Friday, January 30, 2009

Quon v. Arch Wireless (9th Cir. - Jan. 27, 2009)

They're both UCLA Law School graduates with stellar credentials. They both are well-recognized women in Southern California. They were even both O'Melveny lawyers, and indeed overlapped for six solid years. So you're presume that they might be relatively tight, no?

And yet this stuff is right out of Celebrity Deathmatch. "Let's get it on!"

On the one side is Judge Wardlaw. On the other is Judge Ikuta. Judge Wardlaw writes an opinion, Judge Ikuta wants to take it en banc (and explains why), and Judge Wardlaw writes a concurrence to the denial to explain her contrary vote. Pretty straightforward, right?

You might think so. But all I have to do is to recite the first couple of paragraphs from Judge Wardlaw's concurrence to reveal that, well, there's a vigor there that bespeaks of some hard feelings. Check it out:

"No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal. [Ouch!] The dissent is not bound by the facts, even those found by the jury; nor is it confined to the actual fact-driven Fourth Amendment holding. [Come on: Tell us what you really think.] The dissent’s lofty views of how the City of Ontario Police Department (“OPD”) should have guided the use of its employees’ pagers are far removed from the gritty operational reality at the OPD. I write only to correct the seriously flawed underpinnings of the dissent and to demonstrate that our opinion carefully and correctly applied the tests set forth in O’Connor v. Ortega, 480 U.S. 709 (1987). That our opinion follows Supreme Court precedent and accords with our sister
circuits is obviously why this appeal failed to win the support of a majority of our active judges for rehearing en banc.

The dissent selectively recites facts to support its disagreement with the outcome of our panel’s Fourth Amendment analysis. For a full recitation of the record evidence, read the opinion."

If Judge Wardlaw has ever written anything equally harsh, I don't recall it offhand. Not, of course, that Judge Ikuta doesn't get in some powerful shots of her own.

Read the whole thing. It's dueling bench slaps extraordinaire.

Thursday, January 29, 2009

People v. Rodriguez (Cal. Ct. App. - Jan. 29, 2009)

It's strange enough when your husband takes everything out of the refrigerator and places the contents -- along with your family photographs -- on the floor surrounded by flowers as if for an altar or shrine. That's weird. To say the least.

But after he convinces you, at 1:00 a.m., to get some sleep before taking him to the (mental) hospital, here are some words you really don't want to hear from him two hours later, as you feel a presence standing next to you:

"Sandra, I love you very much, but I have to kill you."


Fortunately, Sandra struggles with the knife and eventually gets away, abeit with significany injuries. Cirilo is in turn convicted of, inter alia, attempted premediated murder, and gets to spend the rest of his life in prison.

A sad -- and scary -- story. And another reason not to get really into coke and meth. 'Cause you do things that no one should ever do, and which (I'm sure) you never thought you'd do either.

People v. iMergent, Inc. (Cal. Ct. App. - Jan. 20, 2009)

As Captain Renault might say in the modern era: "What?! Companies that produce infomercials pitching do-it-yourself web storefronts at $4700 a pop often encourage and take advantage of unrealistic expectations of unsophisticated consumers?! I'm shocked! Shocked!"

Fortunately, the law is not so deliberately blind. Particularly in California. Nor is the Court of Appeal, which properly responds to iMergent's claim that the regulations that govern it are unintelligibly vague with a fairly concise (in essence) "Poppycock."

Wednesday, January 28, 2009

People v. Adams (Cal. Ct. App. - Jan. 27, 2009)

Need proof that it's not the '60s and '70s anymore? Here you go.

It's a guy who's mad at "the man" and who's trying to destroy police cars as a result. Sound familiar? But (1) he's acting alone; (2) he's homeless; (3) his "bombing" techniques leave much to be desired; (4) he's quickly caught, and (5) he's sentenced to 63+ years in prison.

People v. Luna (Cal. Ct. App. - Jan. 22, 2009)

Even with my misspent youth and dubious slacker friends, I must admit that I was totally clueless as to how one makes hashish. And if this opinion had remained unpublished, I'd have remained that way.

But dude! I, like, totally know how to make hash now! A spigot, PCV pipe, rubbing alcohol, grocery bags full of maijuana, and a crapload of butane is apparently pretty much all you need.

Thanks for the step-by-step instructions, Justice Ruvolo!

Tuesday, January 27, 2009

Gibson v. Office of Attorney General (9th Cir. - Jan. 27, 2009)

This one is close.

I definitely agree with everyone on the panel that plaintiffs' claims are meritless. If you're an attorney with the government -- here, with the California Attorney General's Office -- you clearly don't have a First Amendment right to represent whatever clients you want on the side. That's just wrong. The AG's Office can reasonably ask you to clear outside stuff in advance. I'm on board for that. Totally.

