Golden Gate Restaurant Ass'n v. City and County of San Francisco (9th Cir. - Sept. 30, 2008)

When the Ninth Circuit grants a stay of the district court's order, that's often a hint as to what might happen on the merits.

As it was here.

Vaught v. Scottsdale Healthcare Corp. (9th Cir. - Sept. 29, 2008).

Here's another reason not to drive drunk. Because your health insurance company may well deny benefits to you, leaving you solely responsible for all of your (massive) hospitalization costs.

Didn't know they could (and did) do that. Good to know.

People v. Munoz (Cal. Ct. App. - Sept. 29, 2008)

Don't pass counterfeit bills. Don't pass and possess counterfeit bills each of which contains the same serial number. And, for goodness sake, don't pass counterfeit bills to pay your motel bill while you're still there, at least if there's stuff in the motel room you'd like to hide.

Because passing the counterfeit bills to pay for your room may eliminate your reasonable expectation of privacy and justifies a warrantless entry by the police.

P.S. - Here, that principle doesn't apply, since unwittingly passing a counterfeit bill (which is all the evidence here allegedly showed) isn't good enough, especially when the motel isn't actually trying to boot you for it. We all do that all the time. Still: Be forewarned. I want you to be the best counterfeiter you can be.

Perez v. City of Los Angeles (Cal. Ct. App. - Sept. 29, 2008)

This is not your usual police misconduct case.

My reaction to most of the opinions I read in which a police officer has been terminated (and then appeals his or her termination) involve negative reactions towards the officer and a feeling that the termination was more than justified. Abuse of power, corruption, etc. Nothing I'd like to see in an officer.

This one's different. First, for whatever it's worth, it initially struck me that we're talking about a female officer here, and I don't recall seeing many termination proceedings against similarly-situated individuals. Second, I have a keen sense here that what Officer Perez did was well-intended -- or at least partially well-intended -- and was designed to protect others rather than harm them. That's, again, different than your usual case.

Nonetheless, lots of what Justice Yegan says (in affirming the trial court's decision) rings true to me. You don't point a loaded weapon in someone else's face. Ever. Unless you intend to kill (or potentially kill) them, which was not the case here.

And definitely don't do it twice. Even if the second time you are just showing someone what you did.

Tough call as to the right result. But interesting facts. See what you think.

P.S. - Don't punch your partner or try to dissuade her, however gently, from ratting you out as well. But those are subsidiary points, and not really at issue in the appeal.

M.B. Financial Group v. USPS (9th Cir. - Sept. 25, 2008)

Want to know when (if ever) you can sue the United States Postal Service? Want to read a good statutory interpretation case? Want to see how a dissent might practically employ law and economics to advance a particular result?

If the answer to any of these three questions is "Yes," here's your assigned reading for the day.

Otherwise: Never mind.

P.S. - Judge Schroeder: Don't you mean "principal" in the sentence (at the top of page 13770) that currently reads: "Hence, negligent driving of postal trucks was a principle activity for which Congress wanted to create
liability when the FTCA waived sovereign immunity."?

Crawford v. Astrue (9th Cir. - Sept. 25, 2008)

This is a hard one. Make even harder by the fact that both the majority opinion (written by Judge Friedman, sitting by designation from the Federal Circuit, and joined by Judge Randy Smith) and the dissent (authored by Judge Betty Fletcher) make some pretty darn good points.

