Ramadan v. Keisler (9th Cir. - Sept. 28, 2007)

Nah. Politics doesn't play into judicial decisions at all. Anyone who thinks otherwise is just plain foolish.

It's a total coincidence that, in this immigration case, the ones who dissent from the denial of the petition for rehearing en banc are Judges O'Scannlain, Kozinski, Kleinfeld, Tallman, Bybee, Bea, Callahan, M. Smith, and Ikuta. And that the other judges don't.

A totally random group of folks. With nothing at all in common. On either side.

Bockting v. Bayer (9th Cir. - Sept. 27, 2007)

You don't see many non-death penalty cases bouncing around the courts for almost twenty years. But this one has. And it's still got a little way to go still.

It's a child molestation case, and if you choose to read it, I warn you, it's got some disturbing facts. If only because it seems so concretely real -- the child's reaction to the abuse, her statements and unwillingness to testify at trial, her desire to hug and kiss the abuser when he was confronted with the abuse and asked to leave the home, etc. Chilling.

I'm not going to recount the entire tortured procedural history of the case. Suffice it to say that this case has been before the Nevada Supreme Court repeatedly and twice remanded by the United States Supreme Court. As well as previously discussed in this very blog back in early 2005. Which is perhaps why the name of the case sounds familiar.

Back in 2005, Judge Noonan was in the majority, which found in favor of the defendant. Judge Wallace dissented, and I presaged that Judge Wallace's views "may well command the views of . . . a majority on the Supreme Court." Which, of course, it promptly did, in an opinion written by Justice Alito.

On remand, the Ninth Circuit then had to address the defendant's challenges in light of the Supreme Court's opinion. And, this time, it's Judge Wallace who's writing the majority opinion and Judge Noonan who's the one in dissent. And Judge McKeown, who wrote the original opinion -- perhaps chastened by the Supreme Court's subsequently unanimous reversal -- this time joins Judge Wallace.

Interesting history. Of one of the longest-running non-death penalty cases I've seen in the Ninth Circuit in a while.

Beal Bank v. Arter & Hadden LLP (Cal. Supreme Ct. - Sept. 27, 2007)

Here's a win for lawyers today.

We all know that the statute of limitations on a legal malpractice claim is tolled during the attorney's representation of a client. So, for example, when Attorney X represents Client Y, the statute doesn't start running on Y's claim against X until after the representation terminates.

But here's the rub: What about when Attorney X works for Firm ABC but, during the representation, leaves Firm ABC and takes Client Y with him? Is the statute of limitations on Y's claims against ABC still tolled during X's continuing representation of Y? On the one hand, X continues to represent Y, and it's hardly likely that Y will sue X's old firm (complaining of X's misconduct) while X continues to represent him. So maybe the statute should be tolled. On the other hand, ABC doesn't, in fact, represent Y any longer, so maybe it shouldn't.

The California Court of Appeal, in a case involving (the now-defunct) Arter & Hadden, held that the staute was tolled. I commented on this decision when it came out back in January 2006, and argued that the case was one "that the California Supreme Court should take [] up." Which it promptly did. And, today, unanimously reversed.

So fear not. You may have lost an associate, alongside a paying client, when they walked out the door. But, on the upside, the clock started ticking. So you got that going for you. Which is nice.

John v. City of El Monte (9th Cir. - Sept. 27, 2007)

This opinion, by Judge Friedman (of the Federal Circuit, sitting by designation), is the type of adjudication of which I'd definitely like to see more. On the merits, Judge Friedman reverses the denial of qualified immunity to a police officer who arrested a female teacher accused of sexually assaulting a fifth grader in her class. And I think that's right; there was probable cause here, even though the only real evidence of assault was the claim of the student herself. That's enough. Or so a reasonable officer could so believe.

Judge Friedman goes on, however, even in this very compact opinion, to display the type of compassion and recognition of real world consequences that I think is admirable. His opinion concludes:

"We do not minimize the serious effect this unfortunate incident must have had upon John. She had been a teacher for thirty years, was highly regarded and had an unblemished record. To be escorted by the police out of the school in handcuffs and confined for 36 hours must have had a devastating impact upon her and upon her professional and personal reputation.

