Sure, I've been listed (as most of us have) on the counsel line in a variety of published appellate opinions. And my academic pieces are occasionally cited by courts, so my name appears there as well. But I've never been singled out by name in the text of a published opinion. So, as of today, my former student Todd Kinnear -- an attorney at Luce Forward -- has me beat on that one.
It's actually an interesting case, and mentions by name a number of other notable San Diego legal figures in the text of the opinion as well. Basically it's an opinion about challenges to arbitrators. Justice McConnell holds -- sensibly, I think -- that even though an arbitrator can be dismissed as a matter of right based upon a variety of compelled legal disclosures (significant business ties, attorney-client or familial relationship, etc.), there's no similar absolute right to dismiss an arbitrator based upon voluntary disclosures made by the arbitrator about his or her connections to various parties or counsel beyond those required by law. And this matters, since the common practice among informed arbitrators is to make as full and complete a disclosure as possible, even if it involves totally minor things that don't especially matter. To grant a party an absolute right to dismiss the arbitrator based upon those things seems wrong, and it instead seems better to strike the balance in favor of a discretionary recusal (pursuant to the judgment of the arbitrator or some other neutral) for those more minor nonmandatory disclosures.
So, here, it's an attorney fee arbitration before former Judge Haden, who works with JAMS. Not surprisingly, Judge Haden knows a wide variety of people at Luce Forward, who's suing the defendants for unpaid legal fees. So he makes a variety of disclosures, and, later on, when additional attorneys at Luce appear on various briefs, he makes additional disclosures as well, including that he was on the Board of the ABTL with a couple of them. This, as you might imagine, is fairly common in the relatively close-knit legal community in San Diego, at least amongst higher profile judges and attorneys. Defendant then moves to dismiss Judge Haden, he declines to let them do so, and then, after Judge Haden finds for Luce Forward in the arbitration, the defendant appeals on the ground that Judge Haden had an obligation to step aside.
To which the Court of Appeal demurs, saying that "Judge Haden's candor was commendable" -- always gotta love being complimented by the Court of Appeal, eh?! -- and that "arbitrators should, of course, be encouraged to err on the side of disclosure," but holding that the voluntary disclosures by Judge Haden did not give rise to an absolute right to dismiss him (e.g., would not create an impression of bias to a reasonable person). Which, as a policy matter, I think does encourage extensive voluntary disclosures by arbitrators, and I agree with Judge McConnell wholeheartedly that that's a good thing, and something that the law should advance.
My former student was mentioned multiple times in the opinion since his name was on the briefs and Judge Haden thought that he -- not those lawyers at Luce Forward with whom Judge Haden had a more extensive relationship -- was going to be the lead counsel at the arbitration. Which, I might add, would assuredly have been an equally smashing success for Luce Forward had Todd in fact been lead counsel, since he was a great student and is, I am confident, an utterly outstanding attorney. So that's the nature of Todd's brush with fame -- and, more importantly, his entrenchment in the California Appellate Report and California Reporter for all eternity.
So great job Luce Forward, great job Justice McConnell, great job Judge Haden, and great job Todd.
FULL DISCLOSURE: Especially since the underlying case is all about full and frank disclosure, I too should voluntarily reveal that I'm connected with just about every one of the participants here as well. As I said, Todd Kinnear is a former student, and I (obviously) know a variety of former students and others at Luce Forward as well. Plus, continuing on the student side, Judge Haden's son, Andrew, is a former student of mine (and, parenthetically, like Todd, is also exceptionally talented) as well. Lastly, I also know Judge Haden, who presided over a case on which I worked several years ago and who is, ironically enough, the arbitrator on an upcoming case I'm working on as well. None of which matters in the slightest, but I thought I'd mention them. Oh, one more thing. Todd's even balder than I am.
Wednesday, April 30, 2008
People v. Semien (Cal. Ct. App. - April 30, 2008)
Some peremptory challenges that are allegedly race-neutral are, I'm fairly convinced, based upon stereotype and pretext, and shouldn't be allowed. But then there are cases like this one.
Yes, the dismissed juror was the only African-American on the panel, and the defendant was an African-American charged with very serious crimes. But the juror was a pastor of a Baptist church, dealt with homeless people a great deal, and his wife worked in the county welfare department. As the prosecutor said in justifying the peremptory challenge: “He deals with homeless, and he’s in a situation where not only is his occupation one of forgiveness and sympathy, that’s the main gist of it, he’s in an occupation where he deals with underprivileged people who are homeless who require counseling and who he talks to. And I believe that that would put him in a situation where he would be more sympathetic towards a defendant, even though there’s a jury instruction right on point that they’re not supposed to take into consideration sympathy for a defendant. I also took into consideration that his wife works for the welfare department. This has nothing to do with [the pastor’s] ethnicity. I don’t know what the ethnicity of his wife is. But between the two, the[ir] combination of occupations is very sympathetic towards -- I don’t want to use the word ‘underdog,’ just towards people who may be in a situation where people are trying to bring charges against them."
I think that makes total sense. And, like Justice Sims, would affirm.
Yes, the dismissed juror was the only African-American on the panel, and the defendant was an African-American charged with very serious crimes. But the juror was a pastor of a Baptist church, dealt with homeless people a great deal, and his wife worked in the county welfare department. As the prosecutor said in justifying the peremptory challenge: “He deals with homeless, and he’s in a situation where not only is his occupation one of forgiveness and sympathy, that’s the main gist of it, he’s in an occupation where he deals with underprivileged people who are homeless who require counseling and who he talks to. And I believe that that would put him in a situation where he would be more sympathetic towards a defendant, even though there’s a jury instruction right on point that they’re not supposed to take into consideration sympathy for a defendant. I also took into consideration that his wife works for the welfare department. This has nothing to do with [the pastor’s] ethnicity. I don’t know what the ethnicity of his wife is. But between the two, the[ir] combination of occupations is very sympathetic towards -- I don’t want to use the word ‘underdog,’ just towards people who may be in a situation where people are trying to bring charges against them."
I think that makes total sense. And, like Justice Sims, would affirm.
Tuesday, April 29, 2008
Roman v. Liberty University (Cal. Ct. App. - April 29, 2008)
We're on the Left Coast. So we don't usually see cases in which (1) Liberty University is a defendant, and (2) Jerry Falwell provides a supporting declaration.
But they happen.
At least the plaintiff's name is a classic California. Last Name: Roman. First and Middle Names: Marlon Brando.
Sorry, though; no personal jurisdiction, and we'll forum non conveniens you anyway. Enjoy Virginia.
But they happen.
At least the plaintiff's name is a classic California. Last Name: Roman. First and Middle Names: Marlon Brando.
Sorry, though; no personal jurisdiction, and we'll forum non conveniens you anyway. Enjoy Virginia.
Wang v. Valverde (Cal. Ct. App. - April 29, 2008)
Cheating on your DMV test. No upside (if you're caught). But no downside either. At least if you're not criminally prosecuted.
A concise and coherent opinion by Justice Rothschild that spans a little over two double-spaced pages. Who says justice needs to be prolix?
A concise and coherent opinion by Justice Rothschild that spans a little over two double-spaced pages. Who says justice needs to be prolix?
U.S. v. Stoterau (9th Cir. - April 29, 2008)
Pimp out a boy who's 14? You'll get right around the same number of years in prison.
Oh, yeah. One more thing. When you appeal to the Ninth Circuit, and ask the court to use a pseudonym rather than your real name (because otherwise everyone in prison will shank you as a child sex offender), we'll deny the motion. And publish the opinion to boot.
Oh, yeah. One more thing. When you appeal to the Ninth Circuit, and ask the court to use a pseudonym rather than your real name (because otherwise everyone in prison will shank you as a child sex offender), we'll deny the motion. And publish the opinion to boot.
Monday, April 28, 2008
People v. Lewis (Cal. Supreme Court - April 28, 2008)
It's been a busy m*****f***ing month. By which I do not mean that it's been busy for me personally, though assuredly it has. No, what I mean is this: Lately, the California Supreme Court has been really busy using the word "motherfucker".
How busy, you ask? How about three different opinions in less than 40 days. That's a lot of m*****f***ing.
First there was People v. Gay back on March 20th. Justice Baxter graced us with "motherfucking" in that one (check out page 7). Then there was In re Lawley on March 24th. Though Justice Werdegar coyly abbreviates the term there as "m__________r".
Then, today, there's People v. Lewis. In which you need only read the first six of Justice Kennard's 156 (!) page opinion before you see the phrase "mother fucker".
Who knew the California Supreme Court would use this phrase even more frequently than I do? :-)
Three other tangential points. Because who can get enough of m_____f___ing?
First, can't we standardize this usage? During the last 40 days, Justice Baxter writes the phrase as one word, Justice Kennard writes it as two words, and Justice Werdegar edits it. Seems to me that we should have a set usage. Profanity Bluebook, anyone?
For what it's worth, the one word version seems to be more prevalent than the two word version. At least in the California Supreme Court during the past 18 years (which was all I checked), with a ratio of 3:2. So maybe that should be our default. Though, interestingly, the uses vary not only by individual (Justices Chin and Brown, for example, only used the one word version), but also by opinion: Chief Justice George, for example, used one word thrice during this period (in 1999, 2004 and 2005), but also used the two word version as well (in 2005). And Justices Baxter and Kennard similarly varied their usage. Even Justice Werdegar changes style; she doesn't have a problem spelling it out in 2004, but in 2008 she edits it. Interesting stuff!
Second, what accounts for all this swearing? You guessed it. Quotes in death penalty cases. Of the 16 times I saw this term used, every case (save one) was a death penalty case. The sole exception was an employment discrimination case. So chalk up another downside to automatic California Supreme Court review in death penalty cases: Foul language.
Third, who's the biggest potty mouth of them all (at least in terms of this particular word)? Well, as of today, at least during the period that I reviewed, the winner and new champion is . . . Justice Kennard! She used that phrase back in 1995, 2004, 2005 (two words), 2006, and now 2008. So her five times during this period edges out Chief Justice George, with whom she was previously tied at four.
Congratulations!
Fear not, Justice Kennard: An appropriately shaped trophy is not on its way.
How busy, you ask? How about three different opinions in less than 40 days. That's a lot of m*****f***ing.
First there was People v. Gay back on March 20th. Justice Baxter graced us with "motherfucking" in that one (check out page 7). Then there was In re Lawley on March 24th. Though Justice Werdegar coyly abbreviates the term there as "m__________r".
Then, today, there's People v. Lewis. In which you need only read the first six of Justice Kennard's 156 (!) page opinion before you see the phrase "mother fucker".
Who knew the California Supreme Court would use this phrase even more frequently than I do? :-)
Three other tangential points. Because who can get enough of m_____f___ing?
First, can't we standardize this usage? During the last 40 days, Justice Baxter writes the phrase as one word, Justice Kennard writes it as two words, and Justice Werdegar edits it. Seems to me that we should have a set usage. Profanity Bluebook, anyone?