On the one hand, I'm somewhat appalled that an attorney -- especially a potentially not-very-good one -- can take a hefty amount of attorney's fees from a client in a totally simple case. The opinion here involves three cases from the law firm run by Lawrence D. Rohlfing (in Santa Fe Springs), which does social security cases and that contracts with its clients for the statutory maximum of 25% of the past-due benefits award. In the first case, an attorney affiliated with Rohlfing's firm -- Brian C. Shapiro -- spent less than 20 hours (in addition to less than five hours of paralegal time) in simple proceedings and obtained an award of $123,891.20, twenty-five percent of which would be $30,972.80. In other words, over $1500 an hour. Not bad for someone who's a 1997 graduate of Whittier Law School. Similarly, in the second case, another 1997 graduate of Whittier, Young Cho, also spent less than twenty hours (and less than five hours of paralegal time) to obtain an award the 25% contingency of which would be around $20,000.00. And in the final case, Denise Haley, an older graduate of Loyola Law School, worked 25.5 hours (plus 1.1 hours of paralegal time) to get an award the 25% contingency of which would be over $43,000; in other words, around $1700/hour. And, remember, these are not tough cases -- they're social security matters, and ones that (tellingly) take around 20 hours total to resolve.

One view, of course, might be that the free market works, and that we should just award these attorneys the statutory maximum that their clients agreed to pay. Perhaps especially when the lawyers, like those here, are no even piggish, and end up asking for only, say, $1000/hour (rather than $1700/hour). After all, they might not have won, so give 'em what they ask for.

On the other hand, even the modified requests here strike me as taking too much money out of the hands of a poor (and relatively helpless) client. Do I feel the same way about other lawsuits -- say, a difficult and hotly contested medical malpractice action? Honestly, no. There, for some reason, even if the attorney ends up making $1000+ an hour, I feel like they may well have earned it. But social security matters -- and ones that take less than a couple dozen hours at that? There's just some part of that that feels different to me.

Again, in the end, I'm not sure how I come out on this one. It's a tough case for someone like me, who feels a strong tug towards both sides.

I am certain, however, that if we really are paying $1500+ an hour for totally easy social security cases, other attorneys -- and better attorneys -- should start getting in on this racket.

DirecTV v. Webb (9th Cir. - Sept. 25, 2008)

You can occasionally obtain helpful life tips by reading Ninth Circuit opinions. Tips that will make your life go a little bit better, without the nasty bumps that events may otherwise sometimes bring.

So, for example, after reading this case, one might easily derive the following lesson: When you're stealing DirecTV by buying pirated access devices over the internet, make sure to tell your girlfriend.

Admittedly, disclosure of that fact might make you look a little cheap, and perhaps diminish your luster. But doing so will at least stop your girlfriend from calling DirecTV's customer service line when DirecTV employs electronic countermeasures on "Black Sunday" to knock out pirated devices. Because, my friend, once she calls, and once customer service rapidly determines that the caller isn't, in fact, paying for DirectTV, that's pretty good evidence that you're stealing the signal. And you'll be busted. And have to pay not only whatever statutory damages the court awards, but also a whole lot to your attorneys. An amount that, I assure you, is far beyond the $39.95 a month (or whatever) it costs for DirecTV.

So don't steal. Don't get caught stealing. And tell your girlfriend.

Bourgi v. West Covina Motors (Cal. Ct. App. - Sept. 24, 2008)

Remember that "new" car you purchased at the dealership? Are you sure it was really "new", as opposed to previously damaged, repaired, and then sold as "new"?

Think again.

Interesting stuff. Even if you don't happen to have purchased a "new" Hummer from Hummer of West Covina that, as it turns out, was one of the manny Hummers previously damaged by the Earth Liberation Front.

U.S. v. Gomez-Leon (9th Cir. - Sept. 24, 2008)

As anyone down here knows, the process is slow. But, eventually, if you commit enough crimes, and if you return after being deported again and again and again, they're eventually going to let you stay in the U.S. for a while. But you'll do so in prison.