Moreover, Youngquist appears to have acted with unseemly haste in arresting her. Had he investigated the matter further before doing so, he might not have taken that action at all. His stated reason for arresting her at that time—to prevent her from engaging in similar misconduct against other students—is unconvincing, because, in his presence, John had been placed on administrative leave when he informed the school authorities of the investigation. Indeed, John’s statement about what happened immediately before
her arrest—which we accept for summary judgment purposes —suggests that Youngquist’s arrest of her at that time may have been prompted by her stated wish to have a lawyer present during the interview.

That being said, however, the probable cause inquiry is an objective one: whether the information Youngquist had when he made the arrest could have led a reasonable officer to believe that John had committed an offense against Ashley. For the reasons given, we answer that question affirmatively."

That seems exactly right. And, although she loses the appeal, that language might well provide some -- very legitimate and potentially meaningful -- solace to the plaintiff.

Opinions aren't always entirely about getting the law right. Sometimes they're also about doing justice to the parties. And, here, I think that Judge Friedman strikes exactly the right balance.

Jafari v. EMC Insurance Cos. (Cal. Ct. App. - Sept. 26, 2007)

"Repair my car or I'll kill you," says the customer. The manager responds: "How about I punch you in the face instead?" And does so. Insurance coverage for the underlying civil assault and battery claim?

Yep. Or at least the potential for coverage, and hence there's a duty to defend. According to Justice Johnson, who holds that even deliberate self-defense would still constitute an "accident" under the policy.

Seems about right. Still, unless you want a punch in the face, I might shy away from Glendora Tire & Brake Center for a while. Or at least not threaten to kill anyone there.

Sanders v. Brown (9th Cir. - Sept. 26, 2007)

Here's a good way to learn about the nature of pricing in the cigarette industry -- as well as the structure of the 1998 settlement agreement against the tobacco companies -- in the context of an antitrust challenge. Among other things, the 1998 agreement apparently operates to discourage tobacco companies from competing on price. It was also interesting to learn that the marked rise in cigarette prices after the settlement agreement is much higher than the price increase expected from the mere costs of the agreement. So there's obviously lots going on here.

Mind you, on the merits, it's a crushing victory for the tobacco companies. Who get the lawsuit dismissed at the pleading stage and unanimously prevail on appeal as well. And, conversely, a loss for Kathleen Sullivan, who argued the appeal on behalf of the plaintiff, alongside my friend Bill Urquhart (lead counsel on the brief).

That disclosure made, in my view, there's a nontrivial chance that the Supreme Court might take this one up, as the Ninth Circuit's analysis of Parker immunity conflicts with the holdings of the Second and Third Circuits. So there's a circuit split in a fairly high-profile and important case. That said, obtaining a writ of certiorari is a longshot even in the most meritorious case, so odds are the legal system ain't gonna provide a remedy on this one.

U.S. v. Dearing (9th Cir. - Sept. 25, 2007)

It's sad when the most interesting case of the morning is one that involves small-time Medicaid fraud by a piddly health care operator in rural Idaho and who's raising a (totally fruitless) challenge to his conviction and five-month sentence. But that's the case today.

Hopefully we'll see more interesting stuff from the California Court of Appeal in the afternoon. Especially since the U.S. Supreme Court returned from the summer with a bang today, granting certiorari in a ton of interesting cases. Gotta compete with that.

Foothill Fed. Credit Union v. Superior Court (Cal. Ct. App. - Sept. 24, 2007)

Ever get a records subpoena? Feel like totally violating it? Maybe to disclose tons of private, sensitive financial information that's not even requested by the subpoena? Or even producing documents even after the consumer has objected to the request, thereby violating the command of CCP 1985.3 that requires you not to disclosure after such an objection?

Go right ahead. You can't be sued. Litigation privilege.

This basically removes any constraint whatsoever on the ability of a subpoenaed party to do deliberate -- or reckless/negligent -- harm in response to a subpoena. And makes a mockery of the obligations ostensibly imposed by CCP 1985.3, as they are entirely unenforceable.

Mind you, the majority seems to somewhat recognize that fact, albeit in the guise of refuting it. And Justice Johnson helpfully writes a persuasive concurrence that calls upon the Legislature to modify CCP 1985.3 so as to provide means through it may be effective enforced.

But, after this opinion, there's absolutely no reason why a subpoenaed party should protect the consumer or other records of a party. Give 'em up early. Give more than is required. Produce even in the presence of a binding objection. Doesn't matter. For now, at least, you're absolutely immune.

Holcomb v. Wells Fargo Bank (Cal. Ct. App. - Sept. 20, 2007)

The overwhelming majority of pro se civil litigants lose in the trial court. And it is my strong, strong sense that a similarly high percentage of pro se litigants lose when they attempt to file an appeal.