I'm only uncertain as to whether I'd reverse the award of attorney's fees to the defendant. On the one hand, I am fairly wary of awarding attorney's fees to defendants in civil rights cases, and the law properly reflects that position. Moreover, Judge Graber, who writes the majority opinion, has a good argument that plaintiffs' claims, while wrong, might not be totally absurd and/or obviously frivolous.

On the other hand, Judge Clifton, who dissents, rightly points out that we give district court's deference on this front, and argues fairly credibly that no reasonable attorney would really think that they have a constitutional right to work with freelance clients on the side. Which would make a fee award to the defendant justified.

Plus, wholly apart from the law, I'm sure everyone understands the realpolitik here. The plaintiff here remains a current attorney with the A.G.'s office, who's filed a meritless suit against her own office (and makes a variety of other legal moves, including getting using a request for "reasonable accommodations" to get a transfer). I'm sure it doesn't escape notice as to what a fee award in favor of the A.G.'s office will practically accomplish. Will plaintiff pay it? Probably not. What will really happen? The parties will agree to waive the award in return for the plaintiff resigning. Since that's a good move for her at that point and, I'm sure, worth it for the A.G.'s office in order to get rid of someone I'm confident they don't want but are otherwise practically compelled to retain.

Do I think this plays a conscious part in the legal analysis here? No. A subconscious part? Probably not either. But when reading the case, I admit I felt a tug. Ultimately, I'd probably side with Judge Graber and reverse the fee award. But is there a part of me that says that it would be socially beneficial -- and, moreover, beneficial for everyone involved (plaintiffs and defendants alike) -- if Paula Gibson were persuaded to leave the A.G.'s office, either through a fee award or otherwise? Yes. There is. I have a keen sense that no one's winning from the status quo.

Veyna v. Orange County Nursery (Cal. Ct. App. - Jan. 15, 2009)

Unlike the Ninth Circuit, you don't see many opinions at all from the California Court of Appeal that are per curiam. So when it happens, as it does here, it's worth at least brief mention.

My (somewhat uneducated) guess is that the Court of Appeal does so here because the ultimate result is the denial of a writ of supersedeas, and maybe the thought is that such a result in such a proceeding is best addressed in an opinion without individual authorship. Even though doctrine doesn't require such a result at all, it just "makes sense" that such a result would be per curiam.

Monday, January 26, 2009

Doe v. California Lutheran High School Ass'n (Cal. Ct. App. - Jan. 26, 2009)

I know that if I taught at a private high school -- say, for example, the California Lutheran High School in Wildomar -- I'd definitely spend my valuable time looking up the myspace pages of all the female students in my class to see if any of them said that they were bisexual or in love with another female student.

Yes, and if I were the principal of said high school, and a teacher discovered that two female students had in fact so identified themselves, I'd definitely call them into my office and interrogate them about whether they had a consensual lesbian relationship. And if they admitted that they had, in fact, kissed each other and felt that they were in love, you can be darn sure that I'd expel them. 'Cause, sure, we've had male students who used drugs or alcohol and stuff like that who we've only given, say, temporary suspensions to. But a teenage woman questioning her sexuality and -- gasp! -- maybe being a lesbian?! The horror. We're definitely kicking you out.

Look, is a private high school a "business enterprise" subject to the Unruh Act? Justice Richli says it's not, and it's hard to disagree with that. So the law says what the law says. Which means this case comes out the way it does.

I could say a lot of things at this point. But I'll constrain myself to the following. I would not have acted as the principal and board of directors of the California Lutheran High School did here. And both hope and believe -- firmly -- that history will rightly judge their conduct. If for no other reason, I'm glad this opinion is published.

Sanai v. Saltz (Cal. Ct. App. - Jan. 26, 2009)

I'm impressed by this case on a variety of different levels.

First, it tells a tale of litigation run amok. A tale that explains, in part, why some people hate lawyers; and, in particular, engaging in transactions with them. It all starts back in 1997 -- over a decade ago -- when Cyrus Sanai rents an apartment in Newport Beach. He's paying rent of around $2,165 a month for a couple years, and thereafter gets a letter from the new owner of the apartment complex that (in a fairly obvious misprint) says that the new rent is $1,410. To which Cyrus Sanai, a graduate of Harvard College and UCLA Law School -- responds: "Deal."

Sanai gets away with paying the reduced rent for a while, but ultimately gets booted from the apartment. The owner wants the part of the rent that Sanai didn't pay, but doesn't file suit; however, eventually, he does report the alleged rental delinquency to consumer reporting agencies. Which Sanai finds out about when he allegedly is denied for an American Express card. Which causes Sanai to go ballistic. And to file a lawsuit that has now spent the last nine years in litigation, up and down the appellate chain.

