Friday, May 29, 2009

People v. McL***** (Cal. Ct. App. - May 29, 2009)

Here's a case that, in my view, is clearly and unambiguously correct. Both as to the law as well as to the equities.

Defendant -- I'll keep his name out, for reasons I'll explain later (though you can get it right from the caption) -- gets convicted of a drug offense back in the early 1990s and is sentenced to probation. While on probation, back in 1995, one of his drug tests comes back dirty. It happens. This is defendant's first criminal offense, it's his first dirty test, and he doesn't have another. He completes a drug treatment program and becomes clean and sober, and stays so for the next 14+ years. He's now married, has four children, is a professional architect, and is extremely active in his community. (The opinion doesn't say how, but I'll give you some snippets: He's president of his city's downtown business organization, he works a ton with children, and he's even a little league umpire; indeed, he's umpiring at the 2009 Jr. Softball Little League World Series.)

In short, he's now a regular, productive member of society; indeed, perhaps even substantially above average in that regard.

The problem, of course, is that he's got this almost two-decade old drug conviction. Which the Court of Appeal explains he wants to get expunged "so he can participate in professional organizations, serve in certain elected positions, and be approved as a registered permanent volunteer at a high school." And Section 1203.4 of the Penal Code allows precisely that, and authorizes expungement for any person sentenced to probation if "(a) he has fulfilled the conditions of his probation for the entire period; (b) he has been discharged before the termination of the period of probation; or (c) in any case in which a court, in its discretion and the interests of justice, determines he should be granted relief."

The one dirty drug test means that paragraphs (a) and (b) don't apply. But surely (c) does, right? If any case warrants expungement under (c), surely this is one of 'em, correct? Relief that's especially warranted once you realize that expungement under (a) and (b) is mandatory; in other words, that as long as you complete your probation, you get relief under Section 1203.4 even if you're a useless scumbag. Surely someone who's not should receive at least as much, no?

The trial court -- and the Attorney General's Office -- thinks not. They say that the only thing that matters to the "interests of justice" is your conduct during that brief period while you were on probation. So your decade of clean and good living is worth squat in deciding whether you deserve an expungement.

Poppycock. As Justice Willhite cogently explains. In an opinion that honestly made me think: What was the AG's Office doing even defending this one? (Maybe the personnell crisis is worse than I thought.)

The only other thing I'll add is that while I completely agree with Justice Willhite's decision to publish this opinion, I wonder if it might be appropriate -- in light of this publication -- to refer to the defendant by his initials. We live, after all, in the Age of Google. There seems potentially very little point in letting a person move to expunge his conviction when you're simultaneously publishing an opinion with his name on it that's going to far more readily accessible to the public than his actual conviction.

So if I were counsel for McL*****, I'd ask the Court of Appeal to edit the published opinion to refer to my client by his initials (or at least abbreviate his last name). And if I were the Court of Appeal, I'd both grant such a motion as well as make such an amendment sua sponte. Especially since the relevant name here is far from common.

Which, parenthetically, is why I don't include the name on this post either. Seems to me that McL***** deserves the expungement. No reason to keep him forever on google on my account.

In Re Silver State Helicopters LLC (9th Cir. - May 28, 2009)

Doesn't everyone wish they had a job when, on occasion, you could say to someone: "Dude. I'm important. You may think you're question's important. But it's not. So stop bothering me."

That's another occasional benefit of being on the Ninth Circuit.

Thursday, May 28, 2009

People v. Gutierrez (Cal. Ct. App. - May 28, 2009)

As the (fictional) judge said to Matt Damon in Good Will Hunting: "You hit a cop. You go in."

Admittedly, Matt Damon didn't go in for long; instead, he got the deal that led to the story. But in the real world, it's a different story. Sure, in this case, it's a correctional officer rather than a police officer that gets hit. Plus, the defendant was already "in" when he threw the punch, so surely he's not going to get a Damon-like deal. No surprise there.

But what happens in California is that when you hit a cop -- or a correctional officer -- you do indeed go in. And when, as here, you're already in due to a couple of strikes, guess how much time that punch gets you? Yep. 25 to life.