But there's an exception that proves every rule. And this is one of them. Scott Holcomb wins his appeal of the demurrer granted to Wells Fargo Bank. In a decision that gives hope -- albeit, in truth, merely the smallest of glimmers of hope -- to pro se litigants everywhere.

Redding v. Safford Unified School Dist. (9th Cir. - Sept. 21, 2007)

We're apparently strip-searching 13-year old girls in public schools in order to find out whether they have a pill of ibuprophen -- hardly a commonly abused drug -- in their crotch or bra. Judges Clifton and Hawkins think that's perfectly okay. Judge Thomas doesn't.

You gotta have an opinion on this one, no? Even if you don't have a 13-year old daughter.

Fitz-Gerald v. Skywest Airlines (Cal. Ct. App. - Sept. 20, 2007)

Want to know how much flight attendants make? I can tell you the short answer: Not much. But if you want more detailed knowledge -- including learning that that flight attendant who's saying "Welcome aboard" while you're boarding the plane is only making $1.60/hour while s/he's doing it -- then read this opinion.

For what it's worth, I think that Justice Yegan is right that the wage class action here is preempted by federal law. Sorry about that, FAs. At least you still get free flights. Which -- let's be honest -- is one of the principal reasons you took the (low paying) job in the first plance, right?

P.S. - Random shout out to Karen Duncan, a former American Airline flight attendant whom I knew in high school and who subsequently became an attorney. And from whom I received all of my (limited) knowledge about what it's like to be a flight attendant. Let's just say: Not the worst job in the universe, but far from the greatest either.

People v. Mosley (Cal. Ct. App. - Sept. 19, 2007)

Go ahead. Repeatedly threaten individual guards at your prison. Always a good idea. You'll not successfully obtain anything as a result. You will, by contrast, be sentenced to 19 additional years in prison. Which you'll get reduced to 16 years 4 months on appeal. But that's still 16+ additional years in the big house for you.

He who laughs last, I imagine . . . .

Menken v. Emm (9th Cir. - Sept. 19, 2007)

This is a wonderful opinion. Especially for first-year law students, most of whom are currently struggling (or have just finished struggling) to understand personal jurisdiction during their first month of law school.

You don't see many published opinions on personal jurisdiction, so it's a great review. Plus, as typical for the Ninth Circuit, which applies the doctrine more than many other appellate courts, it discusses and applies the somewhat uncertain "effects test" at length. So it's an interesting -- and potentially helpful -- opinion from that perspective as well.

But what's most fascinating is Judge Bybee's concurrence. As most current (and former) law students recall from civil procedure, the typical constitutional personal jurisdiction inquiry is a two-pronged test: (1) see if the defendant has sufficient minimum contacts with the forum state, and (2) see if the exercise of jurisdiction would be fair in light of the burdens on the defendant, the forum state's interest in the dispute, etc. That has been the test for decades, and pretty much everyone agrees with it. Even people like Justice Brennan, who would prefer the second requirement to occasionally obviate the need for the first, have signed onto this test.

But Judge Bybee concurs exclusively to argue that the second requirement shouldn't matter -- that as long as the defendant has minimum contacts, it shouldn't matter whether the exercise of personal jurisdiction is fair. That, he says, is a matter best left to alternative doctrines such a forum non conveniens; and, presumably, the decision of a state court whether to exercise jurisdiction.

This is even farther than Justice Brennan would have gone, who could only hold in Burger King that usually when you have minimum contacts the exercise of jurisdiction would be fair. And it's directly contrary to the express holding of a unanimous Supreme Court in Asahi, which applied the second requirement to invalidate the exercise of personal jurisdiction by a California court even if the defendant had minimum contacts.

Judge Bybee admits at the end of his concurrence that he's "swimming against the tide" on this one. But he's not just swimming against the tide; he's throwing himself against a figurative tsunami of jurisprudence, and with an effort that doesn't do much more than merely fling his body and hope that someone picks him up. I think that if he really wanted to advance his cause on this point, he needed to do a lot, lot more than he does in this concurrence, which is pretty skimpy in its analysis of both precedent and various rationales behind the current rule.