Here's a glimpse into how border crimes have -- for better or worse -- historically been treated:

"[Gomez-Leon] entered the country illegally as early as 1994. In 1998, he came to the attention of immigration authorities when he was convicted for driving a vehicle under the influence of alcohol and without a license. That same year, he was removed to Mexico following a removal hearing before an immigration judge. Gomez then reentered the country illegally. In 1999, he was convicted of violating California Health & Safety Code section 11379(a), an offense involving controlled substances. He was removed to Mexico once again in 1999. Gomez again illegally reentered the country. He was convicted in 2000 of receiving stolen goods and of driving under the influence. He was removed to Mexico a third time in 2000. On November 4, 2003, he was convicted in California state court of vehicular manslaughter while intoxicated without gross negligence, Cal. Penal Code § 192(c)(3) (1998), for which he was sentenced to two years’ imprisonment. Following his release, Gomez was once again removed to Mexico in 2004. Six days later, Gomez was arrested at the Mexico-United States border and charged with the instant offense of attempted reentry. Following a non-jury trial, Gomez was found guilty and sentenced to 84 months’ imprisonment with three years of supervised release."

Not much time between the offenses and removal and reentry and reoffending, eh?

State of Alaska v. Federal Subsistence Board (9th Cir. - Sept. 23, 2008)

The lovely town of Wasilla, Alaska has gotten a fair amount of attention recently thanks to Sarah Pahlin. But Wasilla at least has several thousand residents.

More overlooked, however, is the even prettier town of Chistochina, Alaska. Which has a total population of 97 souls. And perhaps an even better view of Russia (from the top of Mount Sanford, anyway).

But no more. Chistochina has hit the big time.

So if you want to know about moose hunting by the 97 residents of Chistochina -- and what could possibly be more typically Alaskan -- have a read. And tell your friends that you know the "real" Alaska: the reality that is unknown to those fancy cityfolk of Wasilla.

In Re Shane G. (Cal. Ct. App. - Sept. 23, 2008)

I'm glad that Justice McConnell decided to publish this opinion. Not because it has any huge precedential significance. But rather because I learned something.

I'm the father of three small children, from age six to age one. But until I read this opinion, I didn't know what "enuresis" was. But since that word appears at the top of page four, I was forced to look it up.

So now I know.

I can't wait to work it into casual conversation.

Quinones v. Superior Court (Cal. Ct. App. - Sept. 22, 2008)

I don't care how big or strong you are. In San Diego, at least, if you get into a beef with another vehicle on the road, don't get out of your car and attempt to make even marginal hay. Nothing good will become of it. Either for the "winner" or "loser" of the resulting battle of wills.

Barrett v. Belleque (9th Cir. - Sept. 22, 2008)

Ah, the good old First Amendment. And the speech it protects. Including the right of a prisoner to send letters to his mother and grandmother (!) using vulgar and racist language to describe his captors.

Actually, the Ninth Circuit doesn't even hold that -- it merely holds that the complaint here survives a motion to dismiss. Whether you can be punished for insulting prison officials to your mother remains to be decided.

P.S. - On the merits, the holding here is clearly right, both as a procedural as well as constitutional matter. I'll only add that crafting a five-paragraph, per curiam opinion on this issue probably could have taken a little less than six months -- which is how long it took after oral argument here.

P.P.S. - Congrats to Leonard Feldman on this one, who represented the (formerly pro se) plaintiff. Leonard's at Heller (in Seattle), and was in my class at HLS and on the Ninth Circuit with me (albeit for a different judge). Nice win.

In Re Asencio (Cal. Ct. App. - Sept. 15, 2008)

Bad Fact No. 1: Your six-year old niece has gonorrhea.

Bad Fact No. 2: So do you.

Bad Fact No. 3: Your niece tells the police, while crying, and utterly credibly, that you improperly touched her.

Bad Fact No. 4: You admit to the police that you did indeed improperly touch her.

Bad Fact No. 5: Your story as to how the niece contracted gonorrhea is that you were innocently tickling her on the bed, she left, you promptly got an erection and began to masterbate, she came back in and started jumping on and tickling you, and then your penis somehow innocently "slipped" into her vagina during this process. Very credible. Happens all the time.

Icing on the Cake: You tell the police that your six-year old niece is constantly "coming onto you" and "purposely seducing you" by wearing loosely fitting clothes and climing so you can see up her skirt. In short, that your -- let me repeat, six-year old niece -- was "asking for it".

Are you really surprised as to where you'll stay for the next several decades?

