U.S. v. Weyhrauch (9th Cir. - Nov. 26, 2008)

Here's a pre-holiday case that's interesting on a lot of levels.

First, it involves yet another elected official from Alaska who's allegedly corrupt and criminally investigated and/or charged. Is there something in the water up there?

Second, you gotta read the procedural history of this thing; in particular, how long (and how many times) it took for the government to get the thing properly certified so it could appeal the grant of a suppression motion. It was an unusual situation; nonetheless, you'd have thought the government could have gotten it together at least a little earlier. Plus, Judge Fisher's reaction to all of this is priceless. He's (relatively) nice about the whole thing, but doesn't pull any punches either.

Third, down here in San Diego, we have a long-running criminal case against our own city officials, and this holding by the Ninth Circuit is certainly not a great pre-Thanksgiving present any of those defendants. Basically, Judge Fisher holds that, contrary to the views of several other circuits, an "honest services" mail fraud charge against public officials need not be based upon an underlying state law violation. That doesn't help the defendants (at all) either in the San Diego case or in this Alaska prosecution.

I'd ordinarily think that the importance of the case and the creation of a circuit split would make this a pretty good candidate for Supreme Court review. But the unique procedural complexity in this case -- while arguably providing yet another basis for a grant of certiorari -- on balance may lead the Court to let the matter percolate one more time, and in a slightly more straightforward vehicle, before taking the matter up. (Plus, this one's an interlocutory appeal, so no need for the Supreme Court to get involved now rather than after a final judgment.)

So some interesting reading from the Ninth Circuit -- which has been a bit sleepy over the past week -- right before the break. Enjoy.

In Re Cannon (Cal. Ct. App. - Nov. 25, 2008)

Prison inmates may well have a right to be served two hot meals a day pursuant to Section 5058 of the Penal Code and Section 3050(a)(2) of Title 15 of the California Code of Regulations, the latter of which provides that inmates in state prisons shall be "provided three meals each day, two of which shall be served hot."

But the Court of Appeal holds that (wholly apart from procedural problems with using habeas to challenge the alleged deprivation of this entitlement), by "served hot," the regulations really mean "were hot at some point." Here, that as long as a prison at one point makes the meal hot, the mere fact that it regularly takes the prison 60 or so minutes to actually serve the food to an inmate -- at which point the meal is totally cold -- does not matter. It's still a "served hot" meal. So you got what you're entitled to. Enjoy your "hot" soup or whatever.

Let's hear it for Chevron and prison deference, eh?

Ventimiglia v. Board of Behavioral Science (Cal. Ct. App. - Nov. 17, 2008)

You're a licensed marriage and family therapist. You're treating an unstable client. Do I really have to say it?

Don't have sex with her. Not once. And definitely not for 16 months.

Human interactions are complicated. Plus, things are often more complex than they appear. There are also difficult-to-explain equities and particulars of any given relationship.

Still. Just don't do it.

Even if you win -- temporarily or permanently -- in the Court of Appeal, as here, it's still not worth it. By a longshot.

And I'm quite confident that even Gary Ventimiglia, the petitioner here, would agree.

People v. Mentch (Cal. Supreme Ct. - Nov. 24, 2008)

The California Supreme Court held today that you're not a "primary caregiver" under the Compassionate Use Act merely because you're the one in charge of getting someone's pot. That's giving someone care, to be sure. But it doesn't mean that you're their "primary" caregiver.

Given that "primary caregiver" is defined in the stuate as "the individual . . . who has consistently assumed responsibility for the housing, health, or safety of that person,” this holding isn't all that surprising. Providing weed doesn't necessarily mean that you've undertaken the responsibility for a person's "housing, health, or safety," much less that you've done so on a consistent basis.

That holding is all that the California Supreme Court needed to say to decide this case. But it went further, and unanimously held that not only does a "primary caregiver" under the Compassionate Use Act have to be what we might traditionally call a primary caregiver, but further held that this relationship must also have been commenced at or before the provision of medical marijuana. The Court stated: "[W]e conclude a defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana."

That ostensible holding (actually, dicta) in #3 is clearly wrong. There may well be caregivers who are true primary caregivers protected by the CUA even though they undertook this status only after the provision of medical marijuana.