For what it's worth, I also think that Judge Bybee is wrong on the merits. Sure, one could rely on state courts to apply forum non conveniens or other doctrines to constraint fundamentally unfair litigation. But what if they don't? What if, like some states, they don't adopt the doctrine? Or if they apply it, as many states do, in a very narrow and limited set of circumstances? Does this really mean that the Due Process Clause imposes no constraints upon fundamentally unfair litigation? Sure, you could say that it doesn't; that minimum contacts are sufficient alone to establish a state's power over a defendant. But this is not only a worse rule that the one we have now, but is also inconsistent with precedent, history, and purpose.

Judge Bybee's very bright. And, to his credit, feels free to both speak his mind as well as to view things in a different way, and sometimes to even stand alone. But, on this one, while interesting, his view is fairly clearly wrong. At least in my view. He's got much, much better potential judicial campaigns than this one. Which, as written, is both fairly facile as well as entirely unpersuasive.

So sayeth me, anyway.

Brown v. Ornoski (9th Cir. - Sept. 19, 2007)

Raping a killing a 15-year old girl is evil enough. But don't also subsequently taunt the dead girl's parents by calling them multiple times with messages like "Hello, Mrs. Jordan, Susie isn’t home from school yet, is she? You will never see your daughter again. You can find her body on the corner of Victoria and Gibson.”

You'll find that a jury doesn't like stuff like that. And after the police search your house and find a telephone directory that's turned to the page containing the parents' listing, as well as two of the dead girl's schoolbooks, it's going to take the jury less than three hours to sentence you to death. Even if your defense psychiatrist opines that you killed the girl out of shame for raping her, and that the phone calls indicated shame and a
desire to be caught. It won't matter.

And neither will your appeal to the Ninth Circuit on ineffective assistance of counsel grounds. Affirmed.

People v. Randall (Cal. Ct. App. - Sept. 18, 2007)

Let's say that you plead guilty to being drunk when you plowed into someone. You're lucky enough to get sentenced to a year in jail and five years probation.

What do you think you should do next? Stay clean and sober, maybe? Or, once you get out of prison, while on probation, promptly get arrested for public intoxication and battery?

Robert Randall chose the latter option. Resulting in the revocation of his probation and five extra years in prison.

Not a wise decision, I think.

One more thing. This one about doctrine. When the statute says that victims have the right to speak at "the sentencing proceeding" of an individual, that actually means they have the right to speak at "the sentencing proceedings". So concludes Justice Hull.

Fields v. Brown (9th Cir. - Sept. 10, 2007)

Nothing at all from the California Court of Appeal today (at least as of this afternoon). And a marginally interesting case on the political question doctrine from the Ninth Circuit, but although I think they're being a wuss on this one, and would have preferred they reached the merits, I've otherwise got nothing special to say about the matter.

That said, on an entirely different topic, if you only read one death penalty case this entire year, I'd strongly recommend this one.

It's got everything you'd want -- on both sides -- of the debate. Horrible crimes committed by a terrible person whom most people would conclude totally deserves to die. But also error by human, and flawed, jurors, on multiple different levels. And application of a plethora of procedural constraints upon death penalty (and other criminal) claims.


It's going to take a little time, as the opinions top out at over a hundred single-spaced pages, and include three separate missives. But each one is incredibly good. As well as unambiguously enlightening.


Unless you're an unwavering partisan on the issue, this one will make you think. It may well not change your mind. Few opinions do. But it'll definitely make you smarter, and more informed, on the issue.

People v. Warner (Cal. Ct. App. - Sept. 12, 2007)

Sometimes you can just see things coming. He're the first paragraph of this opinion:

"Douglas William Warner commenced a romantic relationship with his next-door neighbor while she was engaged in bitter child custody litigation with her husband . . ."

Oh, man. That's not exactly a recipe for success.

". . . who later accused him of abusing the couple’s child. . . ."

That's not gonna help.

"His arrest at his apartment in front of his friends infuriated him. . . ."

Neither is that.

"The court dismissed the charges against him for lack of evidence, but he felt depressed and distraught at losing his chance to have his day in court."

Seeing the cloud in every silver lining in a bad sign. Very bad.


"Weeks later, he killed her husband with a shotgun blast to the chest."

Yikes!! I knew it was bad, but even I didn't see something that bad coming. Oh my.


Warner gets a total of 75 to life. And the Court of Appeal affirms.

In short, it doesn't get any better for Warner. Not too surprising. Rarely does blowing someone away really help the matter.

