Merrick v. Paul Revere Life Ins. Co. (9th Cir. - Aug. 31, 2007)

If you're an insurance company who's just been spanked at trial for $10 million in punitive damages, as well an additional half a million dollars in the other side's attorney's fees, because you (allegedly) illegally denied plaintiff's disability insurance claim, it's gotta bring at least a slight smile to your face to find out that your panel in the Ninth Circuit consists of Judges Hall, O'Scannlain, and Ikuta.

Punitive damage and fee award reversed. Thank you very much.

Shin v. Ahn (Cal. Supreme Ct. - Aug. 30, 2007)

You can't generally sue if someone accidentally whacks you in the head with a golf ball while you're playing golf. Even if they don't yell "Fore". Even if they were negligent. By contrast, if they're totally reckless; well, that's another matter. Go ahead and sue.

That's what the California Supreme Court decides today. It applies the primary assumption of the risk doctrine to the noncontact sport of golf. When you play golf, you assume the risk that some nimrod will shank a ball into your face. That's golf. Deal with it.

Justice Kennard, who's never liked the primary assumption of the risk doctrine to begin with, continues her disagreement. But she's the only one, and the decision is a 6-1. So the law is that you gotta protect yourself rather than rely upon the nonnegligence of others. Hopefully a full suit of body armor won't get in the way of your swing.

The footnotes in this one are unintentionally hilarious. For example, footnote 3, which states, in its entirety: "Generally, in final preparation for hitting a stroke a golfer focuses his or her attention on the ball and does so until he or she has hit the shot." Obviously the justices haven't played a lot of rounds on muncipal golf courses lately. Or with incompetent duffers such as myself. Or footnote 6, which defines "shanking," or footnote 7, which defines what a "mulligan" is.

I was surprised not to see a footnote defining what a "five dollar Nassau" is. Which is equally, if not more, essential to the game, no?

People v. Kelly (Cal. Ct. App. - Aug. 29, 2007)

Here's a quiz for you. Section 466 of the Penal Code criminalizes the possession of burglary tools, which is defined by the statute to expressly include (but not be limited to) the following: "a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, floor-safe door puller, master key, [and] ceramic or porcelain spark plug chips or pieces."

You get a pretty keen sense what burglary tools are from that list. The only thing that may seem weird is that last enumerated item: "ceramic or porcelain spark plug chips or pieces." Which was added by the Legislature specifically in response to a 2001 decision of the Court of Appeal that said that such items were not burglary tools under the statute.

So, given that list, as well as the common understanding of what a burglary tool is, and in light of the ejusdem generis rule of construction, which of the following are burglary tools the possession of which are prohibited by Section 466 notwithstanding their failure to be specificially enumerated:

(A) Box cutters.
(B) Slingshots.
(C) Flashlights.
(D) Condoms.

Got your answer? Well, according to this opinion by the Court of Appeal, the correct answer is that (A) and (B) are definitely included and that (C) may well be included.

I made up (D), so Justice Siggins expresses no opinion as to whether that's a burglary tool as well.

Thankfully.

Forester v. Chertoff (9th Cir. - Aug. 29, 2007)

Judge Bea writes a fairly blistering dissent in this case. Replete with sentences like: "No dice," and "[the Supreme Court] will not play that game. Neither should we." And references to the majority's "clever rhetorical devise." Tell us, Judge Bea: What do you really think?

It's interesting to ponder why Judge Bea writes the dissent in the way he does. His arguments on the merits are very easy to understand; indeed, they're pretty strong ones. The ADEA says that plaintiffs are required to give the EEOC 30 days notice before they file suit. Plaintiffs here -- for a variety of (mistaken) reasons -- only gave 9 days notice before filing suit. That didn't cause anyone any prejudice at all, but, still, the statute says you have to give 30 days. The district court dismissed -- and, at this point, refiling is likely impossible. So the defendants win on a meaningless technicality.

The majority says "No blood no foul," and grants the plaintiffs equitable tolling. Judge Bea says: "But the statute is clear. You gotta give 30 days notice. Plaintiffs gave 9. End of story." So, basically, the majority is nice, and prefers adjudication on the merits, whereas Judge Bea is meaner and follows the plain language of the statute. Pretty simple, eh?

Given the simplicity of the dispute, one wonders from whence Judge Bea's relative vitriol arises. True, it may be that the majority is bending the statute in an effort to avoid injustice. Perhaps that's wrong. But even if true, that's hardly cause for cranking up the volume of the dissent. Maybe the majority's misguided. But it's a pretty strong dissent for something that's far from malicous -- or even absurd.