For what it's worth, the one word version seems to be more prevalent than the two word version. At least in the California Supreme Court during the past 18 years (which was all I checked), with a ratio of 3:2. So maybe that should be our default. Though, interestingly, the uses vary not only by individual (Justices Chin and Brown, for example, only used the one word version), but also by opinion: Chief Justice George, for example, used one word thrice during this period (in 1999, 2004 and 2005), but also used the two word version as well (in 2005). And Justices Baxter and Kennard similarly varied their usage. Even Justice Werdegar changes style; she doesn't have a problem spelling it out in 2004, but in 2008 she edits it. Interesting stuff!
Second, what accounts for all this swearing? You guessed it. Quotes in death penalty cases. Of the 16 times I saw this term used, every case (save one) was a death penalty case. The sole exception was an employment discrimination case. So chalk up another downside to automatic California Supreme Court review in death penalty cases: Foul language.
Third, who's the biggest potty mouth of them all (at least in terms of this particular word)? Well, as of today, at least during the period that I reviewed, the winner and new champion is . . . Justice Kennard! She used that phrase back in 1995, 2004, 2005 (two words), 2006, and now 2008. So her five times during this period edges out Chief Justice George, with whom she was previously tied at four.
Congratulations!
Fear not, Justice Kennard: An appropriately shaped trophy is not on its way.
Friday, April 25, 2008
People v. Morgan (Cal. Supreme Ct. - Nov. 15, 2007)
It's been a slow day today in the Ninth Circuit and California Court of Appeal. So not much about which I can intelligently comment. Plus my posts yesterday dragged on forever; sorry about that.
So I decided to go back and comment briefly on a case from several months ago that was in a different genre than the recent cases I've discussed. On a more visceral, rather than logical, level.
There are some people who are prototypical examples of why one -- at least emotionally, and often intellectually -- wants the death penalty. Edward Morgan is one of them.
Read the facts of his offense, as well as his prior history, at your peril. Maybe it's the extreme and pervasive violence against women. But something about what's here really strikes at my core.
And makes me, or at least a part of me, not care in the slightest what happens to the guy. To feel that he deserves whatever evil he begets.
Not the best way to feel, much less to set policy -- I know. Still. There's something there.
So I decided to go back and comment briefly on a case from several months ago that was in a different genre than the recent cases I've discussed. On a more visceral, rather than logical, level.
There are some people who are prototypical examples of why one -- at least emotionally, and often intellectually -- wants the death penalty. Edward Morgan is one of them.
Read the facts of his offense, as well as his prior history, at your peril. Maybe it's the extreme and pervasive violence against women. But something about what's here really strikes at my core.
And makes me, or at least a part of me, not care in the slightest what happens to the guy. To feel that he deserves whatever evil he begets.
Not the best way to feel, much less to set policy -- I know. Still. There's something there.
Thursday, April 24, 2008
U.S. v. Sei (9th Cir. - April 24, 2008)
Let's talk about pirates.
They exist. Not just in Disneyland. And they're bad.
Okay, I get that. The question then becomes: How can they be punished? Or, more accurately, does the United States, in particular, have jurisdiction to punish pirates for offenses committed on the high seas?
Let me give you the short (and easy) answer: Yes. For a variety of different reasons. For example, in Article I, Section 8, the Constitution enables Congress to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." There's also the Article II Treaty Power, backed up by the Necessary and Proper Clause, and since the U.S. has, in fact, entered into a couple of international treaties that deal with piracy on the high seas, the constitutional power to punish pirates is pretty darn solid. Backed up by a wide variety of statutes that exercise that power.
Fair enough. So you're safe from Johnny Depp on the high seas. And less fictional -- and less savory -- real pirates as well.
But what about from people like Lei Shi?
Now, admittedly, you and I aren't likely to encounter people like Shi on a three-hour cruise. Or ever, for that matter. Shi's a Chinese citizen working on a Tawianese merchant ship. He's the cook. He allegedly gets beaten and harassed repeatedly by the Captain and First Mate. Which seems plausible. This does not make Shi happy, and in a subsequent fit of rage, he stabs and kills both men.
Not nice. Well, at this point, Shi realizes he's in what we legally call "deep doo-doo". So he throws the captain's body overboard and tells the crew to set a course for China or he'll do to them what he did to his harassers, plus he'll (allegedly) scuttle the ship. The crew obeys for a couple of days, but then promptly overpower Shi and lock him up in a storage compartment.
What's this got to do with the United States? Well, nothing. Shi's a Chinese national. The Captain was from Taiwan and the First Mate from China. The ship's a Tawianese fishing vessel registered in the Seychelles. The murders happen in international waters, where the ship was fishing, and there's utterly no connection to the United States.
But, after overpowering Shi, the crew sets a course for Hawaii, the closest major land mass, and eventually the U.S. Coast Guard intercepts the ship. It eventually takes charge of the vessel, takes possession of Shi, and then Shi's charged with a variety of crimes in federal court.
But Shi objects to being criminally charged in the United States, a forum as to which he has absolutely no connection other than that he was forcibly taken there. He didn't commit a crime there. He didn't go there. Why can he be charged there? Legally, he makes the argument that's traditionally (and often successfully) used by drug runners, who argue that they can't constitutionally be prosecution in the United States unless there's some nexus between their crime and that sovereign. Which, as we all know, there often is. But for Shi, there's not. So why can the U.S. prosecute him? Why doesn't that violate Due Process?
Remember that Article I, however, permits Congress to punish felonies committed on the high seas. Murder certainly counts. But so does drug-running, and still, we require a nexus. In other words, sure, Article I (as well as the Article II Treaty Power) grants an enumerated right, but Congress still has to comply with the Fifth Amendment and demonstrate a nexus. Otherwise, no dice.
So here's what Judge O'Scannlain holds today: The nexus requirement doesn't apply to Shi because he's a pirate. A pirate?! You may ask yourself: (1) How does that possibly matter legally?, and (2) How is that possibly true, since the guy's a cook, not a pirate? Both good questions.
As to the first, Judge O'Scannlain says that the nexus requirement doesn't apply to pirates because they're stateless and universally condemned. In the words of Ninth Circuit precedent, which concerned jurisdiction over stateless ships running drugs, “[s]uch vessels are international pariahs” and hence “by attempting to shrug the yoke of any nation’s authority . . . subject themselves to the jurisdiction of all nations." Or, as the Supreme Court put it in the conext of pirates, because "piracy . . . is an offense against the universal law of society, a pirate being, according to Sir Edward Coke, hostis humani generis [an enemy of the human race]."
Okay, I get that. Assume that's right, and that a pirate can be tried anywhere. I'm willing to sign onto that, I guess. How the flock is Shi a pirate?!
Well, Judge O'Scannlain holds, he's a pirate because he meets the definition of one. What?! Judge O'Scannlain admits that, traditionally, pirates were, well, pirates: i.e., people who robbed or plundered other ships on the high seas. Those are indeed the people who hostis humani generis. But that ain't Shi.
Ah, says Judge O'Scannlain, but you are one. Why? Because that's the way Congress defined it, as Section
2280(a)(1)(A) prohibits “seiz[ing] or exercis[ing] control over a ship by force or threat thereof” (which Shi surely did) and § 2280(a)(1)(B) prohibits “act[s] of violence against a person on board a ship” that are “likely to endanger the safe navigation of that ship" (which is a stretch, but which Shi arguably did).
But, with all due respect to Judge O'Scannlain, that argument constitutes an obvious logical fallacy, and conflates two distinct realms. Yes, Congress has, inter alia, the Article I power to "punish Piracies," and, for that matter, any "Felon[y] committed on the high Seas." But we already know that enumerated power doesn't categorically negate the Due Process Clause, otherwise drug offenses could be prosecuted without a nexus as well (since they're felonies too). What does negate the nexus requirement is a boat (or person) being stateless in the way that pirates or the crew of a stateless ship is stateless. But, again, that's not Shi.
What Judge O'Scannlain is basically saying is this:
(A) The Due Process Clause allows Congress to prosecute a "pirate" without a nexus to the U.S.
(B) Congress has defined a "pirate" to include someoe like Shi.
(C) Hence, the Due Process Clause does not bar Shi's prosecution.
But (C) does not follow from (A) and (B). Congress cannot define for itself who constitutes a stateless pirate sufficient to allow Congress to constitutionally exercise jurisdiction. So if Shi's not a "pirate" under the usual (and historically understood) definition of the term, it's insufficient that Congress has nonetheless passed a law that declares him to be one. Any more than Congress could define "piracy" as including "hitting of a golf ball off a cruise ship into the high seas" and thereby prosecute a citizen of Fiji with utterly no connection to the United States who engaged in this practice.
Is Shi a nice guy? No. Not to the Captain and First Mate, at least. Is he a "pirate"? Dubious, though I can at least see an argument based upon his takeover of the ship (though I doubt that mutiny counts as piracy). But that's not the argument that Judge O'Scannlain makes. And the argument he does make I don't find especially persuasive.
They exist. Not just in Disneyland. And they're bad.
Okay, I get that. The question then becomes: How can they be punished? Or, more accurately, does the United States, in particular, have jurisdiction to punish pirates for offenses committed on the high seas?
Let me give you the short (and easy) answer: Yes. For a variety of different reasons. For example, in Article I, Section 8, the Constitution enables Congress to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." There's also the Article II Treaty Power, backed up by the Necessary and Proper Clause, and since the U.S. has, in fact, entered into a couple of international treaties that deal with piracy on the high seas, the constitutional power to punish pirates is pretty darn solid. Backed up by a wide variety of statutes that exercise that power.
Fair enough. So you're safe from Johnny Depp on the high seas. And less fictional -- and less savory -- real pirates as well.
But what about from people like Lei Shi?
Now, admittedly, you and I aren't likely to encounter people like Shi on a three-hour cruise. Or ever, for that matter. Shi's a Chinese citizen working on a Tawianese merchant ship. He's the cook. He allegedly gets beaten and harassed repeatedly by the Captain and First Mate. Which seems plausible. This does not make Shi happy, and in a subsequent fit of rage, he stabs and kills both men.
Not nice. Well, at this point, Shi realizes he's in what we legally call "deep doo-doo". So he throws the captain's body overboard and tells the crew to set a course for China or he'll do to them what he did to his harassers, plus he'll (allegedly) scuttle the ship. The crew obeys for a couple of days, but then promptly overpower Shi and lock him up in a storage compartment.
What's this got to do with the United States? Well, nothing. Shi's a Chinese national. The Captain was from Taiwan and the First Mate from China. The ship's a Tawianese fishing vessel registered in the Seychelles. The murders happen in international waters, where the ship was fishing, and there's utterly no connection to the United States.
But, after overpowering Shi, the crew sets a course for Hawaii, the closest major land mass, and eventually the U.S. Coast Guard intercepts the ship. It eventually takes charge of the vessel, takes possession of Shi, and then Shi's charged with a variety of crimes in federal court.
But Shi objects to being criminally charged in the United States, a forum as to which he has absolutely no connection other than that he was forcibly taken there. He didn't commit a crime there. He didn't go there. Why can he be charged there? Legally, he makes the argument that's traditionally (and often successfully) used by drug runners, who argue that they can't constitutionally be prosecution in the United States unless there's some nexus between their crime and that sovereign. Which, as we all know, there often is. But for Shi, there's not. So why can the U.S. prosecute him? Why doesn't that violate Due Process?
