Monday, April 30, 2007

PCO, Inc. v. Christiansen, Miller . . . (Cal. Ct. App. - April 30, 2007)

Sure, there are lots of upsides. But there are some serious potential downsides of having a high-profile criminal defense attorney as a partner -- even a non-equity partner -- of the firm as well.

As Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro learned in this case. In which Justice Mosk reverses the grant of summary judgment to the firm below and holds that the firm might well be vicariously liable for the alleged misconduct of Robert L. Shapiro -- yes, that Robert L. Shapiro -- during the course of his representation of white-collar fraudster David Liang. Including this neat little tidbits: "Shapiro . . . directed a group of those associated with Laing to go to Laing’s residence in Palm Springs, California, and there to obtain 12 duffel bags, each containing $500,000 in cash that Shapiro knew or should have known had been unlawfully obtained . . . and some of that money was used to post bail for Laing and to pay the fees of Shapiro and the Christensen Firm. . . . . The Christensen Firm’s retainer agreement specifies a flat fee of $250,000; Shapiro testified that he told Laing and Laing’s associates that Laing’s legal fees 'could run a million dollars.'"

Duffel bags full of cash. Not a bad practice if you can get it, I guess. Unless, of course, you get sued because of it. (And, even then, there's insurance. Thank you, moral hazard.)

People v. Crandall (Cal. Supreme Ct. - April 30, 2007)

Sometimes a unanimous opinion of the California Supreme Court is actually a 4-3. Like here.

Everyone agrees that the decision here should be affirmed and that the trial court properly sentenced defendant to pay $2600 in restitution. Hence, everyone joins Justice Werdegar's majority opinion.

But this one's also a twofer. Because Justice Baxter, joined by Justices Chin and Corrigan, also writes separately to say how they'd decide a hypothetical case -- not present here -- involving different facts. Justice Werdegar's opinion says that, here, X and Y existed. and hence that the restitution order was proper. Justice Baxter agrees, but writes separately to slo say that he'd vote to affirm even if only X existed. And that he's got at least two other votes for that position.

So two decisions in one. One unanimous, one much more closely split.

Friday, April 27, 2007

Hayden v. Robertson Stephens (Cal. Ct. App. - April 27, 2007)

Slim pickings today.

Two published opinions from each tribunal. One Ninth Circuit opinion about dolphin-safe tuna and a dispute regarding exactly how safe we're talking. One opinion from the Ninth Circuit about a three-strikes habeas case that reads a little weirdly -- in particular, like the opinion is written by a senior district court judge from Connecticut. Which it is. Different lingo. Then one (belatedly published) opinion by Justice Rothschild that affirms the grant of summary judgment against a firefighter who lost part of his leg in a work-related injury and then alleged that he was discriminated against on the basis of his injury.

The unifying theme of all the cases today is sadness. Dying dolphins. A firefighter who lost his lower leg. An 82-year old man sentenced to 25 years in prison under the Three Strikes law for shoplifting $100 worth of tools from Home Depot.

And then, in this case, a dot-com winner -- David Hayden -- who founded an e-mail ISP (Critical Path), went public, rode the bubble, had shares worth $200+ million, and then saw the shebang pop when he lost his money, his wife, and ultimately incurred a $28 million+ judgment brought by his former brokerage firm. That's now affirmed by the Court of Appeal.

I guess if you want an uplifting story, neither the evening news nor the advance sheets are the place to go.

Thursday, April 26, 2007

Wednesday, April 25, 2007

People v. Perrusquia (Cal. Ct. App. - April 25, 2007)

Hmmm. I admit that this one is close. But I think that I agree with Justice Bedsworth's dissent more than I do with Justice Moore's majority opinion (even as supported by Justice O'Leary's concurrence).

My dissent probably wouldn't be filled with as much rhetoric as the first couple of pages of Justice Bedsworth's dissent. Not only because my writing style is a bit different than Justice Bedsworth's -- mind you, as I've often said, I like many of his opinions, and his style often appeals to me -- but also because, in my mind, this isn't the case to go off the deep end about how we need to give the police free reign. It's a close case. This may well be an unconstitutional seizure. It's not a setting in which I would want to wax poetic about how critical it is that we allow the police to grab up every 30-something Hispanic that they sense might possibly be thinking about committing some sort of crime.

That said, on the merits, the police saw Perrusquia sitting in his idling car, crouched low in the driver's seat, around midnight in front of a 7-11 in a high-crime area in Anaheim. Earlier that day, at roll call, the police had been briefed about a series of six armed robberies at 7-11 stores in Anaheim. Perrusquia sat in his idling car for a minute or so -- which is a little weird -- crouched down, and he had parked his car not in the spots nearest to the 7-11 (and plenty of them were empty), but rather in the spot closest to the exit. Finally, when the police officers eventually started to approach the car, they heard "some sort of fumbling" noises and then heard something drop to the floor of the car with a "thud". And then Perrusquia immediately got out of the car once he saw the police and "aggressively and quickly" tried to pass the officers.

Given all of that, I think there was sufficient reasonable suspicion to conduct a Terry stop. At which point, by the way, they found a loaded 9 millimeter in Perrusquia's waistband. And, thereafter, a loaded .22 in the same waistband, plus some meth in his pocket. P.S. - Perrusquia's a prior felon as well.

Close. But, to me, the circumstances, as a whole, were enough to justify a brief patdown. I'd call it good police work. I wouldn't have suppressed.

Fladeboe v. American Izuzu Motors (Cal. Ct. App. - April 25, 2007)

Sometimes amendments make a difference. For example, this one, which reads in its substantive entirety:

On page 19, in the first full paragraph beginning “The record demonstrates,” in the second sentence, insert the word “not” between the words “does” and “show.”


In Re Harbin (9th Cir. - April 25, 2007)

I think the Ninth Circuit comes out looking good on this one.

It's a bankruptcy case, and the question is whether the bankruptcy court should have approved the debtor's plan of reorganization. The case is particularly interesting because the debtor here is an attorney: John Allen Harbin (of Torrance). Moreover, the potential sticking part in Harbin's bankruptcy is the interesting fact that Harbin had been previously sued by another attorney, Jeffrey Adam Sherman (formerly of Beverly Hills), for breach of contract arising out of Harbin's 1996 purchase of Sherman's law practice; in particular, Sherman's "Tax Consulting Group". Harbin stopped paying Sherman, Sherman sued Harbin, Harbin defended the suit on grounds (inter alia) that Harbin wasn't personally liable for the judgment, Harbin lost, and a judgment of over $400,000 was entered against Harbin. At which point Harbin filed for bankruptcy.