Dumontier v. Schlumberger Technology Co. (9th Cir. - Sept. 11, 2008)

Defendant carelessly left some cesium-137 lying around, and you were exposed to it. You're freaked out, and would like to sue -- and at least get reimbursed for monitoring for cancer.

Tough luck. At least in the Ninth Circuit.

Sorry about that, Chief.

Cosa v. Mukasey (9th Cir. - Sept. 15, 2008)

It's amazing what you can learn by reading published opinions. For example, before this one, could I have told you what Millenism entails? Nope. No way. It's not even in Wikipedia, for goodness sake. (And, for you football fans, no, Millenism does not in fact involve the worship of Matt Millen.)

But now I sort of know. Which is cool.

Mind you, I still couldn't tell you the apparently complex relationship between Millenism and Russellism. (My only guess would be that the latter declare that the true Messiah is actually Nipsey Russell.) But neither could the petitioner here, and Judge McKeown rightly holds that this subtle intellectual deficiency is hardly a reason to find someone uncredible.

Anyway, read this one and mark yet another religion on your list of those about which you have only the slightest glimmer of understanding. Only several more thousand to go.

Carmona v. Carmona (9th Cir. - Sept. 17, 2008)

When you're reading a case about ERISA and the Rooker-Feldman doctrine (i.e., zzzzzzzz), you don't typically expect to see sentences like: "the dispute in this case only concerns wives number eight and nine. None of the previous seven wives are involved in the present litigation." (!)

But I guess one of the downsides of marrying nine different people, even if done successively, is that the distribution of your retirement assets might get a little confusing. Though I'm quite positive that this is the least of your problems. :-)

Wife No. Nine gets two years of loving before her hubby dies, and nine years (and counting) of litigation with Wife No. Eight. No fun all around.

Bromfield v. Mukasey (9th Cir. - Sept. 15, 2008)

We get up on our high horse sometimes.

Let's not forget that as recently as five years ago, some of the United States still retained criminal statutes that penalized homosexual sodomy with up to twenty years in prison. And that within the last twenty or so years, even our highest Court approved such prosecutions. And that private violence against homosexuals on account of their sexual orientation is hardly unknown in the United States.

So, yes, I totally agree -- totally -- that discrimination (and especially violence) based upon sexual orientation is utterly intolerable, and that state-sponsored sanctions are profoundly unjust. But let's just keep in mind our own history -- as well as the present -- when we start talking (as Judge Betty Fletcher writes here) about what happens in other countries. I'm not saying she's wrong; indeed, there's a lot here that merits truly profound consideration. But I might nonetheless temper what we say about Jamaica here -- and how the situation there is utterly intolerable -- with simultaneous recognition that, in truth, our own practices (at least towards those who Tell) are not nearly as far afield as one might otherwise perceive from reading this opinion.

Parenthetically, I can easily imagine Jamaica making the following response: "What a minute. You take this holier-than-thou attitude because we're not as 'enlightened' as you are about sporadic morals legislation? How about let's take a break and also talk about, oh, I don't know, your self-declared 'war' on those who commit the outrageous sin of trying to get closer to God. Let's pile up the bodies on each side and see who comes out more clean."

None of which, of course, says that Judge Fletcher is wrong. I was just somewhat surprised not to see as much self-reflection and (at least cultural) modesty -- or at least a brief glimpse of it -- from an opinion written by someone who, in my opinion, in fact possesses both qualities in spades.

People v. Love (Cal. Ct. App. - Sept. 16, 2008)

Watch out who you hire your receptionist. So, for example, don't hire someone who has four prior felony and two prior misdemeanor convictions for theft-related offenses.

Even if her name is (the cool-sounding) "Sumaria Love".

NRDC v. Winter (9th Cir. - Sept. 16, 2008)

I gotta agree with Judge Milan Smith in this one. Junior associates at Irell typically don't have "sufficiently distinctive skills" to justfiy an enhanced award under the EAJA. And I say that having known a lot of junior associates at Irell.