For a sense of the merits of the lawsuit, let me just highlight the following line from Judge Terry Green (up in LA), when ruling on the defendant's motion for attorney's fees and awarding them over a million dollars as a result of Sanai's conduct:

"This court specifically finds that this entire action has been prosecuted and maintained in bad faith and for the purpose of harassment. . . . Further, Plaintiff’s prosecution of this matter has been malicious, as evidenced by, among other things, the altering of documents presented to the Clerk’s office and the recording of illegal judgment liens with malice, and then refusing to remove them despite being ordered by the Court to do so. Several other Courts have bluntly noted and condemned Plaintiff’s litigation tactics. It is now this Court’s turn. This Court specifically finds that all unsuccessful pleadings, motions, and papers filed by Plaintiff in this lawsuit were done so in connection with an action under 15 USC Section 1681, and further that these pleadings, motions and papers were filed in bad faith and with the purpose of harassment."

So it's a nightmare of a case. And worth reading if for only that reason alone.

Second, and perhaps even more impressively, is the fact that Justice Perluss doesn't do what I would imagine many, many judges might be inclined to do in this setting. Let's be blunt -- the attorney here, Cyrus Sanai, is a person who's his own worst enemy. He does not look good. Looks horrible, even. As the trial court noted, he is a litigant who's arguably out of control not only in this case, but in others as well. (For a glimpse, take a look at this and this, both of which were engendered from Sanai's role in the whole Judge Kozinski mess.)

For that reason, it would be totally unsurprising -- perhaps even expected -- if Justice Perluss were to have found a way to affirm the judgment. Any way. And it wouldn't have been impossible here; there's enough on the merits to lead even a fair-minded judge to conclude that the trial court may have gotten it right. And for a judge who's interested in "doing justice" writ large, there's a huge (and understandable) incentive to find a way to rule against Sanai and to give him the punishment that he so richly deserves.

But Justice Perluss doesn't do that. He instead plays it straight up, ultimately reversing (albeit remanding) the attorney fee award and a portion of the dismissal of the complaint.

Lots of people would be loathe to reach such a result. Especially when it means, as it does here, that the case will continue into its second decade. Something that no one wants, and that certainly isn't "equitable" in a big picture view.

Nonetheless, when the law says X, then a judge should do X. Even when X means that someone who's abusing the system gets to keep doing it for a while longer. Yes, it sucks for the defendant. I'm sorry about that, I truly am. But that's what the system has to be. The alternative simply reposes too much power to dispense "justice" on an ad hoc basis. We can't -- and shouldn't -- allow that.

I applaud Justice Perluss and the rest of the panel for avoiding that temptation. Perhaps with the realization that, in the end, Mr. Sanai will surely get what's coming to him. Karma. Destiny. Desserts. Whatever. In the end, I have faith that the law will get this one right. No need to shortcut it.

Even if the long way takes a decade and 42 pages. It's worth it.

In Re Walter P. (Cal. Ct. App. - Jan. 15, 2009)

Yes, the maximum penalty for possessing a tiny amount of pot is a fine of $100. But if you're a juvenile, the state can also "ground" you (i.e., command "home supervision") for 45 days and make you do "chores" (i.e., spend eight days in the Juvenile Work Project program) as well. So holds the Court of Appeal.

Like many things in life, some privileges come only to adults. Even the privilege to conduct illegal acts with little consequence.

Friday, January 23, 2009

Legal Services for Prisoners With Children v. Bowen (Cal. Ct. App. - Jan. 22, 2009)

I could write at length about this case, which raises a fascinating (and wonderful) issue regarding whether the disenfrancisement of felons under the Fourteenth Amendment for committing a "felony" is limited only to the commission of a felony at common law. For example, I have a great deal of thoughts about whether the Court of Appeal could preferably have taken an entirely different (and arguably superior) approach to the one that's articulated by Justice Richman, and instead of holding that the "exception" of Section 2 negated the underlying equal protection claim, the Court of Appeal might alternatively have held that even if the exception does not apply, the equal protection claim nonetheless fails on the merits because it is permissible to subject this non-suspect class to the relevant penalty. Remember -- and this is often overlooked in this context -- that the part of the Fourteenth Amendment we're talking about only relates to diminution of electoral power. It's plausible to argue (and I'm confident this is actually right) that States are permitted to disenfranchise certain sections of the population -- including, perhaps, "new" types of felonies -- without violating the Fourteenth Amendment but still have the consequence of reduced electoral votes.

But that thought, for whatever it's worth, requires far too long to articulate. Plus, even on the merits of the "exception" point, in truth, I agree with Justice Richman. The Constitution says "crimes". That word likely means all crimes, or at least (at a minimum) all felonies. New or old.

So instead of saying anything interesting, which would require far too much time and virtual ink, I'll instead just briefly make the following (very minor) point. On page 11 of the opinion, to support the argument that the interpretation of words in the Constitution should be given a uniform meaning -- a proposition with which I generally agree -- Justice Richman first cites and relies upon the Supreme Court's opinion in Tidewater (which held that the District of Columbia was not a "State" for Article III diversity purposes). My instant reaction was that there are much, much better cases with which to lead on that point than Tidewater. Not only is that case roundly criticized in the academic community, but the part of the opinion on which Justice Richman relies was in any event only joined by Justices Jackson, Black and Burton, and the only way the "majority" became the majority was due to the concurrence of Justices Rutledge and Murphy, who submitted in their concurrence a relentless attack on the part of the opinion relied upon by Justice Richman.