Thereafter, however, the trial court vacated the judgment against Harbin, and Sherman appealed. And since there wasn't a judgment, Harbin proposes to pay off all his creditors with his assets and discharge the "debt" to Sherman (which, remember, is zero at this point, but subject to appeal) by paying nothing. Sherman says this isn't permissible because he'll get diddley if the plan is approved and he subsequently prevails on appeal. But the bankruptcy court approves the plan, holding (1) that the court had no discretion or ability to consider the pending appeal because the current value was zero, (2) the Rooker-Feldman doctrine would probhit the court from considering the merits of the pending appeal, and (3) that Sherman can always move to reconsider the approval of the plan in the event he prevails on appeal.

Shortly thereafter, the California Court of Appeal reinstates the judgment against Hardin personally. And the district court then vacates the bankruptcy court's approval of the plan. Hardin then appeals.

The Ninth Circuit, however, affirms. Correctly, in my mind. Judge Ikuta writes an opinion that makes very good sense to me. And even though Judge Cudahy, sitting by designation from the Seventh Circuit, partially dissents, I think that Judge Ikuta pens much better arguments than Judge Cudahy.

So Ninth Circuit 1, Seventh Circuit 0. At least for today.

P.S. -- There's lots of other interesting stuff about the participants in this lawsuit that Judge Ikuta leaves out of her opinion. To give but one example, the fact that Jeffrey Sherman has been repeatedly suspended from the California Bar, resigned from the Bar with charges pending, and not only pled guilty to conspiracy to commit bankruptcy fraud and tax evasion, but was sentenced to 32 months in prison as a result. Nice.

Tuesday, April 24, 2007

People v. Shadden (Cal. Ct. App. - April 24, 2007)

How can you not want to read this case? It's fun and interesting on so many different levels.

First, the sentence. Tom Shadden is angry at the mother of his children. Real angry. Not angry enough to do her personal harm. But, still, angry enough to do the equivalent of punching a wall. But instead of punching a wall, he takes out a gun and shoots her unoccupied car (and takes an ice pick to one of the tires).

N0t a good thing, obviously. What sentence would you impose? He's not shooting at anyone, mind you. Just whacking the car. Which, parenthetically, he and the mother jointly own. So he's basically whacking his (and his s.o.'s) own car. What the appropriate sentence?

Answer: 16 years in prison. Interesting, eh? Was that your call as well? Read the opinion for more. (Thomas obviously has an anger management problem, by the way. Duh.)

Second, the doctrine. Thomas gets convicted of, inter alia, violating Penal Code sect. 247(b), which penalizes a person from shooting at an unoccupied motor vehicle (or house). But Section 247(b) by its terms "does not apply to shooting at an abandoned vehicle, unoccupied vehicle, uninhabited building, or dwelling house with the permission of the owner.” Thomas argues that since he's the co-owner of the vehicle, Section 247(b) does not apply, and that he can no more be convicted of shooting up his own vehicle under Section 247(b) than he can be convicted of burglarizing his own home.

I thought that this was an interesting argument. Ultimately, Justice Wiseman rejects this contention, and her analysis in this regard is fairly good. But, honestly, from what Justice Wiseman said in the opinion, it also sounded like counsel for Shadden (Laura Gordon, a U. Conn. Law graduate down here in Escondido) didn't do the greatest job in the world of briefing this point, and I'd have liked so see the issue explored a bit more.

Third, the transcript. Look, I occasionally drop the f-bomb myself. But I try hard to do so no more than, say, two or three times a sentence. By contrast, here's a partial transcript of what Shadden said -- as he was being tape recorded on the telephone in prison -- to the mother of his child as he attempted to encourage her to try to get the charges dropped: "You need to f***in call. I don’t give a f*** if you call right now. First thing in the f***in morning. . . . You got mad cause you heard I was there and I broke that f***in baby thing [] and you f***in went out and you f***ing had your f***in friend do it." And, a few minutes later: "“Tell ‘em you were f***in’ mad 'cause I was there half hour previous and you heard I smashed the f***ing thing like I did, you know, I was going to f***in lie, I broke the baby’s (inaudible) f*** it. Dang, you f***in had your friend shoot it up hey.”

I think the f-words were a nice touch, don't you? I mean, I was initially totally unclear as to what he was saying. But then once he said the f-word so many times, I totally understood. "What baby thing?", I initially asked myself. "Oh, yeah. The f***in baby thing! Now I understand! And I take it by your reference I'm to call the first thing in the f***ing morning. That's a little bit before the regular morning, no?"

Yep, that word adds a lot. I'm gonna try to use it a lot more than I do. Oh, yeah. And I'm also going to make sure that all of my attempts to feloniously dissuade a witness from testifying are made on a recorded phone line from prison. Notwithstanding all those huge signs that say "NOTICE: ALL TELEPHONE CALLS FROM THIS LINE MAY BE RECORDED." Yep. Definitely a good plan.

People v. Schnabel (Cal. Ct. App. - April 24, 2007)

Want to die in prison? Molest three little girls.

John Gary Schnabel did. And was sentenced to 375 years in prison. Oh, yeah. He's 71 years old.

Affirmed. And rightly so.

In Re Helen W. (Cal. Ct. App. - April 24, 2007)

Sometimes you can tell the result of a case from the first few words of an opinion. Even if they consist of a straightforward, and neutral, statement of the facts.

So, for example, take this case. Where (after the introduction) the first three sentences read as follows:

"Helen was almost three years old and her little brother Matthew was two months old when they were detained in March 2004. The police found Helen eating cigarettes and Matthew lying face down on a dirty blanket; the apartment had dirty laundry piled in every room and numerous lighters within reach of the children. The mother was arrested for being under the influence of methamphetamine."

Given this predicate, it's hardly a devastating surprise that the first and final sentences of the opinion are: "Jamie W. appeals from the termination of parental rights to her children. . . . The judgment terminating parental rights is affirmed."

Monday, April 23, 2007

Seastrom v. Neways, Inc. (Cal. Ct. App. - April 23, 2007)

This afternoon was slightly more interesting than this morning. Or at least more active. Which is simply to say that some opinions were actually published.

That said, with all due respect to the trio of USD Law alums (Darren Quinn, Alexander Papaefthimiou, and Aubrey Boyd) who represented the plaintiff/appellant in this matter, I have to agree with Justice McConnell on this one. Which I can briefly summarize as standing for the following proposition: A person near the top of a pyramid scheme involving the sale of Product X isn't an adequate or proper representative of a putative class of purchasers of Product X, if for no other reason than that person is also a (virtually certain) defendant.

Sure, I can hypothosize exceptions to this rule. I'm a law professor, after all. But not here.

Sorry, my friends. Better luck next time.