Take the following hypothetical. Mary is an occasional pot smoker, and meets Jim, who has cancer and is undergoing chemotherapy. Jim asks Mary for some weed, and Mary agrees, and they smoke pot together around once a month, with Mary initially providing Jim no further services other than the occasional pain-reducing and hunger-enhancing spliff. Plus, at this point, Jim can take care of himself, and does not need a primary caregiver. Six months later, however, Mary and Jim fall in love, Jim's condition takes a turn for the worse, and Mary moves in with him, and for the next year, provides him with every element essential to his survival, including food (Jim can no longer feed himself), shelter (Jim's illness has left him penniless and unable to pay the rent), and all the rest (Jim can no longer clothe, bathe, move, or go to the bathroom by himself). During this period, until Jim's death a year later, Mary continues to provide Jim with medical marijuana.

The California Supreme Court's statement would mean that because Mary provided Jim with marijuana prior to becoming his primary caregiver, she is not immunized by the CUA for the subsequent provision of weed to him during the one-year period prior to his death. After all, as the Court says, "a defendant asserting primary caregiver status must prove at a minimum that he or she [] consistently provided caregiving . . . at or before the time he or she assumed responsibility for assisting with medical marijuana," and Mary can't do that, since she also provided him pot beforehand."

But that's clearly wrong. Even if Mary's not covered by the CUA during the initial six months, during which she's a medical marijuana provider but not a primary caregiver, she's unambiguously covered during the following year, in which she's both.

I understand the Court's sentiment that someone shouldn't be able to retroactively immunize prosecution, but the temporal limits established by the Court go further than that, and destructively (and wrongly) so. Just as a the Court recognizes that a true caregiver may provide marijuana at the outset of the caregiving relationship, so too may a true caregiver initially provide marijuana prior to the onset of this relationship. And the fact that the caregiver did something illegally at the outset does not mean that her subsequent conduct, which is clearly immunized by the CUA, somehow categorically loses protection.

So, in our hypothetical, Jim does not have to ditch Mary and fall in love with someone else as the only way to permissibly obtain medical marijuana. She's his primary caregiver. She can legally give him pot.

I'm all for making broad -- and even potentially unnecessary -- holdings sometimes. But on occasion, when a particular statement is unnecessary to the resolution of the case before it, the Court errs, and fails to consider accurately the implications of its holding. In my view, this is clearly one of those times.

People v. Cox (Cal. Ct. App. - Nov. 21, 2008)

We're heading into Thanksgiving Week. So how better to end the previous week than with an interesting Friday afternoon opinion by Justice Robie.

I'm tempted to respond to the opinion on one of two different levels. First, on the practical side, Justice Robie holds -- and this is somewhat important, or at least interesting -- that you're apparently allowed in California to walk in the middle of the road, at least inside a residential or business district. I didn't know that; indeed, I'd have intuited the contrary if you'd have asked me what the law probably was. Moreover, the municipal codes of several cities facially prevent such conduct, and Justice Robie concludes -- correctly, I'm sure -- that such ordinances are preempted.

Which is cool. I may celebrate this weekend by walking down the middle of the road. If only to see what happens. (Were this blog suddenly to cease publication after today, you in turn could probably intuit the likely result.)

What I like about this holding is twofold. First, what's the interaction between this holding and jaywalking statutes? Is it okay to walk in the middle of the road, but not to cross the road except on the corner? This seems strange, but if that's what the law says, okay, I guess.

Second, the holding deepens the mystery behind the age-old question, first posed by the Beatles in the White Album in 1968: to wit, "Why don't we do it in the road?" After all, as the Fab Four noted, "no one will be watching us in the road" -- a dubious proposition, but assuming it's true, why not? Especially since Justice Roie has now concluded that "doing it" in the road is even legal -- at least in some settings (and under certain definitions of "it"). So why don't we? Why don't we do it in the road?

On a slightly different tack, I also found the opinion interesting, at a much deeper doctrinal level, because Justice Robie concludes that even though the detention by the police in this case was totally illegal (since, again, you can do it in the road), defendant can still get convicted of subsequently resisting this illegal detention -- that, as far as the exclusionary rule goes, the subsequent resisting "removed" the taint of the initial illegal detention.

As far as that holding goes, I gotta tell you that my civil libertarian rankles initially reacted negatively to such a holding, and to a degree still very much do. There's a large part of me that says that if I'm free to walk along a street, and the police abuse their authority and ask me to stop, I can say "Screw you" and keep on walking. We all agree on that, right? And if they then grab my hand, and forcibly try -- again, illegally -- to stop me, there's part of me that says I can pull my hand away, and keep walking. Can I shoot them? No. Of course not. Can I punch them? No. Though if, after I pull my hand away, they then wrestle me to the ground -- again, all of this illegally -- am I really just compelled to sit there and take it?