If written by anyone else, one might think that the dissent was an opening -- or continuing -- gambit from someone who wanted to demonstrate his strident conservative colors in the hopes of being elevated. But Judge Bea's not like that; and in any event, he isn't the right age to be in that game. It's also hard to believe that there's any personal animosity present, or even strong political differences: the majority opinion that Judge Bea slams is written by Judge Callahan, for goodness sakes, and joined by Judge Dorothy Nelson. Two judges who are far from jerks, and both from and towards whom vitriol -- unlike some other members of the Ninth Circuit -- is rarely seen.

Admittedly, Judge Bea somewhat soften things up in the last paragraph, perhaps precisely because it's Judges Callahan and Nelson. But only a little. He says, in essence: "Why are you being so nice? Just let the case be dismissed. Plaintiffs can always sue their lawyer. What's the big deal?" But the majority thinks that equitable tolling means that the plaintiffs can properly sue the tortfeasor directly, rather than (potentially) settling for a societally second-best action against someone who hasn't (allegedly) illegally discriminated against them.

So an interesting dissent. And opinion. It's a study in contrasts. One side's being extremely nice. And the other is doing the opposite. Which, at a minimum, makes for good read.

San Leandro Teachers Ass'n v. Governing Board (Cal. Ct. App. - Aug. 28, 2007)

I kept reading this opinion expecting to find a dissent. In vain.

Too bad.

Justice Swager holds that Section 7054 of the Education Code, which generally bars school funds from being used to support particular candidates or ballot measures, operates to prohibit a school union from placing a brochure in the mailboxes of its member teachers at a school.

The teacher mailboxes are just sitting there. The brochures are paid for entirely by the union. The only thing that the mailboxes -- which are ordinarily used by the school -- do is to hold up the brochures and keep them from falling on the floor. That's it. It costs the school nothing for the brochures to be placed therein. But the Court of Appeal holds that this use nonetheless violates Section 7054.

Justice Swager says that Section 7054 permits the union to place the brochures on a desk. Or a table. Or on a chair. Moreover, that Section 7054 allows a union official to use a school's desk, or table, or chair, or even its electricity in order to give a partisan speech on school grounds. But using a mailbox, he says, is categorically different. That's prohibited by Section 7054.

I'd have loved to see a dissent.

Rodis v. City and County of San Francisco (9th Cir. - Aug. 28, 2007)

It's generally a case that interests me when a California attorney is a party to the lawsuit. This case is no exception.

It involves Rodel Rodis, who's an attorney in San Francisco as well as an elected public official (a member of the Community College Board of San Francisco City College). In 2003, Rodis goes into a drugstore near his office to buy some tiny items and plunks down a $100 bill to pay for them. (As an aside, I didn't know that being a public official pays so well that the smallest bills you typically carry are bennies. But that's another story.)

The clerk thinks the bill looks and feels funny, so goes to her manager. The manager thinks it might be counterfeit as well, even after it tests as genuine with a counterfeit pen. They then call the police, and Rodis hangs out during this entire period; indeed, he even pays for the stuff with another (indisputably genuine) $100 bill in the meantime. The police come, and they can't totally decide, so they elect to call the Secret Service to figure it all out. And decide that, in the meantime, they'll just arrest Rodis and take him down to the station.

Turns out that the bill was totally genuine. At which point Rodis -- understandably miffed at being arrested for doing absolutely nothing wrong -- sues.

The officers move for qualified immunity, claiming that they had probable cause to arrest him. The district court disagrees, defendants appeal, and the Ninth Circuit affirms in a divided vote.

Judge Dorothy Nelson authors the majority opinion and holds that, in toto, there was a wholesale absence of probable cause, especially in light of the fact that the bill had tested as genuine and there was no evidence at all that Rodis intended to defraud. Judge Callahan dissents, arguing that although it's unfortunate (obviously)that Rodis was unjustly arrested, the (allegedly) unusual look and feel of the bill, combined with his use of this bill to purchase small items, was enough to create qualified immunity; i.e., either creates probable cause or is close enough for government work.

It's an interesting dispute. There's also an interesting paragraph of Judge Nelson's opinion in which she says the following:

"What is more, several facts known to the officers at the time of the arrest significantly decreased the probability that Rodis violated § 472. Viz., Rodis had other $100 bills in his possession that were genuine, one of which he used to complete the transaction; the counterfeit detector pen indicated the bill was genuine; and the officers knew Rodis was both a San Francisco attorney and a locally-elected public official with strong ties to the community in which the store was located. Specifically, Barry had known Rodis for several years. He knew Rodis was a member of the Community College Board, and he had interacted with Rodis personally, encountering him at activities associated with the elementary school that both Barry’s and Rodis’s children attended. Also, Rodis informed Liddicoet prior to his arrest that he was a public figure, and that he lived and worked within two blocks of the store."

