sleazy, especially on a cold appellate record. But I nonetheless think I'll continue to call 'em as I see 'em.
So when I read this case, which involved the validity of a bequest in which 87-year-old Helen L. Odian left her entire $3 million-plus estate to Catharina Vulovic, who had been her paid live-in companion before Ms. Odian moved into a nursing home, my reaction was this: I'm glad that Ms. Vulovic won't take care of my relatives.
Not because every bequest to a caretaker is the result of overreaching, though I'm in favor of somewhat broad prophylactic rules in this regard (for example, California's). But, on the facts of this case, I'm fairly convinced that Ms. Vulovic was fairly sleazy. So was very glad to see Justice McKinster -- rightly -- affirm the holding of the trial court that Ms. Vulovic won't become an instant multimillionaire.
P.S. - Justice McKinster doesn't mention it except in passing, but I also don't have a very fond opinion of many of the salespeople who sold Ms. Odian (through Vulovic) what I'm certain was overpriced and inappropriate junk. Particularly the person who convinced the incompetent, elderly Ms. Odian to convert her substantial assets in order to purchase an annuity. Yeah, like that's an appropriate investment for Ms. Odian, and not one that you pushed on her simply in order to obtain a huge commission. Sleazeball.
So when I read this case, which involved the validity of a bequest in which 87-year-old Helen L. Odian left her entire $3 million-plus estate to Catharina Vulovic, who had been her paid live-in companion before Ms. Odian moved into a nursing home, my reaction was this: I'm glad that Ms. Vulovic won't take care of my relatives.
Not because every bequest to a caretaker is the result of overreaching, though I'm in favor of somewhat broad prophylactic rules in this regard (for example, California's). But, on the facts of this case, I'm fairly convinced that Ms. Vulovic was fairly sleazy. So was very glad to see Justice McKinster -- rightly -- affirm the holding of the trial court that Ms. Vulovic won't become an instant multimillionaire.
P.S. - Justice McKinster doesn't mention it except in passing, but I also don't have a very fond opinion of many of the salespeople who sold Ms. Odian (through Vulovic) what I'm certain was overpriced and inappropriate junk. Particularly the person who convinced the incompetent, elderly Ms. Odian to convert her substantial assets in order to purchase an annuity. Yeah, like that's an appropriate investment for Ms. Odian, and not one that you pushed on her simply in order to obtain a huge commission. Sleazeball.
Six Flags v. WCAB (Cal. Ct. App. - Nov. 27, 2006)
It's fairly rare that I talk about a worker's compensation appeal. But this one is different. Among other things, it's a more significant opinion, with a fairly wide-ranging impact, and holds that Labor Code sect. 4702(a)(6)(B) violates the California Constitutuion.
What does Labor Code sect. 4702(a)(6)(B) say, you might ask (as, indeed, I did when I first read the opinion)? Well, basically, Section 4702 in general says that when a worker dies on the job -- as Bantita Rackchamroon, a hostess at Six Flags, did when she was hit and killed by a roller coaster -- the employer has to pay the worker's family $250,000. Paragraph (a)(6)(B) further provides that when the employee has no dependents, that sum must be paid to the estate of the worker.
Seems reasonable, right? After all, maybe the worker has parents, siblings, or significant others who might need the money.
But Justice Kitching holds that this provision is unconstitutional under article XIV, section 4 of the California Constitution, which authorizes the Legislature to establish a worker's compensation regime solely to require employers to compensate "any or all of their workers for injury or disability, and their dependents for death incurred or sustained by the said workers in the course of their employment, irrespective of the fault of any party.” So by adding the estate as a beneficiary, Section 4702(a)(6)(B) violates the California Constitution.
Justice Kitching's opinion is excellent. Comprehensive, well-reasoned, and nicely articulated. Indeed, at the end of it, my principal reaction was: "It seems so obvious that this statute was unconstitutional. I wonder how many employers and/or insurers actually paid the quarter-million dollars without ever consulting an attorney and realizing that the statute was unconstitutional?"
I bet a lot did. Which meant a lot of money to the State of California -- since paying the money to the "estate" of people without dependents often, as here, resulted in some payment to the State -- and a lot of money out of the pockets of employers who weren't required to pay.
Shows the importance of having a lawyer with a broad range of knowledge, including knowing a fair piece about state constitutional law, eh?
What does Labor Code sect. 4702(a)(6)(B) say, you might ask (as, indeed, I did when I first read the opinion)? Well, basically, Section 4702 in general says that when a worker dies on the job -- as Bantita Rackchamroon, a hostess at Six Flags, did when she was hit and killed by a roller coaster -- the employer has to pay the worker's family $250,000. Paragraph (a)(6)(B) further provides that when the employee has no dependents, that sum must be paid to the estate of the worker.
Seems reasonable, right? After all, maybe the worker has parents, siblings, or significant others who might need the money.
But Justice Kitching holds that this provision is unconstitutional under article XIV, section 4 of the California Constitution, which authorizes the Legislature to establish a worker's compensation regime solely to require employers to compensate "any or all of their workers for injury or disability, and their dependents for death incurred or sustained by the said workers in the course of their employment, irrespective of the fault of any party.” So by adding the estate as a beneficiary, Section 4702(a)(6)(B) violates the California Constitution.
Justice Kitching's opinion is excellent. Comprehensive, well-reasoned, and nicely articulated. Indeed, at the end of it, my principal reaction was: "It seems so obvious that this statute was unconstitutional. I wonder how many employers and/or insurers actually paid the quarter-million dollars without ever consulting an attorney and realizing that the statute was unconstitutional?"
I bet a lot did. Which meant a lot of money to the State of California -- since paying the money to the "estate" of people without dependents often, as here, resulted in some payment to the State -- and a lot of money out of the pockets of employers who weren't required to pay.
Shows the importance of having a lawyer with a broad range of knowledge, including knowing a fair piece about state constitutional law, eh?
Monday, November 27, 2006
People v. Kelly (Cal. Supreme Ct. - Nov. 27, 2006)
Sorry, my friends on the California Court of Appeal. Your jobs just got a fair piece harder.
People v. Wright (Cal. Supreme Ct. - Nov. 27, 2006)
A guy named "Shaun" (spelled the correct way, I might add) has a pound-plus of marijuana in his car and gets busted up in Huntington Beach after the police get a tip from a dude at a car wash that Shaun and his backpack reek of pot.