In short, I might have left the Supreme Court's 3-2-2-2 opinion out of this one. And definitely wouldn't have led with it.

Still, notwithstanding my critique, I think that Justice Richman writes a very thoughtful decision here. This is no knee-jerk opinion. It's a thoughtful take on the subject. That I might have done something a little different is hardly a fatal critique. Indeed, in some courts, it might even be taken as a compliment.

Anyway: Great case.

Thursday, January 22, 2009

In Re Jose C. (Cal. Supreme Ct. - Jan. 22, 2009)

I agree that it's an interesting problem, and one that I hadn't thought about before. On the one hand, there's the state's obvious interest in controlling juvenile delinquency, an interest that's reflected by (amongst other statutes) Section 602 of the Welfare and Institutions Code, whch grants state court the power to declare any juvenile who "violates any law . . . of the United States" a ward of the court. On the other hand, Congress has granted federal courts "original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States" in 18 U.S.C. § 3231. Does the latter preclude the former?

While it's an interesting point, I think that Justice Werdegar (and there rest of the Court) are indisputably right that the answer is "No." In my mind, to use an analogy different from that used by Justice Kennard, it's similar to Merrell Dow in the civil context. Just like federal law violations can be used to, for example, support a state law negligence per se (or unfair competition) claim without creating federal jurisdiction, so too can state law permissibly regulate juvenile federal offenses as long as this doesn't constitute what we'd normally refer to as the adjudication of federal criminal offense.

Still, a neat issue.

U.S. v. Selby (9th Cir. - Jan. 15, 2009)

If I'm a federal official who gets my spouse a job with a government contractor and then helps work flow that way, once the jury comes back and convicts me of (1) honest services wire fraud, (2) making false claims and statements, and (3) felony conflict of interest, I'm probably going to be freaking out. Thereafter, however, when the district court's sentence is merely five years of probation, trust me that I'm going to be dancing in the street. Unless I've got infinite money, I'm not going to hire an attorney to pursue an appeal -- especially if my only argument is insufficient evidence. Which I'm going to lose anyway.

Sometimes, even when you're convinced your innocent, you need to take a larger view. And be happy -- extremely so -- for the bullet you dodged rather than the one that grazed you.

Wednesday, January 21, 2009

In Re Vasquez (Cal. Ct. App. - Jan. 21, 2009)

Maybe I can save everyone a little bit of time. Just cut-and-paste the following and fill in the blanks:

"Petitioner _________ was convicted of murder a long, long time ago, in ________. Since then, he has been almost/entirely discipline-free -- and has accomplished a great deal of positive things -- while in prison. His application for parole has been repeatedly supported by a plethora of individuals at the prison, including but not limited to guards, and he has been described as a model inmate. After several prior denials of parole, the Board of Parole Hearings eventually found petitioner suitable for parole. Governor Schwarzenegger, however, reversed this decision, as he nearly uniformly does in murder cases. We conclude, however, that there was no substantial evidence to support the Governor's conclusion. We accordingly grant the petition and reinstate the Board's parole release order."

That template accurately describes the vast majority of the contemporary parole cases. Including this one.

Isn't it sad when you can create an accurate macro about crucial determinations involving the life and liberty of a hundred or so prisoners?

People v. Kenefick (Cal. Ct. App. - Jan. 15, 2009)

Shelley Kenefick ran a Ponzi scheme that defrauded six investors, some of them elderly, of $890,000. She's convicted in California state court and receives a sentence of 16+ years in prison.

Let's remember that and compare it to what Madoff -- who (allegedly) defrauded thousands of victims, including the Elie Wiesel Foundation (!) -- of billions of dollars eventually receives.

I bet neither Kenefick nor Madoff are especially happy with how things turned out. Think about that the next time you're thinking that a Ponzi scheme might be a fun thing to run.

Tuesday, January 20, 2009

Phillip Morris USA v. King Mountain Tobacco Co. (9th Cir. - Jan. 20, 2009)

Hmmm. Phillip Morris versus King Mountain Tobacco Co. Hard to know which side (if any) to root for, eh?

Ultimately, the case actually comes down to tribal exhaustion principles. And the panel clearly gets it right in holding that tribal exhaustion doesn't apply here. Though Judge Fletcher -- not surprisingly, given his definite interest in the subject matter -- doesn't like a lot of what the majority has to say, in the end, everyone on the panel agrees that the case (at least the vast majority of it) rightly belongs in federal rather than tribal court. I too am on board for that.