Remember that Article I, however, permits Congress to punish felonies committed on the high seas. Murder certainly counts. But so does drug-running, and still, we require a nexus. In other words, sure, Article I (as well as the Article II Treaty Power) grants an enumerated right, but Congress still has to comply with the Fifth Amendment and demonstrate a nexus. Otherwise, no dice.
So here's what Judge O'Scannlain holds today: The nexus requirement doesn't apply to Shi because he's a pirate. A pirate?! You may ask yourself: (1) How does that possibly matter legally?, and (2) How is that possibly true, since the guy's a cook, not a pirate? Both good questions.
As to the first, Judge O'Scannlain says that the nexus requirement doesn't apply to pirates because they're stateless and universally condemned. In the words of Ninth Circuit precedent, which concerned jurisdiction over stateless ships running drugs, “[s]uch vessels are international pariahs” and hence “by attempting to shrug the yoke of any nation’s authority . . . subject themselves to the jurisdiction of all nations." Or, as the Supreme Court put it in the conext of pirates, because "piracy . . . is an offense against the universal law of society, a pirate being, according to Sir Edward Coke, hostis humani generis [an enemy of the human race]."
Okay, I get that. Assume that's right, and that a pirate can be tried anywhere. I'm willing to sign onto that, I guess. How the flock is Shi a pirate?!
Well, Judge O'Scannlain holds, he's a pirate because he meets the definition of one. What?! Judge O'Scannlain admits that, traditionally, pirates were, well, pirates: i.e., people who robbed or plundered other ships on the high seas. Those are indeed the people who hostis humani generis. But that ain't Shi.
Ah, says Judge O'Scannlain, but you are one. Why? Because that's the way Congress defined it, as Section
2280(a)(1)(A) prohibits “seiz[ing] or exercis[ing] control over a ship by force or threat thereof” (which Shi surely did) and § 2280(a)(1)(B) prohibits “act[s] of violence against a person on board a ship” that are “likely to endanger the safe navigation of that ship" (which is a stretch, but which Shi arguably did).
But, with all due respect to Judge O'Scannlain, that argument constitutes an obvious logical fallacy, and conflates two distinct realms. Yes, Congress has, inter alia, the Article I power to "punish Piracies," and, for that matter, any "Felon[y] committed on the high Seas." But we already know that enumerated power doesn't categorically negate the Due Process Clause, otherwise drug offenses could be prosecuted without a nexus as well (since they're felonies too). What does negate the nexus requirement is a boat (or person) being stateless in the way that pirates or the crew of a stateless ship is stateless. But, again, that's not Shi.
What Judge O'Scannlain is basically saying is this:
(A) The Due Process Clause allows Congress to prosecute a "pirate" without a nexus to the U.S.
(B) Congress has defined a "pirate" to include someoe like Shi.
(C) Hence, the Due Process Clause does not bar Shi's prosecution.
But (C) does not follow from (A) and (B). Congress cannot define for itself who constitutes a stateless pirate sufficient to allow Congress to constitutionally exercise jurisdiction. So if Shi's not a "pirate" under the usual (and historically understood) definition of the term, it's insufficient that Congress has nonetheless passed a law that declares him to be one. Any more than Congress could define "piracy" as including "hitting of a golf ball off a cruise ship into the high seas" and thereby prosecute a citizen of Fiji with utterly no connection to the United States who engaged in this practice.
Is Shi a nice guy? No. Not to the Captain and First Mate, at least. Is he a "pirate"? Dubious, though I can at least see an argument based upon his takeover of the ship (though I doubt that mutiny counts as piracy). But that's not the argument that Judge O'Scannlain makes. And the argument he does make I don't find especially persuasive.
Humane Society v. Gutierrez (9th Cir. - April 24, 2008)
Sometimes justice is way speedy. Which is, in part, why I loved this one.
It's just an order on an emergency motion for a stay pending appeal of a preliminary injunction motion. You don't see many of those granted -- especially with a published order -- outside the death penalty context.
The question is whether Oregon and Washington can remove -- e.g., kill -- some sea lions (up to 85/year)who will otherwise eat a lot (e.g., up to 2000) endangered Chinook salmon below the Bonneville Dam on the Columbia River. Oregon and Washington planned to start whacking the sea lions today, the Humane Society requested a preliminary injunction below but were denied, so they filed an emergency motion in the Ninth Circuit. Their mantra: "Save the Sea Lions. Kill the Fish." Just kidding. More like: "Save the Sea Lions. Circle of Life for the Other Guys."
The motions panel -- to its credit -- takes the motion incredibly seriously. And grants it, in part. The Court says, correctly, that there's irreparable injury either way: if you kill the sea lions, they're dead, but if you let them eat the fish, the fish are dead. So where does the balance lie? Well, you could obviously favor the side you think will win the appeal. But it's typically pretty hard to figure out where that balance lies in the context of an emergency motion.
So the Ninth Circuit says: "Look, apparently, the fish run this particular year looks like it'll be pretty big; something like 269,000 fish. So letting sea lions gobble up 200-2000 fish won't be a monster deal. As a result, I won't let you whack the sea lions. But I'll tell you what I'm going to do for you. First, I'll let Oregon and Washington catch sea lions and relocate them to zoos and aquaria. They say they can do that for around 19 of them; go ahead. You can't whack 'em, but you can sell 'em into bondage.
Second [and I very much liked this part], let's speed this thing up. We hereby sua sponte expedite the appeal. Your briefs are now due to be exchanged simultaneously 7 days from now. With opposition briefs due 4 days later. And we hereby schedule the appeal on the merits to be heard 3 days thereafter. Justice is speedy, my friends. Now, if that freaks all of the attorneys out [as it well may!], you guys can stipulate if you want to keep on the current briefing schedule. Otherwise, I'll see you all at oral argument in two weeks, and enjoy the next week and a half of all-day-and-all-night briefing."
I love it. Both the Solomonic decision and the sua sponte briefing order. Absolutely love it.
POSTSCRIPT - A little birdy (thanks!) clued me into the fact that the oral argument is actually in two weeks whether the parties like it or not; they merely get to choose whether to drink a lot of caffeine and submit merits briefs next week or have the court decide the case on the basis of the briefs already submitted. Which I assume means -- though I'm just guessing -- the briefs on the emergency motion, since I doubt the parties submitted merits briefs prior to the motion. So no choice: justice shall be speedy!
It's just an order on an emergency motion for a stay pending appeal of a preliminary injunction motion. You don't see many of those granted -- especially with a published order -- outside the death penalty context.
The question is whether Oregon and Washington can remove -- e.g., kill -- some sea lions (up to 85/year)who will otherwise eat a lot (e.g., up to 2000) endangered Chinook salmon below the Bonneville Dam on the Columbia River. Oregon and Washington planned to start whacking the sea lions today, the Humane Society requested a preliminary injunction below but were denied, so they filed an emergency motion in the Ninth Circuit. Their mantra: "Save the Sea Lions. Kill the Fish." Just kidding. More like: "Save the Sea Lions. Circle of Life for the Other Guys."
The motions panel -- to its credit -- takes the motion incredibly seriously. And grants it, in part. The Court says, correctly, that there's irreparable injury either way: if you kill the sea lions, they're dead, but if you let them eat the fish, the fish are dead. So where does the balance lie? Well, you could obviously favor the side you think will win the appeal. But it's typically pretty hard to figure out where that balance lies in the context of an emergency motion.
So the Ninth Circuit says: "Look, apparently, the fish run this particular year looks like it'll be pretty big; something like 269,000 fish. So letting sea lions gobble up 200-2000 fish won't be a monster deal. As a result, I won't let you whack the sea lions. But I'll tell you what I'm going to do for you. First, I'll let Oregon and Washington catch sea lions and relocate them to zoos and aquaria. They say they can do that for around 19 of them; go ahead. You can't whack 'em, but you can sell 'em into bondage.
Second [and I very much liked this part], let's speed this thing up. We hereby sua sponte expedite the appeal. Your briefs are now due to be exchanged simultaneously 7 days from now. With opposition briefs due 4 days later. And we hereby schedule the appeal on the merits to be heard 3 days thereafter. Justice is speedy, my friends. Now, if that freaks all of the attorneys out [as it well may!], you guys can stipulate if you want to keep on the current briefing schedule. Otherwise, I'll see you all at oral argument in two weeks, and enjoy the next week and a half of all-day-and-all-night briefing."
I love it. Both the Solomonic decision and the sua sponte briefing order. Absolutely love it.
POSTSCRIPT - A little birdy (thanks!) clued me into the fact that the oral argument is actually in two weeks whether the parties like it or not; they merely get to choose whether to drink a lot of caffeine and submit merits briefs next week or have the court decide the case on the basis of the briefs already submitted. Which I assume means -- though I'm just guessing -- the briefs on the emergency motion, since I doubt the parties submitted merits briefs prior to the motion. So no choice: justice shall be speedy!
Wednesday, April 23, 2008
People v. Soukomlane (Cal. Ct. App. - April 23, 2008)
Justice Cornell writes a concurring opinion in this case to try to be helpful to trial courts in confronting the challenges involved when a criminal pro per defendant may potentially be disruptive.
Let me add another one:
Chill out. Remain calm. Because if you don't, you may well engage in conduct that's clearly -- or, as Justice Gomes more tactfully (but equally correctly) puts it, "patently" -- erroneous. And, I might add, in manifest derogation of a defendant's obvious -- freakingly obvious -- constitutional rights.
So, for example, you may (1) obviously shackle a pro per litigant notwithstanding any evidence on the record whatsoever that would justify such conduct, and then (2) kick him out of court during the direct examination of the critical prosecution witness for no compelling reason; indeed, for virtually no reason whatsoever. The fact that (retired) Judge Couillard thought the latter was okay is especially stunning. Who could possibly think that not letting anyone on the defendant's side hear the testimony of the key prosecution witness before cross-examining her was okay?
This just in: It's not.
Let me add another one:
Chill out. Remain calm. Because if you don't, you may well engage in conduct that's clearly -- or, as Justice Gomes more tactfully (but equally correctly) puts it, "patently" -- erroneous. And, I might add, in manifest derogation of a defendant's obvious -- freakingly obvious -- constitutional rights.
So, for example, you may (1) obviously shackle a pro per litigant notwithstanding any evidence on the record whatsoever that would justify such conduct, and then (2) kick him out of court during the direct examination of the critical prosecution witness for no compelling reason; indeed, for virtually no reason whatsoever. The fact that (retired) Judge Couillard thought the latter was okay is especially stunning. Who could possibly think that not letting anyone on the defendant's side hear the testimony of the key prosecution witness before cross-examining her was okay?
This just in: It's not.
Wagner v. Wagner (Cal. Ct. App. - April 23, 2008)
It's not enough to have a good claim on the merits. You've also got to follow the rules on appeal.
So, for example, Justice Perluss says today to James Crowell, the attorney for the appellant (Claire Wagner):
"Our review of the court’s ruling on this motion, however, has been thwarted by Claire’s failure to provide us with a transcript of the hearing on the motion or a copy of the court’s minute order denying the motion. All that has been provided is a copy of the notice of ruling prepared by Claire’s counsel following the hearing. The absence of a record concerning what actually occurred at the hearing precludes a determination that the court abused its discretion. [Cites] As the party challenging a discretionary ruling, Claire had an affirmative obligation to provide an adequate record so that we could assess whether the court abused its discretion. [Cites] Accordingly, she has forfeited this argument on appeal."