Ultimately, in this case, Shaun's conviction is affirmed by the California Supreme Court. Not because Shaun was properly precluded from asserting a defense under the Compassionate Use Act (he wasn't), but instead because the error was harmless. As Shaun was definitely selling, not just smoking, his pound-plus.
Love the name. Love the locale. Love the holding.
And love the message: If you sell pot, TAKE A SHOWER. Don't reek of it.
P.S. - Washing your clothes a bit more often won't hurt either.
Ultimately, in this case, Shaun's conviction is affirmed by the California Supreme Court. Not because Shaun was properly precluded from asserting a defense under the Compassionate Use Act (he wasn't), but instead because the error was harmless. As Shaun was definitely selling, not just smoking, his pound-plus.
Love the name. Love the locale. Love the holding.
And love the message: If you sell pot, TAKE A SHOWER. Don't reek of it.
P.S. - Washing your clothes a bit more often won't hurt either.
Wednesday, November 22, 2006
Goold v. Superior Court (Cal. Ct. App. - Nov. 22, 2006)
Laura files for divorce from Edward. The Standard Family Law Restraining Orders (which are on the back of the summons) prohibit Edward from encumbering marital property without the written consent of his spouse. Laura and Edward thereafter stipulate to give most of the marital property to Edward, but Laura gets the marital house. Which, as the parties stipulate, includes a first mortgage of $252,000 but no other encumbrances.
Immediately after this order, however, Edward (1) gets an $100,000 line of credit on the marital house from Wells Fargo, which he promptly cashes out; (2) signs a $150,000 trust deed on the marital property to Mike's Remodeling, for work that was done on Edward's separate business properties; and (3) sells the marital property for $600,000 to a third party.
The Superior Court holds Edward (Goold) in contempt, and sentences him to 360 hours -- and says it will consider a work furlough. Personally, I'd also have held the dude in contempt, and (1) sentenced him to a lot more time, and (2) had him serve it in jail.
Immediately after this order, however, Edward (1) gets an $100,000 line of credit on the marital house from Wells Fargo, which he promptly cashes out; (2) signs a $150,000 trust deed on the marital property to Mike's Remodeling, for work that was done on Edward's separate business properties; and (3) sells the marital property for $600,000 to a third party.
The Superior Court holds Edward (Goold) in contempt, and sentences him to 360 hours -- and says it will consider a work furlough. Personally, I'd also have held the dude in contempt, and (1) sentenced him to a lot more time, and (2) had him serve it in jail.
Tuesday, November 21, 2006
Fields v. Yusef (Cal. Ct. App. - Nov. 21, 2006)
When people want turkey, I guess they want it bad. Hence the double-digit number of published opinions that the California Court of Appeal cranked out today.
Much more than your typical day. Maybe, like a baseball team, this is "getaway day" for the state judiciary.
Regardless, I can describe this opinion for you relatively succinctly. Who's got the obligation to make sure there aren't any spounges left in you after surgery? The doctor? The nurses? Can the former rely on the latter in order to get out of liability?
Answer: The doctor, and no. Pretty much, anyway. Read Justice Doi Todd's opinion for more. (And the dissenting opinion of Justice Chavez for a different view.)
Much more than your typical day. Maybe, like a baseball team, this is "getaway day" for the state judiciary.
Regardless, I can describe this opinion for you relatively succinctly. Who's got the obligation to make sure there aren't any spounges left in you after surgery? The doctor? The nurses? Can the former rely on the latter in order to get out of liability?
Answer: The doctor, and no. Pretty much, anyway. Read Justice Doi Todd's opinion for more. (And the dissenting opinion of Justice Chavez for a different view.)
U.S. v. Lazarenko (9th Cir. - Nov. 21, 2006)
"Sandy, baby!" Welcome to the Ninth Circuit!
Justice O'Connor sat on a couple of panels last month, and this opinion is the first published disposition from that crew. Justice O'Connor doesn't write the opinion -- Judge Tallman does -- and the appeal involves a fairly unusual set of circumstances, arising as it does from the siezure of $2.5 million in assets from the former Ukranian Prime Minister (Pavel Ivanovich Lazarenko). (Lazarenko, by the way, is one of a very select group of former foreign leaders -- Manuel Noriega comes to mind -- who's currently serving time in a U.S. prison.) (Total parenthetical note: Did you guys know that Noriega is scheduled to get out of prison sometime next year? Wow. Time really flies!)
Okay, enough parentheticals. The opinion itself concerns complicated fed courts issues that wouldn't be worth slogging through but for the involvement of the various judicial and foreign dignitaries referred to above. In the end, the appeal is dismissed, and everyone -- including Sandy -- concurs.
Justice O'Connor. Noriega. The former Soviet Union. I feel like it's the 1980's all over again.
Justice O'Connor sat on a couple of panels last month, and this opinion is the first published disposition from that crew. Justice O'Connor doesn't write the opinion -- Judge Tallman does -- and the appeal involves a fairly unusual set of circumstances, arising as it does from the siezure of $2.5 million in assets from the former Ukranian Prime Minister (Pavel Ivanovich Lazarenko). (Lazarenko, by the way, is one of a very select group of former foreign leaders -- Manuel Noriega comes to mind -- who's currently serving time in a U.S. prison.) (Total parenthetical note: Did you guys know that Noriega is scheduled to get out of prison sometime next year? Wow. Time really flies!)
Okay, enough parentheticals. The opinion itself concerns complicated fed courts issues that wouldn't be worth slogging through but for the involvement of the various judicial and foreign dignitaries referred to above. In the end, the appeal is dismissed, and everyone -- including Sandy -- concurs.
Justice O'Connor. Noriega. The former Soviet Union. I feel like it's the 1980's all over again.
Monday, November 20, 2006
Miller v. Bank of America (Cal. Ct. App. - Nov. 20, 2006)
This case is about a class action lawsuit in which Bank of America was charged with illegally seizing social security payments and other public benefit payments to cover various unrelated bank fees (primarily NSF and overdraft fees). A California Supreme Court opinion from 1974 generally doesn't allow banks to seize government benefit payments to offset unrelated charges, but this case is arguably distinguishable from the present one.
I'll leave you in suspense about how the class action comes out. Read this relatively short opinion by Justice Siggins for the answer. I'll instead only ask a single question:
Guess how much in NSF and overdraft fees Bank of America has obtained from the class (people who directly deposit their social security and other government benefit checks into BOA accounts) during the class period, which is between January 1994 and May 2003?