I just wanted to add one final point. It's a trademark case. Check out the photographs of the two products on page 725 of the slip opinion. Yes, I'm sure that the mountain on the King Mountain cigarettes depicts a sacred mountain (Mt. Adams, or "Pahto" to the Yakama Nation). But I must say that when King Mountain asserts "that any resemblance to Philip Morris’s packaging [for Malboro's] is inadvertent and incidental," my reaction is: "You've got to be freaking kidding me, right?" I think that any reasonable observer would be crystal clear as to what's going on here. To put it bluntly: incindental my ass.

Cigarettes. Indian tribes. Trademarks. You gotta love the combination.

Minasyan v. Mukasey (9th Cir. - Jan. 20, 2009)

It's a new day. A new president. A new blog format.

Everything old is new again. Let the fun begin.

Meanwhile, back in the appellate world, we get to decide fascinating questions of statutory interpretation. Such as: What's a "year"?

That may facially appear to be an easy question. But, if so, you've obviously not been around enough lawyers. Plus, it's an important one. At least for Mushegh Minasyan, who was statutorily required to file his application for asylum within one year of his arrival in the United States on April 9, 2001 and who filed on April 9, 2002. Is that "within one year of his arrival"? Or one day too late? For him, the answer may make the difference beetween staying in the Land of the Free, on the one hand, and going back to country where military forces allegedly beat him in the face and kidneys for two straight days. In short, it's important.

Judge Berzon concludes -- sensibly, in my view -- that the two April 9ths are within a year. I thought it was interesting that the principal argument in that regard comes from the analogous way we calculate things under the Federal Rules of Civil Procedure. This was my first thought as well, though I'm admittedly a little geeky on procedure stuff. I have a proto-thought about how statutory interpretation principles may be colored by analogies to potentially divergent procedural principles in the context of judicial rules, but I'll leave the point at that. Plus, again, I tend to agree with the result here anyway.

So a year is a year. Good to know.

Friday, January 16, 2009

Doe v. AOL (9th Cir. - Jan. 16, 2009)

It's a rare day that I'm unable to do some quasi-recreational reading of opinions and talk about them. But with an all-day mediation and Restaurant Week here in San Diego -- both of went swimmingly -- yesterday was such a day.

Today, by contrast, it's a lazy academic day. Which, inter alia, allowed me to read this opinion by the Ninth Circuit this morning. To which I had three thoughts.

First, as to the facts, I was glad that I'm not a member of AOL, which posted the websites searched by 650,000 of its members in 2006. Not something I'd want the world to be able to examine -- as they currently can (on mirror sites) -- at its leisure.

Second, with respect to the law, while the Ninth Circuit holds that the forum selection clause may compel the plaintiffs to file in Virginia, which won't allow a class action, just a reminder to everyone that you don't have to do that in California if you file in small claims court. So any AOL member in California who had their stuff posted online in 2006: Think about maybe filing a quick small claims court action. It could be beneficial.

Finally, you gotta love the last paragraph of Judge Nelson's concurrence, which argues that there's not going to be a new "Gold Rush" to move to California to take advantage of California's favorable laws toward residents. It's funnier in the original. I liked it.

POSTSCRIPT - A little birdy writes to excoriate me at length and note -- correctly -- that the author of the concurrence is not necessarily Judge Nelson, even though her name appears first. While authors are usually listed first, with any other judge "joining" the concurrence listed susequently, here, there's no "joining" line, so the opinion is technically written jointly by Judges Nelson and Reinhardt, with the names listed in order of seniority (e.g., with Judge Nelson first). Given the tone of the concurrence, and the disparity between how Judge Nelson tends to write and how Judge Reinhardt tends to write, I'm going to definitely backtrack on my designation of the concurrence as "Judge Nelson's". My bad.

Wednesday, January 14, 2009

People v. Harbert (Cal. Ct. App. - Jan. 14, 2009)

I wasn't at the trial. But I can read. And Justice Richman does a very good job of summarizing the testimony. Given what I've read, I'm pretty darn confident that Lee Harbet was guilty of a hit-and-run. And that, though not convicted of the offense, he was totally drunk (after a seven hour "meeting" at a restaurant/bar) when he hit and killed 55-year old Gardeep Kaur with his Jaguar. And then promptly drove away and tried to cover it up.

I'm not an "always lock drunk drivers up for the rest of their life" kind of guy. But I think Harbet's darn lucky to have only gotten three years.

Rubke v. Capital Bancorp (9th Cir. - Jan. 13, 2009)

Here's something that doesn't happen every day: a Ninth Circuit judge publishing an opinion on the same day a leading constitutional scholar calls for his impeachment.

For the record, while I respect Ackerman's work and intellect, I think he's wrong on this one.

Tuesday, January 13, 2009

Kaiser v. Abbott Labs (9th Cir. - Jan. 13, 2009)

It's an HMO versus a large pharmaceutical company. So I know many people will find it hard to root for either side.