Now, I'm sympathetic to those sentiments, and the first two facts do indeed (in my mind, at least) diminish the probability that Rodis was guilty. The other facts in the paragraph, however, start to sound very much like an argument that Rodis probably wasn't guilty because he's an "upstanding citizen" with wealth, power, and prestige; indeed, he's a member of the elementary school PTA, for Christ's sake!

And we all know no one like that is likely to commit a crime, right? That probable cause to arrest someone who's an elected official, who's a member of the PTA, and who's an attorney should require more than that required to arrest someone who's less wealthy and powerful. Right?

Catholic Mutual Relief Society v. Superior Court (Cal. Supreme Ct. - Aug. 27, 2007)

Rarely do you see the California Supreme Court take up routine discovery matters; here, whether plaintiffs are entitled to discover the a nonparty insurance company's reinsurance agreements in order to faciliate a potential settlement. But not only does the California Supreme Court do so here, but it also granted review in the case (and adjudicates it) even though -- as explained in footnote 5 -- the plaintiffs here actually withdrew the discovery requests, and the requested discovery in this case was thus technically moot.

So the California Supreme Court obviously really wanted to decide this one. And holds, in a very close 4-3 decision, that plaintiffs can't usually obtain this information. With Justices Corrigan, Kennard, and Werdegar dissenting. (As usual in these 4-3 decisions, Chief Judge George is in the majority.)

It's an interesting case, especially since the dissent has a point that the statutory language seems facially to allow discovery of these agreements. But, for policy (and other) reasons, the majority concludes that these agreements aren't discoverable.

It's a high-profile case: this is one of the sex abuse cases against the Roman Catholic Archdiocese of San Diego. And the discovery matters, since everyone knows that the defendant is insured, but whether the insurance company can actually fulfill its contractual obligations is much more uncertain.

But that mystery -- like many others in the Catholic Church -- will apparently remain so. An interesting 4-3 decision.

Webb v. Smart Document Solutions (9th Cir. - Aug. 27, 2007)

Your client can get copies of his medical records at a reasonable cost according to HIPPA. But when you, on his behalf, obtain these same records, the hospital (and its agents) can -- and do -- rip you off.

So sayeth the Ninth Circuit.

U.S. v. Hurd (9th Cir. - Aug. 24, 2007)

I agree with Judge Milan Smith in this one. Sure, it would have been better -- a lot better -- if the judge who authorized the search warrant hadn't forgotten to initial the part of the warrant that authorized the search of the residence. But humans sometimes make mistakes, and since the judge, when she signed the warrant, seemed pretty clearly to intend to approve the whole thing, the search was permissible. Notwithstanding the fact that, technically, nothing on the actual warrant authorized the search of the residence.

Still, next time, let's be a little more careful, okay? This is pretty important stuff.

Benson v. Kwikset Corp. (Cal. Ct. App. - July 26, 2007)

I guess it's the doldrums of August. Vacations. The heat. Whatever. But there hasn't been an overwhelming plethora of opinions this month that have been especially interesting. At least comparatively.

Oh well. I'm sure it'll get better. Hopefully they'll be some vicious, no-holds-barred dissents upcoming soon. That'll get the blood flowing.

Meanwhile, take a look at this one. In which Justice Bedsworth amends his opinion to say: "On the court’s own motion, the majority opinion is modified as follows: . . . . On page 22, in the first full paragraph, starting with 'The trial court awarded plaintiff nearly $3 million . . .,' on lines 4 and 5, delete the sentence 'We agree with our dissenting colleague’s assertion that the award appears to be unnecessarily high.'"

So much for being concilliatory, I guess!

In Re Corrine W. (Cal. Ct. App. - Aug. 22, 2007)

How many times have you had to tell your teenage child that driving (or owning) a car is not a necessary component of life for a sixteen year old? Well, now you've got a case that backs you up.

Corrine, a sixteen year old in foster care, filed an action claiming that Contra Costa County was required to pay for automobile liability insurance so she could lawfully drive a car. The trial court, however, held that there was no such duty to pay, reasoning that "[d]riving an automobile at age sixteen is not a necessity" (emphasis in original). And Justice Sepulveda affirms.

So that should put a definitive end to any arguments with your child about the family vehicle, right? Just have 'em read the case. I'm sure they'll be persuaded.

Patel v. Liebermensch (Cal. Ct. App. - Aug. 21, 2007)

Normally I wouldn't comment on this case, as it's very fact-specific, and concerns whether a particular real estate option contract was detailed enough to justify the trial court's award of specific performance. But the fact that (1) there's a dissent, (2) both the majority opinion and the dissent are authored by people who teach as adjuncts at the University of San Diego School of Law, (3) the attorney for plaintiff and respondent (James Mitchell) is a USD Law graduate, and (4) the holding has broad implications for many different types of real estate option contracts persuaded me to give my two cent's worth.