Something very similar to all this transpired here, so it's not just a hypothetical. At the common law, anyway, you had a right to resist unlawful authority. We were, after all, a nation of revolutionaries, unhappy with our experience with the King and very much unwilling to subject ourselves to the resulting tyranny -- or to allow a similar thing to transpire in our new nation. But, in a progression well known to historians (and in ways that have only intensified in the last generation), a nation that initially structures itself around a central fear of governmental abuse and power nonetheless, as it ages, becomes more and more convinced that its exercise of governmental power isn't so bad, and that citizens need to accept (or at least submit) to such power lest there be untoward consequences. And in the modern era, judicial doctrine has changed alongside this alternation in political perception. So that while you once had the right to resist the police in the event they attempted to act unlawfully, nowadays, the judiciary has increasingly held that you have to submit. Upon penalty of prison for resisting arrest, even if you can prove -- as here -- that you were merely resisting the assertion of unlawful conduct.

Now, in a democracy, is there at least a good argument for such a proposition? Sure. One could reasonably hold, I imagine, that you're obliged to submit because non-self-help remedies are superior. That rather than resist, you should submit and, thereafter, sue. That that'd be better for everyone.

But two things. First, given qualified immunity and all the other contemporary protections for governmental officials, what we may very well be saying as a result of such a holding is that you've got to submit and hence do effectively nothing in the face of the unlawful assertion of government power. (Remember, for example, that you can't even sue for injunctive relief given the standing requirement of Lyons and related procedural obstacles.) Which, again, strikes me as unjust. And even if you could sue -- and I'm assuming here that you could afford a lawyer or effectively represent yourself, dubious propositions at best -- even if all that's true, why can't you alternately just go about your way acting lawfully when you are confronted by a governmental attempt to illegally restrain you. Sure, if you're wrong about them acting illegally, you go to jail. But going to prison even when you're right? For doing what you have a critical federal (as well as state) constitutional right to do? At some level, that just seems remarkably harsh. And potentially profoundly unjust.

I know that, here, only the exclusionary rule issue is raised, likely (I imagine) because the comtemporary California jurisprudence on the right to resist is so unfavorable. And, again, I can see why the law might be as Justice Robie concludes it to be.

Still. There's part of me that says that I should be able to walk down the street, and continue to walk down that street, even if the police illegally tell me to stop. And that if the police then compound their illegal conduct by placing their hands on me, I can push their hands away, and if they tackle me, I can run. That far from being an offense on my part, it's an offense on their part, and I can resist it just as I could resist similarly illegal acts of private individuals much less powerful than the government.

So I'm torn. I've got more thoughts here, but it's time for a faculty meeting. Which I wish I could say would be a hundredth as interesting as Justice Robie's opinion.

Doody v. Schriro (9th Cir. - Nov. 20, 2008)

Rarely -- and I mean, rarely -- do you have a court find that a confession was constitutionally involuntary. It's even more rare to make such a finding on federal habeas review, especially post-AEDPA. And it's rarer still for such a finding to be made in an extremely high-profile murder case.

But it all happens here.

Ahmed v. Mukasey (9th Cir. - Nov. 19, 2008)

There are not-very-competent attorneys in every field, of course. But my sense is that immigration law is one of those fields in which there are a higher proportion of attorneys who do extremely little -- or poor (or both) -- work without their client's knowledge. This is perhaps to be expected whenever you're dealing with one-shot clients unfamiliar with the legal system and desperate for assistance. My sense is that the reality of this field -- while far, far from uniform -- amply reflects this theoretical problem.

Clients unfortunately have very little access to information in choosing their counsel, which again enhances the possibility of abuse. In this regard, I have often thought it'd be helpful if there was some clearinghouse -- either online or otherwise -- that listed maybe some of the most obvious cases in which a particular attorney was held to be seriously deficient. Would this entirely solve the problem? Of course not. Would it be difficult to ensure that any particular opinion accurately reflected either the full set of facts or the attorney's typical performance? Again, no. But it'd at least be a start.

With that in mind, for whatever it's worth, I'd just like to mention that the performance of two California immigration lawyers -- Yemi Getachew (up in San Jose) and Olumide Obayemi (in San Leandro) -- are at issue in this opinion. And that, at least based upon what the Ninth Circuit found, neither of them come out smelling like a rose.

Take a look.