But it's also a very interesting patent and antitrust dispute, and for those in the hard core intellectual property field, a definite must read. If the words "Walker Process," "sham litigation," and "Noerr-Pennington" mean a lot to you -- and, on my end, I recall spending several years with those concepts in the forefront of my brain -- the view of the Ninth Circuit here is something that in which you'll be interested.

P.S. - I like the way the Ninth Circuit has tweaked the new web site, particularly that the opinions now directly pop up rather than are initially viewed in a small window. Keep up the good work.

In Re Grunau (Cal. Ct. App. - Dec. 30, 2008)

There are good appellate lawyers, there are great appellate lawyers, and there are bad appellate lawyers.

You can't get much worse than this.

Monday, January 12, 2009

Espinoza v. Calva (Cal. Ct. App. - Jan. 7, 2009)

This is what passes for justice in Orange County?!

It's a short opinion, so feel free to read the whole thing. That a judge would think that this was okay more than a little bit surprises me. I mean, come on.

Riverside County Sheriff's Dep't v. Zigman (Cal. Ct. App. - Dec. 23, 2008)

You're a cop. So's your spouse. He's been extremely irritable lately, so you ask him what's up. He says he's been using meth. Plus stealing it from suspects and others at work.

What do you do?

Wholly beyond the resulting ethical issue, there's also a legal one. Not surprisingly, your employer requires you to disclose when you know that a cop's stealing drugs. But it's your spouse, and the only way you know is through a privileged marital communication. Can they disclipline you for keeping quiet? (They found out, by the way, when your husband -- who had allegedly promised to stop -- was caught stealing more meth in a sting operation.)

Justice Ramirez -- in one of the rare published opinions of the Fourth/Two -- holds that you can properly be discliplined, and that the marital privilege doesn't apply in such administrative proceedings. And I think that's right.

On a non-legal front, what do you think the right penalty is for a spouse who fails to disclose this stuff. Termination from the force? Suspension for a month? Demotion? A week without pay? Counseling only?

The penalty imposed here, FWIW, was the loss of pay for a day.

Gonzalez v. Duncan (9th Cir. - Dec. 30, 2008)

Judge Bybee is a scholar. And even if you didn't know that before, you can tell it from this opinion. Which is written precisely how you'd expect a former law professor to write (at least on this topic).

Personally, I like it. It's a comprehensive, structured, coherent, and (in my mind) persuasive analysis of the issue. Plus, I agree with the equities. A sentence of 28 to life merely for failing to re-register within 5 days of one of your birthdays is simply too much. As a matter of both fairness as well as the Eighth Amendment.

Of course, maybe that's just one professorial kettle calling a professorial pot good-looking. But I'm on board for that.

In Re Noelle M. (Cal. Ct. App. - Dec. 16, 2008)

Don't steal your grandmother's methadone pills (!) and sell them to your friends at a high school football game.
People could -- indeed, did -- die.

A seemingly obvious message. And yet one that apparently bears repeating.

Friday, January 09, 2009

U.S. v. Kaczynski (9th Cir. - Jan. 9, 2008)

Let's start out by admitting that you're not the most sympathetic party in the universe when you're the Unabomber. Let's double that when, arrayed on the other side, are the victims of your crimes. I think we can all agree that, emotionally, you've got a pretty steep hill to climb -- regardless of the potential merits of your arguments -- in convincing the Ninth Circuit that you deserve relief.

Let me also add that you don't do yourself any favors, Ted, by representing yourself. You had a dude who was apparently representing you. I'd have stuck with that. Wholly beyond the fact that s/he'll probably make better arguments that you did on the merits, you need to remember the "creepy" factor that results when a clerk reads work authored by the Unabomber. I mean, I know you like to write and all (witness your 30,000 word manifesto), and I also know that you have plenty of time in SuperMax to devote to the appeal, but trust me, in the future, stick with counsel if you can get one.

This is the final installment of what to do with the stuff that the U.S. seized when it arrested Kaczynski. And the answer is: We're putting it on the internet for sale. Ted doesn't like that, but tough. There's a restitution order out there, and this is a reasonable way to give them some of the money (and/or to let 'em use a credit bid to make sure your stuff is destroyed). Sorry you don't like that, but maybe that's one more thing you could have thought of before you decided to blow people up.

Unlike the lack of sympathy shown to Ted, not only does the Ninth Circuit go out of its way to be extremely respectful to the position of the unnamed victims, but it's also positively effusive in its expression of appreciation for the pro bono counsel who were appointed to represent them. Not only does the court go out of its way to thank these counsel (Steven Hirsch and Kelly Woodruff)in the text and identify them by name -- both of which are rare -- but the court also expresses this appreciation both repeatedly and strongly, opening with "The court is extremely grateful for the extraordinary efforts of pro bono counsel . . . ." Extremely! Extraordinary! You don't see that kind of praise from the Ninth Circuit often, and lemme tell you, for a shot at those types of kind words immortalized forever, I bet a lot of attorneys would be more than willing to take on pro bono assignments from the Ninth Circuit in the future. So good job to both Judge Hawkins (who gave the kudos) and Steve and Kelly (who earned them).