People v. Foss (Cal. Ct. App. - Sept. 13, 2007)

You don't see many 82-page opinions by the California Court of Appeal in run-of-the-mill child molestation cases. But Justice Nicholson cranks one out here.

Raymond Foss can't be happy with the result, which affirms his convictions and resulting sentence of 36 years to life. But he can't claim the court didn't do a thorough job.

P.S. - There are much worse cases of molestation in the Cal. Apps than this one. But this case is a reminder -- and it's worth reminding -- that virtually any molestation can put you in prison for the rest of your life.

White v. Sparks (9th Cir. - Aug. 29, 2007)

So I take it that this means that I have a First Amendment right to sit in a park and paint pictures of naked women and sell them to the public too. That's equally protected speech, right?

The Ninth Circuit says that paintings of nature may convey a protected "message that human beings are driving their spiritual brothers and sisters, the animals, into extinction." Surely my paintings of naked men and/or women frolicking in various poses sends an even more direct message, no?

Interesting. I thought that there were some legitimate constraints on fairly clearly commercial speech. But apparently they are less permissible than I originally thought.

People v. Quitiquit (Cal. Ct. App. - Sept. 12, 2007)

I'm afraid I'm going to have to disagree with everyone in this one.

It's an evidence issue. Hearsay. Applied in a very sad domestic violence case. The question is whether the court should have admitted a hearsay statement made by Martina Villanueva to the police in which she told them that her husband of 15 years (with whom she was separated) had twisted her neck. Martina later died -- and the evidence indicates that she might have been really reluctant to testify anyway -- so the only way the statement comes in is if a hearsay exception applies.

Section 1370(a) of the Evidence Code allows hearsay like this if it explains how a physical injury was inflicted upon the declarant (yes), was made in writing or to a hospital or law enforcement official (yes), the declarant is unavailable (yes), and -- critically -- (1) was "made at or near the time of the infliction [] of physical injury," and (2) "was made under circumstances that would indicate its trustworthiness."

Justice McIntyre writes the majority opinion. He (alongside Justice O'Rourke) concludes that the statement here -- which was made seven weeks after the alleged physical injury -- did not qualify as being made "at or near the time" of that injury. And I think that's right. Justice Haller disagrees, but Justice McIntyre has the better of the argument, in my view, given the text, structure, history, and purpose of the exception.

That's all one needs to decide the case, since each of the requirements of Section 1370(a) need to be satisfied in order for the statement to be admitted. But Justice McIntyre goes on to also hold that the statement wasn't made under circumstances that would indicate its trustworthiness. But I think that's wrong, and would go the other way on that issue. You gotta read the entire fact section to get an accurate sense on this point, but I had the very strong feeling that Villanueva was telling the truth. She wasn't out for revenge, and didn't even really want to make the statement (or press charges). She had no motive to lie. She made this statement initially to her doctors, who had been unsuccessfully trying to figure out how the injury was caused and how to treat her, under circumstances that suggest that she revealed this information purely to help the staff try to diagnose what exactly had happened -- and hence treat her. And her statement was supported by both the medical and (eventual) autopsy records, which were consistent with her version, as well as various statements by two of her children about what they saw and heard on the night in question; in particular, Anthony's testimony that he heard Quitiquit getting angry on the day of the alleged abuse and his mother respond by saying something like "Go ahead. Do it," at which point he then heard Quitiquit "grunting" and Villanueva "gasp" for air and say "stop" in a frightened tone of voice, and shortly thereafter, heard Quitiquit leave.

To me, all of that is darn good evidence of trustworthiness. As well as some other stuff in the opinion as well. So I'd disagree with Justice McIntyre on this point. I think the opinion would have been better if this part had been left out -- or even had gone the other way.

In the end, all of the justices come out the same way, and suppress the statement and reverse. And I'd do the same thing. But for different reasons than each of them.

P.S. - Weirdly, the Attorney General makes an argument in this one that is totally backwards. Section 1370(a) says that one of the non-exclusive circumstances relevant to trustworthiness is "whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested." The AG contends on appeal that Villanueva's statement was indeed "made in contemplation" of certain proceedings because she allegedly made the statement for the "purpose of making a paper trail so that she could get a protective order against him." But, dude, this argument goes the other way. The point of Section (a)(4)(1) is that if you're contemplating such an action then you have an interest in the statement and that it's not made under circumstances of trustworthiness. So the AG basically made an argument for the other side here. Now, Justice McIntyre ultimately says there's no evidence that this was Villanueva's purpose. Still. Make sure that you're reading the statute right, and don't accidentally make arguments that go the wrong way.