Harper v. Poway Unified School Dist. (9th Cir. - April 23, 2007)

What a thrilling and fun-filled day. Only one published opinion, in total, from the California Court of Appeal and the Ninth Circuit. And that opinion, in its entirety, consists of the following:

"Pursuant to the instructions of the Supreme Court, plaintiff Tyler Chase Harper’s appeal is dismissed as moot."


We'll see what the afternoon brings from the CCoA.

Friday, April 20, 2007

Gonzalez v. Yes on 200 (9th Cir. - April 20, 2007)

This is a continuation of the challenge to Arizona's requirement that voters prove that they're a citizen (by presenting identification) before they're allowed to vote.

There were a lot of proceedings immediately prior to the November 2006 election; e.g., the district court's denial of a preliminary injunction, reversal by the Ninth Circuit, reversal again by the Supreme Court. The Ninth Circuit basically continues the lawsuit yet again by saying that the record should be developed further and that this process can effectively be done in time for the 2008 elections, and on that basis basically says that it doesn't matter whether the court grants or denies the preliminary injunction at this point, since a full record can be developed to decide whether to grant a final injunction.

I hated the first nine pages of the opinion, which was how long it took to print the caption. I thought that the next six pages were pretty reasonable, in which Chief Judge Schroeder basically articulated the "not deciding might be the best approach" argument and suggested that that's basically what she was doing.

And then I disliked the next four pages, which basically decided -- or at least put a definite spin on -- the issues at hand even though the opinion continued to insist that it wasn't really deciding them. Sure, you've allegedly got to decide the propriety of the denial of the injunction. But if you really want to do that without advancing one side or the other of the merits, you don't do what Chief Judge Schroeder does here. Sure, she leaves some real wiggle room on remand, and the development of a more replete record. But she's doing more than simply letting the case go forward without an adjudication of the merits. Much more.

Finally, I couldn't help thinking, as I read the case, about those famous words by Rush lyricist Neal Pert. Or, as might better be recalled by the more literate amongst us, the argument that "You can't be a neutral on a moving train." Which goes to the heart of the effort to be purportedly indecisive in the first place.

An interesting resolution.

Thursday, April 19, 2007

Andersen v. WCAB (Cal. Ct. App. - April 19, 2007)

Sometimes it isn't hard to read between the lines. As amply revealed by the first three paragraphs of this opinion by Justice Coffee:

"John Andersen sustained industrial injuries while working for respondent City of Santa Barbara (City). Andersen filed a workers' compensation claim contending that City discriminated against him by forcing him to use vacation time rather than sick leave to obtain medical care for those injuries. (Lab. Code,1 § 132a.). . . .
On April 6, 2006, Board concluded that City did not violate the anti-discrimination provisions of section 132a, and therefore, Andersen is not entitled to restoration of the vacation time he used for such medical appointments.

Andersen petitioned this court for a writ of review. We summarily denied this petition and Andersen sought review in our Supreme Court. His petition to the Supreme Court raised only the issue of whether City violated section 132a. The Supreme Court granted the petition, and transferred the matter back to this court with directions to vacate our summary denial and issue a writ of review to be heard on calendar. We have done so.

We now conclude that City violated section 132a by requiring Andersen to use his earned vacation time rather than sick leave to attend medical appointments to care for his industrial injuries. We also conclude that Board properly applied SB 899, and substantial evidence supports the apportionment opinion of the AME."

In other words: "Oh, I'm sorry. Did I say that we summarily deny the writ? I meant, of course, that we grant the writ. Thanks for the head's up, California Supreme Court. Message heard and received."

Rossco Holdings v. Bank of America (Cal. Ct. App. - April 19, 2007)

Want to see an example of doing equity? Then look at this opinion.

I like what Justice Croskey does here. And it takes a lot of work -- at least doctrinally -- to get there.

You could easily argue that Justice Croskey gets it wrong; that the arbitration proceeding is void because the order that sent it there was void (because the judge that sent it there was disqualified). There'd definitely be a lot of precedent and doctrine on your side.

But I nonetheless prefer, and find legitimate, Justice Croskey's view that the order is void, but not necessarily the result of the arbitration proceedings, so long as another (non-disqualified) judge subsequently finds that the matter should indeed have been ordered to arbitration. This result makes sense not only for efficiency and finality reasons, but (and, in my mind, more importantly) in order to prevent what Justice Croskey calls "gamesmanship"; e.g., avoiding an adverse result only after the result is clear, and on the basis of an objection that predated the proceeding and that did not substantially affect its results.

I'm a fan of doing equity, at least in certain situations. And I think this is one of them. Even though I know that reasonable minds might well disagree.

P.S. - I caught this right before I hit the publish button. I gotta apologize to Justice Croskey for previously calling him "Justice Crosky". I've done that before, and I was about to do it again. Sorry. My bad. No more errors in that regard by me. (My only defense, by the way, is that I'm far from the only one to have made that particular error. Indeed, the list of people who have misspelled Justice Croskey's name as "Justice Crosky" is a virtual who's who list. Senator Leahy did it in the Senate Judiciary Committee. The California Supreme Court did it in its official minutes. The Court of Appeal has itself done it; indeed, repeatedly. And at least I didn't misspell his name as "Crosskey". Unlike some. Still. Sorry about that. Won't happen again. Much.

Wednesday, April 18, 2007

People v. Imram Q. (Cal. Ct. App. - April 18, 2007)

Yesterday I noted that the California Court of Appeal had amended a plethora of its opinions that day, and slightly complimented them for doing so -- or, at least, for being willing to amend.

Today, apparently emboldened, read -- in its entirety -- the following amendment by Justice Rubin:

"GOOD CAUSE appearing the opinion filed in the above entitled matter on April 9, 2007, is modified as follows:
On page 3, the amount of '$17,958.13' in the first full sentence shall be replaced with '$17,958';
On page 3, insert a new footnote at the end of the second to the last sentence in the first paragraph which shall now read:
The court therefore ordered appellant to pay Iaquinto $17,958.13 in additional restitution.3
Footnote 3 shall read as follows:
During the hearing, the parties sometimes discussed amounts of money in round figures, and sometimes to the exact penny. From those discussions, we cannot immediately discern the court’s reason for adding 13 cents, but we accept that addition because the court incorporated it into its final order.
(end of modification)
There is no change in judgment."

Wow. All that for 13 cents. And not even for 13 cents, since the judgment remains the same.

Next time, just call me. I'll pay the 13 cents and save the trees chopped down to publish the amendment.

People v. Montoya (Cal. Ct. App. - April 18, 2007)

Maybe we need to do a little more Westlaw training (or, perhaps, careful wordsmithing).