I think that the trial court properly awarded specific performance, and that Justice McIntyre is right in his dissent. Mind you, I wouldn't be as emphatic as Justice McIntyre is, because I think that Justice Huffman (who wrote the majority opinion) makes a darn good case to the contrary. But I'd have voted with Justice McIntyre rather than Justice Huffman, and think that the layperson-drafted option contract here was specific enough to support the jury's verdict (and judge's finding) that there was a meeting of the minds. Sure, there were things left out -- period of escrow, amount of deposit, etc. -- but that doesn't negate the option, and the trial court can (and did) properly fill those in. So sayeth me, at least. Which, with $3.50, will get you a cup of coffee at Starbucks.

So I'd have voted in favor of the USD Law graduate's client alongside a USD adjuct professor, notwithstanding the contrary views of a longtime (and well-respected) USD adjunct professor. Party-drafted options contracts like this one should, in my view, be enforced rather than disregarded. Even though a lawyer -- at $350/hour -- could surely have done better.

Phillips v. Ornoski (9th Cir. - Aug. 21, 2007)

You don't typically see -- indeed, I don't think I've ever seen -- the Ninth Circuit publish an order granting an extension of time to file respondent's brief. Those things are pretty routine.

But it does so today.

Let me summarize -- in my own words -- Judge Reinhardt's three-page order. And perhaps you'll see why he published it:

"California has asked for a 45-day extension to file its answering brief in this death penalty case. This is after we already granted them an additional 60 days. No problem. No problem at all. Death penalty cases are very difficult. As well as important. Take all the time you want.

I know this won't shock you, but I'm in no rush to execute the guy anyway. So if you feel like delaying a little bit on your end, feel free. Mind you, it's a bit ironic that we're granting you extra time merely to write a brief, whereas you, pursuant to 28 USC 2266, can typically make the Court of Appeals decide the case within 120 days with an appropriate request. So we'd have to adjudicate the thing faster than we're giving you simply to prepare a single brief.

But who am I to complain? You want more time. You got it. In this, and any other, capital case."

Okay, so a lot of those words are mine. But I think they accurately reflect the sentiment in the order.

O'Connell v. Stockton (Cal. Supreme Ct. - July 26, 2007)

I always like it when I'm right.

Mind you, I'm happy to be wrong. And surely, at times, am. But I always enjoy it when events go my way.

So, back in 2005, I commented on the opinion by Justice Butz in a case involving a municipal ordinance that allowed the City of Stockton to forfeit vehicles used by individuals to buy drugs or solicit prostitutes and said that "you're almost certainly looking at the California Supreme Court taking up the case." Which it promptly did, thank you very much. I also said that, in my view, Justice Butz wrote a very persuasive opinion. And as it turns out, I wasn't the only one. As, in this opinion, the California Supreme Court affirms.

It's a close one: a 4-3. But I think that Justice Kennard, who wrote the majority opinion, with whom Chief Justice George and Justices Werdegar and Moreno joined, has the much better of the argument. It was also fairly lame, in my opinion, that Justice Corrigan (joined by Justices Baxter and Chin) begins the dissent with the following paragraph: "The ordinance at issue is a practical and responsible attempt by the City of Stockton (Stockton) to address problems it, and many other cities face on a daily basis. The ordinance speaks to a narrow, pressing and quite real local concern. Street commerce in drugs and sex forces innocent people to share their neighborhoods with pimps, prostitutes, and drug dealers who use their streets as a bazaar for illegal transactions." It's a preemption opinion, for goodness sakes. It's irrelevant that drugs and prostitution ain't exactly WalMart. I'd focus a little more on the relevant facts -- and, hopefully, the law -- and less on the atmospherics.

In Re Roderick (Cal. Ct. App. - Aug. 17, 2007)

I love the (lengthy) dialogue between Justice Rivera, who authors the majority opinion, and Justice Sepulveda, who dissents, here. Both make articulate and persuasive points. Both make, in my mind, reasonable arguments. And yet, obviously, only one can actually be correct.

It's a fact-specific case regarding whether Alfred Roderick, a 75-year old inmate convicted of second degree murder by stabbing someone who pulled a knife on him in a bar fight, is entitled to parole. Notwithstanding the fact-specific inquiry, however, the case is symptomatic of more pervasive issues regarding the treatment of parole decisions both by the parole board and by the judiciary. And, on this score, both Justice Rivera and Justice Sepulveda make excellent points.