What do you think? How much did they earn? Come on. Guess.
Would you believe: $284,211,273.
Wow. That's a freaking lot of change.
(Which, by the way, explains why Walter Dellinger and Arturo Gonzalez are both on the briefs for BoA. When that much is at stake, you want the best. And these two are most certainly in that class.)
I'll leave you in suspense about how the class action comes out. Read this relatively short opinion by Justice Siggins for the answer. I'll instead only ask a single question:
Guess how much in NSF and overdraft fees Bank of America has obtained from the class (people who directly deposit their social security and other government benefit checks into BOA accounts) during the class period, which is between January 1994 and May 2003?
What do you think? How much did they earn? Come on. Guess.
Would you believe: $284,211,273.
Wow. That's a freaking lot of change.
(Which, by the way, explains why Walter Dellinger and Arturo Gonzalez are both on the briefs for BoA. When that much is at stake, you want the best. And these two are most certainly in that class.)
Holbrook v. City of Santa Monica (Cal. Ct. App. - Nov. 20, 2006)
Not every bad -- or even horrible -- decision is also an illegal or unconstitutional one.
I happen to agree with Santa Monica City Councilmen Robert Holbrook and Herb Katz that City Council meetings should end by, say, 11:00 p.m., and that putting the public comment period at the end of these extraordinarily long meetings -- in order to force the public to sit through the whole thing -- is unwise. In general, meetings -- including governmental meetings -- shouldn't end around midnight. It's not conducive to public participation. It's a bad idea.
That said, I also agree with Justice Zelon that poor meeting schedules are neither unconstitutional nor violate the Brown Act (or, for that matter, OSHA regulations). And, quite frankly, it's fairly frivolous to argue to the contrary. Finally, I'd strongly hope that our elected representatives would understand that fact. Something that Mssrs. Holbrook and Katz apparently did not.
Santa Monica. A crazy place. Backed up by some crazy laws and some crazy elected officials. I gotta admit that I love 'em, and appreciate the sentiment. But please realize that the law doesn't solve all your problems. Sometimes you gotta simply be content with an attempt at persuasion, and, if that doesn't work, chalk it up to the (more-than-occasional) problems with representative democracy. It's a crappy system, to be sure. It's simply better than the available alternatives.
I happen to agree with Santa Monica City Councilmen Robert Holbrook and Herb Katz that City Council meetings should end by, say, 11:00 p.m., and that putting the public comment period at the end of these extraordinarily long meetings -- in order to force the public to sit through the whole thing -- is unwise. In general, meetings -- including governmental meetings -- shouldn't end around midnight. It's not conducive to public participation. It's a bad idea.
That said, I also agree with Justice Zelon that poor meeting schedules are neither unconstitutional nor violate the Brown Act (or, for that matter, OSHA regulations). And, quite frankly, it's fairly frivolous to argue to the contrary. Finally, I'd strongly hope that our elected representatives would understand that fact. Something that Mssrs. Holbrook and Katz apparently did not.
Santa Monica. A crazy place. Backed up by some crazy laws and some crazy elected officials. I gotta admit that I love 'em, and appreciate the sentiment. But please realize that the law doesn't solve all your problems. Sometimes you gotta simply be content with an attempt at persuasion, and, if that doesn't work, chalk it up to the (more-than-occasional) problems with representative democracy. It's a crappy system, to be sure. It's simply better than the available alternatives.
Friday, November 17, 2006
Oakland Raiders v. Oakland-Alameda County Coliseum (Cal. Ct. App. - Nov. 17, 2006)
Raiders lose. As usual. All the time.
They's as impressive in the courtroom as they are on the field.
They're horrible.
They's as impressive in the courtroom as they are on the field.
They're horrible.
Iskenderian v. Iskenderian (Cal. Ct. App. - Nov. 17, 2006)
It's lunchtime. And I haven't had anything to eat. So you'll have to excuse me if I started to drool when I read this opinion.
It's about the Zankou Chicken restaurants, which are a yummy staple of Los Angeles. I remember one of the places on the corner of Sunset and Normandie in Hollywood, "back in the day" (i.e., when I was an Angelino). Lebanese chicken. Yummy.
The legal discussion in the opinion by Justice Boland isn't particularly interesting. The case involves a familial squabble about who owns the trademark to the name "Zankou Chicken," and the resolution of the case largely revolves around fact-specific inquiries. So if you're looking for a fascinating and in-depth discussion of IP, this one ain't for you.
If, howwever, you're looking to read an interesting story -- in particular, about one family's struggles (and fights) during the creation of a Lebanese restaurant chain -- this is definitely worth a read. It's got immigrants struggling to make a living, a family patriarch, success in the American dream, family drama and intrigue, the involvement of selfish (and perjurious) widows, and -- in the end -- murder, as a son, diagnosed with cancer, shoots and kills his mother, sister, and himself. The facts of the case have very little to do with the ownership of the trademark. But they nonetheless allow an interesting way to peek into another family's life, and make for a good read on a lazy Friday afternoon.
P.S. - On the Zankou Chicken website, the section on "Our History" omits the part about the murders. Hardly a surprise, eh?
It's about the Zankou Chicken restaurants, which are a yummy staple of Los Angeles. I remember one of the places on the corner of Sunset and Normandie in Hollywood, "back in the day" (i.e., when I was an Angelino). Lebanese chicken. Yummy.
The legal discussion in the opinion by Justice Boland isn't particularly interesting. The case involves a familial squabble about who owns the trademark to the name "Zankou Chicken," and the resolution of the case largely revolves around fact-specific inquiries. So if you're looking for a fascinating and in-depth discussion of IP, this one ain't for you.
If, howwever, you're looking to read an interesting story -- in particular, about one family's struggles (and fights) during the creation of a Lebanese restaurant chain -- this is definitely worth a read. It's got immigrants struggling to make a living, a family patriarch, success in the American dream, family drama and intrigue, the involvement of selfish (and perjurious) widows, and -- in the end -- murder, as a son, diagnosed with cancer, shoots and kills his mother, sister, and himself. The facts of the case have very little to do with the ownership of the trademark. But they nonetheless allow an interesting way to peek into another family's life, and make for a good read on a lazy Friday afternoon.
P.S. - On the Zankou Chicken website, the section on "Our History" omits the part about the murders. Hardly a surprise, eh?