Footnote 8 of this opinion by Justice Benke says "Appellant concedes that the term taint hearing does not occur in Westlaw's databases, current California case law, California statutes or Witkin's California Criminal Law treatise." Except that I'm pretty sure that the term "taint hearing" -- a phase that's used all the time by various practitioners (e.g., in criminal wiretap and child abuse cases) -- does indeed appear in Westlaw's databases, including over 200 times in the ALLCASES file. Plus, the Supreme Court has used the term before (in the electronic surveillance context) and the Ninth Circuit has done so repeatedly, in both the child abuse and wiretap areas, in both published and unpublished cases.

So I might delete the reference to Westlaw in the footnote. (Though the rest, as far as I can tell, is correct. We apparently don't use that term as much here in California as elsewhere, even though many many other states use it, and it also appears in CJS as well as in a wide variety of other treatises.)

Regardless, the term's now been used in a California case, right? Thanks, Justice Benke. Even though, in truth, I'm not all that fond of the term "taint".

U.S. v. Murphy (9th Cir. - April 18, 2007)

I always find it fascinating how the judiciary deals with loopholes; e.g., methods that attempt to circumvent what are otherwise clear rules.

For example, take this case. Federal Rule of Civil Procedure 31 doesn't allow you to waive the right to a unanimous jury. It doesn't matter if you're fine with an 11-1 verdict; presumably, because you believe that the 11 are on your side and the 1 against. You still can't stipulate to it. Society wants (and has an interest) in unanimity, and hence demands it. You can't stipulate to it at trial (or during deliberations) and you can't stipulate to it beforehand. You just can't do it.

Federal Rule of Civil Procedure 23(b), however, does permit you to stipulate to a jury of less than 12. So, for example, you can clearly start the case with, say, 11 jurors. And if they decide, unanimously, one way or the other, the verdict is valid.

So those are the rules. Which brings us to the issue at hand.

Say that -- and, as you might imagine, this is not merely a hypothetical -- the jury sends out a note that says they're deadlocked at 11-1. You can't stipulate to accept that verdict, since that would clearly violate Rule 31. But can you nonetheless stipulate to dismiss the one juror, and then promptly accept the resulting 11-0 verdict, pursant to Rule 23? To put it another way, can you accomplish under Rule 23 what you're expressly prohibited from accomplishing under Rule 31?

I'll leave you in suspense as to the proper answer. I think that Judge Clifton (who writes the majority opinion) does a good job of articulating his view, and that Judge Gibson -- who's sitting by designation from the Eighth Circuit and who dissents -- does a fairly mediocre job of articulating the contrary view.

Regardless, I like the query. I'm a guy who very much likes legal puzzles and creative legal thinking and the like, and who enjoys (and appreciates) both "playing the game" as well as figuring out ways around seemingly insurmountable obstacles. Nonetheless, as a policy -- and textual -- matter, that doesn't mean that I believe that the judiciary should let me get away with my attempts to do so. So I think this is a pretty good test case for how one should respond to the use of "loopholes" of this type.

It's a neat little puzzle. I like it.

Tuesday, April 17, 2007

People v. Kaplan (Cal. Ct. App. - April 17, 2007)

One good thing about the California Court of Appeal is that it's generally willing to amend its opinions in order to respond to arguments contained in petitions for rehearing. The Ninth Circuit generally does the same thing, but some days, there are lots and lots of California Court of Appeal opinions that do nothing except slightly modify the previous opinion.

Like today. First, after dropping the bombshell on Mayor Villaraigosa, the Court of Appeal modified this opinion. Then, this afternoon, it modified this one. Then this one.

Then, around quitting time, it modified this one. And then, in its final act of the day, it modified this one.

Five amendments in five separate opinions day. Not something you see every day. I guess today was "respond to rehearing petitions" day as well as (belated) Tax Day.

P.S. - Mine got mailed. Promptly at 9:45 p.m.

Murphy v. Kenneth Cole Productions (Cal. Supreme Court - April 16, 2007)

Yet another good reason to have live-client, robust civil clinics. Because sometimes you get to argue the case in front of the California Supreme Court.

Congratulations to Donna Ryu (who's on the adjunct clinical faculty at Hastings) for both taking the case and for prevailing in the California Supremes.

P.S. - Arguing in the California Supremes is much more fun than doing my taxes, which I've yet to finish. Yikes.

Monday, April 16, 2007

Sanchez v. County of San Diego (9th Cir. - April 16, 2007)

Time for a quiz. Two questions. One hard. One easy. The former's multiple choice. The latter's fill in the blank.

Easy one first:

(1) Which of the following groups wrote and signed on to the snippet that follows, which is the first paragraph of a dissent from the denial of rehearing en banc:

"I dissent from the denial of the petition for rehearing en banc. I disagree with the majority’s decision and strongly believe that this case requires en banc review. This case strikes an unprecedented blow at the core of Fourth Amendment protections. The majority opinion clings to Wyman v. James, 400 U.S. 309 (1971), asserting that it directly controls this case. This is unsupportable for three reasons. First, as clearly outlined in Judge Fisher’s dissent, the program upheld in Wyman was significantly different in scope and goal from San Diego’s program. Second, allowing Wyman to constrict the bounds of our Fourth Amendment jurisprudence ignores over thirty-five years of intervening law. Third, allowing this opinion to stand is an assault on our country’s poor as we require them to give up their rights of privacy in exchange for essential public assistance."

(A) Judge Pregerson, joined by Judges Reinhardt, Wardlaw, W. Fletcher, Fisher, Paez, and Berzon. Or
(B) Judge O'Scannlain, joined by Judges Rymer, Clifton, Bybee, Callahan, and Bea.

You should feel shame -- serious shame -- if you get that one wrong. Oh, by the way, here's the final paragraph of that dissent:

"This case is nothing less than an attack on the poor. San Diego’s program strips these individuals of their rights of privacy. These people who are already suffering from disabilities, loss of work, and other hardships must then suffer humiliation and further assaults on their dignity. This is especially atrocious in light of the fact that we do not require similar intrusions into the homes and lives of others who receive government entitlements. The government does not search through the closets and medicine cabinets of farmers receiving
subsidies. They do not dig through the laundry baskets and garbage pails of real estate developers or radio broadcasters. The overwhelming majority of recipients of government benefits are not the poor, and yet this is the group we require to sacrifice their dignity and their right to privacy. This situation is shameful. This case should have been considered by the en banc court, and it should have been reversed."

Got it now?

Here's a tougher one, and the true test of your Ninth Circuit prowess:

Fill in the blank. Someone wrote the following separate dissent from the denial of rehearing en banc, which, in its entirety, reads as follows: "I dissent for the reasons expressed in Judge Fisher’s trenchant panel dissent." That someone is Judge ______.