Which is not to say that these people are only worth the statutory cap of $125/hour. Far from it. But, right or wrong, that's what the statute pays.

P.S. - I also agree with Judge Smith that the senior partner at Irell, as well as the junior people at the NRDC, indeed had the requisite distinctive skills. All true.

U.S. v. Drake (9th Cir. - Sept. 15, 2008)

The criminal justice system in Guam doesn't come out smelling like a rose here.

From a dubious initial traffic stop to two years of delay to having to turn over charges in an utterly routine prosecution to the United States to an entirely deficient record, what transpired here hardly screams "excessive competence."

White v. Mayflower Transit (9th Cir. - Sept. 12, 2008)

Looking to get your first argument in the United States Supreme Court? Think you might get there by taking an utterly boring issue , but nonetheless one about which there's a fairly strong circuit split? Looking, in a perfect world, for a perfect vehicle in which you can easily take the matter over; for example, a case previously (and unsuccessfully) litigated by a pro se litigant who's got nothing to lose, and everything to gain, by letting you take over the case pro bono and file a pure "circuit split" certiorari petition?

Then here's your dream.

Kievernagel v. Kievernagel (Cal. Ct. App. - Sept. 12, 2008)

Who owns sperm? That may seem like a totally silly question. But it's not. And it matters.

Justice Morrison holds that the guy owns it, and that makes sense. Now, the guy can give the sperm away, of course. In a wide variety of ways. (And, no, I'm not going to provide a hyperlink for that last sentence.) And if he does, I assume whomever he gives the sperm to then has ownership rights, or at least partial ownership rights -- the complexities on that latter point are actually quite doctrinally interesting.

But let's take the facts here. The guy freezes the sperm because his wife desperately wants kids, and there's going to try IVF. The husband doesn't want kids -- the evidence about that is fairly clear -- but he's worried his wife will divorce him if he says no, so acquiesces. But when he fills out the form at the freezing place, a check is placed on the box that says that the sperm should be destroyed on husband's death, rather than the form that says the sperm should be given to the wife. The husband then unexpectedly dies in a helicopter crash. The wife then wants the sperm to have kids from her deceased husband, but the husband's parents say that both he and they don't want that. So who gets the sperm?

God. Destroyed. Because that was the husband's intent.

Even though I recognize that opinions may change over time, I'm pretty sure that Justice Morrison gets this one right. When you tell someone to freeze your sperm, but to whack it if and when you die, that's what you should get, absent anything else really compelling that proves you wanted something else. And there's none of that here.

So a death sentence for Joseph Kievernagel's sperm. But once that seems justified.

Rest in peace.

Hassan v. Chertoff (9th Cir. - Sept. 11, 2008)

Your last name is Hassan. You're from Pakistan. You've been living in the United States, and the DHS has treated you pretty shabbily (IMHO). You're trying to get back into the U.S. after being somewhat tricked into leaving (for Saudi Arabia), so you file an appeal. One more thing. You've been questioned about your ties to a group suspected of having links with terrorists.

You argue your appeal, wait a couple of months, and then discover that the court's opinion is published on . . . September 11.

Uh oh.

Winter v. Window Fashions Professionals (Cal. Ct. App. - Sept. 10, 2008)

Here's yet another reason not to include in any contract you draft a clause -- whether relating to arbitration or anything else -- that says "X, but X may not be valid in California."

At least if you personally would like X to be the case, just say X. Whether X is enforceable or not, leave that a question for another day (and another forum). Because otherwise, by saying the rule is X but maybe non-X, you definitely won't get X.

So just say X.

People v. Cross (Cal. Supreme Ct. - Aug. 28, 2008)

Getting pregnant counts as "great bodily injury".


Just so you know.

Truth v. Kent School District (9th Cir. - Sept. 9, 2008)

"We took over a year after oral argument to decide what would seem like a relatively straightforward case involving a student club. But at least we got it right, back in 2007, and unanimously affirmed."