Marmolejo-Campos v. Gonzales (9th Cir. - Sept. 12, 2007)

It takes a fair piece to get Judge Dorothy Nelson to dissent. But this opinion does the trick.

It's a deportation case, where we're kicking Armando Marmolejo-Campos out of the country. Judge Nelson does a good job of explaining what the case entails and why she comes out the way she does. Here's the first paragraph of her dissent:

"In this appeal, we are tasked with answering a straightforward question: Does the act of driving while intoxicated, which is not a crime involving moral turpitude, somehow become morally turpitudinous when coupled with the act of driving without a license, which also is not a crime involving moral turpitude? The majority states that precedent and administrative deference require us to answer this question in the affirmative, but I respectfully disagree."

That sums it up pretty darn well. Plus, you gotta love any opinion that uses the term "turpitudinous". Nice.

Bolt v. Merrimack Pharmaceuticals, Inc. (9th Cir. - Sept. 11, 2007)

The Ninth Circuit applying Massachusetts law to determine the meaning of "net worth" and decide whether a tiny company in Cambridge -- represented by Goodwin Proctor -- has a total value over $5 million.

You might see that occasionally in the First Circuit. You ain't gonna see it much out here.

But you do today.

P.S. - It does. Barely.

Hughes v. Pair AND Chabak v. Monroy (Cal. Ct. App. - Sept. 10, 2007)

A rare twofer. Which, together, may illustrate a somewhat controversial point: When you think one of the parties is a liar -- even on a sterile, cold record -- you're likely to find against them. Even on appeal.

At least that was my impression of these two cases. On the one hand, you have Hughes v. Pair, in which the plaintiff (and appellant) alleged that the defendant engaged in some totally disgusting (and outrageous) acts of sexual harassment. But, even on a cold appellate record, as I read the case, I didn't believe for a second that the defendant actually did what plaintiff alleged. The plaintiff's story wasn't plausible, it wasn't credible, and it felt totally contrived. It instead sounded precisely like what someone with a vendetta against a particular defendant -- whom she had already sued seven times previously, and who was upset that the defendant would only (in his capacity as a trustee) pay for her rental of an $80,000/month Malibu apartment for two months rather than one (!!) -- would fabricate in order to sue him again.

By contrast, later that same day, you have Chaback v. Monroy. In which the plaintiff and respondent sued the defendant for making allegedly unfounded claims to the police about his inappropriate touching of her during physical therapy. But, in that one, I found the harassment/abuse claims to be totally plausible, and not at all something that the victim was likely to fabricate. The circumstances and events rang entirely true to me, and defendant's denial -- and subsequent pro se lawsuit against the alleged victim -- seemed outrageous.

Of course, as usual, in both appeals, the truth or untruth of the underlying factual allegations are legally irrelevant. Nonetheless, for whatever reason, Chaback comes out in favor of the (in my mind, credible) victim, and Hughes comes out against the (in my mind) uncredible plaintiff.

These results may perhaps be mere happenstance. But I think that the underlying merits of a dispute often matter more than people may think. Even when -- as in these cases -- the Court of Appeal technically cannot even attempt to decide who's really telling the "truth".

Judges are human. I think that believing that one side or the other is a huge liar may matter. At least at the margins. And may also help explain particular results. Especially -- but not only -- when the underlying legal issues are close.

U.S. v. Crews (9th Cir. - Sept. 10, 2007)

Sometimes, after reading a Ninth Circuit opinion, I go back and listen to the tape of the oral argument in the case. Just to see what the panel (and parties) argued and how these arguments were reflected and resolved in the opinion.

You typically hear fairly aggressive contentions, by a counsel excited by the abilty to argue before the Ninth Circuit. The attorneys usually take up all their time -- and, often, even more -- and are eager to present their arguments before the court.

But not in this one. The defendant had won a motion to suppress below, the government appealed, and at the oral argument, the U.S. Attorney spoke only very fairly briefly -- for around five minutes. Then, when it was his turn to argue, the public defender answered a question from the court, and after doing so, basically said "Everything else I'd say has already been argued in the briefs, so unless you have any further questions . . . ." At which point the panel, not surprisingly, essentially said: "Nah. Thanks. We appreciate it. More time for lunch for us."

Which was probably, in retrospect, not the greatest decision in the world by the public defender. Since the panel then unanimously reversed.