Hint: Trenchant.

Here are the answers.

Interesting case. Very.

Sea Hawk Seafoods v. Exxon Corp. (9th Cir. - April 16, 2007)

Yet another case arising out of the Exxon Valdez tragedy. This lawsuit, however, is largely over at this point, and the only issue relates to the appropriate rate of prejudgment interest.

(You gotta love it, by the way, if you're the plaintiff and the case is so huge that a one percent dispute over prejudgment interest is worth an entire appeal.)

Not only does plaintiff win the appeal, but Judge Graber has a funny paragraph that lightly jabs the defendants and made me chuckle a little:

"Defendants also assert that the doctrine of judicial estoppel bars Plaintiff from seeking to apply state law on appeal because, before the district court, Plaintiff argued solely for the application of federal law. [Citation omitted] The record contradicts Defendants’ premise. Plaintiff did ask that the district court set an interest rate of 29.32%, 18.34%, or 9.20% using its discretion under federal law. But Plaintiff also argued, in the alternative, for an interest rate of 29.32% or 10.5% pursuant to Alaska law. Arguing in the alternative does not invoke judicial estoppel—it is good lawyering."

Congrats to the plaintiffs' attorneys (all of whom are in Washington), who prevail over a couple of folks at O'Melveny. Which just goes to show -- to the chagrin of the Martin family -- that just because you're from Harvard Law School (like me and Victor Yim from O'Melveny) and are paired up with someone from Yale Law School (like John Daum, from O'Melveny, and my lovely wife) doesn't mean that you're going to win them all.

Though you will have wonderful children.

Friday, April 13, 2007

L&B Real Estate v. Housing Authority (Cal. Ct. App. - April 13, 2007)

Thinking about buying property at tax sales? There are lots of dangers out there.

Including this one.

People v. Gastello (Cal. Ct. App. - April 13, 2007)

You're busted by the cops. You've got meth in your pocket. They search you but don't find it. You're then arrested and taken directly to jail for being under the influence. At which place you're instructed to empty your pockets, and do so, at which point you reveal that you've got a baggie of meth.

You're obviously guilty of possession. But are you also guilty of the (much bigger) felony offense of bringing drugs into jail in violation of Penal Code sect. 4573, which states that “Except when otherwise authorized . . . any person who, knowingly brings or sends into, or knowingly assists in bringing into, or sending into, any state prison . . . or into any county . . . jail . . . any controlled substance . . . is guilty of a felony. . . .”? After all, you "knowingly" brought the drugs into the jail, since you knew you had 'em on you and that you were going to the jail. Both the plain language of the statute and policy concerns (after all, you could use or sell the drugs to or with other prisoners) mean that you're guilty, right?

Nope. At least according to this opinion by Justice Wiseman.

Others might disagree, but I thought that Justice Wiseman's opinion was both well-written and well-reasoned. It made sense to me, if only as a matter of common sense. Perhaps the drugs were "brought" into jail, but they really weren't "brought" by you; rather, you were brought into prision, and the drugs were merely with you. If all you did was remain silent, and didn't actively intend to bring them in, you're not guilty. Seems right to me.

I thought that Justice Wiseman might also have added that it'd be a little strange -- and perhaps implicate Fifth Amendment concerns -- if, in that setting, you indeed had an obligation to reveal the drugs in your possession under penalty of a huge felony violation if you remained silent. It seems like such a statute would effectively compel self-incrimination (e.g., the admission of your possession of drugs), which would be another reason to interpret the statute in the manner suggested by Justice Wiseman -- to avoid doubts about the constitutional validity of that statute.

But even without that additional argument, Justice Wiseman's opinion seems to comport with both doctrine as well as common sense. So I liked it.

Thursday, April 12, 2007

In Re Olson (Cal. Ct. App. - April 12, 2007)

I'm sure that this case will get a fair amount of play in blogs and in the press. Not because of its substantive content, which concerns rather unusual (at least nowadays) procedural questions regarding how one should calculate and apply sentences under the old Indeterminate Sentence Law (for crimes prior to 1976) in light of the new(er) Uniform Determinate Sentencing Law of 1976, which sometimes authorizes an earlier release date than the old ISL. This used to be a big deal during the changeover, but that was over 30 years ago. It doesn't happen much nowadays, since we're talking about very, very old crimes.

Nonetheless, the case will get play because it involves the appeal of Sara Jane Olson; in her old life, Kathleen Soliah. Who was a member of the Symbionese Liberation Army (SLA) in the 1970s who went underground, only to be captured decades later, after she had become a respectable citizen. So even though I'm not sure anyone will much care about the underlying merits, the matter will probably be at least mentioned in various places, if only for the identity of the petitioner.

But, for me, the most fun part of the case was footnote 10 of the opinion. Ultimately, Justice Doi Todd holds that Olson is at least partially right -- albeit on procedural grounds -- and that the matter requires a remand since the trial court didn't issue an OSC or writ. The net result of which will be more delay, since the Court of Appeal accordingly can't reach the merits. Which is a result that doesn't exactly please Olson and her counsel, since the whole point of the appeal was to get her out of prison earlier.

To which Justice Doi Todd responds, in footnote 10: "During oral argument, counsel commented on undue delay. Counsel should consider that the issues in the petition are relatively complex and that it appears that all the participants in the matter, not just the superior court and the Board, are struggling to reach a proper resolution. Olson, as well as appellant, had the opportunity to raise the Romero issue in the superior court, and neither party objected so as to avoid a futile appeal. Furthermore, Olson’s belated apprehension has contributed in large part to the delay as the Board no longer has the expertise it once had in calculating the terms for nonlife ISL prisoners."

In other words: "You have a point, but stop whining. This stuff is tough. We haven't done it for 30 years, and we're trying our best. P.S. - This wouldn't be an problem, by the way, if you had objected below. Or, more to the point, if your client hadn't gone underground for 20 years. So mellow out, and cut us some slack."

Wednesday, April 11, 2007

In Re Arthur M. (Cal. Ct. App. - April 10, 2007)

This is a nightmare.

The question is whether the father gets any say in whether the mother can give up their child for adoption. About the only thing that's undisputed is that the biological father is a 17-year old high school senior who had intercourse once with the mother, a 16-year old from another high school.

You read the first seven pages of Justice Ikola's opinon and you come away with the conclusion that the father -- who's name is Paul -- is not only a bunghole, but an epic and unprecedented bunghole. Every paragraph is literally worse than the last. And there are a dozen of them.