"Oops. Did we say 'affirmed'? We meant, of course, 'reversed and remanded,' at least in part. Took us another ninth months to figure that one out and publish the revised opinion. But, again, at least we got it right."

"Oh. Really? Okay. Well, it's another half-year later, and we'll do what we can. But Judge Wallace wrote both of the earlier opinions, and he won't sign on to yet another change. So I guess it's up to both of the other panel members to write a lengthy concurrence at this point. Which means there's a majority opinion joined by all of us and then a 'concurrence' -- albeit one with precedential force -- signed by two of the three."

What a long, strange trip it's been.

Edwards v. Ayers (9th Cir. - Sept. 9, 2008)

I'm as insensitive as the next guy, especially when reading judicial opinions. Believe me.

Still. It's a death penalty case in which the defendant totally randomly shot two 12-year old girls at in the head with a rifle at a campground, killing one of them (Vanessa Iberri). Pretty gruesome, random, and scary. And I admit that the fact that he shot both girls in the head -- and Vanessa right between the eyes -- is, I guess, a little impressive.

Again: Still. I wouldn't start the opinion -- as Judge Schroeder does -- with the following sentence: "This is a death penalty appeal by California state prisoner, and crack marksman, Thomas Francis Edwards."

The "crack marksman" aside is too much. Even for me.

Showing Animals Kindness and Respect v. City of West Hollywood (Cal. Ct. App. - Sept. 9, 2008)

Think you know what "advertising" means? What an "advertisement" is?

Read this.

Still sure?

An interesting difference of opinion between Justice Rothschild and Justice Mallano.

P.S. - I like the 110-inch television screen concept. But I'd rather it display, say, sports -- rather than pictures of animals being killed (alongside their screams -- presumably in stereo). Especially at 11:45 p.m.

Call me crazy.

Center for Biological Diversity v. California Fish & Game Comm'n (Cal. Ct. App. - Sept. 2, 2008)

It's been a lazy Monday thus far. Nothing from the Court of Appeal (or the California Supreme Court, though that's no surprise), and only one published opinion from the Ninth Circuit (on a fairly routine asylum case).

So I thought I'd just quote a memorable line from one of last week's published opinions:

"The information in the administrative record shows the [tiger] salamander species does not breed prolifically, is vulnerable to several significant threats, has lost most of its original habitat, and has been displaced by a hybrid from a significant portion of its range."


And then tell you my reaction. Which was that same words could easily have described me during college.

I'll be teaching Week Two of my "Law of Love" class in 90 minutes, so we'll see what (if anything) comes out of the Court of Appeal this afternoon. Hopefully something juicy.

U.S. v. Nader (9th Cir. - Sept. 5, 2008)

Your prostition business may well be exclusively in-state. All of the phone calls that your customers make to you may well be in-state calls. But you can still be convicted of violating the federal Travel Act because your use of a telephone is a "facility" of interstate commerce. So holds Judge Clifton.

Pretty expansive view of the Interstate Commerce Clause, eh?

Prostitues in (as here) Montana, or other relatively isolated states (e.g., Alaksa and Hawaii), beware.

Rodriguez v. Smith (9th Cir. - Sept. 4, 2008)

Judge Rawlinson, joined by Judge Hug, says (in essence): "Five circuits have already decided this exact issue. Four of them have decided X. Only one of them has decided Y. We think that the four are more persuasive than the one, so that's the way we're going." Though says that in 15-plus single spaced pages.

Judge Rymer, by contrast, dissents, and essentially says: "Well, I like the one better, so that's the way I'm going." And does so quite concisely, in a way that I very much liked. Her dissent, in toto, reads as follows: "While I understand joining the parade of courts to decide this issue, I would reverse for the reasons stated in Muniz v. Sabol, 517 F.3d 29, 31 (1st Cir. 2008), and in Judge Raggi’s well-reasoned dissent in Levine v. Apker, 455 F.3d 71, 87 (2d Cir. 2006)."

I like that. No need to kill more trees or repeat the same arguments in your own words. If what you have to say has been said before well, a single sentence saying so will sometimes suffice. As here.