People v. Connors (Cal. Ct. App. - Nov. 19, 2008)

I'm on board for what Justice Cooper says here. It's not the most heinous set of crimes ever, but, still, I'll be happy for the defendant to spend some time in the big house.

I mention the case only because it doesn't make the probation department -- at least in L.A. -- look good. At all. Especially check out the footnotes.

Ass'n of Irritated Residents v. San Joaquin Valley UPCD (Cal. Ct. App. - Nov. 19, 2008)

Animal pee and poop causes air pollution. So you need to talk about it more.

That's a holding that even -- and perhaps especially -- my tiny children can understand.

Aguilar v. Aguilar (Cal. Ct. App. - Nov. 6, 2008)

Sometimes you read an opinion and think to yourself: "This is so clearly and obviously right. How could the other side even argue to the contrary? And -- worse -- how could the trial court have gotten it so obviously wrong? Both legally as well as equitably?"

This is such an opinion.


Maybe Justice Moore simply wrote an opinion that's blindsided me to the equities on the other side. If so, congratulations. Nonetheless, I'm entirely persuaded. She seems pretty much indisputably correct to me.

Kachlon v. Markowitz (Cal. Ct. App. - Nov. 17, 2008)

Donald and Debra Markowitz buy a house from Mordechai and and Monica Kachlon, and include as part of this transaction a $53,000 second mortgage in favor of the sellers. Plus, thereafter, Mordechai does contractor home improvement work for the Markowitz's on the house. And Debra, who's an attorney, provides legal work to Mordechai.

So there's lots of "services" floating around on both sides. Including, to make matters even more messy, some important non-business "services" as well. Namely, Debra starts having an affair with Mordechai. Eventually leading Donald to initiate divorce proceedings against Debra. Oh, yeah. Mordachai's also driving Donald's Jaguar, but Donald's still making the payments.

You can figure out what happens. Except it's even messier than you might imagine. Mordachai sues for alleged nonpayment of various home improvement projects and personal loans. Then the Markowitz's sue the Kachlons for allegedly initiating foreclosure proceedings on the house. Then Mordachai sues Debra for alleged legal malpractice and breach of fiduciary duty.

Needless to say, a tangled web. And you've only heard half of it. All of which Justice Willhite has to sort out. Which takes over 70 pages. Yikes.

Read the whole thing if you'd like. But I can shorthand the message for you as well. Keep business business and personal personal. And the more interrelated your interactions, the more of a nightmare it will be in the event that things eventually get ugly.

Which they do here. In spades.

Manco Contracting Co. v. Bezdikian (Cal. Supreme Ct. - Nov. 17, 2008)

When does California consider a judgment from Qatar "final" under the UFMJRA? What about Korea?

Here's some insight into the answers to those scintillating questions from the California Supreme Court.

Cook v. Avi Casino Enterprises (9th Cir. - Nov. 14, 2008)

There's some very good stuff in here about diversity jurisdiction as applied to corporations created by Indian tribes. It's a neat little issue -- at least for those of us fascinated by procedure -- and a matter on which there's both a dearth of authority and reasonable grounds for dispute. As evidenced by the fact that the majority opinion on this issue, written by Judge Gould, doesn't obtain the asset of Judge Fernandez, who dissents.

But there's an even larger, and more practically important, lesson to be learned as well. Which is this:

Drive extra carefully around Indian casinos. Because even if they were grossly negligent and served clearly intoxicated casino employees, you can't sue.

Judge Gould concurs to expressly mention that he's not happy about this result. But it's nonetheless the law.

Let's be careful out there.

Finnerty v. Board of Registered Nursing (Cal. Ct. App. - Nov. 13, 2008)

I knew that there were disputes at the margin about the chain of command in, say, the military. You can't just uniformly say you were "following orders" and be in the clear; there's a degree of professional judgment (albeit circumscribed) involved as well. Until I read this case, I was less informed about the "chain of command" at a hospital; or, at least, the relative roles of doctors and nurses. But now I know a bit more.

Moreover, given that your life and welfare is much more likely to be at stake in a hospital than in the hands of the military (at least nowadays), practically speaking, this is a good topic to understand. The question here is whether a particular nurse (Ellen Finnerty) should have her license taken away for countermanding orders of a doctor. Basically, you had a very sick patient with very labored breathing, but when the doctor ordered immediate intubation (in the hospital room), the nurse disagreed, and whisked the patient off to the ICU for intubation therein instead.