Thursday, November 16, 2006
Day v. Collingwood (Cal. Ct. App. - Nov. 16, 2006)
I hate to say it. 'Cause I'm a loyal, institution-type guy. But Justice Aaron is right in this case. Motions for sanctions under CCP 128.7 can indeed be brought post-judgment. Judge Strauss (down here in San Diego) was wrong in holding that he lacked jurisdiction to consider such requests. Which means that the motion for sanctions against attorney Darren J. Quinn -- a graduate of the University of San Diego School of Law -- should have properly been considered, and will be considered on remand.
Mind you, I'm not too too worried about our alum, Mr. Quinn, because Justice Aaron goes out of her way to note that motions for sanctions should ordinarily be brought before or soon after a judgment, and that delay in bringing such a motion -- here, the motion was filed over four months after a final judgment was entered --can (and should) be considered in assessing the merits of the motion. So I don't feel especially disloyal.
Regardless, Justice Aaron is correct. So go ahead and file those postjudgment sanctions motions -- so long as you served the motion prejudgment and complied with the safe harbor rule -- to your heart's content. Just do so quickly if you want to win 'em.
P.S. - Full Disclosure: Upon further review, my disloyalty concern appears unfounded. Or maybe even 100% off. Because while I was focusing my attention (not surprisingly) on the attorney against whom the sanctions were sought, I briefly ignored the identity of the counsel who was seeking them. Who is (at least according to the list of counsel on appeal) is T. Hall Brehme. Who not only is also a graduate of the esteemed University of San Diego School of Law, but who is also a former student of mine. (And who, if I recall correctly, did quite a good job in my Professional Responsibility class.)
I'm always happy to see my former students on the sanctioning side of the equation rather than on the sanctioned side!
Mind you, I'm not too too worried about our alum, Mr. Quinn, because Justice Aaron goes out of her way to note that motions for sanctions should ordinarily be brought before or soon after a judgment, and that delay in bringing such a motion -- here, the motion was filed over four months after a final judgment was entered --can (and should) be considered in assessing the merits of the motion. So I don't feel especially disloyal.
Regardless, Justice Aaron is correct. So go ahead and file those postjudgment sanctions motions -- so long as you served the motion prejudgment and complied with the safe harbor rule -- to your heart's content. Just do so quickly if you want to win 'em.
P.S. - Full Disclosure: Upon further review, my disloyalty concern appears unfounded. Or maybe even 100% off. Because while I was focusing my attention (not surprisingly) on the attorney against whom the sanctions were sought, I briefly ignored the identity of the counsel who was seeking them. Who is (at least according to the list of counsel on appeal) is T. Hall Brehme. Who not only is also a graduate of the esteemed University of San Diego School of Law, but who is also a former student of mine. (And who, if I recall correctly, did quite a good job in my Professional Responsibility class.)
I'm always happy to see my former students on the sanctioning side of the equation rather than on the sanctioned side!
U.S. v. Zakharov (9th Cir. - Nov. 15, 2006)
I always like reading about case with a San Diego connection. Like this one. Which not only concerns an appeal from the Southern District of California, but which may well have also been about the "San Diego connection." To cocaine, that is.
Sure, the case is technically about a seizure of cocaine on the high seas; in particular, cocaine hat was found aboard the Belize-registered vessel Svesda Maru when it was 500 miles off the coast of southern Mexico, in international waters. And we're not talking about merely a tiny little bit of cocaine. We're talking about many, many kilos. As in 9200 kilos. One of the largest cocaine seizures in meritime history. Literally tons of cocaine.
I say "San Diego connection" because, yeah, the boat was captured in international waters, but where exactly did you think those 9200 kilos were likely going to end up? Mexico? Canada? Not likely. Almost assuredly the good old U.S. of A. Very potentially through San Diego, via TJ. And from there to Los Angeles, San Francisco, and beyond.
Actually, the case is (in part) all about this; in particular, whether there was a sufficient nexus between the coke seized in international waters off Mexico and the United States. But Judge Tallman agrees with the district court -- and I think he's right -- that there was indeed enough evidence that the cocaine was destined for the United States to support jurisdiction.
There was another interesting issue in the case as well; namely, whether the government violated Federal Rule of Criminal Procedure 5(a), which provides that “any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate judge.” After all, Zakharov was arrested without a warrant, and the government took 11 days to take him before a magistrate judge. That's more than a little delay, no?
But Judge Tallman holds -- again rightly -- that this delay wasn't unnecessary. Because that's simply how long it took the ship to travel the 1620 nautical miles from where in was seized, in southern Mexico, to the nearest federal magistrate judge (in San Diego). Sure, the U.S. could have taken him by helicopter or faxed over something or whatever. But they're not required to do so. Zakharov was immediately taken to the magistrate the very same day the ship arrived in the United States. That's good enough.
9200 kilograms of cocaine. Ingeniously stashed behind a fuel tank. Which took five-plus days of searching by successive seven-member Navy/Coast Guard boarding parties to find. Impressive on both sides of the criminal aisle in this one.
Sure, the case is technically about a seizure of cocaine on the high seas; in particular, cocaine hat was found aboard the Belize-registered vessel Svesda Maru when it was 500 miles off the coast of southern Mexico, in international waters. And we're not talking about merely a tiny little bit of cocaine. We're talking about many, many kilos. As in 9200 kilos. One of the largest cocaine seizures in meritime history. Literally tons of cocaine.
I say "San Diego connection" because, yeah, the boat was captured in international waters, but where exactly did you think those 9200 kilos were likely going to end up? Mexico? Canada? Not likely. Almost assuredly the good old U.S. of A. Very potentially through San Diego, via TJ. And from there to Los Angeles, San Francisco, and beyond.
Actually, the case is (in part) all about this; in particular, whether there was a sufficient nexus between the coke seized in international waters off Mexico and the United States. But Judge Tallman agrees with the district court -- and I think he's right -- that there was indeed enough evidence that the cocaine was destined for the United States to support jurisdiction.
There was another interesting issue in the case as well; namely, whether the government violated Federal Rule of Criminal Procedure 5(a), which provides that “any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate judge.” After all, Zakharov was arrested without a warrant, and the government took 11 days to take him before a magistrate judge. That's more than a little delay, no?
But Judge Tallman holds -- again rightly -- that this delay wasn't unnecessary. Because that's simply how long it took the ship to travel the 1620 nautical miles from where in was seized, in southern Mexico, to the nearest federal magistrate judge (in San Diego). Sure, the U.S. could have taken him by helicopter or faxed over something or whatever. But they're not required to do so. Zakharov was immediately taken to the magistrate the very same day the ship arrived in the United States. That's good enough.