Oh, yeah. The record. That tiny little thing. Oops.
So, for example, Justice Perluss says today to James Crowell, the attorney for the appellant (Claire Wagner):
"Our review of the court’s ruling on this motion, however, has been thwarted by Claire’s failure to provide us with a transcript of the hearing on the motion or a copy of the court’s minute order denying the motion. All that has been provided is a copy of the notice of ruling prepared by Claire’s counsel following the hearing. The absence of a record concerning what actually occurred at the hearing precludes a determination that the court abused its discretion. [Cites] As the party challenging a discretionary ruling, Claire had an affirmative obligation to provide an adequate record so that we could assess whether the court abused its discretion. [Cites] Accordingly, she has forfeited this argument on appeal."
Oh, yeah. The record. That tiny little thing. Oops.
Villegas v. Mukasey (9th Cir. - April 23, 2008)
Mental institutions in Mexico may not constitute deliberate "torture" sufficient to justify withholding of deportation. But, at least currently, they're really horrible. So sayeth Judge Hall.
I did not realize that Mexican mental institutions are/were as bad as they are/were. But Judge Hall recounts a story that's quite persuasive.
Yet another reason not to go crazy in Mexico.
I did not realize that Mexican mental institutions are/were as bad as they are/were. But Judge Hall recounts a story that's quite persuasive.
Yet another reason not to go crazy in Mexico.
Tuesday, April 22, 2008
U.S. v. Staffeldt (9th Cir. - April 22, 2008)
Two years? I mean, sure, I understand why the government might not want the name of the relevant AUSA mentioned in the published opinion. He's being reversed, after all. I can also understand why the panel might grant an unopposed motion to delete references to him -- though I could see the other side as well. I mean, it's not like the attorney -- Keith Vercauteren -- is some super-secret undercover spy. Though he did just transfer to the National Security Section in the Arizona U.S. Attorney's Office. But if you can get all that off of Google -- and you definitely can -- it's hardly like having his name buried in Volume 451 of the F.3d is likely to result in untoward publicity.
But ignore all that. Here's the thing. The opinion that mentions Vercauteren was published almost two full years ago, in 2006. And the petition for rehearing -- after an extension, no less -- was due way back then as well. Why are we just now getting around to taking his name out?
Maybe the petition for rehearing was just sitting around chambers for two years. If so, that doesn't seem right. Or maybe the government didn't get around to actually reading the opinion and noticing the AUSA's name for a couple years. But that doesn't seem right (or plausible) either. And I doubt that Vercauteren was happy to have his name in the opinion before but only recently had a change of heart.
So why the two-year delay? No idea. I guess it's one of those eternal mysteries.
But ignore all that. Here's the thing. The opinion that mentions Vercauteren was published almost two full years ago, in 2006. And the petition for rehearing -- after an extension, no less -- was due way back then as well. Why are we just now getting around to taking his name out?
Maybe the petition for rehearing was just sitting around chambers for two years. If so, that doesn't seem right. Or maybe the government didn't get around to actually reading the opinion and noticing the AUSA's name for a couple years. But that doesn't seem right (or plausible) either. And I doubt that Vercauteren was happy to have his name in the opinion before but only recently had a change of heart.
So why the two-year delay? No idea. I guess it's one of those eternal mysteries.
Daybreak Group v. Three Creeks Ranch (Cal. Ct. App. - April 21, 2008)
Now you're just making fun of me.
It's a published opinion by Justice Bedsworth. It's got only three and a half pages of text. And it begins with the following paragraph:
"This is a case of first impression. Many such cases present interesting analytical challenges; others result only in rueful head-shaking. This, unfortunately, falls into the latter category."
Of course I'm going to mention that opinion! How can I not?! It's short, easy to read, and fun. Written in the classic Justice Bedsworth style.
The case is technically about an alleged requirement for a member of the California Bar who resides outside the state to be admitted pro hac vice. Or, as Justice Bedsworth rightly holds, the utter absence of such any such actual requirement. I get the keen sense that the case is really about what awe-inspiringly bad arguments attorneys can sometimes make. And that's definitely how Justice Bedsworth writes the opinion. In a way that's light, breezy, and deadly persuasive.
So fun for everyone. That is, I imagine, except for Stuart W. Knight, counsel for appellant (and 1968 Southwestern Law School graduate). For him: Not so fun. But trust me, Mr. Knight: It could have been a lot, lot worse.
The winner, by contrast, is R. Allen Payne. Who lives in Helena, Montana, but who is a member of the California Bar. A fact that's not only interesting, but dispositive to the appeal.
By the way, I thought to myself: "I wonder how many California attorneys there are in sparsely populated Montana?" So, having nothing more productive to do with my time, I checked. 331. Which, I believe, is roughly half the population of that State. Though I admit my math may be slightly off on that latter point.
Most of these Montana resident/California attorneys, by the way, have either resigned from the California Bar, are inactive, been suspended for nonpayment of Bar dues, or died. For example, of the 45 California attorneys who reside -- like Mr. Payne -- in Helena, Montana, only 9 of them (including Payne) are active; i.e., only 20 percent. The majority (25) are inactive, five didn't pay their bar dues (and hence not eligible to practice in California), five are dead, and one -- David DePasquale, a disgraced graduate of USD Law School, I might (sadly) add -- has been disbarred.
So Montana: A great place to retire or move or (maybe) work, or even die, but not such a great place to practice California law. But if you want to, we welcome you back. With open arms. No pro hac vice needed.
It's a published opinion by Justice Bedsworth. It's got only three and a half pages of text. And it begins with the following paragraph:
"This is a case of first impression. Many such cases present interesting analytical challenges; others result only in rueful head-shaking. This, unfortunately, falls into the latter category."
Of course I'm going to mention that opinion! How can I not?! It's short, easy to read, and fun. Written in the classic Justice Bedsworth style.
The case is technically about an alleged requirement for a member of the California Bar who resides outside the state to be admitted pro hac vice. Or, as Justice Bedsworth rightly holds, the utter absence of such any such actual requirement. I get the keen sense that the case is really about what awe-inspiringly bad arguments attorneys can sometimes make. And that's definitely how Justice Bedsworth writes the opinion. In a way that's light, breezy, and deadly persuasive.
So fun for everyone. That is, I imagine, except for Stuart W. Knight, counsel for appellant (and 1968 Southwestern Law School graduate). For him: Not so fun. But trust me, Mr. Knight: It could have been a lot, lot worse.
The winner, by contrast, is R. Allen Payne. Who lives in Helena, Montana, but who is a member of the California Bar. A fact that's not only interesting, but dispositive to the appeal.
By the way, I thought to myself: "I wonder how many California attorneys there are in sparsely populated Montana?" So, having nothing more productive to do with my time, I checked. 331. Which, I believe, is roughly half the population of that State. Though I admit my math may be slightly off on that latter point.
Most of these Montana resident/California attorneys, by the way, have either resigned from the California Bar, are inactive, been suspended for nonpayment of Bar dues, or died. For example, of the 45 California attorneys who reside -- like Mr. Payne -- in Helena, Montana, only 9 of them (including Payne) are active; i.e., only 20 percent. The majority (25) are inactive, five didn't pay their bar dues (and hence not eligible to practice in California), five are dead, and one -- David DePasquale, a disgraced graduate of USD Law School, I might (sadly) add -- has been disbarred.
So Montana: A great place to retire or move or (maybe) work, or even die, but not such a great place to practice California law. But if you want to, we welcome you back. With open arms. No pro hac vice needed.
Monday, April 21, 2008
U.S. v. Arnold (9th Cir. - April 21, 2008)
They can search your laptop at the border without probable cause. We know that from a couple of years ago.
But Judge O'Scannlain adds to that today. They can also search your laptop at the border without even reasonable suspicion.
Personally, I would have at least cited the earlier Ninth Circuit case, especially since it says a lot of things (albeit in dicta) that support Judge O'Scannlain's holding. If only to let everyone know I was aware of it.
On a more practical level, for you international travelers out there: Don't put anything on your laptop that you wouldn't be willing to broadcast to the world. Because the U.S. Government has the categorical right to spend as much time as it wants looking through your private stuff for anything in which it might be interested.
But Judge O'Scannlain adds to that today. They can also search your laptop at the border without even reasonable suspicion.
Personally, I would have at least cited the earlier Ninth Circuit case, especially since it says a lot of things (albeit in dicta) that support Judge O'Scannlain's holding. If only to let everyone know I was aware of it.
On a more practical level, for you international travelers out there: Don't put anything on your laptop that you wouldn't be willing to broadcast to the world. Because the U.S. Government has the categorical right to spend as much time as it wants looking through your private stuff for anything in which it might be interested.
People v. Zamudio (Cal. Supreme Court - April 21, 2008)
When you read all the death penalty cases in California, there are some basic, fairly universal themes. Most of the time, guilt is fairly obvious, and the evidence is overwhelming. And you have some incredibly bad facts about the defendant that, when combined with his obvious guilt, makes you appreciate (even if you don't agree) why the jury sentenced him to death.
Not here.
Yes, it's the murder of an elderly couple, and that's a terrible thing. But unless we're going to kill everyone who commits that offense -- and we don't -- I cannot figure out what distinguishes this case from the others. It's not a particularly outrageous example of the offense; no torture or the random killing of strangers. There's no massive criminal history or a lifetime of violence or even depravity. And, yes, do I think it's likely that the defendant did it, sure, but I gotta say that the evidence of guilt is pretty darn scant, and a fair piece less than you find in most of these cases.
One of the things that the Supreme Court occasionally talks about in death penalty cases is how you're supposed to be able to rationally distinguish those who die from those who live. I can't do that here, and it's not for a lack of trying. It just seems to me that the jury here was hard core: that it thought that someone who killed an elderly couple whom he knew (and was previously very nice towards) for meaningless reasons always deserves to die. That may or may not be correct as a moral matter, but I don't think it helps to distinguish this case from similar ones in which the defendant was sentenced to life without the possibility of parole.
I've read hundreds of death penalty cases, and none of them have ever struck me as highlighting the inequity argument as much as this one. Which is especially interesting given the none-too-overpowering evidence of guilt that's also present here. Although I have always intellectually understood the "lingering doubt" instruction (i.e., that there may still be some doubt about the defendant's guilt even though you're morally certain that he committed the offense), I've never actually felt it. Or even come close. And I'm not sure that I feel it here -- I find it very hard to say that I'm morally confident that a defendant's guilty and yet square that with some lingering doubt, since presumably that would mean that I'm not sure "beyond a reasonable doubt" -- and yet I think this one at least comes close.
So this one generated some unique feelings, at least for me. Which may well be idiosyncratic. But this one didn't sit well with me. I have no substantive objections to Justice Chin's legal analysis for the unanimous Court. But there's still something here that makes me uneasy.
Not here.