My reaction to the case varied a little bit page-by-page. Initially, I thought that the nurse was totally and completely in the wrong. And my intuition was definitely that the doctor -- not the nurse -- should clearly be in charge. But then, after reading various paragraphs, I thought there might actually have been good reason for the nurse's decision; namely, that intubation might have been a lot safer in the ICU, and she argued that the intubation would actually have taken place faster there since the room didn't have the staff or equipment to do the intubation within the 5 minutes it would take to roll the patient to the ICU and intubate there. If that was indeed the case, then I could see why the nurse might have acted the way she did. And presume -- and I've been around hospitals a lot lately -- that nurses generally don't countermand the express orders of a doctor on a whim, and that when they do so, they typically feel like they've got a darn good reason for doing so.

But, in the end, I think that Justice Cooper gets in right. On both the facts as well as the law. Yes, nurses have the power to countermand clearly dangerous orders. But this one wasn't. The intubation originally ordered by the doctor could indeed have taken place more rapidly in the room. And hence, especially when giving the decision below deference, the decision to revoke the nurse's license was justified. You can refuse to follow the orders of those superior to you. But if you do, you'd better be right. And here, the nurse wasn't. And the fact that the patient died a mere hours after the delayed intubation -- even if (as the Court of Appeals recognizes) the delay had nothing to do with the death -- surely doesn't help the nurse's position.

This stuff matters. Part of me profoundly respects a nurse for putting her own booty on the line if she does so in a sincere attempt to advance the welfare of the patient. That's an incredible, incredible thing. On the other hand, if the nurse countermands an important order merely because (as at least alleged here) she thought that an immediate in-room intubation would be a hassle to the staff and patients at shift-change time, well, in that event, I'm not at all bummed that you lose your license.

In the end, I agree with Justice Cooper. The casual reader, or justice on the Court of Appeal, can't tell for sure which version of the facts is right. Both versions have some support. So, right or wrong, you affirm.

Yep.

Hecht v. Paul Revere Life Ins. Co. (Cal. Ct. App. - Nov. 5, 2008)

I'm pretty impressed by anyone who can fully explain and adjudicate a case in nine short paragraphs. I think that's a rare talent, and not something that can be done (1) in most cases, or (2) by most people. And, to make clear, I include myself in the category of individuals in whom that talent does not reside. Typically, extremely short opinions are pretty incomplete, and often, I think, inadequate to the task.

Here's the exception to the rule.

Hat's off to Justice Yegan. I'm sure that one could have written more. But I agree that more is unnecessary. Short, to the point, and yet complete and fully analytical. Well done.

Hoopes v. Dolan (Cal. Ct. App. - Nov. 12, 2008)

It's always informative when California does something differently than the federal system. It's especially interesting when the difference involves something (as here) in which the divergence may be explained at least in part by the differential treatment of a historical relic. Which, in the present case, involves the time-honored -- and yet largely (but not entirely) abandoned -- distinction between law and equity.

I admit that I've always been interested in the lingering consequences of this historical difference, as I grew up (as most of us did) in the modern era, in which separate law and equity courts were (thankfully) merely a thing of the past. The distinction is still relevant, of course, in a number of different areas, the most important of which is whether you're entitled to a jury trial, but for the most part, you can go through life just fine with only a dim appreciation for the complexities occasionally engendered by the difference between law and equity (and, by implication, legal and equitable claims).

But sometimes, you gotta know more. And getting the answer right isn't easy. Like here.

When equitable issues are intertwined with a legal dispute (for example, when there are equitable defenses to a legal claim -- as there often are), it's an interesting issue as to which claims should be resolved first, as the first claims resolved may be preclusive of the other. California has a strong preference for resolving the equitable claims first; i.e., for having the judge adjudicate those things. The theory being that resolution of these judge-decided issues may obviate the need for a trial. By contrast, the federal system has a strong preference for resolving the legal claims first; i.e., for having the jury decide. The theory being that the right to a jury trial is important -- indeed, of constitutional magnitude -- and shouldn't generally be taken away by a judge. These two systems correctly identify and understand the interests at stake, but nonetheless come to competing conclusions. Which is always fun.

It gets especially interesting when, as here, the law/equity distinction intertwines with other relatively complex judicial doctrines; here, issue preclusion (a.k.a. collateral estoppel). Justice Sepulveda does a very good job explaining the resulting difficulties in a way that even non-procedure junkies can understand. Which is no small feat. And it's an important contribution as well, since even from reading this single case, one can garner the strong impression that one or more of the parties might have done things a bit differently had they fully understood the implications of what the initial jury instructions/findings might have on the subsequent disputes on the equitable defenses.