Here's the first paragraph, which gives you a tenor of how Paul -- according to the mother -- dealt with the pregnancy:

"Meghan testified that in mid-May, after she had twice missed her menstrual period, she took a home pregnancy test, with a positive result. She called Paul before the end of May and told him about the pregnancy. Paul remained silent during the phone conversation as Meghan said she would have the baby and give it up for adoption. He did not deny paternity, nor did he ask Meghan if she needed anything. He did not offer to take her to the doctor. He did not offer to pay for medical care or otherwise help out financially. At the end of the phone call, he told Meghan, 'Well, good luck with that.'"

Wow. But, remember. Each paragraph is worse than the last. Here's the next one:

"Meghan said she and Paul did not speak again for a few weeks, although at some point, Paul left a message on Meghan’s cell phone, asking her to have an abortion. Then, according to Meghan’s testimony, on June 17, 2005, Paul came to her house, grabbed her by arm when she answered the door, and tried to pull her outside. She resisted, but agreed to speak to him, and they went to the back patio of the house, where Paul confronted her gruffly when she refused to have an abortion. Meghan explained 'due to personal convictions that I had that I did not feel comfortable with [abortion] and it was not a decision that I wanted to make,' and Paul then 'went on a little tirade,' sprinkled with profanities, inter alia, calling Meghan a bitch and a slut and using the 'f' word. He did not ask Meghan about how the pregnancy was going, although she
volunteered to him that she had been 'extremely nauseous and . . . vomiting excessively.' He did not ask her whether she needed help of any kind. The conversation ended when Paul left, saying, 'Get an abortion or else.'"

Wow. And, again, remember, it gets even worse. For ten more paragraphs. It's the same sort of stuff, but you've got to read it to believe it. Two words. Epic. Bunghole.

But then read the subsequent five pages. And you get a totally different story; i.e., Paul's. He tells a story that's so radically dissimilar that it's hard to believe; and, yet, there's at least some evidence to support it, and it's internally consistent (and plausible), so you can't totally discount it as the obvious fabrication of someone who we've already decided is an E.B. Plus, remember, the whole point of the project -- of the $67,000-plus this 17-year old has spent on litigation -- is so that he can have visitation and some contact with his biological child. Which is consistent with his current testimony that he wanted the child (and hence that his version of the story is at least plausible).

In the end, I leave the case not having much of an idea at all at who to believe; and, regardless, thinking that there's a real risk that whichever way the case gets decided, there's a distinct and very real possibility that the court has done a monstrous injustice against an innocent party. It is the type of case that makes for incredibly difficult decisions; or, at least, when reading a cold record on appeal, where it's extremely difficult -- for me, anyway -- to figure out on which side "justice" lies.

Not, of course, that "justice" is always dispositive; often, there's law that compels you to do one thing or another, and that's sometimes the easy way out. But, here, there was surely leeway to grant the father what he wanted or, conversely, to grant the mother what she wanted. And to a large degree it depends upon who one believes.

Fortunately (maybe, anyway), Justice Ikola has an easy way out, and is able to say that there's at least substantial evidence to support the trial court's view (and surely there is), and on that basis affirms. Which seems right; again, the law sometimes allows one to not have to make an extremely difficult call on the merits.

Nonetheless, cases like this worry me. Two radically different -- but supported -- versions of the facts. Something critical that stands in the balance. The very real risk that, whichever way the decision goes, you've taken critical parental rights out of the hands of those to whom they rightfully belong -- and given them instead to the more persuasive perjurer.

Not something that allows one to sleep especially well at night, I imagine. At least if you've got a sense of your own, human, fallability. Sure, someone's got to make the call, and it might as well be a neutral and concerned party like yourself. Still. You could be wrong. Even with your best and most conscientious efforts. And you're probably not doing your job correctly if that doesn't concern you even the tiniest bit.

Tuesday, April 10, 2007

Simon Marketing v. Gulf Ins. Co. (Cal. Ct. App. - April 10, 2007)

No wonder I never win those McDonald's monopoly games. Someone's stealing all the good prizes.

People v. Bradus (Cal. Ct. App. - April 10, 2007)

I like Justice Huffman's opinion in this case. More for its style rather than its substance (though I think the latter is fine as well).

But, as to the former, I like it how Justice Huffman slams -- fairly forcefully -- the various arguments of "the People" (e.g., the deputy AG's) on appeal in a manner that makes it clear that he expects more from the AG's office than existed here and yet avoids being offensive. I think that both prongs of that duality are important. I think that the judiciary can and should expect the assertion of only fair and intellectually honest arguments from government lawyers on appeal, rather than simply the assertion of whatever "kitchen sink" contentions that might pass the test of frivolousness.

I know that some might disagree, but I personally feel pretty strongly in this regard. The AG's duty is not to win, but to do justice. I don't think it serves justice to try to reach a result -- especially, here, one that's of no substantial importance -- through the assertion of arguments that are clearly wrong, even if not frivolous. I expect more from "the People", and I think that Justice Huffman -- in his much more subtle way -- does so as well.

P.S. - I was also happy to see that, even though this case is from San Diego, neither of the two lowest names on the briefs (and hence the ones presumptively most responsible for it) from the AG's office were from USD, and were instead Marvin Mizell (from Davis) and Maxine Cutler (from Golden Gate).

Monday, April 09, 2007

Mansour v. Degas (Cal. Ct. App. - April 9, 2007)


Rarely do you see the Court of Appeal depublish its own opinion. Especially when, as here, nothing happened in the interim -- no intervening decision, no petition for rehearing, no request for depublication. Nothing.

Admittedly, when I read the original opinion, I didn't think that it was anything special, or paticularly worthy of publication. But that's hardly unusual.

I wonder -- and admittedly I'm just speculating here -- whether there wasn't a clerical error involved; e.g., that Justice Boland originally intended the opinion to be unpublished, but that someone made a mistake and that it accordingly ended up getting published. And that, when Justice Boland found out, he corrected the error. Or that, perhaps, the agreement of the justices at conference allowed a unanimous opinion, and in the form circulated prior to oral argument, but only if it was unpublished.

The alternative just seems silly -- that, upon receipt of nothing, the justices concluded, sua sponte, "Hey, you remember that opinion we circulated last week. I was sitting in bed last night and realized that it really didn't merit publication. Everyone agree? Good."

Maybe that happens. And, if it does, great. Go ahead and depublish. It just seems implausible.

Demps v. San Francisco Housing Auth. (Cal. Ct. App. - April 9, 2007)

I am generally pretty darn impressed when a court admits that it was wrong. That takes a lot of guts. And modesty. It's also -- perhaps for those two reasons -- fairly rare.

So I smiled when I read the first two paragraphs written by Justice Richman in this case. Which read as follows:

"Paraphrasing Alexander Pope, a court 'should never be ashamed to own [it] has been in the wrong; which is but saying, in other words, that [it] is wiser today than [it] was yesterday.' (Swift, Thoughts on Various Subjects in Miscellanies in Prose and Verse (1727) Vol. I, p. 340.)