Yes, it's the murder of an elderly couple, and that's a terrible thing. But unless we're going to kill everyone who commits that offense -- and we don't -- I cannot figure out what distinguishes this case from the others. It's not a particularly outrageous example of the offense; no torture or the random killing of strangers. There's no massive criminal history or a lifetime of violence or even depravity. And, yes, do I think it's likely that the defendant did it, sure, but I gotta say that the evidence of guilt is pretty darn scant, and a fair piece less than you find in most of these cases.
One of the things that the Supreme Court occasionally talks about in death penalty cases is how you're supposed to be able to rationally distinguish those who die from those who live. I can't do that here, and it's not for a lack of trying. It just seems to me that the jury here was hard core: that it thought that someone who killed an elderly couple whom he knew (and was previously very nice towards) for meaningless reasons always deserves to die. That may or may not be correct as a moral matter, but I don't think it helps to distinguish this case from similar ones in which the defendant was sentenced to life without the possibility of parole.
I've read hundreds of death penalty cases, and none of them have ever struck me as highlighting the inequity argument as much as this one. Which is especially interesting given the none-too-overpowering evidence of guilt that's also present here. Although I have always intellectually understood the "lingering doubt" instruction (i.e., that there may still be some doubt about the defendant's guilt even though you're morally certain that he committed the offense), I've never actually felt it. Or even come close. And I'm not sure that I feel it here -- I find it very hard to say that I'm morally confident that a defendant's guilty and yet square that with some lingering doubt, since presumably that would mean that I'm not sure "beyond a reasonable doubt" -- and yet I think this one at least comes close.
So this one generated some unique feelings, at least for me. Which may well be idiosyncratic. But this one didn't sit well with me. I have no substantive objections to Justice Chin's legal analysis for the unanimous Court. But there's still something here that makes me uneasy.
Friday, April 18, 2008
Brooks v. WCAB (Cal. Ct. App. - April 18, 2008)
I don't know why this struck me as particularly funny. And it admittedly came out of some slim pickings today (the Ninth Circuit, for example, didn't publish anything).
But when Justice Vartabedian introduced the case by saying: " that Virginia Brooks sustained an injury to her right shoulder and psyche arising out of and in the course of her employment as a correctional officer," I found myself smiling. Injured in your psyche. That's awesome.
But when Justice Vartabedian introduced the case by saying: " that Virginia Brooks sustained an injury to her right shoulder and psyche arising out of and in the course of her employment as a correctional officer," I found myself smiling. Injured in your psyche. That's awesome.
Thursday, April 17, 2008
People v. Concha (Cal. Ct. App. - April 16, 2008)
Unlike the Ninth Circuit, you typically don't see that many votes ever cast to grant a petition for rehearing in the California Court of Appeal. My intuition is that many (or at least some) on the Court of Appeal deem it somewhat "out there" to do so; that it's somewhat uncollegial in a way that's different than just dissenting.
But it occasionally happens.
So it's worth mentioning when it does. Especially when, like today, it's thus far a very slow day in the Ninth Circuit and California Court of Appeal. Though the afternoon dump of opinions from the latter is still to come. And we can always hope for a thriller.
POSTSCRIPT - The "afternoon dump" from the California Court of Appeal turned out to be, well, nothing. Oh well. So much for a "thriller"!
But it occasionally happens.
So it's worth mentioning when it does. Especially when, like today, it's thus far a very slow day in the Ninth Circuit and California Court of Appeal. Though the afternoon dump of opinions from the latter is still to come. And we can always hope for a thriller.
POSTSCRIPT - The "afternoon dump" from the California Court of Appeal turned out to be, well, nothing. Oh well. So much for a "thriller"!
U.S. v. Davis (9th Cir. - March 19, 2008)
"When we tell you to jump, the proper response is 'How high?', not 'I'm going to do a double gainer.' Learn it or be reversed."
That's the message the Ninth Circuit sends to Judge Damrell. In a per curiam opinion that takes only a week or so after oral argument to write.
That's the message the Ninth Circuit sends to Judge Damrell. In a per curiam opinion that takes only a week or so after oral argument to write.
Wednesday, April 16, 2008
People v. Bragg (Cal. Ct. App. - April 15, 2008)
Taxes are finished. Money has been paid. The national welfare and defense is secure.
So now we can move on to more important issues. To wit: Precisely what is the lingo of your classic exchange between Bloods and Crips?
Let me give you the context. Which, needless to say, is a sad one, since it's reflected in a judicial opinion. Very few happy stories are articulated therein.
But this one, for some reason, struck me as particularly depressing. Maybe because of the uselessness of the underlying violence. Or maybe because of the rapid change in tenor.
W.V. -- I'll call him Wilson -- walks up to Hites Market in Sacramento and sees Adam Bragg, who's hanging out at the entrance to the store about to buy some beer. Wilson and Adam grew up together, but had not seen each other for some time. So it was a happy meeting. Wilson goes over to Adam and gives him a hug, saying "What's up, dog?" Adam's also happy, and "responds" "What's up?!" At which point Wilson says: "Nothing, just kicking back and being boo."
Now, you may not understand what that means. "Being boo?" What the heck is that? And I hear you on that one. Especially since it's possible that this is actually a transcription error, since whenever I've heard the phrase -- and trust me, that's not very often -- I've seen it reported as "being bool," not "being boo". But it's possible that "boo" is street shorthand for "bool."
Which leaves the question: "Fine, but what the heck is 'bool'?!" Which takes us back to the whole Crips and Bloods thing. You notice, I take it, that Crips beings with "C" and Bloods begins with "B". There you have it. Since the Crips don't like the Bloods, Crips often take words that begin with "B" and replace that first letter with a "C". And vice-versa; Bloods take words that begin with "C" and articulate them with a "B" instead. A "Take that, my evil foe: I refuse even to use words that being with your letter! Suffer the indignities of my wrath!" sort of thing.
Yes, I know: it sounds like a petty nothingness. Maybe something you'd see in a really fractious university English Department or something. But when Bloods and Crips feel insulted, they tend to fire off something other than testy internal memoranda.
Which brings us back to Adam and Wilson. And helps to understand Wilson's comment. He was "kicking back and being boo". Which is instantly understood to mean that he's sitting back and being "coo" - i.e., "cool" -- and to simultaneously indicate to the recipient that the speaker either was or is associated with the Bloods. And in a manner that's deemed to be a serious insult to the Crips.
But no problem, right? So Wilson's a Blood? Big deal. Hites Market is in an area frequented by Bloods anyway, so that should hardly be a shock. And, after all, Wilson and Adam grew up together, and just gave one another a hug. No biggie.
Except here's what Adam then reveals to Wilson, whom (recall) he hasn't seen in a while. Adam responds: "I'm a Crip, cuz." Oops.
Okay, now, normal people, in a traditional setting, might say: "Oh, sorry. I didn't know. I didn't mean to insult you. I'm sure there are some very fine Crips out there, and I'm sure you're one of them. I was just talking as a broad stereotype. Sorry if my language offended you." Whether they meant it or not.
Contrast that hypothetical exchange to how Wilson actually responds to his boyhood friend's revelation. He instead says: "Fuck you, then." And walks into the store.
Needless to say, this isn't going to turn out well.
Wilson first insulted his gave-him-a-hug childhood friend accidentally, in a manner offensive to his gang. And then followed it up with a deliberate, in-your-face affront. Sadly, that's not something that's just going to be let go. Adam -- now extremely angry -- starts screaming at Wilson to "bring your bitch ass outside." And at this point I'll let Justice Hull finish the tale:
"At this point, [Wilson] started out of the store thinking only that he and [Adam] were going to engage in a fist fight. [Wilson] did not think there would be greater violence because [Adam] and [Wilson] had grown up together, [Adam] lived just around the corner from the store and, at some point, [Wilson] had trimmed [Adam’s] mother’s trees.
Some of the women who had come to the market with [Wilson] began pleading with [Wilson] not to fight and began trying to hold him back or block his exit as he went back through the door of the market. At or about the point that [Wilson] and the women passed through the doorway, [Adam], standing outside and facing them, took a gun out of his pocket and began firing it in their direction." As Adam fires ceaselessly into the crowd of people in the store, he shoots Wilson twice and two different bystanders as well.
That's how the story ends. With, of course, Adam subsequently being found guilty of multiple attempted murders and sentenced to 85 years in prison.
All of which, remember, began with a hug and greeting. Of childhood friends.
So now we can move on to more important issues. To wit: Precisely what is the lingo of your classic exchange between Bloods and Crips?
Let me give you the context. Which, needless to say, is a sad one, since it's reflected in a judicial opinion. Very few happy stories are articulated therein.
But this one, for some reason, struck me as particularly depressing. Maybe because of the uselessness of the underlying violence. Or maybe because of the rapid change in tenor.
W.V. -- I'll call him Wilson -- walks up to Hites Market in Sacramento and sees Adam Bragg, who's hanging out at the entrance to the store about to buy some beer. Wilson and Adam grew up together, but had not seen each other for some time. So it was a happy meeting. Wilson goes over to Adam and gives him a hug, saying "What's up, dog?" Adam's also happy, and "responds" "What's up?!" At which point Wilson says: "Nothing, just kicking back and being boo."
Now, you may not understand what that means. "Being boo?" What the heck is that? And I hear you on that one. Especially since it's possible that this is actually a transcription error, since whenever I've heard the phrase -- and trust me, that's not very often -- I've seen it reported as "being bool," not "being boo". But it's possible that "boo" is street shorthand for "bool."
Which leaves the question: "Fine, but what the heck is 'bool'?!" Which takes us back to the whole Crips and Bloods thing. You notice, I take it, that Crips beings with "C" and Bloods begins with "B". There you have it. Since the Crips don't like the Bloods, Crips often take words that begin with "B" and replace that first letter with a "C". And vice-versa; Bloods take words that begin with "C" and articulate them with a "B" instead. A "Take that, my evil foe: I refuse even to use words that being with your letter! Suffer the indignities of my wrath!" sort of thing.
Yes, I know: it sounds like a petty nothingness. Maybe something you'd see in a really fractious university English Department or something. But when Bloods and Crips feel insulted, they tend to fire off something other than testy internal memoranda.
Which brings us back to Adam and Wilson. And helps to understand Wilson's comment. He was "kicking back and being boo". Which is instantly understood to mean that he's sitting back and being "coo" - i.e., "cool" -- and to simultaneously indicate to the recipient that the speaker either was or is associated with the Bloods. And in a manner that's deemed to be a serious insult to the Crips.
But no problem, right? So Wilson's a Blood? Big deal. Hites Market is in an area frequented by Bloods anyway, so that should hardly be a shock. And, after all, Wilson and Adam grew up together, and just gave one another a hug. No biggie.
Except here's what Adam then reveals to Wilson, whom (recall) he hasn't seen in a while. Adam responds: "I'm a Crip, cuz." Oops.
Okay, now, normal people, in a traditional setting, might say: "Oh, sorry. I didn't know. I didn't mean to insult you. I'm sure there are some very fine Crips out there, and I'm sure you're one of them. I was just talking as a broad stereotype. Sorry if my language offended you." Whether they meant it or not.
Contrast that hypothetical exchange to how Wilson actually responds to his boyhood friend's revelation. He instead says: "Fuck you, then." And walks into the store.
Needless to say, this isn't going to turn out well.