So for anyone who doesn't fully grasp what the judiciary does (or should do) in the relatively common cases in which both legal and equitable claims are raised, this is a very good opinion to read. I have a strong suspicion that virtually anyone who reads it will learn something. And can think of no higher praise for an opinion.

Williams v. Russ (Cal. Ct. App. - Oct. 27, 2008)

Feel free to sue your lawyer. And to demand your client file, as is your right under the ethical rules. But don't then forget to pay the storage fees and let the files be destroyed. Otherwise we will dismiss your malpractice action as a sanction. And the Court of Appeal will affirm.

People v. Anderson (Cal. Ct. App. - Nov. 10, 2008)

Justice Duffy decides to publish this opinion today in an effort, I'm sure, to remind everyone not to touch your babysitter. Especially if she's 14 or 15. And even if your touching is only over her jeans and on her inner thigh (with, at most, touching the rim of her underwear).

Because it's six months in prison and a lifetime of registration as a sex offender if you do. Even if it's your first offense and even if all your other babysitters love you.

A salutory lesson.

To slightly reprise a line from Risky Business: "Get off the babysitter." Indeed, don't get on her in the first place.

Southern Union Co. v. Irvin (9th Cir. - Nov. 7, 2008)

The jury initially awarded Southen Union Company (a corporate plaintiff) around $400,000 in compensatory damages against the not-very-nice chairman of the Arizona Corporation Commission, and also awarded $60 million in punitive damages. That's a ratio of over 150 to 1, which, not surprisingly, didn't stand, and the Ninth Circuit reversed back in 2005.

On remand, the district court gave Southern Union the option of accepting $4 million in punitives -- a ratio of around 10 to 1 -- and Southern Union (wisely, IMHO) accepted. Another appeal. This time, though, the panel is split.

The majority (Judges Reinhardt and Fernandez) conclude: Sorry, still too high. We admit that defendant is a very bad man. Who has done very bad things. Nonetheless, three to one is all that we're willing to allow here. So $1.2 million (plus postjudgment interest, of course).

Judge Reinhardt concurs to say that he's particularly influenced by the fact that we're talking about a rich (and hardly vulnerable) plaintiff here and a hardly rich defendant. "So don't get me wrong. I'm not capping out at a 3-1 ratio in the much more typical case involving a vulnerable plaintiff and wrongdoing wealthy corporation. Let me make that crystal clear." (I'm paraphrasing, obviously, but I read that as his central -- and important -- point.)

Judge Noonan dissents. "The defendant's a bad person. The district court was in the best position to judge things. Ten to one seems fine to me. I'm more than happy to defer to that." (Again, I'm totally summarizing.)


A neat little fight, with a not-so-typical lineup, about punitive damages ratios. Worth at least a quick read.

U.S. v. Williams (9th Cir. - Nov. 6, 2008)

Sometimes you're reversing the district court based upon an error it has committed and you sort of feel good about that. But sometimes you're reversing the district court and feel bad about it -- or at least feel bad if you make the district judge feel bad. No one likes to be reversed, after all.

So the Ninth Circuit reverses Judge Gonzalez (down here in San Diego) today, based upon an Allen charge that she gave that the Ninth Circuit found to be improper, but goes out of its way to try to make Judge Gonzalez feel okay about it. After reversing the conviction, Judge Bybee adds the following footnote to the opinion:

"In reaching this conclusion, we are aware of the conscientious effort that the district court made to avoid a mistrial after a lengthy trial, and we commend the district court for that effort. In this circumstance, as our opinion today makes clear, nothing could have prevented a mistrial."

So you get to redo a very lengthy trial, but don't feel bad about it. Not your fault.

Rogers v. Royal Carribean Cruise Lines (9th Cir. - Nov. 6, 2008)

Seamen, wages, and arbitration. Read all about it.

P.S. - I'm sure this will be an additional entry into Force and Norris's aptly titled (but firmly tounge-in-cheek) multivolume work, "The Law of Seamen".

E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc. (9th Cir. - Nov. 5, 2008)

I've read a lot -- and I mean, a lot -- of opinions by Judge O'Scannlain. And I've seen a lot of good ones.

But this one, in my view, is the most well-written of any of his opinions over past fifteen or so years. Concise. Funny. Insightful. Pithy. Irreverant. Wonderful.

Mind you, there's lots to play with here. It's a case in which an East L.A. strip club filed a trademark suit against the makers of Grand Theft Auto. You can't dream up better, or more interesting facts. At least to a certain crowd. So Judge O'Scannlain gets to say a ton of fun things that are both relevant and simultaneously humorous.