Admittedly, with Judges Hall and Milan Smith on the panel, and with the issuance of a warrant, you're not looking too good in trying to defend a suppression motion. So maybe one could legitimately think that the less one spoke, the better one's cause. Or, alternately, that it wouldn't make a difference anyway.

Still, one might have wanted to give it a hard core shot. Which most attorneys would probably have done, if only for reasons of vanity.

Interesting tactical decision here.

P.S. - Happy fourth birthday, Jack Martin. I'm figuring this is about the age one gets a paying job, no?

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

You don't typically see someone sentenced in the federal system to over 100 years (or "1284 months") in prison. Nor do you typically see an AUSA mislead a district court on a fairly basic principle of law -- one that's so obvious that the U.S. is forced to confess error on this point in the Court of Appeals (see footnote 1).

But both occur here.

People v. Bradford (Cal. Ct. App. - Sept. 7, 2007)

I understand what and why it happened here. So I might not have been as outraged as Justice Aaron, and might have given Judge John M. Thompson (down here in San Diego) a tiny bit more slack -- or at least have toned down the language a tiny, tiny bit.

That said, she's definitely and unambiguously right. Judges can't go into the jury room -- especially without a court reporter -- and instruct and interact with the jury. Especially when they're discussing critical issues of law. And most definitely not six different times.

Even if it seems like the defense attorney (and prosecution) are cool with what you're doing, you can't do it. If you wear a robe, stay out of the jury room.

Easily understood lesson of the day. Conviction reversed.

Singh v. Gonzales (9th Cir. - Spet. 7, 2007)

As I noted previously, this week didn't begin at all well for various California lawyers. And, here, it ends on a similarly sour note for others.

Didar Singh originally gets the Ninth Circuit to reverse and remand the denial of his asylum claim. It's an unpublished, four-page (double-spaced) opinion. No biggie.

Then Singh's attorney files a motion to obtain EAJA fees of $3800. No big deal there either. And the Ninth Circuit grants them. But also, in a parting shot, makes the following statement regarding the position of the attorney for the United States:

"The Court notes that Respondent’s primary argument — that only litigation positions of the Department of Homeland Security (“DHS”) before this Court, and not decisions of Immigration Judges (“IJs”) and the Bureau of Immigration Appeals (“BIA”), are pertinent with regard to whether the government’s position in this case was substantially justified — was squarely rejected by this Court in Thangaraja v. Gonzales, 428 F.3d 870, 873 (9th Cir. 2005) (“We reject this contention, which completely lacks justification. Pursuant to the EAJA, the BIA and IJ decisions we review are as much the ‘position of the United States’ as is the DHS’ litigation position.”).

It is the responsibility of the Department of Justice and its lawyers to be aware when its positions have been rejected by the court. While it is acceptable to make a rejected argument for purposes of preserving it for en banc or Supreme Court consideration while acknowledging that it has been rejected by the court, it is not acceptable to repeat an argument already rejected without acknowledging the case that rejected it, particularly where it is the Department of Justice itself that was involved in earlier case. Another such repetition of this same argument in this court will be considered sanctionable behavior."

Wow. Not the way I want to end my week if I'm the relevant DOJ attorney.

Oh, one more thing. The opinion on the merits was unpublished. But the Ninth Circuit publishes the rebuke.

Yikes.

U.S. v. Moses (9th Cir. - Aug. 3, 2007)

When the United States, over a twenty year period, repeatedly issues stop work orders and tells you to stop dredging an intermittent creek that's a tributary of the Teton (and then Snake) River, don't just repeatedly and uniformly ignore these government edicts.

Sure, the first half-dozen or so times, they might not do anything. But, eventually, someone's going to get sufficiently hacked off to do something about it. Like criminally charge you for violating the Clean Water Act. And you're going to spend 18 months in federal prison for the your stubborn intransigence.

So pay attention to what the government says. Even if you're in Idaho. And even if your name is Moses.

You can part the Red Sea. But you can't dredge Teton Creek. Affirmed.

U.S. v. Atalig (9th Cir. - Sept. 6, 2007)

Defrauding the United States is a lot easier, I imagine, when the director of the program that's being defrauded is the one directing the theft.

Here's proof. But also proof that, occasionally, you get caught.

Cates v. California Gambling Control Comm'n (Cal. Ct. App. - Sept. 6, 2007)

Want to have faith in the California bureaucracy? Then don't read this case.