We write today to 'own' that the procedure we approved in Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 (Biljac) was wrong. There, in affirming a summary judgment, we held that a trial judge need not rule on each evidentiary objection, but could preserve the record by simply stating that “ ‘I am going to disregard all those portions of the evidence that I consider to be incompetent and inadmissible.’ ” (Id. at p. 1419, fn. 3.) Today, seemingly wiser, we reject that holding, and hold instead, as dictated by two California Supreme Courts cases and consistent with all published, post-Biljac Court of Appeal opinions, that a trial judge’s failure to rule on properly presented objections results in their being impliedly overruled, the effect of which is that the objected-to evidence is in the record for purposes of appellate review."

Nice. Though two quick caveats. First, it's a little less impressive to admit your error when it's been pointed out for 15-plus years by every published appellate decision to address the issue. (As an aside, I've never seen as many red flags as when I keycited Biljac -- there must be over 100 of them, and one is attached to virtually every case that has ever cited Biljac.) One's natural tendency is to say: "Great, you admit your error. Took you look enough, eh?" Second, while I admire the way Justice Richman admits the mistake, let's not forget that Justice Richman is not admitting that he was wrong. Rather, Justice Richman's admitting that the opinion by Justice Smith was wrong -- an opinion written for a court back in 1990 on which Justice Richman wasn't a member. (Justice Richman was, in fact, only appointed to the Court of Appeal last year.) Admittedly, Justice Kline -- who's on the current panel -- was on the court back in 1990, and Division Two of the First Appellate District has never heretofore repudiated Biljac. Still, having Justices Richman, Klein and Haerle admit that Justice Smith was wrong back in 1990 is hardly a severe personal mea culpa.

Still, I liked reading what I read here. I agree that Biljac was wrong. I'm glad that Justice Richman agrees, and that we've now cleaned up the law here. Even if it was 17 years in the making. (Something that's assuredly not Justice Richman's fault!)

Parlour Enterprises, Inc. v. Kirin Group (Cal. Ct. App. - April 6, 2007)

We used to have a Farrell's Ice Cream Parlour in nearby Springfield Mall when I was a kid growing up in Virginia. It was one of those places built and designed largely to entice kids -- an early Chuck-E-Cheese (without the games) or our local Corvette Diner -- but with a family atmosphere. Alongside Shakey's Pizza, which my family went to far more often, the nearby Farrell's was the dream place to eat.

I always wondered what happened to the Farrell's, since I see them no longer. But, thanks to this opinion, I now know. In exquisite detail. Ironically, the only Farrell's that were left are in Southern California -- one in San Diego and one in Santa Clarita -- and only the latter currently remains. I guess kids in the modern era are simply not into the "pig out on ice cream" concept. At least in public.

Actually, the jury in the underlying case thought otherwise, and awarded the plaintiff in this case $6.7 million in damages, including $6.5 million in lost profits, because defendants allegedly wrongfully terminated the right of plaintiff to develop and subfranchise Farrell's in Southern California. But Justice Rylaarsdam reverses the award of lost profits, and permits plaintiff to recover only $200,000, on the ground that the award of lost profits was speculative as a matter of law.

The opinion contains a decent discussion of what it takes for lost profits of a new business to be recoverable, so it's a helpful opinion on that score. It also demonstrates, albeit implicitly, how important it is for plaintiffs to retain competent experts on the damages side. Here, for example, I think that plaintiff would've been able to recover the extra $6.5 million had their expert -- Robert Wunderlich -- done a decent (or at least more complete) job. You've got to read the whole opinion to see the (extermely superficial) content of the expert testimony and why it was insufficient. But, for example, look at what Justice Ryllarsdam says -- basically in its entirety -- about one part of Wunderlich's expert testimony:

"Wunderlich used the projections only as a starting point for his calculations. He also considered market data about 'a couple of dozen ice cream parlors,' plus a publicly-traded restaurant chain called Friendly’s, which he claimed was 'relatively similar to the Farrell’s concept.' The only evidence of similarity, however, is Wunderlich’s testimony that it 'is a chain of about 300 or so restaurants, which is similar to Farrell’s in that it has both the ice cream end and the food end.' But many restaurants serve both ice cream and food; that alone does not make them sufficiently similar to Farrell’s for purposes of proving lost prospective profits. (Kids’ Universe, supra, 95 Cal.App.4th at p. 884.) Although one way to prove prospective profits is through the experience of similar businesses, Wunderlich’s cursory description of Friendly’s business model failed to establish its profit and loss experience is sufficiently similar to Farrell’s to be relevant to the question of plaintiffs’ alleged lost profits."

Which is funny, since even I could testify that Friendly's and Farrell's are pretty darn similar. But the expert didn't, and hence the $6.5 million disappears.

Friday, April 06, 2007

Boucher v. Shaw (9th Cir. - April 6, 2007)

It looks like April might well be similar to March, a period in which I noted an unprecedented "avalanche of certifications" by the Ninth Circuit to state supreme courts.

In early March it was the Oregon Surpeme Court on one day, the Washington Supreme Court later that week, and then the week finished with a certification to the Nevada Supreme Court. But, in April, who was once last shall be first, and Judge McKeown certifies a question in this employee wage case to the Nevada Supreme Court.

What about Hawaii, Alaska, California, Arizona, and the other fun state supreme courts in the Ninth Circuit? Can't they help out as well? No fair double-dipping with Nevada until you've finished the rounds.

Thursday, April 05, 2007

Parker v. Walters Kluwer (Cal. Ct. App. - April 3, 2007)

Litigating against pro se litigants is always interesting. Since they're often whacko, and to their substantial detriment. Like here.

Sheer entertainment value was also provided by Part I of Justice Johnson's opinion. The pro se litigant, Leonard Parker, also represented himself on appeal. As ably as you might expect from someone who lost the lawsuit below when terminating sanctions were entered against him. On appeal, rather than cut-and-paste the arguments and authorities he cited below -- an easy task, I might add, in the modern computer era -- Parker simply filed a brief that said that he "incorporated by reference" those arguments.

Funny. And clearly improper. For this reason, all that Justice Johnson really had to say in response to these contentions was precisely what he said in the first paragraph of Part I: "Throughout his brief on appeal Parker alludes to arguments he made in the trial court and purports to incorporate these arguments by reference in his appellate brief. It is well-established, however, this practice does not comply with rule 8.204(a)(1)(B)3 of the California Rules of Court which requires an appellate brief 'support each point by argument and, if possible, by citation of authority.'" (footnotes and citations omitted). Yep. Exactly right.