Reasonable minds could come out both ways. It's an interesting case. Worth the 86-page read. And that's saying a lot.

Magtanong v. Gonzales (9th Cir. - July 23, 2007)

Putting things in the mail isn't the same as filing them. Yes, I know that seems obvious. But it's true. And don't think that overnight mail is necessarily overnight. It ain't.

So, for example, when a statute says that you have to file a document not later than 30 days after removal, and when you give the document to DHL on the 29th day, and mail it by overnight mail, you probably figure it's going to be filed on the 30th day. And maybe it will be. Or, unfortunately, maybe it won't. Like here.

The document is one day late, and hence filed on the 31st day. Sorry. Out of luck. The 30 day deadline here was mandatory and jurisdictional. I don't care that you relied on DHL. That's no excuse.

Which, I'm sure, upsets the lawyer. But that's the rule. And you can only imagine how the client feels. Who, here, gets deported to the Phillipines as a result.

File it on time. Walk it down to the courthouse yourself if you have to. It's that important. Really.

Lesson of the day.

U.S. v. Yida (9th Cir. - Aug. 16, 2007)

Listen to me and you'll be thanked by the Ninth Circuit and your name memorialized forever in the F.3ds.

That's what you should learn from today's opinion by Judge Gould. Back in March, the Ninth Circuit, in a rare (but very nice) move, invited submission of amicus briefs on an interesting evidence issue. And I responded by publicizing the invitation and suggesting that people should feel free to write something up.

And guess what a couple of people did? Precisely that. To which Judge Gould responded by including the following footnote on the first page of the opinion: "In a published order following oral argument, we invited amicus briefing on the important issues raised in this appeal. See United States v. Yida, 478 F.3d 1068 (9th Cir. 2007). We thank the National Association of Criminal Defense Lawyers, Professor Richard D. Friedman from the University of Michigan Law School, and Aaron Petty, a recent graduate of the University of Michigan Law School, for their responsive amicus briefs, which we received in addition to the parties’ supplemental briefing."

Pretty cool, huh? Great job, Professor Friedman, Mr. Petty, and the NACDL. Plus, that's not all; Judge Gould also includes lines like the following in the actual text of the opinion: "Professor Richard D. Friedman of the University of Michigan Law School, in his amicus brief, offers additional reasons for the courts’ preference for live testimony, which we find persuasive. . . ." Nice!

Those names could have included yours as well, my loyal readers. So next time the Ninth Circuit wants some free legal help, let's make 'em feel the love, shall we?

McGarry v. University of San Diego (Cal. Ct. App. - Aug. 15, 2007)

I've got tenure. Thankfully.

As a result, at least in theory, I could take serious issue with this opinion by Justice McDonald. So I could strenuously argue that the University of San Diego and my present boss, Mary Lyons (the president of USD), should properly be subjected to a lawsuit for defamation by Kevin McGarry, the former longtime football coach for USD before he was fired in 2003. And, at least in theory, I would suffer no adverse consequences whatsoever for my statement that my boss and employer should be seriously punished for their misconduct.

But I ain't gonna test the waters. Because, fortunately, I think that Justice McDonald is correct in this one. McGarry's lawsuit was properly dismissed on an anti-SLAPP motion because while we know (from the newspaper) that someone at USD uttered allegedly defamatory statements about McGarry, the Shield Law precluded McGarry from discovering their identity from the newspaper. And an anti-SLAPP motion was proper because McGarry was a limited purpose public figure and the alleged defamation arose from protected conduct.

So USD, and President Lyons, wins. And recover their costs and attorney's fees on appeal.

All of which, I might respectfully suggest, could easily be allocated towards merit raises on behalf of diligently blogging legal scholars at the University of San Diego School of Law.

Farmer v. Baldwin (9th Cir. - Aug. 15, 2007)

As I've noted previously, 2007 has been the Year of Certification in the Ninth Circuit, with an unprecedented number of questions certified to state supreme courts. This one continues the trend. Moreover, this is also an extremely rare example of a federal court certifying a state law question in a federal habeas case. You don't see that every day. Or even every decade.

Beyond the doctrinal implications, the case also brought an idiosyncratic smile to my face because the certification was issued by my former boss, Judge Reinhardt, and counsel for the petitioner was Lisa Hay. Upon the latter of whom I once had a total crush.

So the Oregon Supreme Court now has some more homework assigned to it by the Ninth Circuit. If it chooses to accept it.