9200 kilograms of cocaine. Ingeniously stashed behind a fuel tank. Which took five-plus days of searching by successive seven-member Navy/Coast Guard boarding parties to find. Impressive on both sides of the criminal aisle in this one.
Wednesday, November 15, 2006
Fernandez-Ruiz v. Gonzales (9th Cir. - Nov. 15, 2006)
Whoops! I wrote a brief comment about this case earlier today that poked a tiny bit of fun of my former boss, at which point a very smart reader e-mailed me to mention -- in a very funny way -- that although Judge Reinhardt (who authored the opinion) voted with the majority in the en banc court (an opinion that I discuss here), the original panel opinion actually denied review. So while it's still interesting that Judge Reinhardt successfully cranks out a 23-page, single spaced opinion (and gets the rest of the panel to sign onto it) a mere three weeks after the en banc court remands the case to the panel -- pretty speedy, no? -- Judge Reinhardt was thereby supporting only one of his prior decisions, not two.
I still defend my claim that Judge Reinhardt's clerks are darn hardworking. I should add, however, that there's at least one other judge's chambers that's equally (if not more) dedicated to burning the midnight oil. And that's still working, and cranking out e-mails, at 11:24 at night.
Good job. Keep up the excellent work!
I still defend my claim that Judge Reinhardt's clerks are darn hardworking. I should add, however, that there's at least one other judge's chambers that's equally (if not more) dedicated to burning the midnight oil. And that's still working, and cranking out e-mails, at 11:24 at night.
Good job. Keep up the excellent work!
In Re Leni (Cal. Ct. App. - Nov. 15, 2006)
Justice Raye begins this opinion with the fairly harsh (albeit a bit subtle) phrase: "During the 17 years it took the Lenis to end their 25-year marriage, . . . ." Ouch.
Sure, Constance and Charles Leni got married in 1977, separated in 1985, got back together, filed for divorce (and separated again) in 1992, and then finally got formally divorced in 2003. During all of which time they were buying, selling, and living in various properties, all under various terms and conditions. Which sort of made the splitting of their assets a mess.
Still. That opening line is a tough one. Perhaps "tough but fair". But definitely tough.
That said, it did make me smile.
(Which only proves that, deep down, I'm a bad person. Very, very bad.)
Sure, Constance and Charles Leni got married in 1977, separated in 1985, got back together, filed for divorce (and separated again) in 1992, and then finally got formally divorced in 2003. During all of which time they were buying, selling, and living in various properties, all under various terms and conditions. Which sort of made the splitting of their assets a mess.
Still. That opening line is a tough one. Perhaps "tough but fair". But definitely tough.
That said, it did make me smile.
(Which only proves that, deep down, I'm a bad person. Very, very bad.)
Tuesday, November 14, 2006
U.S. v. Martinez-Martinez (9th Cir. - Nov. 14, 2006)
Wow. The Ninth Circuit doesn't waste much time before it invites judges to sit by designation, huh? Here's an opinion authored by Judge Larson, who sits on the district court in the Central District of California. And who was confirmed by the Senate only eight months ago!
Confirmed in March 2006 and already hearing cases in the Ninth Circuit in October 2006, with a published opinion the very next month. Talk about speedy.
P.S. - Full disclosure: I knew Steve ("Judge Larson") way back when he was in high school, as he debated for Damien High School (in La Verne, California) during the same period I debated for Lake Braddock High School (in Burke, Virginia). I wish I could tell you who won the debates we had against each other. Or what I know about Steve high school days. But I forget one and will refrain from revealing the other. You can guess which is which. :-)
Great job, Steve -- err, Judge Larson. Keep up the good work!
Confirmed in March 2006 and already hearing cases in the Ninth Circuit in October 2006, with a published opinion the very next month. Talk about speedy.
P.S. - Full disclosure: I knew Steve ("Judge Larson") way back when he was in high school, as he debated for Damien High School (in La Verne, California) during the same period I debated for Lake Braddock High School (in Burke, Virginia). I wish I could tell you who won the debates we had against each other. Or what I know about Steve high school days. But I forget one and will refrain from revealing the other. You can guess which is which. :-)
Great job, Steve -- err, Judge Larson. Keep up the good work!
People v. Mesa (Cal. Ct. App. - Nov. 14, 2006)
I really like Justice Johnson's concurrence in this case. You don't read many of them -- from any judge or justice -- that begin like this, either in style or in substance:
"While I initially planned to dissent in this case, my colleagues’ opinion persuaded me the prevailing standard of review for claims involving ineffective assistance of counsel requires a 'reasonable probability' of a different outcome, even when that ineffective assistance results in the deprivation of defendant’s federal constitutional rights. (Maj. Opn. at pp. 8-12.) I write separately, nonetheless, to register my concern this approach is not sufficiently protective of vital constitutional rights, such as a defendant’s Fifth Amendment right not to testify. In my view, when a lawyer’s ineffective assistance costs a defendant such a right only application of the Chapman standard will afford the essential protection. That is, when as here a defense counsel’s
failure to object deprives defendant not just of his constitutional right to effective representation but to another constitutional right guaranteed by the U.S. Constitution the conviction should be reversed unless the court can make a finding 'beyond a reasonable doubt' the error did not affect the outcome."
I like it. A lot.
Both the majority opinion (by Justice Perluss) and the concurrence are well, well worth the read.
"While I initially planned to dissent in this case, my colleagues’ opinion persuaded me the prevailing standard of review for claims involving ineffective assistance of counsel requires a 'reasonable probability' of a different outcome, even when that ineffective assistance results in the deprivation of defendant’s federal constitutional rights. (Maj. Opn. at pp. 8-12.) I write separately, nonetheless, to register my concern this approach is not sufficiently protective of vital constitutional rights, such as a defendant’s Fifth Amendment right not to testify. In my view, when a lawyer’s ineffective assistance costs a defendant such a right only application of the Chapman standard will afford the essential protection. That is, when as here a defense counsel’s
failure to object deprives defendant not just of his constitutional right to effective representation but to another constitutional right guaranteed by the U.S. Constitution the conviction should be reversed unless the court can make a finding 'beyond a reasonable doubt' the error did not affect the outcome."
I like it. A lot.
Both the majority opinion (by Justice Perluss) and the concurrence are well, well worth the read.