Thursday, January 08, 2009

Prospect Medical Group v. Northridge Emergency Medical Group (Cal. Supreme Ct. - Jan. 8, 2009)

I won't say much about this opinion except to say that (1) it's important to anyone who's in an HMO in California, and (2) it's unanimous, which I think tells you a little bit about the merits. Justice Chin holds that even if the HMO doesn't have an agreement with an emergency room physician, the physician can't bill the patient ("balance bill") for any amount charged by the doctor that the HMO decides it won't pay. The HMO and doctor instead have to work out the dispute solely between themselves.

It makes HMOs more attractive (or at least less unattractive) to prospective subscribers. And protects patients. So not surprising that the case turns out the way it does.

Brewer v. Premier Golf Properties (Cal. Ct. App. - Dec. 3, 2008)

Here's an appeal that I couldn't have adjudicated. Since I (a) played golf at this course (several times), (b) had the plaintiff as my waitress (ditto), (c) am sure I tipped her as part of the "generous" afternoon, as opposed to cheap morning, crowd (ditto), and (d) am probably -- sadly -- part of the "old" golfer crowd that the manager of the facility allegedly wanted to get rid of in favor of "young high-rollers" (definitely not me).

Plus, I can tell you with some confidence that I cared not a whit about whether there were lots of "tits and ass" around the snack bar or restaurant after 18 holes. All I wanted was water. And, on rare occasion, a cold beer.

Anyway, it's the story of a 60+ waitress at a golf club. Plus a doctrinal inquiry into whether certain statutory penalties are exclusive; e.g., whether they bar punitive damages claims. (Answer: Yes.)

Visit this world -- appropriately enough -- at your leisure.

Wednesday, January 07, 2009

People v. Crabtree (Cal. Ct. App. - Jan. 9, 2008)

Arthur Crabtree's a respectable citizen. He's a lawyer. He's a former police officer. He even serves as a pro tem judge up in Glendale. The kind of guy you want to have on your block, right?

Except for the fact that he also stalks and molests children.

When you read the (very lengthy) facts contained in Justice Cooper's opinion, you may well have the following reactions: (1) Crabtree's really creepy (as well as pathetic); (2) I'm not excited at all about any teenage child of mine being on the internet unsupervised, for fear they'll run into the Crabtree's of the world; and (3) there are really a ton of police officers pretending to be teenage children in the various pedophile chat groups. I mean, a ton.

One final thing. Crabtree's the only lawyer I've ever seen who, even though he's not eligible to practice law, has dutifully kept the State Bar apprised of his current address; namely, his address in prison. Too funny.

In Re Jaheim B. (Cal. Ct. App. - Jan. 7, 2009)

Some family law cases are tough. Others, not so much.

In some ways, I appreciate the mother's honesty here. The father's in prison in Alabama and not scheduled for release until 2028. The state picks up the child when the mother, Bridgette, drops him off (unattended) in a parking lot 100 yards from a relative's house, a witness sees Jaheim running after Bridgette screaming "Mommy, mommy," and Bridgette gets into a car and drives away. Bridgette says she just can't handle the child anymore, which you already got a sense of from the mere fact that she drives away after leaving her child alone wailing for her in a parking lot. Plus, she admits that she's homeless and without a job, but is "making money in other ways," and doesn't want Jaheim alongside her when she's so occupied. And I can read between the lines as to what that means.

Bridgette is also depressed and occasionally suicidal. And she also elects not to attend the overwhelming majority of opportunities to visit or spend time with her child after he's picked up by the state, plus she says she wants to go back to Florida without him.

Which, in my mind, is icing on the cake. Judge Campos (down here in San Diego) takes the kid away from the parents, and while there's a very brief jurisdictional fight (whether California's the right place for adjudication vs. Florida), Justice McConnell doesn't take long to rightly hold that California's an entirely appropriate forum to solve this problem. Affirmed.

Tuesday, January 06, 2009

Metro Lights v. City of Los Angeles (9th Cir. - Jan. 6, 2009)

Larry! My man! Welcome back!

I learned a massive amount from Larry Tribe, my former boss and professor. I can't say enough about him, both professionally as well as personally. I shan't regale you with stories from my youth, but suffice it to say that Professor Tribe is a gem. On all fronts.

One of the things that I learned from Larry is the ability of an academic to be actively tied to the real world, particularly in the appellate context. Larry always did a fair number of appellate cases, both in the Supreme Court as well as in other appellate courts, and while I was in law school I was fortunate enough to be able to work with him on quite a few. My goal was to eventually be half as smart and hardworking as he was (and is), and I'm proud to say that I'm almost a tenth of the way there.