U.S. v. Seljan (9th Cir. - Aug. 14, 2007)

I'm sitting here on the Big Island of Hawaii, waiting for Hurricane Flossie to whack the island later today. And was timely reminded, thanks to Judges Clifton and Gould, not to send international packages, mail, FedEx envelopes, or pretty much anything else that I don't want the government to view. Because, you see, the United States doesn't necessarily need probable cause, reasonable suspicion, or anything at all to justify opening up your international envelope. And the United States is pretty darn happy to exercise that right, thankyouverymuch.

Am I happy that 87-year old John Seljan doesn't get to "sexually educate" little kids in the Phillipines anymore? Definitely. He'll instead be "educated" in a federal prison for the next 20 years -- in other words, until he's 107. And it's 20 years only because Judge Stotler departed downward an utterly meaningless 22 months "on account of Seljan's advanced age."

Technically, the relevant federal statutes require reasonable suspicion before the U.S. opens international mail (at least without the consent of the sender). But there's a little known codicil of Title 31 that allows the United States to open up virtually anything, without any reason -- and certainly FedEx packages -- as long as they're ostensibly looking for currency violations. So the Ninth Circuit holds that the susicionless seizure here was permissible.

Remember that the next time you send sexually suggestive letters internationally. Or anything else, for that matter. Someone in a uniform may well be reading them first.

P.S. - Thanks, Judge Pregerson, for adding the complete text of Seljan's sexually suggestive letters to little girls to the F.3d. That's sometime I definitely want to read while on vacation. As well as memorialize forever.

People v. Semann (Cal. Supreme Ct. - Aug. 13, 2007)

I always like it when a judicial opinion constitutes a how-to guide to engage in various illegal acts.

For example, I previously had no idea what it meant to "bust out" a credit card. Much less did I know how one could use those "courtesy checks" constantly sent to anyone with a credit card to steal over $1.6 million.

But now I do.

My invaluable education continues apace. Thank you, Justice Werdegar.

Womack v. Del Papa (9th Cir. - Aug. 13, 2007)

Sometimes the Ninth Circuit publishes an opinion not because the issue is a close one, not because the outcome of the case is at all in doubt, and not because the opinion technically meets the standards for publication, but rather because the panel (and case) is a good one in which to move the law a tiny little bit towards the way you'd like it to be, without the risk that anyone else on the court will be able to successfully call for en banc review.

Like here.

U.S. v. Aukai (9th Cir. - Aug. 10, 2007)

We're better at catching people who use methamphetamine than we are are catching terrorists. Even in airports.

This en banc opinion is worth reading wholly apart from the merits. If only because Judge Bea writes an opinion that is deliberately -- and pervasively -- centered around 9/11; indeed, so much so that Judge Graber (joined by Judges Hawkins and Wardlaw) writes a concurrence that says that while they agree with the result, they "cannot join the majority’s irrelevant and distracting references to 9/11 and terrorists."

I especially liked footnote 7 of the majority opinion, in which Judge Bea includes a half-page definition of what the colloquial term "terrorist" means. Because a reader definitely could not understand the following sentence -- "Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by 'electing not to fly' on the cusp of detection until
a vulnerable portal is found" -- without a lengthy footnote after the word "terrorists" that defined the term.

On the merits, every member of the 15-judge panel agrees that the search here was okay. But an interesting tangential disagreement regarding how much one targets an opinion specifically to the "post-9/11" world.

Plumlee v. Matso (9th Cir. - Aug. 10, 2007)

Back in 2005, Judge Betty Fletcher (who wrote the majority opinion) and Judge Bea (who wrote the dissent) got into an unusually nasty exchange, about which I commented here. In 2006, the opinion and dissent were amended, but hardly to remove the acrimony; indeed, Judge Bea's amendment instead included yet another hearty slam on the majority opinion.

Today, this exchange -- perhaps mercifully -- technically goes away, as the case was taken en banc. So the panel opinion and dissent is still published in the F.3d, but isn't technically citable as precedent anymore.

Let's see what fireworks the en banc opinions will generate!

Lockett v. Catalina Channel Express (9th Cir. - Aug. 9, 2007)

I agree with Judge Hall and disagree with Judge Callahan on this one. Even though the latter's view not only garners the vote of Judge Robart (sitting by designation from the Western District of Washington), but is both moderate and plausible.

Simply because a single passenger makes an vague request for a "dander-free" area doesn't mean that a business can implement a policy that kicks all service animals for the blind out of their entire first-class area on the (utterly unsupported) ground that a dog would be a "direct threat" to the immediate health or safety of others. Much less, in my view, can such an issue be resolved in favor of the business on summary judgment.

McElmurry v. U.S. Bank Nat'l Ass'n (9th Cir. - Aug. 8, 2007)

Collective actions. Opting-in. Pre-certification notice to a class. Collateral order doctrine.

Judge Bybee writes a civil procedure professor's dream.