And, I hate to tell ya, your living companions during those decades are far less attractive than Minnie Driver.

California Attorneys v. Schwarzenegger (Cal. Ct. App. - May 28, 2009)

I assume that the plaintiffs in this case are right, and that deputy attorneys general in California are significantly underpaid compared to other public service attorneys in California. But I am at the same time completely certain that Justice Raye is also correct that the Legislature, rather than the judiciary, is the proper place in which to seek relief for this unfortunate circumstance.

I'll might also add that I'm not especially persuaded by the statements of doom and gloom for the quality of the counsel employed in the California Attorney General's office. My experience has been that those attorneys are generally pretty darn good. And I am quite confident that the compensation for those levels has not resulted -- contrary to plaintiffs' testimony -- in the AG's Office becoming "the employer of last resort" filled by people unable to find any job elsewhere. Indeed, I think there are tons of lawyers who would much prefer the California AG's office over the jobs they have, particularly young attorneys, but who are passed over. This is especially the case for recent law school graduates, who the AG's office largely categorically refuses to hire.

One (admittedly partial) solution to the crisis that Attorney General Brown identifies might be for the AG's office to revisit this detrimental policy. It's true that it's hard to hire people when you only hire people who are currently employed at jobs that make $X a year -- and often have living and mortgage obligations accordingly -- when your offer is to pay them $X/2. It's easier to hire people, by contrast, who may have the ability to make $X but who nonetheless may be persuaded to prefer a more fulfilling life in the Attorney General's Office, as those hypothetical earnings are much easier to set aside than current earnings.

So if you're willing to train from the inside, rather than making other employers do it for you, at the outset, at least some of this problem might be avoided. In any event, I'm sure that this is a problem to be solved outside the judicial system. I don't minimize the difficulties; again, I'm not pleased that many of the attorneys in this area are paid much less than either they're worth or that's received by comparable attorneys elesewhere. But I do think that the problem is both a wee bit overstated as well as potentially amenable to a solution in other fora.

Wednesday, May 27, 2009

Jazayeri v. Mao (Cal. Ct. App. - May 27, 2009)

Dead chickens. Hearsay. Authentication. Fraud. Admissibility disputes. And a judge (Judge Gutman, up in LA) who's apparently an evidentiary stickler, and wrongly so.

This case has got 'em all.

Yamaha Motor Co. v. Superior Court (Cal. Ct. App. - May 26, 2009)

I'm definitely going to talk about this one.

First, on a pedantic level, I must say it's a bit frustrating to have an opinion (like this one) dated as published yesterday but put on the court's web site only today. Not a biggie, but still.

Second, this is yet another opinion with some great conversational lingo. This time by Justice Sills. Plus, as an added bonus, a forthright admission that the Court of Appeal isn't initially omnicient. Here's how the opinion begins:

"This court issued an OSC in response to this petition for writ of mandate because it presents an issue of some public importance that has not yet been squarely faced by a California state court, in a published opinion, in this particular context: The question of whether a Japanese manufacturer can be served under California law simply by serving the Japanese manufacturer's American subsidiary. The trial court ruled that a Japanese manufacturer could indeed be validly served that way. The method just seemed too easy a way to get around the Hague Service Convention and we scheduled an OSC on the petition to give us the chance to study the issue. On review, however, it turns out that, yes, it really is that easy."

That's a sweet opening. On many different levels. I wholeheartedly approve.

Third, I also like how Justice Sills critiques a California Supreme Court case (here, Cosper v. Smith & Wesson) that he finds unpersuasive and suggests that it might be just fine for the California Supreme Court to take the issue up. Mind you, I think there are much, much better cases than this one to serve as potential vehicles for overruling (or at least limiting) Cosper -- given the relationship between the parent and subsidiary here, I can readily imagine a better case (perhaps something akin to the facts of Cosper itself) to highlight the potential errors of existing precedent. Still, it adds value for the Court of Appeal to suggest that, in an appropriate case, it might be time to reexamine the existing law. So I'm again totally on board.