I'm not going to ruin any of the lines for you. Or even provide you with a sample. I'll instead make you read the whole thing. Trust me: As long as you're marginally culturally aware, even if (like me) you have never played -- or even seen -- single game of Grand Theft Auto, the time spent reading the opinion will be worth it, and will bring a smile to your face.

There's a lot there on the law as well, wholly apart from the fun. And I somewhat sympathize with the strip club owners: after all, I too wouldn't want my strip club characterized in a best-selling game -- as it is here -- as the prototypical incredibly seedy tittie bar. Even if (as it may well be here) that characterization could not be more accurate. I wouldn't like it, and would might well be inclined to bring a trademark claim. Though, as an attorney, I could also easily see why the judiciary might well reject such a claim.

I'd especially be upset -- were I a hypothetical strip club owner -- if the name of my place was the "Play Pen" but the makers of Grand Theft Auto, in the game, called it the "Pig Pen". Ouch. Talk about adding insult to injury.

Read the opinion. It's less than ten pages. It's a fun romp. You'll be glad you did.

People v. Stier (Cal. Ct. App. - Nov. 5, 2008)

It should probably go without saying. But it's nonetheless worth expressly holding. As well as publishing (albeit somewhat belatedly).

The police can't handcuff someone just because he's 6'6". If he's cooperative, and there's no real reason to believe he's a threat, you can detain him, but can't handcuff him.

Good to know. Even for those of us, like me, who are a full half-foot-plus shorter than 6'6".

Payne v. Rader (Cal. Ct. App. - Nov. 4, 2008)

It's an appeal. The deadlines are jurisdictional. So a single day matters. A lot.

People v. Garcia (Cal. Ct. App. - Nov. 4, 2008)

I read a lot of cases. But I don't think my eyes have ever glazed over as much as when I read this opinion.

Maybe it was all that food I had at the lunchtime faculty meeting. Or the excitement of the election. Or, just maybe, the incredibly dry and complicated topic of the opinion, which involved a fact-specific calculation of the defendant's proper sentence.

But, whatever the reason, I can honestly say that I found myself occasionally thinking: "I can barely even follow what the scoop is here." Maybe in part because it was very hard for me to deeply care about the result, since it's a defendant who was convicted of nine different counts (basically, some armed robberies and armed carjackings, with priors), on some or all of which he was pretty clearly guilty, and was sentenced to 154 years to life. And, as far as I can tell, the whole appeal is about whether the sentence should really be 154 years to life or something like 125 years to life or 114 years to life or whatever. In other words, a monster difference. Oh, yeah. And whether he should have been ordered to pay an additional $20 per count in costs as well. In short, potentially significant legal issues, but, practically, not much at stake.

Plus, it's just all really confusing. Here's, for example, what the trial court stated in its tentative ruling: "The three possibilities are term, three times the traditional sentence for the current crime, a term of 25 years of a traditional sentence, which includes enhancements, the greatest minimum term must be selected. Enhancements are not included and enhancements are not triple. Count 4 and count 7, exempt for those the greatest is 25 years for carjacking determines the upper term is nine years, three times nine is 27. This is ption one. Option 2 is 25 to life. Option 3 is the traditional sentence, which in this matter would be the high term of nine years, plus 10 years for the firearm, plus 10 years for the two prior convictions, and three years for the priors under P.C. 667.5, subsection (b). But since two of these are used under P.C. 667, subsection (a), they will not be used again under 667(a). Thus the total is nine, plus 10, plus 10, plus three, for a total of 32-to-life on count 4. Since the court is required to set the greatest term, option 3 is selected. Therefore, the base term on count 4 is 32 years-to-life. As to count 7, since the status enhancement under Penal Code 667(a) and 667.5(b) can only be used once for the sentence, the sentence is 25-to-life, plus 10 years for the firearm, for a total on count 7 of 35 years to life. As to count 1, second degree robbery, violation of Penal Code section 211, the minimum sentence is 25 years to life, plus 10-year enhancement for the use of the firearm, for a total of 35-to-life. Same sentence on count 2. As to count 3, a violation of 12021, subsection (a)(1), the sentence is 25 years to life. As to count 5, grand theft of an auto, violation of 487(d)(1), sentence is 25 years to life, plus 10 years for firearm, so 35 years to life on count 5. However, count 5 is stayed pursuant to 654. As to count 6, unlawful driving of a car in violation of [Vehicle Code] section 10851(a), sentence is 25 years to life, plus the 10, total sentence on that count is 35-to-life. That, as well, is stayed pursuant to 654. Count 8, grand theft auto, P.C. 487(d)(1), 25-to-life, plus 10 years, so 35-to-life on that count, stayed, as well, pursuant to 654. As to count 9, unlawful driving of a car, pursuant to 10851, subsection (a), 25-to-life, plus 10 years, so 35-to-life,
stayed pursuant to 654. The total sentence in this case for all the counts is 162 years to life.”