Short take: When the district court doesn't feel like letting you write to the class members asking whether they want to opt in, there's pretty much nothing you can do about it.

In Re Marriage of Feldman (Cal. Ct. App. - Aug. 7, 2007)

What happens when you repeatedly deceive your spouse about marital assets in the midst of your divorce proceeding? You get sanctioned. A lot. Even if you're very, very rich.

This is a great story, and concerns the marriage of Aaron Feldman and Elena Feldman, which broke up after 34 years of marriage. Aaron Feldman is worth, according to the opinion, over $50 million. And the story of what he (allegedly) did during the divorce proceedings, and why he got sanctioned, gives some telling insight into how these things transpire, as well as what can go wrong.

What the opinion doesn't at all mention, however, is that Aaron Feldman is actually pretty famous. At least down here in San Diego. Amongst other things, he's the owner of Sunroad Enterprises, which is in a huge fight down here in San Diego over a building that they constructed near the flight path of an airport that was 20 feet too tall, resulting from (alleged) private meetings with the Mayor of San Diego, and that ultimately resulted in a very-high profile (and ongoing) fight with the City Attorney of San Diego. Moreover, some sources describe Aaron Feldman's worth at over $300 million, rather than the $50 million described in the opinion, and the divorce fight has apparently already generated over $7 million in legal fees.

So a nice little fight involving one of the highest-profile people about whom you've probably heard nothing. More about Aaron Feldman here if you'd like.

Anyway, even though a $175,000 sanction is peanuts to a guy worth $50 (or $300) million, the lesson of the day is that judges don't like it if you try to hide things from your spouse in a divorce proceeding. At all.

Fantasyland Video v. San Diego (9th Cir. - Aug. 7, 2007)

The certification frenzy continues.

The Ninth Circuit has been on a frenetic pace of certifying questions to state supreme courts lately, and back in May, certified its first decision in a while to the California Supreme Court (after already certifying in 2007 to the supreme courts of Oregon, Washington, and Nevada -- indeed, for the latter, twice). Now, the Ninth Circuit certifies again to the California Supreme Court. This time in a case from right down here in San Diego.

It involves a question critical to the health, welfare, and safety of San Diegans, on a topic that is foremost in the minds of every informed citizen of America's Finest City: Should adult video stores be compelled to close down between 2:00 a.m. and 6:00 a.m.?

San Diego thinks so, and has passed a law to that effect. And the Ninth Circuit wants to know if the free speech challenge to that ordinance under the California Constitution should be adjudicated through strict, intermediate, or some other level of scrutiny. So it asks the California Supreme Court.

What's the purpose of the San Diego ordinance shutting down adult video stores between 2 and 6 in the morning, you ask? "To prevent masturbation during those hours when law enforcement problems are greatest."

I can think of no more pressing danger to America.

Frontier Oil Corp. v. RLI Ins. Co. (Cal. Ct. App. - Aug. 6, 2007)

Conflicts. Conflicts of laws. The most exciting type of conflict. Made even more exciting when it's about the law to be applied in the interpretation of a contract.

Justice Crosky writes a nice little -- okay, at 44 pages, so, not-so-little -- opinion about what law one uses when you're interpreting a contract. You know the drill: is it where the contract's made, where it will be performed, or where the highest amount of government contacts/interests exist. Here, in the context of a particular insurance policy, Justice Crosky holds that it's where the contract -- in particular, the duty to defend -- will be performed.

And so, as a surprise to no one, guess which law the California Court of Appeal ends up applying? If it's not obvious, I'll give you another hint. The California Court of Appeal.

You guessed it.

People v. Alfaro (Cal. Supreme Ct. - August 6, 2007)

A mother of four children who stabs a nine-year old girl to death during a residential burglary. Not your usual fact pattern in a death penalty case.

The first penalty phase deadlocks. The second sentences defendant to death. The California Supreme Court unanimously affirms.

Depressing.

Lawrence v. Barona Valley Ranch Resort (Cal. Ct. App. - Aug. 3, 2007)

I always root for USD Law alums to prevail in the Court of Appeal. I'm a loyal guy in that regard.

Nonetheless, even though Bonnie Kane and Todd Tappe (both USD Law graduates) represented the appellants in this one, I'm constrained to agree with Justice McIntyre. You can't sue the Barona Tribe in state court even if you're injured at their casino and even if they've agreed -- as they did pursuant to the compact with the State of California that enabled the tribe to build and run the casino -- to waive their sovereign immunity to suit in certain circumstances. Barona only lets you sue them in tribal court, not state court. So, as unfair as it may seem, in this case, the only place you can sue is in front the Barona Tribal Council itself.