Wilson first insulted his gave-him-a-hug childhood friend accidentally, in a manner offensive to his gang. And then followed it up with a deliberate, in-your-face affront. Sadly, that's not something that's just going to be let go. Adam -- now extremely angry -- starts screaming at Wilson to "bring your bitch ass outside." And at this point I'll let Justice Hull finish the tale:
"At this point, [Wilson] started out of the store thinking only that he and [Adam] were going to engage in a fist fight. [Wilson] did not think there would be greater violence because [Adam] and [Wilson] had grown up together, [Adam] lived just around the corner from the store and, at some point, [Wilson] had trimmed [Adam’s] mother’s trees.
Some of the women who had come to the market with [Wilson] began pleading with [Wilson] not to fight and began trying to hold him back or block his exit as he went back through the door of the market. At or about the point that [Wilson] and the women passed through the doorway, [Adam], standing outside and facing them, took a gun out of his pocket and began firing it in their direction." As Adam fires ceaselessly into the crowd of people in the store, he shoots Wilson twice and two different bystanders as well.
That's how the story ends. With, of course, Adam subsequently being found guilty of multiple attempted murders and sentenced to 85 years in prison.
All of which, remember, began with a hug and greeting. Of childhood friends.
Warner Bros. v. Golden Channels & Co. (9th Cir. - April 15, 2008)
I can't honestly say that I'm interested enough to read the underlying briefs and make sure that my impression of this case is absolutely, positively right. But I can definitely say this: Judge Kleinfeld writes an opinion that I find both entirely persuasive and incredibly equitable. I like it. A lot.
While I respect Judge Morrow (below), I think that Judge Kleinfeld's decision touches my heart -- and instinctive sense of fairness -- a lot more than hers. And seems to have the law behind it as well.
See if you agree.
While I respect Judge Morrow (below), I think that Judge Kleinfeld's decision touches my heart -- and instinctive sense of fairness -- a lot more than hers. And seems to have the law behind it as well.
See if you agree.
Tuesday, April 15, 2008
In Re Viray (Cal. Ct. App. - April 15, 2008)
You know the story. The Board of Parole Hearings grants parole to a convicted murderer in an exceptional case. The Governator files a rubber-stamp reversal of the grant. The defendant files a habeas petition. The California judiciary then reverses the Governor.
What's true writ large in California is even true in fairly conservative San Diego. As this case demonstrates.
Nicomedes Viray stabbed a man to death on a dance floor. In an admittedly senseless act. He was sentenced to 16 to life, and has now been in prison for 24 years. He has no prior criminal history. He's got a pretty good record in the joint. He was 27 at the time of his offense, and is now 51. He's got a ton of employment skills that he obtained in prison. He's got very good job opportunities. And, one more thing, he's going to be deported to the Phillipines upon his release anyway.
The Governor says that he's nonetheless clearly a danger to society. The Court of Appeal says (and rightfully so, I might add): "Not."
Even Justice Haller -- who writes separately because she wants to be a fair piece more deferential to the Governor than expressed in the majority opinion by Justice McIntyre (who's hardly a flaming leftie) -- concurs in the result. This is not a case where the Governor is trying to do the right thing. Or even making a real effort to follow the law. It's a token, routinized political act. To which the judiciary rightly responds.
What's true writ large in California is even true in fairly conservative San Diego. As this case demonstrates.
Nicomedes Viray stabbed a man to death on a dance floor. In an admittedly senseless act. He was sentenced to 16 to life, and has now been in prison for 24 years. He has no prior criminal history. He's got a pretty good record in the joint. He was 27 at the time of his offense, and is now 51. He's got a ton of employment skills that he obtained in prison. He's got very good job opportunities. And, one more thing, he's going to be deported to the Phillipines upon his release anyway.
The Governor says that he's nonetheless clearly a danger to society. The Court of Appeal says (and rightfully so, I might add): "Not."
Even Justice Haller -- who writes separately because she wants to be a fair piece more deferential to the Governor than expressed in the majority opinion by Justice McIntyre (who's hardly a flaming leftie) -- concurs in the result. This is not a case where the Governor is trying to do the right thing. Or even making a real effort to follow the law. It's a token, routinized political act. To which the judiciary rightly responds.
U.S. v. Reveles-Espinoza (9th Cir. - April 15, 2008)
"So you want to petition for rehearing and rehearing en banc with respect to our memorandum disposition, eh? Maybe getting a little traction on the latter, are you? So be it. We hereby vacate the memo dispo and replace it with an opinion that's a bit more solid in its analysis, and hence more difficult to attack. Oh -- and this will shock you, I know -- the opinion comes out the same way. So you still get deported. One last thing. We'll publish this one. So now it's precedent. Ha!"
As wise practitioners know, sometimes it doesn't pay to petition for rehearing, and you should instead make a beeline for en banc or Supreme Court review.
As wise practitioners know, sometimes it doesn't pay to petition for rehearing, and you should instead make a beeline for en banc or Supreme Court review.
Monday, April 14, 2008
Munson v. Del Taco (9th Cir. - April 14, 2008)
There's courtesy, and then there's courtesy.
Appellate certification requests often begin with a standard boilerplate; for example, the common "We respectfully ask the California Supreme Court to exercise its discretion and decide the certified questions below. . . ." That's how, for example, the Ninth Circuit on Thursday formulated its certified question, and the certification order then goes through the usual steps to formulate and present the question. During which, of course, the Ninth Circuit continues the usual mantra of respect, including standard lines like: "We understand that the Supreme Court of California may reformulate our question, and we agree to accept and follow the court’s decision." Sure, it's rote at this point, but, still, it's uniformly respectful.
But the Ninth Circuit today ups the respect ante, and not only includes all those standard mantras, but adds some more. Lines like: "We are mindful that our request adds to the demanding caseload of the California Supreme Court, but this case raises difficult questions of California law on which trial courts, both state and federal, are sharply divided. The questions have broad implications for disability rights under the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51, and for countless lawsuits alleging violations of the Unruh Act. Comity and federalism counsel that the California Supreme Court, rather than this court, should answer these questions."
Which makes sense; after all, you're basically asking the California Supreme Court to do your work for you. For free. So you might as well pitch the assignment.
Sort of like: "Painting this fence is so fun. Important, too."
We'll see if the California Supreme Court takes the bait.
Appellate certification requests often begin with a standard boilerplate; for example, the common "We respectfully ask the California Supreme Court to exercise its discretion and decide the certified questions below. . . ." That's how, for example, the Ninth Circuit on Thursday formulated its certified question, and the certification order then goes through the usual steps to formulate and present the question. During which, of course, the Ninth Circuit continues the usual mantra of respect, including standard lines like: "We understand that the Supreme Court of California may reformulate our question, and we agree to accept and follow the court’s decision." Sure, it's rote at this point, but, still, it's uniformly respectful.
But the Ninth Circuit today ups the respect ante, and not only includes all those standard mantras, but adds some more. Lines like: "We are mindful that our request adds to the demanding caseload of the California Supreme Court, but this case raises difficult questions of California law on which trial courts, both state and federal, are sharply divided. The questions have broad implications for disability rights under the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51, and for countless lawsuits alleging violations of the Unruh Act. Comity and federalism counsel that the California Supreme Court, rather than this court, should answer these questions."
Which makes sense; after all, you're basically asking the California Supreme Court to do your work for you. For free. So you might as well pitch the assignment.
Sort of like: "Painting this fence is so fun. Important, too."
We'll see if the California Supreme Court takes the bait.
Friday, April 11, 2008
Martinelli v. International House (Cal. Ct. App. - April 11, 2008)
It was not a good day today for lawyers in the California Court of Appeal and the Ninth Circuit. At least in those cases in which they were parties.
On the criminal side, California attorney (and U. of Houston Law graduate) Geoffrey Mousseau loses his appeal of his conviction for five counts of bankruptcy fraud and conspiracy. "Sorry," the Ninth Circuit says, "but there was more than sufficient evidence of your guilt." Mousseau was previously sentenced to 21 months in prison (by my former colleage, now district court judge, Gary Feess, no less), and resigned from the Bar last year. Parenthetically, Mousseau hasn't had any greater success in the California Court of Appeal either.
On the civil side, California attorney (and San Fernando College of Law graduate) Marie Martinelli didn't win either. She wanted the California Court of Appeal to reverse the dismissal of her libel and slander lawsuit, in which she claimed that defendant defamed her by claiming that she illegally asked it not to report her niece to Immigrations and Customs Enforcement for overstaying her student visa. Justice Rothschild, however, says: "No dice."
On the upside, at least Ms. Martinelli doesn't have to go to prison.
On the criminal side, California attorney (and U. of Houston Law graduate) Geoffrey Mousseau loses his appeal of his conviction for five counts of bankruptcy fraud and conspiracy. "Sorry," the Ninth Circuit says, "but there was more than sufficient evidence of your guilt." Mousseau was previously sentenced to 21 months in prison (by my former colleage, now district court judge, Gary Feess, no less), and resigned from the Bar last year. Parenthetically, Mousseau hasn't had any greater success in the California Court of Appeal either.
On the civil side, California attorney (and San Fernando College of Law graduate) Marie Martinelli didn't win either. She wanted the California Court of Appeal to reverse the dismissal of her libel and slander lawsuit, in which she claimed that defendant defamed her by claiming that she illegally asked it not to report her niece to Immigrations and Customs Enforcement for overstaying her student visa. Justice Rothschild, however, says: "No dice."
On the upside, at least Ms. Martinelli doesn't have to go to prison.
People v. Gomez (Cal. Supreme Ct. - April 10, 2008)
Here's a great opinion for those substantive criminal law buffs out there. Or, for that matter, anyone else who wants to know the precise difference between "larceny" and "robbery".
Here, it starts as larceny, but turns into robbery. I'll leave you to the opinion to ascertain precisely when (and how) that happens.
Here, it starts as larceny, but turns into robbery. I'll leave you to the opinion to ascertain precisely when (and how) that happens.
Thursday, April 10, 2008
Buell-Wilson v. Ford Motor Co. (Cal. Ct. App. - April 10, 2008)
You'd think that Ted Olson and Ted Boutrous -- among others -- would know that they tape these things. And I'm infinitely positive that they do.
Yet Justice Nares amends his opinion to add the following today. And scores some definite points in doing so:
"At page 87, following the last sentence on that page, a footnote 14 is added, stating:
In its petition for rehearing Ford asserts that our opinion erroneously states that counsel conceded at oral argument that Ford failed to raise instructional error in the first appeal. However, a review of the oral argument record shows otherwise. First, at 9:20 a.m., the following exchange took place:
"[The Court:] Are you saying there was instructional error at the trial?
"[Ford's Counsel:] Yes.
"[The Court:] Did you raise it in your first appeal?
"[Ford's Counsel:] In our first appeal, Your Honor, we focused on the third party harm issue, but we focused on the Bronco II --
"[The Court:] So the answer is, 'No'?
"[Ford's Counsel:] The answer is, 'No,' we did not specifically raise the instructional issue in our first appeal . . . ."
In rebuttal, the following exchange took place, beginning at 9:51 a.m.:
"[The Court:] But did you complain about instructional error in your appeal?
"[Ford's Counsel:] We, we did not complain about it in our, in the first go-round.""
I'd say it looks like Justice Nares wins that battle.