And then here's the sentence (and explanation therefor) the trial court ultimately pronounced: "[B]ased on the case I came up with the same calculations for count 1, exact same. And for count 2, the 211, would be 25 to life, plus 10 for the gun, plus 10 for the two priors pursuant to 667, same goal, 45-to-life. Third count, even though [the prosecutor] has argued it should be concurrent, the number will come up differently because we have a 12021(a)(1), 25-to-life, 10 for the 667, which makes it 35-to-life. For 4, the 215, it would be nine, which is the highest term, 10 for the gun case, 10 for the two priors, three for the 667 prior prison, 32-to-life. 5 would be the same, 25-tolife, 10 for the gun, 10 for two priors, 45 to life. 6 would be 10 for the gun, 10 for the
priors. 5 and 6 remain stayed. [Seven], for 215, once again, is the same as count 4. Count 8 is 25-to-life, plus 10 for the gun, plus 10 for priors, 45-to-life. [Nine], the 10851(a), and we have to remember that, pursuant to, I think it was both 1170.12 and 667, any felony where a gun is used is a straight 25-to-life with the priors. So it’s 25-tolife, 10 for the gun, and 10 for the priors, 45-to-life. Counts 8 and 9, again, are stayed. . . . . [So] Count 1, 45-to-life. Count 2, 45-to-life. [Three], 35-to-life. [Four], 32-to-life. Count 5, 45. Count 6, 45. [Seven], 32.
Count 8, 45. Count 9, 45-to-life. Counts 5, 6, 8 and 9 are stayed pursuant to P.C. 654. And because [the prosecutor] has agreed and there’s no dispute that count 3 should run concurrent pursuant to [defense counsel’s] request, that now makes it 189-to-life. It’s 154-to-life."

I mean, I understand all the words that are being used. But can I really follow, intellectually, what's going on? Honestly, no. Not really.

Admittedly, Justice Turner's opinion helps out, and as I read all thirty-plus pages of it, I at least began to comprehend the basic scoop, as well as the potential problems. Still, on occasion, I found myself lost. Like I was reading stereo instructions. "Place the red coaxial into the right audio out input of the video component subwoofer?! What?"

Fortunately, in the end, I understood what was going on. Or at least I think I did. Kind of. Most importantly, I obtained solace in the fact that Justice Turner (1) explained the results, count-by-count, in the end, and (even more important, to me), (2) said, in the end, "We have asked the parties to calculate the sentence for each count. The calculation of the current sentences are quite complex and the trial court and the parties have quite understandably struggled with the issues; as have we." Whew. Thank goodness. Glad to know I'm not alone. 'Cause I gotta tell you that for a while there, I was feeling like a liberal arts major at a NASA engineering convention.

Auerbach v. Assessment Appeals Board (Cal. Ct. App. - Oct. 30, 2008)

So the Ninth Circuit closes out October by not issuing any published opinions for three straight days, and then today, what does it come up with? Only this order (in a FERC case on remand from the Supreme Court that the Ninth Circuit simply remands back to the district court in a single paragraph) and this opinion (an immigration case in which submission was deferred pending an opinion in an earlier-submitted case and, at least as held by the majority, is on all fours with the Ninth Circuit precedent subsequently published in that case earlier this year). Meanwhile, nothing at all from the California Court of Appeal or California Supreme Court. Or at least nothing before my afternoon class begins at 1:00. *Sigh*

So I'll make a catty comment derived from a case late last week. And lament the difficult life of a Carls, Jr. (i.e., CKE Enterprises) executive. You buy a $19 million-plus Gulfstream jet to whisk you around in private luxury -- on the shareholder's dime, of course -- and the L.A. Assessor actually wants you to pay tax on the thing as well. The horror.

Fear not. You win in the Court of Appeal. A victory that I'm certain -- just certain -- will trickle down to consumers to reduce the price of a hamburger at Hardee's.


P.S. - What an incredibly diverse management team.