Yes, it may seem to be absurd to allow the same entity to be both the defendant and the judge. But no one said that immunity always seems fair. That's just the way it is. Affirmed.

Remember that, perhaps, the next time you feel like visiting the Barona Casino (or the Barona Golf Course). Sovereign immunity. It's not just a subject in law school.

P.S. - While I feel bad for Bonnie and Todd, I was heartened to discover that one of the two lawyers who represented the defendant -- Kathryn Clenney -- is also a USD Law graduate. So while USD lost, it also won.

In Re Tobacco Cases II (Cal. Supreme Ct. - Aug. 2, 2007)

"We, the California Supreme Court, decided back in 1994 that the Federal Cigarette Labeling and Advertising Act didn't preempt a California state law unfair competition claim based upon the advertising of cigarettes to minors. This was consistent with then-existing precedent from the United States Supreme Court. But, in 2001, the U.S. Supreme Court shifted ground, in a 5-4 decision in which the conservatives wrote the majority opinion and the liberals the dissent. It thus appears that our 1994 decision is no longer good law. We're not especially pleased by that fact, and probably think that state law should still be valid. But whatchagonnado. We're only the California Supreme Court. We gotta toe the line on this one."

They don't actually use those words, but that's in essence what the California Supreme Court unanimouosly ruled today.

U.S. v. Goetzke (9th Cir. - Aug. 1, 2007)

I agree that this guy (David Anthony Goetzke, of Montana) is guilty to attempting to persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity in violation of 18 U.S.C. § 2422(b). By writing creepy letters to the minor that, in my view, are precisely what the statute is designed to target. So I'm glad that guy is off the street.

Here's a good law school hypothetical for you, though. D would love to have unlawful sexual activity with Minor, but knows that this would be illegal, and thus refrains from making any advances. He does, however, make sure that whenever he sees Minor, he's dressed really nicely -- nice pants, a tie, etc. -- and believes that doing so will make it more likely that Minor will view him favorably; indeed, perhaps, be sexually attracted towards him. And D likes that; indeed, one reason he dresses nicely in front of Minor is to entice the Minor into being sexually attracted. D does not intend to ever initiate sexual contact with Minor. At the same time, D recognizes that if Minor "started something" consensual, it is possible that D would not resist. And there is a definite part of D that would like something like that to transpire -- a part of him that is consistent with (and, as D recognizes, advanced by) his dressing nicely in front of Minor.

Under those facts, is D guilty of attempting to persuade, induce, or entice a minor to engage in unlawful sexual activity in violation of 18 U.S.C. § 2422(b)?

Non-pedophiles may recognize the hypothetical from potentially analogous personal experiences; e.g., liking your best friend's girlfriend/boyfriend/spouse, etc.

I'm not sure where I come out on the hypothetical. Even though the outcome of the present case seems right to me.

U.S. v. Larson (9th Cir. - Aug. 1, 2007)

Sometimes it pays to be in the minority.

This is about the closest vote you'll ever see in the Ninth Circuit. It's a 4-4-7. With the (first) 4 votes establishing the (now-) controlling law.

It's a Confrontation Clause case. The district court allowed the defendant to tell the jury that the witness (who had struck a deal) stood to gain some sentencing benefit by testifying for the government, but did not allow the defendant to let the jury know that by testifying, the witness was avoiding a mandatory life sentence. So the jury knew some degree of incentive, but not the particulars. Does that violate the Constitution?

Judge Paez writes the "majority" opinion. Which only has four votes: his, Chief Judge Schroeder's, and Judges Fisher and Gould. A group of judges that one might generally describe as the "moderates who often lean right in criminal cases" crowd. Judge Paez holds that, with respect to one of the defendants, this wasn't error, since the jury got to know most (but not all) of the details anyway, but with respect to the other, this was error, but it was harmless. In other words, took the middle road: affirmed the convictions while marginally allowing some benefit to a criminal defendant.

Judge Hawkins, joined by Judges Pregerson, Reinhardt, and Wardlaw, writes the "liberal" opinion, which would find error and reverse the convictions. Whereas Judge Graber, joined by Judges Rymer, Tallman, Clifton, Bea, M. Smith, and Ikuta, writes the "conservative" opinion, which would find no error.

So some basic math here. 4 + 4 > 7. So the moderate four plus the liberal four outvote the conservative seven. Hence the convictions are affirmed, but precedent is established that sometimes, precluding the defendant from testifying will constitute error.

Close. Very close. For those that think that who gets drawn for the en banc court doesn't matter, this case is a shining counterexample. Ditto for those who think -- as the Ninth Circuit has now concluded -- that there's no difference between a 15- and 11-judge en banc court. Sometimes, it matters. A lot.