The California Gambling Control Commission is responsible, inter alia, for collecting revenue from the various Indian tribes that maintain casinos in the state. There's a specific definition of how much the tribes have to pay California, which consists of a specified percentage of the "average device net win," and the term "net win" is further defined as the difference between gaming wins and losses before deducting costs and expenses. Seems easy, right?

Read the first fourteen pages of the opinion to see how exactly the Commission does its job in this regard. Or, rather, entirely fails to do its job. It seems like the tribes essentially pay the state whatever amount they feel like paying, based upon their own internal definition of what a "net win" should be, the Commission knows they're doing that, but just sits around and twiddles its thumbs. And when a taxpayer brings an action to get the Commission off its duff, well, then the Commission does indeed do something pretty vigorous. Specifically, it fights tooth and nail to defeat the lawsuit and thereby avoid the mandatory requirement that it do its job and collect the appropriate level of revenue for the state.

One does not get a particularly favorable view of the California Gambling Control Commission from reading the case. And Justice McIntyre reverses the grant of summary judgment entered on behalf of the Commission in part, in my view, based upon the not-so-stellar impression that one gets upon reading the undisputed facts. My favorite line from the opinion, which essentially summarizes the problem here:

"We are at a loss to understand exactly how the Commission can possibly 'insure the mathematical accuracy of the reports' when 'net win' is a critical element in calculating the
contribution amount, but the Commission purportedly does not know how 'net win' is defined. It appears from the evidence presented that the Commission is simply verifying the accuracy of mathematical calculations set forth in the reports submitted by the tribes without confirming that the numbers used to perform the calculations are those called for by the Compact. Needless to say, the Commission cannot collect and account for Fund contributions and collect and analyze the reports submitted by the tribes without knowing the definition of 'net win.'"

Seems exactly right to me.

U.S. v. Mitchell (9th Cir. - Sept. 5, 2007)

Don't be surprised if this one takes a little time to download. It's a federal death penalty case on direct appeal. Of an American Indian defendant. And tops out at a whopping 134 single-spaced pages.

Judge Rymer writes the majority opinion, and Judge Reinhardt writes the dissent. You shouldn't need a hint as to which way each one comes out.

Baron v. Fire Ins. Exchange (Cal. Ct. App. - Sept. 4, 2007)

Imagine that you're Ronald R. Rossi (a Hastings Law graduate, from the old days), Susan R. Reischl (from Southwestern), and Samuel A. Chuck (from USC). You've taken a nice, long Labor Day holiday. Sun. Fun. Good times with friends and family. You go back to work on Tuesday.

And find this waiting for you. An opinion issued earlier that day from Justice Elia. That not only finds against you and your client -- and affirms, among other things, the $1.5 million punitive damages award against it -- and also awards attorney fees on appeal, but -- adding (literally) insult to injury -- has, inter alia, the following to say about you:

"Notwithstanding the righteous, histrionic tone of respondent's brief, we find no error in the trial court's judgment upholding the verdict. . . . The appellate briefs of both parties contain factual assertions with references to pages in the record that do not support their statements and, in respondent's brief, statements
highlighted in boldface without any record references at all. The parties' carelessness amounts to a disregard of California Rules of Court, rule 8.204(a)(1)(C) and rule 8.204(a)(2)(C). We will disregard any factual references that violate these provisions. We cannot, however, ignore respondent's unprofessional tone, including rhetorical queries, a fawning portrayal of the arbitrator as a 'practical, savvy former trial judge,' and the suggestion that this court 'should be similarly outraged' by Fire's conduct."

Ouch. Ouch ouch ouch.

Not at all what you want to be greeted with coming off holiday, as my Australian and British friends would say.

AmerisourceBergen Corp. v. Roden (9th Cir. - Aug. 13, 2007)

It's the unusual case that generates a uniform judicial call to arms for the modification of the Younger and/or Colorado River abstention doctrines. Sure, federal courts scholars may on occasion go ballistic, but rarely do you see actual judges wax poetic about the need for one or more of these doctrines to be modified in light of patently inefficient federal duplication of state court litigation.

But it happens. And both Judge Hawkins and Judge Ferguson write opinions worth reading in this regard.

Freeman v. Schack (Cal. Ct. App. - Aug. 27, 2007)

Want to peer into what is sometimes the seemy underbelly of modern class action litigation? If so, one need look no further than the first eight pages of this opinion.

From down here in San Diego, no less. Ewwwww.