Yet Justice Nares amends his opinion to add the following today. And scores some definite points in doing so:
"At page 87, following the last sentence on that page, a footnote 14 is added, stating:
In its petition for rehearing Ford asserts that our opinion erroneously states that counsel conceded at oral argument that Ford failed to raise instructional error in the first appeal. However, a review of the oral argument record shows otherwise. First, at 9:20 a.m., the following exchange took place:
"[The Court:] Are you saying there was instructional error at the trial?
"[Ford's Counsel:] Yes.
"[The Court:] Did you raise it in your first appeal?
"[Ford's Counsel:] In our first appeal, Your Honor, we focused on the third party harm issue, but we focused on the Bronco II --
"[The Court:] So the answer is, 'No'?
"[Ford's Counsel:] The answer is, 'No,' we did not specifically raise the instructional issue in our first appeal . . . ."
In rebuttal, the following exchange took place, beginning at 9:51 a.m.:
"[The Court:] But did you complain about instructional error in your appeal?
"[Ford's Counsel:] We, we did not complain about it in our, in the first go-round.""
I'd say it looks like Justice Nares wins that battle.
Council of Interstate Insurance Agents v. Molasky-Arman (9th Cir. - April 10, 2008)
Do States occasionally unconstitutionally (and brazenly) favor their own residents? Darn tooting they do.
And when they do, I couldn't be happier to see the Ninth Circuit whack 'em.
Privileges and Immunities Clause. Learn it. Love it. Live it.
And when they do, I couldn't be happier to see the Ninth Circuit whack 'em.
Privileges and Immunities Clause. Learn it. Love it. Live it.
Wednesday, April 09, 2008
People v. Wilson (Cal. Supreme Court - March 27, 2008)
Virtually every death penalty case is sad. But some are even more tragic -- and senseless -- than others.
"On July 25, 1996, her first day as cashier at Seng Heng Market, victim Sary San was shot and killed during an attempted robbery. The fatal shooting was captured by the market’s surveillance cameras, which recorded both picture and sound. . . . The videotape revealed that before San had a chance to open the cash register, the suspect shot her in the back of the head at pointblank range."
Another death sentence unanimously affirmed.
"On July 25, 1996, her first day as cashier at Seng Heng Market, victim Sary San was shot and killed during an attempted robbery. The fatal shooting was captured by the market’s surveillance cameras, which recorded both picture and sound. . . . The videotape revealed that before San had a chance to open the cash register, the suspect shot her in the back of the head at pointblank range."
Another death sentence unanimously affirmed.
Committee to Save the Hollywood v. City of Los Angeles (Cal. Ct. App. - April 9, 2008)
Trying to build a fence in Hollywood sometimes gets more attention -- both from the executive and the judiciary -- than putting a guy in prison for 20 years. Check it out.
I'm not saying that a dispute over this fence should be taken lightly. It's a real issue. But, wow. That's a lot of work, and social investment, about a single fence.
I'm not saying that a dispute over this fence should be taken lightly. It's a real issue. But, wow. That's a lot of work, and social investment, about a single fence.
Tuesday, April 08, 2008
People v. Garelick (Cal. Ct. App. - April 8, 2008)
I'm pretty impressed. It's one thing to get a pedophile to show up at a park for a rendezvous with an alleged 13-year old girl. That's not too hard. It's another thing to have the foresight to ask the pedophile to bring with him a particular brand of condoms and a particular brand of bubble gum. That's pretty creative. 'Cause when you stop that guy at a park, and he's got that stuff in his pocket, that pretty much proves he's the one you're after, right? And the bubble gum is an obvious -- and brilliant -- jury atmospheric. The only thing better is if you could ask him to bring a particular type of comic book. Classic.
As for the wisdom of trolling for or responding to alleged 13-year old minors over the internet, or leaving kiddie porn on your computer while you do so, I can only reiterate what I constantly like to say.
As for the wisdom of trolling for or responding to alleged 13-year old minors over the internet, or leaving kiddie porn on your computer while you do so, I can only reiterate what I constantly like to say.
People v. Lessie (Cal. Ct. App. - April 8, 2008)
I'm far from the most tech-savvy person in the universe. I was a late adopter of e-mail. I barely know how to send a text message. I've IMed maybe twice in my life. And -- horror of horrors -- only earlier this year did I purchase a cell phone. (My theory, right or wrong, was that very few students ever say: "I need to talk to my Civ Pro professor ASAP.")
But even I know that the relevant provider is spelled "Nextel", not "Nextell". So when Justice Huffman -- or the even-more-cell-phone-provider-challenged-than-I-am law clerk in his chambers -- repeatedly misspells that particular word in this opinion, it definitely caught my eye. Especially on page 6, in which the court reporter below transcribed the word as "Nextel", and Justice Huffman quotes this portion of the transcript but changes it to "Nextel[l, a cellular phone.]" Yikes.
Maybe this will help. It's memorable. And approximates how I used to dance in college.
But even I know that the relevant provider is spelled "Nextel", not "Nextell". So when Justice Huffman -- or the even-more-cell-phone-provider-challenged-than-I-am law clerk in his chambers -- repeatedly misspells that particular word in this opinion, it definitely caught my eye. Especially on page 6, in which the court reporter below transcribed the word as "Nextel", and Justice Huffman quotes this portion of the transcript but changes it to "Nextel[l, a cellular phone.]" Yikes.
Maybe this will help. It's memorable. And approximates how I used to dance in college.
Monday, April 07, 2008
People v. Woods (Cal. Ct. App. - April 7, 2008)
There are some holdings that seems so obviously correct that you wonder how the other side could possibly argue the contrary. Like here.
Justice Swager holds that a criminal defendant convicted of being an accessory to murder after the fact can't be ordered to pay restitution to the murder victim's family. And that seems clearly right. The criminal offense for which the defendant was convicted didn't cause the murder. Hence restitution is improper. Seems totally easy.
And, in my view, that's exactly right. But I wanted to make a couple of additional points as well. First, notice that the State actually prevailed below. So obviously it wasn't that easy. Second, Justice Swager's opinion is much more detailed -- and persuasive - - than you might think necessary given the question presented. In particular, Justice Swager does an exceptional job of distinguishing California precedent that holds that in granting probation, a court can order restitution for even uncharged or acquitted offenses; moreover, that squarely holds that restitution orders are proper in probation cases even if based upon an accessory after the fact conviction. Honestly, I was surprised that the latter holdings even existed, since they don't seem to make sense given the nature of the conviction. But Justice Swager not only does a good job of distinguishing those cases, but also making them seem to make sense. Which is true testament an honest and rational attempt to properly distinguish a case: a description that makes the differences between the two cases matter, and make both cases understandable given their factual predicates.
So I was very impressed with this opinion, especially since the issue seemed so facially intuitive at the outset. In the end, my conclusion didn't change, but my understanding markedly improved. And that's a great sign of a quality opinion.
Justice Swager holds that a criminal defendant convicted of being an accessory to murder after the fact can't be ordered to pay restitution to the murder victim's family. And that seems clearly right. The criminal offense for which the defendant was convicted didn't cause the murder. Hence restitution is improper. Seems totally easy.
And, in my view, that's exactly right. But I wanted to make a couple of additional points as well. First, notice that the State actually prevailed below. So obviously it wasn't that easy. Second, Justice Swager's opinion is much more detailed -- and persuasive - - than you might think necessary given the question presented. In particular, Justice Swager does an exceptional job of distinguishing California precedent that holds that in granting probation, a court can order restitution for even uncharged or acquitted offenses; moreover, that squarely holds that restitution orders are proper in probation cases even if based upon an accessory after the fact conviction. Honestly, I was surprised that the latter holdings even existed, since they don't seem to make sense given the nature of the conviction. But Justice Swager not only does a good job of distinguishing those cases, but also making them seem to make sense. Which is true testament an honest and rational attempt to properly distinguish a case: a description that makes the differences between the two cases matter, and make both cases understandable given their factual predicates.
So I was very impressed with this opinion, especially since the issue seemed so facially intuitive at the outset. In the end, my conclusion didn't change, but my understanding markedly improved. And that's a great sign of a quality opinion.
Fogel v. Farmers Group (Cal. Ct. App. - April 7, 2008)
I think it's fair to say that no attorney wants the Court of Appeal to call him or her a liar in a published opinion. Especially when you're at a white shoe firm like Skadden Arps.
So when Justice Willhite wrote last month that counsel for defendants -- Joren Bass, Richard Zuromski, and Raoul Kennedy -- repeatedly "misled" the Court of Appeal, including at oral argument, by stating a certain fact that wasn't true, you can understand why these attorneys might have been more than a little bit bummed. As well as prompted to immediately prepare a petition for rehearing that says, essentially: "Please, please, please: Whatever else you may or may not do, please get rid of that line."
Today, Justice Willhite obliges, and makes the following modification to the opinion: "On page 17, in the first line, the word 'mislead' is changed to 'are incorrect' so the line reads: we note that defendants are incorrect when they repeatedly state -- including at oral"
On the theory, no doubt, that it looks better to be stupid -- or a zealous advocate -- than a liar. Which is undoubtedly true. Or at least, for an attorney, better than being an unsuccessful liar.
POSTSCRIPT - A (very informed) reader disputes that Skadden is a "white shoe" firm, to which my only response was that I knew of no similar-but-more-accurate phrase. At which point he suggested: "How about 'green shoe,' to imply a lot of money and indifference to style." Ouch.
So when Justice Willhite wrote last month that counsel for defendants -- Joren Bass, Richard Zuromski, and Raoul Kennedy -- repeatedly "misled" the Court of Appeal, including at oral argument, by stating a certain fact that wasn't true, you can understand why these attorneys might have been more than a little bit bummed. As well as prompted to immediately prepare a petition for rehearing that says, essentially: "Please, please, please: Whatever else you may or may not do, please get rid of that line."
Today, Justice Willhite obliges, and makes the following modification to the opinion: "On page 17, in the first line, the word 'mislead' is changed to 'are incorrect' so the line reads: we note that defendants are incorrect when they repeatedly state -- including at oral"
On the theory, no doubt, that it looks better to be stupid -- or a zealous advocate -- than a liar. Which is undoubtedly true. Or at least, for an attorney, better than being an unsuccessful liar.
POSTSCRIPT - A (very informed) reader disputes that Skadden is a "white shoe" firm, to which my only response was that I knew of no similar-but-more-accurate phrase. At which point he suggested: "How about 'green shoe,' to imply a lot of money and indifference to style." Ouch.
Friday, April 04, 2008
In Re Hanford Nuclear Reservation Litigation (9th Cir. - April 4, 2008)
It's not only death penalty cases that sometimes take forever. Check out this one.
You don't see many civil cases in the Ninth Circuit nowadays in which the district court docket number begins "CV-91-....".
You don't see many civil cases in the Ninth Circuit nowadays in which the district court docket number begins "CV-91-....".
People v. Rundle (Cal. Supreme Court - April 3, 2008)
It took the jury less than a day to convict David Rundle, and less than a day to sentence him to death.
It takes the California Supreme Court 159 pages -- and over 18 years -- to unanimously affirm. And we're not talking about intermediate reversals or the like; nope, this is the very first opinion.