Nonetheless, even though this is clearly enough, I thought that it was neat that Justice Johnson then went on for around a full page to explain why that rule makes sense; in particular, why it makes ecological sense:

"While incorporation by reference might seem to make sense ecologically, by reducing the amount of paper used in appellate briefs, the actual result would be to increase the amount of paper used in an appeal. The rules require an original and four copies of the appellate brief. The original brief stays with the record on appeal. Each of the three justices on the panel deciding the case receive copies of the briefs which they can use at their desks, work on at home, or take with them when traveling for an engagement outside the court. The fourth copy remains in the clerk’s office for public inspection. Only one copy of the trial court record is filed in the appellate court, however. If all three justices had to share this single record in order to review, research and evaluate a party’s arguments the time it would take for the court to decide the appeal would considerably increase. This would work a hardship on the parties to that appeal and to the parties in other appeals awaiting their turn for consideration and decision. Alternatively, four copies of the trial court record would have to be filed with the Court of Appeal. Because these records often consist of thousands of pages it is easy to see how the amount of paper used in the appeal would increase significantly."

And the trees rejoice! Anyway, I thought it was funny that Justice Johnson thought it necessary to go on at length about the justification for this particular rule.

I'm not going to even talk about the irony that arises out of the fact that Justice Johnson's unnecessary policy defense of a rule that allegedly results in killing fewer trees actually ends up killing a lot of trees since it takes up a page or so of a published opinion, a page subsequently replicated in thousands of advance sheets, paper copies, and pages of the California Appellate Reporter.

And the oaks just shake their heads.

Chevron Stations v. ABC Appeals Board (Cal. Ct. App. - March 29, 2007)

Okay, I agree with Justice Sims that Chevron's liquor license was improperly suspended here. But can I nonetheless say that it struck me as a little weird that they sell beer and wine at the Chevron station? Where you get your gasoline.

I'm not teetotaler or anything. But it just seems strange to me to sell alcohol at a gas station. It just sparks images of a guy pulling into the station and saying: "Fill 'er up. Oh, yeah, and gimme a shot and a beer too."

I guess I'm just behind the times.

Wednesday, April 04, 2007

In Re Amanda B. (Cal. Ct. App.- April 4, 2007)

Oh, also. Don't be 42 years old, schizophrenic, diabetic, morbidly obese, and homeless. That's no fun either.

(Even in sunny San Diego. Even if you think your husband is Keifer Sutherland, that you were a nun in France in 1927, and that you had previously appeared in "Sister Act" with Whoopi Goldberg.)

People v. Gonzalez (Cal. Ct. App. - April 3, 2007)

Don't be a registered sex offender and be homeless. Otherwise you're almost assuredly going to be busted for felony failure to register every 30 days.

U.S. v. Martinek (9th Cir. - April 4, 2007)

When will the Ninth Circuit become friendly again? Today, just like yesterday, all of the published opinions by the Ninth Circuit contain a dissent (or its equivalent).

Admittedly, today, the Ninth Circuit only issued one published opinion. About the value of some unpatented gold-mining claims in Alaska that the United States took when it expanded the boundaries of Denali Park. This time, it's Judge Leavy dissenting from a majority opinion written by Judge Farris.

Four different panels. Four straight dissents. Perhaps April's gonna be an ugly month for the Ninth.

Tuesday, April 03, 2007

Hoschler v. Sacramento City Unified School District (Cal. Ct. App - April 3, 2007)

The failure to spend $60 or so on a messenger/process server -- and using a $1.25 certified mail letter instead -- means that the Sacramento City Unified School District is required to rehire a teacher it wants to terminate for another year. So sayeth Justice Butz.

As Robert Burton (and, later, Benjamin Franklin) used to say: Penny wise, pound foolish.

The opinion is actually a bit interesting for due process scholars, and concerns whether certified mail on Day X is sufficient to meet a deadline of notification by Day X, or whether personal notice is actually required. As a matter of statutory interpretation, Justice Butz concludes the latter. Arcane, but nonetheless interesting, stuff.

So hire a process server. They need the work anyway.

Judges v. Judges (9th Cir. - April 3, 2007)

Today's a big day for disagreements on the Ninth Circuit. Every single published opinion had either a dissent or a special concurrence. Judge Rymer dissented from Judge Berzon in this bankruptcy case. Then Judge Hawkins disagrees with Judge Ferguson's opinion in this case -- about whether minute orders are sufficient to prove prior crimes of violence -- and departs from an important part of Judge Ferguson's holding as well as suggests a way around that ruling in some cases. Technically, Judge Hawkins concurs, but it's still a major disagreement. Then, making it three for three for the day, Judge Ferguson dissents from Judge Fisher's opinion in this IDEA case.

Can't we all just get along?

Monday, April 02, 2007

U.S. v. Heredia (9th Cir. - April 2, 2007)

This is a great case. The majority opinion by Judge Kozinski has an excellent and flowing analysis of the value of stare decisis that's itself valuable. That this precedential analysis persuades the en banc court to overrule a dozen or so prior Ninth Circuit cases is even more impressive. It's a very well-written piece.

The lineup of the judges is also interesting. The majority votes to reaffirm (and extend) Jewell and thus allows criminal convictions in a wide variety of situations in which the defendant might be said to deliberately "stay stupid" and not inquire further even though s/he suspects that s/he's may be carrying drugs. Because that's the holding, it's not surprising that all of the Reagan (1) and Bush II (3) appointees on the en banc panel sign on to the majority opinion. But so do four Clinton appointees (McKeown, Hawkins, Silverman and Tallman) and a Carter appointee (Schroeder). Alongside a Bush I appointee (Rymer) that makes 10.

I find it very interesting that the Carter and Clinton appointees who join the majority are all in border crime locations -- Schroeder, Hawkins and Silverman are in Phoenix, McKeown is in San Diego, and Tallman is in Seattle. Given the Jewell instructions are most often used in drug and immigrant smuggling cases, I can't help wonder whether that fact played a role in the lineup.

Also interesting -- and more proof that you can't always count the votes based upon who appointed the judge -- is that Judge Kleinfeld basically joins the dissent, although he formally concurs since he doesn't think that in the present case the error was plain (since the defendant didn't object). Judge Kleinfeld's opinion also raises some very good points: one of his best lines (though you gotta read the opinion to understand the context) is his argument that "someone driving his mother, a child of the sixties, to Thanksgiving weekend, and putting her suitcase in the trunk, should not have to open it and go through her clothes" in order to avoid being guilty of possession. Classic.

There's a lot here. And a lot that's important. So it's definitely worth a read. Especially if you're planning on crossing the border in a car that's not your own anytime soon.