Monday, November 13, 2006
Law Offices of David A. Boone v. Derham-Burk (9th Cir. - Nov. 13, 2006)
This opinion by Judge (William) Fletcher is about presumptive attorney fee awards in bankruptcy cases. I'm not a bankruptcy person, so I didn't really know how this stuff worked. Hence it was marginally interesting reading on a Monday morning; sort of a glimpse into a different world.
My only comment was about footnote 1. The case revolved around a tiny, tiny, tiny dispute; namely, whether the attorney (David Boone) should have been paid an extra $1,248 in fees. You might think: "I can't believe that someone would spend the time and money to appeal to both the BAP and the Ninth Circuit over such a tiny amount of money. That's utterly irrational." And you'd be right. But, hey, sometimes, when you feel that you've been unjustly deprived of something, it's worth it -- if only internally -- to stand up for the principle of the thing. Even if such conduct is technically irrational.
The reason I mention this is because it helps to explain footnote 1, in which Judge Fletcher mentions that although Boone filed diligently prosecuted his appeal, "Neither the United States trustee nor the Chapter 13 trustee filed briefs in this court or the BAP," noting further that "It would have been of great assistance to us and the BAP if such briefs had been filed." Because the dispute is only over $1,248.00, I can see why no briefs were filed on that side; after all, it would cost more to write them than it would to lose. Plus, even if you don't write them, you may still win (as, indeed, they eventually do, at least in part).
So I'm not really sure that's their fault. (Nor, I think, is Judge Fletcher saying that it is.) My only reaction was that I bet if Judge Fletcher had invited briefs, he'd have gotten them. My strong sense is that, acting pro bono, there'd be plenty of practitioners, law professors, and/or law students who'd be more than willing to write up some pretty good briefs in cases like these these, if only for the experience. Just ask, Willie. I'm sure you'd be surprised (and pleased) by the positive response.
Notwithstanding what many people may think, there are lots of nice lawyers out there willing to help.
My only comment was about footnote 1. The case revolved around a tiny, tiny, tiny dispute; namely, whether the attorney (David Boone) should have been paid an extra $1,248 in fees. You might think: "I can't believe that someone would spend the time and money to appeal to both the BAP and the Ninth Circuit over such a tiny amount of money. That's utterly irrational." And you'd be right. But, hey, sometimes, when you feel that you've been unjustly deprived of something, it's worth it -- if only internally -- to stand up for the principle of the thing. Even if such conduct is technically irrational.
The reason I mention this is because it helps to explain footnote 1, in which Judge Fletcher mentions that although Boone filed diligently prosecuted his appeal, "Neither the United States trustee nor the Chapter 13 trustee filed briefs in this court or the BAP," noting further that "It would have been of great assistance to us and the BAP if such briefs had been filed." Because the dispute is only over $1,248.00, I can see why no briefs were filed on that side; after all, it would cost more to write them than it would to lose. Plus, even if you don't write them, you may still win (as, indeed, they eventually do, at least in part).
So I'm not really sure that's their fault. (Nor, I think, is Judge Fletcher saying that it is.) My only reaction was that I bet if Judge Fletcher had invited briefs, he'd have gotten them. My strong sense is that, acting pro bono, there'd be plenty of practitioners, law professors, and/or law students who'd be more than willing to write up some pretty good briefs in cases like these these, if only for the experience. Just ask, Willie. I'm sure you'd be surprised (and pleased) by the positive response.
Notwithstanding what many people may think, there are lots of nice lawyers out there willing to help.
Friday, November 10, 2006
In Re Manfer (Cal. Ct. App. - Nov. 9, 2006)
As a wise man once said, "Nothing is over until we decide it is." Which apparently includes a marriage. For, as Justice Ikola (rightly) holds here, once the spouses decide that it's over, it is indeed over. Even if no one else knows. The date of your separation is the date you actually separated, not the date upon which you revealed your separation to the world.
That's the moral -- indeed, holding -- of the sad story of Samuel and Maureen Manfer. Who had an argument one week after their 31st wedding anniversary, at which point Samuel promptly moved out of the house and Maureen concluded that the marriage was finally over. (It sounds like this did not come as a shock to either party, as Samuel had already leased a separate apartment prior to the argument.) However, even though all these events transpired in June 2004, Maureen and Samuel decided to "keep up appearances" until after the holidays (! -- remember, this is all the way back in June), principally so their three daughters wouldn't find out. So they went on trips together, continued to have social contacts, and the like. But didn't live together. And no sex.
So Maureen says the date of separation is June 2004. But Samuel says that the date of separation is March 2005, the date upon which they revealed their separation to the world. (The fight, of course, is all about money, since after the date of separation, the money a spouse earns is his and her own.)
The trial court agrees with Samuel, but Justice Ikola agrees with Maureen, and reverses. Once you decide it's over, and in fact separate, it doesn't matter who you tell. Or who you don't tell. It's over.
That's the moral -- indeed, holding -- of the sad story of Samuel and Maureen Manfer. Who had an argument one week after their 31st wedding anniversary, at which point Samuel promptly moved out of the house and Maureen concluded that the marriage was finally over. (It sounds like this did not come as a shock to either party, as Samuel had already leased a separate apartment prior to the argument.) However, even though all these events transpired in June 2004, Maureen and Samuel decided to "keep up appearances" until after the holidays (! -- remember, this is all the way back in June), principally so their three daughters wouldn't find out. So they went on trips together, continued to have social contacts, and the like. But didn't live together. And no sex.
So Maureen says the date of separation is June 2004. But Samuel says that the date of separation is March 2005, the date upon which they revealed their separation to the world. (The fight, of course, is all about money, since after the date of separation, the money a spouse earns is his and her own.)
The trial court agrees with Samuel, but Justice Ikola agrees with Maureen, and reverses. Once you decide it's over, and in fact separate, it doesn't matter who you tell. Or who you don't tell. It's over.
Wednesday, November 08, 2006
Renderos v. Ryan (9th Cir. - Nov. 8, 2006)
I'm hesitant to help out child molesters. That said, when you read a hundred of cases like this, you can come up with a very simple piece of advice:
When someone you molested calls you up on the telephone to discuss the years-ago molestation, don't admit it. Don't talk about it. And definitely don't say, as Renderos does here, "You were the one asking for it."
Why not? Because, you dummy, the cops are obviously listening. And the tape recording ain't gonna play well in front of the jury at your trial.
How "not good"? How about 66 years in prison not good?
Yeah, that bad.