An interesting contrast.
It takes the California Supreme Court 159 pages -- and over 18 years -- to unanimously affirm. And we're not talking about intermediate reversals or the like; nope, this is the very first opinion.
An interesting contrast.
Thursday, April 03, 2008
Johnson v. American Standard (Cal. Supreme Court - April 3, 2008)
"The Restatement of Torts allows a 'sophisticated user' defense; i.e., a manufacturer doesn't have to warn a sophisticated user of its product of particular dangers when such dangers are well-known to such high-level users. Other states allow this defense. The California Court of Appeal has allowed this defense. The federal courts have predicted that the California Supreme Court would allow this defense. We haven't expressly done so yet. But we do so now. Unanimously."
Sometimes your job on the California Supreme Court is merely to confirm that what everyone else is saying about you is correct.
Sometimes your job on the California Supreme Court is merely to confirm that what everyone else is saying about you is correct.
Fair Housing Council v. Roommates.com (9th Cir. - April 3, 2008)
There are benefits to being the Chief Judge.
For example, when you've written the panel opinion, and it gets taken en banc, you're always on the en banc court to defend -- and vote for -- your ruling. Plus, at least if you're in the majority in the en banc court, you get to assign who writes the opinion. And you can feel free to assign yourself. Which then lets you do a cut-and-paste job, if you'd like, from your prior opinion. Which is nice.
Finally, particularly if you've just become the chief judge, and particularly if you're known as "irrepressable," you can prove that your new position will not change you much by writing the majority decision to confront your dissenting colleagues more than a little bit directly. Not by name or anything. But at length. And in a fashion that's, in places, a bit biting.
All of which works for you particularly well if your first name is Alex.
Fresh off the cover of this month's California Lawyer magazine, Chief Judge Kozinski does all of the above in this closely-watched CDA case. Which finds that roommates.com isn't categorically immune under the CDA for setting up its roommate matching system to allow illegal discrimination. I won't comment much about the merits, since I'm sure that this 8-3 decision will get a lot of press anyway. But I will say that I think that Chief Judge Kozinski does a darn good job here. And that his opinion for the en banc court was even better than his panel opinion. Which I liked as well.
For example, when you've written the panel opinion, and it gets taken en banc, you're always on the en banc court to defend -- and vote for -- your ruling. Plus, at least if you're in the majority in the en banc court, you get to assign who writes the opinion. And you can feel free to assign yourself. Which then lets you do a cut-and-paste job, if you'd like, from your prior opinion. Which is nice.
Finally, particularly if you've just become the chief judge, and particularly if you're known as "irrepressable," you can prove that your new position will not change you much by writing the majority decision to confront your dissenting colleagues more than a little bit directly. Not by name or anything. But at length. And in a fashion that's, in places, a bit biting.
All of which works for you particularly well if your first name is Alex.
Fresh off the cover of this month's California Lawyer magazine, Chief Judge Kozinski does all of the above in this closely-watched CDA case. Which finds that roommates.com isn't categorically immune under the CDA for setting up its roommate matching system to allow illegal discrimination. I won't comment much about the merits, since I'm sure that this 8-3 decision will get a lot of press anyway. But I will say that I think that Chief Judge Kozinski does a darn good job here. And that his opinion for the en banc court was even better than his panel opinion. Which I liked as well.
Wednesday, April 02, 2008
Sanchez v. Mukasey (9th Cir. - April 2, 2008)
I can make my points about this case fairly concisely:
(1) I always find it interesting when a judge wants to use a word other than "concurring" or "dissenting" or the like. After all, in general, you either disagree with the judgment or not, and the description of your separate opinion pretty much follows from that. Nonetheless, there may be a decent reason for Judge Wallace to label his opinion in this case "writing separately," since what he wants -- for the case to be taken en banc -- doesn't really fit the usual categories. Mind you, since the panel grants the petition for review, and since Judge Wallace wouldn't do so, both procedurally as well as (you can pretty much tell by his opinion) on the merits, I think that the label "dissenting" wouldn't be an inaccurate one either.
(2) You'll definitely see a call for en banc review here. Judge Wallace is admittedly senior, but my sense is that they'll be others who'd join the call. Indeed, in truth, regardless of the merits, I think the case should probably go. The circuit precedent on this point (an immigration removal issue) is in a fair piece of conflict, and it's an issue that arises in a decent number of cases. It's an issue that deserves a clearer rule articulated en banc.
(3) Judge Schroeder's majority opinion contains a darn good discussion of what's "dicta" from a panel and what isn't. It's definitely worth reading. And goes well with Judge Berzon's tangential (but also very good) discussion of the topic which I mentioned last year.
(4) But I would change one thing, Judge Schroeder. Page 3406, first sentence, second full paragraph. The one that says: "The government’s principle contention in this case is that Moran’s discussion of the applicability of the family unity waiver to cancellation is dictum that we are free to ignore." I believe you mean to refer to the government's "principal" (e.g., "primary") contention, even though admittedly that principal contention also involves a rule (e.g., principle). You're hardly alone in confusing these words, even amongst your colleagues, but no reason not to eventually use the right one.
(1) I always find it interesting when a judge wants to use a word other than "concurring" or "dissenting" or the like. After all, in general, you either disagree with the judgment or not, and the description of your separate opinion pretty much follows from that. Nonetheless, there may be a decent reason for Judge Wallace to label his opinion in this case "writing separately," since what he wants -- for the case to be taken en banc -- doesn't really fit the usual categories. Mind you, since the panel grants the petition for review, and since Judge Wallace wouldn't do so, both procedurally as well as (you can pretty much tell by his opinion) on the merits, I think that the label "dissenting" wouldn't be an inaccurate one either.
(2) You'll definitely see a call for en banc review here. Judge Wallace is admittedly senior, but my sense is that they'll be others who'd join the call. Indeed, in truth, regardless of the merits, I think the case should probably go. The circuit precedent on this point (an immigration removal issue) is in a fair piece of conflict, and it's an issue that arises in a decent number of cases. It's an issue that deserves a clearer rule articulated en banc.
(3) Judge Schroeder's majority opinion contains a darn good discussion of what's "dicta" from a panel and what isn't. It's definitely worth reading. And goes well with Judge Berzon's tangential (but also very good) discussion of the topic which I mentioned last year.
(4) But I would change one thing, Judge Schroeder. Page 3406, first sentence, second full paragraph. The one that says: "The government’s principle contention in this case is that Moran’s discussion of the applicability of the family unity waiver to cancellation is dictum that we are free to ignore." I believe you mean to refer to the government's "principal" (e.g., "primary") contention, even though admittedly that principal contention also involves a rule (e.g., principle). You're hardly alone in confusing these words, even amongst your colleagues, but no reason not to eventually use the right one.
Miller v. Davis (9th Cir. - April 2, 2008)
I agree with Judge Reinhardt -- and think it's pretty clear -- that the Governor of California should be (and hence is) entitled to absolute quasi-judicial immunity for even an erroneous reversal of a parole board's grant of parole. Sure, as it turns out, the Governor does't actually have the power to reverse parole grants for people convicted of conspiracy to commit murder, as opposed to actual murder. But that wasn't totally obvious. So when Governor Davis reversed the grant of parole for Donald Miller, it was a quasi-judicial act that wasn't in deliberate excess of his jurisdiction, and hence he's absolutely immune from suit.
That said, you gotta love Judge Reinhardt. In the midst of explaining why quasi-judicial immunity applies, he says: "Admittedly, several of the Butz factors weigh against such a conclusion—the Governor’s review is not adversarial in nature, there is no requirement that the Governor consider precedent in making his determination, and the Governor is, by definition as an elected official, not insulated from political influence, as Governor Davis’s almost uniform denials of parole amply demonstrate." (emphasis added).
The gratuitous -- and yet totally accurate -- slam. A hallmark characteristic of my former boss.
P.S. - Cathy & Molly: The Ninth Circuit's web site lists all of the opinions today as from April 3rd. Maybe that's a delayed April Fool's joke. Because unless I slept a long time last night, I'm pretty sure it's only the 2nd. POSTSCRIPT: Thirty minutes after my post, they make the change. Nice.
That said, you gotta love Judge Reinhardt. In the midst of explaining why quasi-judicial immunity applies, he says: "Admittedly, several of the Butz factors weigh against such a conclusion—the Governor’s review is not adversarial in nature, there is no requirement that the Governor consider precedent in making his determination, and the Governor is, by definition as an elected official, not insulated from political influence, as Governor Davis’s almost uniform denials of parole amply demonstrate." (emphasis added).
The gratuitous -- and yet totally accurate -- slam. A hallmark characteristic of my former boss.
P.S. - Cathy & Molly: The Ninth Circuit's web site lists all of the opinions today as from April 3rd. Maybe that's a delayed April Fool's joke. Because unless I slept a long time last night, I'm pretty sure it's only the 2nd. POSTSCRIPT: Thirty minutes after my post, they make the change. Nice.
Tuesday, April 01, 2008
Metters v. Ralphs Grocery Co. (Cal. Ct. App. - April 1, 2008)
You might be a big, fancy corporation, with lots of stores. And you might well be able to trick a low-level employee into signing an arbitration clause by disguising what it is.
But you won't be able to fool the Orange County Superior Court. And you won't be able to fool the California Court of Appeal either.
Justice Sills definitely published this one on the correct day.
But you won't be able to fool the Orange County Superior Court. And you won't be able to fool the California Court of Appeal either.
Justice Sills definitely published this one on the correct day.
Ortega v. Sacramento County Dep't of HHS (Cal. Ct. App. - April 1, 2008)
Justice Sims tellingly begins this opinion with the line: "This tragic case will make you sad." A line that I liked.
But, personally, I thought it might be even more accurate to add: "and, perhaps even more significantly, angry." Since that was my definite reaction.
Not that I'd be angry at Justice Sims, since I think he rightly affirms the grant of summary judgment to the defendants. But even though I'm persuaded that that's what the law requires -- let's hear those cheers for the discretionary function exception, shall we? -- I'm not particularly pleased by that fact. Nor am I happy that an 11-year old daughter gets returned to a PCP-abusing father after a stunningly inadequate investigation by CPS that fails to review the required CPS file and thus remains ignorant of the father's long history of serious drug use, violence, and child abuse. The direct result of which is that CPS returns the daughter to the abusive father and, four days later, the father stabs her in the heart and lungs.
I wish I could say that was an April Fool's joke. But it's not. It's reality. And it bites.
But, personally, I thought it might be even more accurate to add: "and, perhaps even more significantly, angry." Since that was my definite reaction.
Not that I'd be angry at Justice Sims, since I think he rightly affirms the grant of summary judgment to the defendants. But even though I'm persuaded that that's what the law requires -- let's hear those cheers for the discretionary function exception, shall we? -- I'm not particularly pleased by that fact. Nor am I happy that an 11-year old daughter gets returned to a PCP-abusing father after a stunningly inadequate investigation by CPS that fails to review the required CPS file and thus remains ignorant of the father's long history of serious drug use, violence, and child abuse. The direct result of which is that CPS returns the daughter to the abusive father and, four days later, the father stabs her in the heart and lungs.
I wish I could say that was an April Fool's joke. But it's not. It's reality. And it bites.
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