KRAI v. United States (9th Cir. - Sept. 4, 2008)

Sorry, KRAI. You don't own one of the (far-away) Hawaiian Islands. As fun as that'd be. Even if you did own it, the statute of limitation makes you SOL (s*** out of luck) on this one.

P.S. - The relevant "island" at issue -- Kingman Reef Atoll -- actually sounds pretty cool.

Cascade Health Solutions v. PeaceHealth (9th Cir. - Sept. 3, 2008)

"I know we certified a question to you, Oregon Supreme Court. But I've got good news. Never mind."

Good to know people can still get along.

People v. Warner (Cal. Ct. App. - Sept. 3, 2008)

"Douglas William Warner commenced a romantic relationship with his next-door neighbor while she was engaged in bitter child custody litigation with her husband, who later accused him of abusing the couple’s child. His arrest at his apartment in front of his friends infuriated him. The court dismissed the charges against him for lack of evidence, but he felt depressed and distraught at losing his chance to have his day in court. Weeks later, he killed her husband with a shotgun blast to the chest."

That's a pretty darn tight summary of Warner's affairs. And, as grim as that description may well be, is probably less grim than his next 100 years. In the pokey.

Affirmed.

P.S. - I do gotta say that, as far as sympathy for murderer goes -- and, as you can imagine, that's not a very high scale -- this one strikes my somewhat sympathetic. I mean, I wouldn't want anyone making allegations like that against me (or getting me arrested for it). Fortunately, however, I have no shotgun. And, I hope, at least a tiny bit more self-control.

Johanson v. C.I.R. (9th Cir. - Sept. 3, 2008)

As Judge Silverman put it this morning (in the midst of holding that the alimony payments at issue here were taxable to the recipient because they terminated upon death): "The fact that Weiler continues to pay spousal support after Johanson remarried does not constitute a written agreement regarding the status of payments in the event of Johanson’s death." (emphasis in original).

In other words, remarriage does not equal death. An enlightened view, to be sure.

Villegas v. Gilroy Garlic Festival Ass'n (9th Cir. - Sept. 3, 2008)

Come on. En banc draws don't really matter at all. They're all pretty representative, right? Nothing really rides on them.

Really?

Here's a 6-5 decision in a Section 1983 case. The six in the majority conclude there's no Section 1983 violation, and the five in dissent conclude otherwise. Who's on top? Two Reagan appointees (Kozinski and O'Scannlain), a Bush I appointee (Rymer), two Bush II appointees (Callahan and Randy Smith), and -- in a somewhat surprising swing vote capacity -- Judge McKeown. Who's on bottom? Five Clinton appointees.

I'll have (much) more to say about this one later. And my thoughts on the matter relate a fair piece to a conversation that Chief Judge Kozinski and I had in Little Italy a few months back.

But I'll just say this for now: Don't think that en banc draws don't matter. They sometimes do. A lot.

P.S. - Can I also just say how much I loved the opening line of the dissent by Judge Thomas, which states that "Gilroy holds itself out as the 'Garlic Capital of the World,' and no one seriously disputes the claim." Hilarious. To which I assumed the following was an unstated but intended inference: "Because who, after all, would ever even want to vie for such a title?"

Johnson v. Knowles (9th Cir. - Sept. 2, 2008)

"You've got an argument, Petitioner. An argument that admittedly finds some support. But that support comes from the bottom, not top, side of a 6-3 decision by the Supremes. And that's neither the side on which you want to be nor is it sufficient to allow your untimely habeas petition to go forward. Dismissal affirmed."

So sayeth Judge O'Scannlain, albeit more formally, in this opinion, which holds that unless you're actually innocent, the Schulp gateway ain't helping you much. Regardless of what Justices Stevens, Blackmun, and O'Connor said.

Salinas v. Martin (Cal. Ct. App. - Aug. 28, 2008)

Letting pit bulls run around your property can create liability.

Shocking, I know.