When someone you molested calls you up on the telephone to discuss the years-ago molestation, don't admit it. Don't talk about it. And definitely don't say, as Renderos does here, "You were the one asking for it."
Why not? Because, you dummy, the cops are obviously listening. And the tape recording ain't gonna play well in front of the jury at your trial.
How "not good"? How about 66 years in prison not good?
Yeah, that bad.
Lankford v. Arave (9th Cir. - Nov. 7, 2006)
Not suprising: A panel opinion in which Judges Reinhardt and Fletcher vote to reverse in a death penalty case. Very surprising: When Judge Bybee not only does so as well; indeed, also writes the opinion as well as agrees that the conviction -- not merely the sentence -- should be reversed.
But it happens here.
This can only be viewed as Number 5.
But it happens here.
This can only be viewed as Number 5.
Tuesday, November 07, 2006
People v. Dalerio (Cal. Ct. App. - Nov. 7, 2006)
Don't read this case. It's disturbing, and concerns the (alleged) kidnapping and attempted murder of a nine-year old girl. It includes the following two sentences: "The victim lay down on the ground and defendant started choking her. Before she lost consciousness, the victim urinated on herself." The recitation of what the little girl subsequently told others when they came across her after the attack literally made me shudder.
Rather than these cogent -- but extremely disturbing -- sentences, I much preferred this line by Justice Simons: "For five to ten minutes while the victim followed him, defendant appeared to be looking for the her neighbors." This is one of those rare cases where I'd rather read unintelligible typos than the actual facts.
Rather than these cogent -- but extremely disturbing -- sentences, I much preferred this line by Justice Simons: "For five to ten minutes while the victim followed him, defendant appeared to be looking for the her neighbors." This is one of those rare cases where I'd rather read unintelligible typos than the actual facts.
Levi v. O'Connell (Cal. Ct. App. - Nov. 7, 2006)
With the shocking -- and I mean, shocking -- announcement that Britney Spears filed for divorce from Kevin Federline earlier today, I know that it's going to be an uphill battle to get anyone to read a judicial opinion today. There are magazines to buy: Us, National Enquirer, People, etc. Who has time for anything else? (Election? What election?)
Nonetheless, in a desperate effort to restrain the celebrity-hungry masses from feasting entirely upon Britney Spears drivel, I shall somewhat debase myself by talking about this case exclusively as regards two of the participants therein. Doctrine schoctrine. Any exciting gossip? Or weird people? Details, my friend. Give me the lurid, fascinating details.
Well, maybe there aren't weird individuals involved, but there are at least two interesting participants. The first is the substantive plaintiff, Levi Clancy. He's a 13-year old child. But not your typical 13-year old child. Boy, howdy. He's instead an "extremely gifted" child who started attending Santa Monica College when he was seven years old. Yes, you read right. Seven. (Which made me wonder: if you're a 22-year old student at SMC, and you look at the seat next to you and see a seven-year old child there who just kicked your a** on a quiz or something, don't you inevitably just say to yourself: "Man, I must totally suck.")
But that's neither here nor there. Anyway, Levi goes to college when he's seven, passes the California High School Proficiency exam when he's nine, and he starts attending UCLA when he's 13. So his mother, Leila J. Levi, files a lawsuit that says that California is responsible for paying Levi's tuition at UCLA because the state is obliged to provide a free public education to children. And equal protection, etc. etc.
Needless to say, Ms. Levi loses the lawsuit. Doesn't take a 13-year old genius to figure that one out. And Justice Cantil-Sakauye affirms.
The other interesting participant is the attorney for Ms. Levi, Richard D. Ackerman. He runs a one-person shop called "The Pro-Family Law Center" (the sworn enemy, I assume, of its counterpart, "The Anti-Family Law Center") out here in Temecula. Mr. Ackerman's a double graduate of Western State in Fullerton (both undergrad and for law school), and joined the Bar in 1994. His web site says: "The Pro-Family Law Center is headed by a governing board of conservative Christians with the goal of influencing American society and culture," and its "mission statement" declares that "The Pro-Family Law Center exists to promote and defend Judeo-Christian values through advocacy and litigation." And as long as Mr. Ackerman didn't charge Ms. Levi -- a single mother -- for the lawsuit (and I'd be appalled if the opposite were true), I'm very happy for his pro bono services. I like lawyers working for the public interest. Regardless of whether their version of the public interest is different, or even inconsistent, with mine.
The only (very marginal) shots that I'll get in on Mr. Ackerman are (1) his self-selected e-mail address (professora@aol.com) -- I don't see that he's a "real" professor anywhere, and wouldn't personally select that address even if I was, and (2) his somewhat inflated (if perhaps not factually inaccurate) description of the cases upon which he's "worked" in the past; e.g., "Ackerman has defended the Pledge of Allegiance before the Ninth Circuit Court of Appeals and United States Supreme Court . . . . fought before the Supreme Court to prevent the spread of AIDS. . . . and has represented parties and friends of the court at the United States Supreme Court level (Lawrence v. Texas, Newdow v. U.S. Congress, ACLU v. Ashcroft, and others). I mean, yeah, I guess submitting an unsolicited amicus brief on behalf of your own group counts as "defending" these topics and "representing parties and friends of the court," but somehow, my sense is that you're trying to give off a different impression than that you simply puked out an amicus brief -- along with a thousand others -- that pretty much no one read. (There's some other really good and interesting stuff about Mr. Ackerman as well, but I'll leave that to a google search. Let's just say that he's a very interesting character in his own right.)
There are my two personalities for the day. Sure, neither of them are Britney Spears. But how many people are? (Thankfully.)
Nonetheless, in a desperate effort to restrain the celebrity-hungry masses from feasting entirely upon Britney Spears drivel, I shall somewhat debase myself by talking about this case exclusively as regards two of the participants therein. Doctrine schoctrine. Any exciting gossip? Or weird people? Details, my friend. Give me the lurid, fascinating details.
Well, maybe there aren't weird individuals involved, but there are at least two interesting participants. The first is the substantive plaintiff, Levi Clancy. He's a 13-year old child. But not your typical 13-year old child. Boy, howdy. He's instead an "extremely gifted" child who started attending Santa Monica College when he was seven years old. Yes, you read right. Seven. (Which made me wonder: if you're a 22-year old student at SMC, and you look at the seat next to you and see a seven-year old child there who just kicked your a** on a quiz or something, don't you inevitably just say to yourself: "Man, I must totally suck.")