But even though Professor Tribe is an incredibly active appellate advocate, it's been over a half decade since he's graced either the Ninth Circuit or California Supreme Court/Court of Appeal. So my heart skipped a beat -- and happily so -- when I saw his name as counsel in this opinion. And the fact that the lower court's ruling in the case was issued by my former boss and colleague (and now district court judge) Gary Feess only made my heartstrings tug that much harder.

It's a First Amendment case, which is a topic (amongst many) right in Larry's wheelhouse. And there's a fair amount at stake, which helps pay his fee. The issue is whether Los Angeles can constitutionally ban nearly all offsite commercial advertising while simultaneously allowing (and auctioning off for itself) a massive amount of offsite commercial advertising on its own bus stops and benches. It's a great case, and while Larry ends up losing -- with the Court reversing the district court and holding that such a regime is perfectly fine -- it's a darn good fight, and I think that the plaintiffs have a pretty good argument here.

I doubt that Larry was especially happy once he saw the panel he drew, which consisted of Judges Thompson, O'Scannlain and Tallman. There are lots of upsides of being a famous advocate, but one of the many downsides is that while you're famous and loved for your positions by some judges, you're famous and far-from-loved for your positions by others. Those in the latter category may also feel a little more inclined to take free shots at you in the opinion than they would less renowned (and perhaps thick-skinned) advocates. Hence, to give one example, the following line about Professor Tribe from Judge O'Scannlain's opinion:

"Not to be deterred, Metro Lights drew our attention to additional precedents at oral argument in support of a further variation on this allegation of unconstitutional favoritism. Upping the rhetorical ante, Metro Lights accused the City of “auction[ ing] off First Amendment rights” to the highest bidder, in this case CBS. This is strong, if rather sloganeering, language, but after reviewing the case law on which Metro Lights relies, we believe it to be little more than a canard."

Regardless of who's right or wrong, it's a neat case. And it's great to see Larry back in the Ninth.

P.S. - Nice new web site, Ninth Circuit. Fancy! (Though, I'll add, incredibly slow, at least thus far.)

In Re Singler (Cal. Ct. App. - Jan. 6, 2009)

"On February 1, 2007, Singler’s petition for writ of habeas corpus was summarily denied by this court. . . . On April 25, 2007, the California Supreme Court granted Singler’s petition for review and transferred the matter to this court, with directions to vacate our denial of the petition and to order the Board to show cause why it “did not abuse its discretion and violate due process in finding petitioner unsuitable for parole in June 2006, and why petitioner remains a danger to public safety." . . . On March 26, 2008 . . . we held [the] decision finding Singler unsuitable for parole was not supported by the evidence presented at the time of the hearing. . . . On October 28, 2008, the Supreme Court transferred this matter to us with directions to vacate our decision and to reconsider the case in light of [two cases]. We have done so and . . . ."

Third time's a charm?

Monday, January 05, 2009

People v. Doolin (Cal. Supreme Ct. - Jan. 5, 2009)

The majority (led by Justice Corrigan) and dissent (authored by Justice Kennard) disagree on whether there's constitutional or prejudicial error. But I should hope that we would all agree that a system (here, the County of Fresno's) that tells a criminal defense lawyer "You'll be paid a flat $80,000 to do a death penalty case, and that rate includes all expenses (e.g., for investigation and experts)" creates an unacceptably high risk that counsel might skimp on experts and investigation since, after all, that money essentially comes out of his or her own pocket.

Someone's life is at stake. Can we please, at a minimum, devise a system that doesn't create obvious incentive problems? That doesn't seem too much to ask.

P.S. - It also doesn't seem to much to ask, BTW, to not kill two prostitutes and attempt to kill at least four others. And if you find that too much for you, don't be surprised that you're both sentenced to death and that the California Supreme Court decides to affirm.

In Re Complaint of Judicial Misconduct (9th Cir. - Jan. 3, 2009)

The Ninth Circuit judicial misconduct process under Chief Judge Kozinski is going to be hard core transparent. So, for example, we're going to publish our resolution of even frivolous complaints from crackpots.

Plus we'll make it clear that we're not going to listen to you anymore. Which seems totally fine to me.

Friday, January 02, 2009

The Thermo Company v. Luther (Cal. Ct. App. - Dec. 17, 2008)

I wish I could give you some insight into the exciting opinions published by the Ninth Circuit and California appellate courts during 2009. But no such luck. None yet.

Nonetheless, that doesn't stop us from learing. For example, many people think there are too many "fundamental rights," including those allegedly invented by the judiciary. Those disputed fundamental rights typically involve civil liberties; e.g., rights to procreate, raise children, privacy, etc.

Here's a "fundamental right" that I didn't previously know about: the "fundamental right" to avoid having to cap an abandoned oil well even if it's been idle for a decade and is arguably an environmental and safety hazard.

I wonder if many people who think that the former group entail fundamental rights agree that the latter are equally protected. Or vice-versa.

Happy 2009!