But that's neither here nor there. Anyway, Levi goes to college when he's seven, passes the California High School Proficiency exam when he's nine, and he starts attending UCLA when he's 13. So his mother, Leila J. Levi, files a lawsuit that says that California is responsible for paying Levi's tuition at UCLA because the state is obliged to provide a free public education to children. And equal protection, etc. etc.
Needless to say, Ms. Levi loses the lawsuit. Doesn't take a 13-year old genius to figure that one out. And Justice Cantil-Sakauye affirms.
The other interesting participant is the attorney for Ms. Levi, Richard D. Ackerman. He runs a one-person shop called "The Pro-Family Law Center" (the sworn enemy, I assume, of its counterpart, "The Anti-Family Law Center") out here in Temecula. Mr. Ackerman's a double graduate of Western State in Fullerton (both undergrad and for law school), and joined the Bar in 1994. His web site says: "The Pro-Family Law Center is headed by a governing board of conservative Christians with the goal of influencing American society and culture," and its "mission statement" declares that "The Pro-Family Law Center exists to promote and defend Judeo-Christian values through advocacy and litigation." And as long as Mr. Ackerman didn't charge Ms. Levi -- a single mother -- for the lawsuit (and I'd be appalled if the opposite were true), I'm very happy for his pro bono services. I like lawyers working for the public interest. Regardless of whether their version of the public interest is different, or even inconsistent, with mine.
The only (very marginal) shots that I'll get in on Mr. Ackerman are (1) his self-selected e-mail address (professora@aol.com) -- I don't see that he's a "real" professor anywhere, and wouldn't personally select that address even if I was, and (2) his somewhat inflated (if perhaps not factually inaccurate) description of the cases upon which he's "worked" in the past; e.g., "Ackerman has defended the Pledge of Allegiance before the Ninth Circuit Court of Appeals and United States Supreme Court . . . . fought before the Supreme Court to prevent the spread of AIDS. . . . and has represented parties and friends of the court at the United States Supreme Court level (Lawrence v. Texas, Newdow v. U.S. Congress, ACLU v. Ashcroft, and others). I mean, yeah, I guess submitting an unsolicited amicus brief on behalf of your own group counts as "defending" these topics and "representing parties and friends of the court," but somehow, my sense is that you're trying to give off a different impression than that you simply puked out an amicus brief -- along with a thousand others -- that pretty much no one read. (There's some other really good and interesting stuff about Mr. Ackerman as well, but I'll leave that to a google search. Let's just say that he's a very interesting character in his own right.)
There are my two personalities for the day. Sure, neither of them are Britney Spears. But how many people are? (Thankfully.)
Monday, November 06, 2006
Macias v. County of Los Angeles (Cal. Ct. App. - Oct. 27, 2006)
It's been a fairly lazy November for the California judiciary thus far. Perhaps everyone's focused on the election; and, in some cases, on their own retention.
But that simply allows us to revisit the quality manner in which our government sometimes treats its citizens. Let's see, for example, what happens to Trinidad Macias at the hands of
Los Angeles County Sheriff’s Department in this case:
"At approximately 5:00 a.m. on August 28, 2002, Macias was praying the rosary as he sat on the toilet in his home in Pico Rivera, California. Macias, then a 60-year-old retired college professor, has 90 percent hearing loss in both ears and was not wearing his hearing aid at the time. He was dressed in only a t-shirt, with no clothing below the waist.
Macias felt a rumbling sensation under his feet that felt like an earthquake, and then three deputies wearing combat-type clothing burst into the bathroom with their guns drawn. Macias pointed to his ears to try to indicate that he was deaf.
The deputies pulled Macias off the toilet, threw him to the floor, and dragged him outside, striking his shoulder against the wall in the process. Once outside, he was guarded by another deputy. Macias was forced to stand in his driveway wearing nothing but a t-shirt, with his genitals exposed, under guard and unable to reenter his house to get more clothing or his hearing aid, for roughly one hour. It took the deputies only about four minutes, however, to determine that there were no safety threats within Macias’ home. Because of Macias’ sparse clothing, it was immediately apparent that Macias himself was not a safety threat."
Why drag a half-naked 60-year old man praying the rosary on his toilet into the street at gunpoint and display him in public for more than an hour? Because "[a] confidential informant had told [police] that Steve Hernandez, a reputed member of the Pico Nuevo street gang, lived
in the garage at Macias’ home [and] [a]ccording to the informant, [] sold methamphetamines from Macias’ garage without Macias’ knowledge and also stored weapons either in the garage or under the house."
Nice.
Not that it matters, but they found neither drugs nor guns in the house. But, hey, that rosary could easily have been used as a weapon.
But that simply allows us to revisit the quality manner in which our government sometimes treats its citizens. Let's see, for example, what happens to Trinidad Macias at the hands of
Los Angeles County Sheriff’s Department in this case:
"At approximately 5:00 a.m. on August 28, 2002, Macias was praying the rosary as he sat on the toilet in his home in Pico Rivera, California. Macias, then a 60-year-old retired college professor, has 90 percent hearing loss in both ears and was not wearing his hearing aid at the time. He was dressed in only a t-shirt, with no clothing below the waist.
Macias felt a rumbling sensation under his feet that felt like an earthquake, and then three deputies wearing combat-type clothing burst into the bathroom with their guns drawn. Macias pointed to his ears to try to indicate that he was deaf.
The deputies pulled Macias off the toilet, threw him to the floor, and dragged him outside, striking his shoulder against the wall in the process. Once outside, he was guarded by another deputy. Macias was forced to stand in his driveway wearing nothing but a t-shirt, with his genitals exposed, under guard and unable to reenter his house to get more clothing or his hearing aid, for roughly one hour. It took the deputies only about four minutes, however, to determine that there were no safety threats within Macias’ home. Because of Macias’ sparse clothing, it was immediately apparent that Macias himself was not a safety threat."
Why drag a half-naked 60-year old man praying the rosary on his toilet into the street at gunpoint and display him in public for more than an hour? Because "[a] confidential informant had told [police] that Steve Hernandez, a reputed member of the Pico Nuevo street gang, lived
in the garage at Macias’ home [and] [a]ccording to the informant, [] sold methamphetamines from Macias’ garage without Macias’ knowledge and also stored weapons either in the garage or under the house."
Nice.
Not that it matters, but they found neither drugs nor guns in the house. But, hey, that rosary could easily have been used as a weapon.