The only thing I disagree with on this one concerns something entirely parochial. Justice Sills goes off on an (admittedly funny) tangent in the middle of the opinion when he says "the bulk of the Cosper decision is devoted to the due process minimum contacts problem on which first year civil procedure professors usually spend too much time." Ouch! I gotta take that one personally, and -- of course -- at least briefly respond; first, by noting that I don't believe that any civil procedure professor in the nation assigns Cosper to the students, and second that I think we spend exactly the right about of time on minimum contacts, especially if (as in my class) it's the very first topic the students learn on a very much non-intuitive (for them) topic. I may have to invite Justice Sills down to teach my students minimum contacts next year. Trust me: It ain't easy.

That said -- and, again, I loved even the slam -- this is a great one. And not even that long (and tops out at less than a dozen pages). After yesterday's gay marriage opinion, that's a luxury we can all enjoy.

Tuesday, May 26, 2009

People v. Hairston (Cal. Ct. App. - May 26, 2009)

A car pulls into the parking lot of your apartment complex with rap music blaring, and with the driver rapping and singing along. Three people exit the car. Do you really think it's a good idea, in such a context, to tell your friend -- out loud and within the hearing range of these people -- that the driver's singing sounded like a song that Elmo (from Sesame Street) had rapped? Will this really be the start of something good?! Especially when, in response to the driver's "question" as to whether you're trying to be funny, you make a point of calling him "boy"? Not good. Not good at all.

It actually sounds like the victim in this case was somewhat of the aggressor. That said, when the defendant and his friends (after substantial additional confrontation) got back into their car, and the victim leaned into the window of this vehicle, at which point the defendant produced a gun, I agree that this upped the ante, and that the roles were suddenly reversed.

I have very little relevant personal experience on this point, but even my limited knowledge of the mean streets inclines me to agree with Justice Nicholoson's conclusion that defendant was indeed guilty of making a criminal threat. Sure, the only thing defendant said at the relevant time was: "Is there a problem?," and in a wide variety of other contexts, I'm sure that wouldn't be a threat. But when you add "bitch" to the end of that sentence -- turning the statement into "Is there a fucking problem, bitch?" -- and when you repeat it by saying "Is there a fucking problem, bitch?", I think we know what you're saying. Especially if, when you're saying it, you and your two friends are holding and displaying handguns. I get the message. It's a threat.

Knappenberger v. City of Phoenix (9th Cir. - May 26, 2009)

I'm in the midst of reading the California's 170-plus page opinion in the gay marriage cases. Which was not so easy to even obtain given the crush on the court's server. I'll all say for now (and perhaps for a while) is that I have never seen Chief Justice George rely so heavily on italics. It's like a first draft of some of my briefs, before I go back and delete the emphases.

That said, he's most heavy on italics only in the first dozen or so pages, which seem to be written for the public and the press rather than for a purely legal audience. On the theory -- rightly so, I'm sure -- that only the truly dedicated will read all 100+ pages, and that everyone else could totally use a lot of emphasis on the important points of this very careful opinion.

Meanwhile, the Ninth Circuit wants us to learn a very simple lesson. Which is that a tough choice isn't an involuntary choice.

Seems clearly true. Both in life as well as in the law.

Friday, May 22, 2009

People v. Chaffin (Cal. Ct. App. - May 14, 2009)

I'ts a snoozer of a Friday as we head into the Memorial Day weekend. Nothing special in the Ninth Circuit or in the California Court of Appeal today, which mostly concerned themselves with making tiny amendments to previous decisions.

So I thought I'd just float this one out for your consideration:

Mike gets into a verbal altercation with his baby mama that escalates into a physical confrontation after she slaps him. The Bama Mama gets into her car -- in which she's strapped Baby in his car seat -- and starts down the driveway, Mike throws some golf-ball sized rocks at the car and BM. A rock shatters the rear window and two rocks enter the car, and some glass shards end up in Baby's hair.

Mike's clearly guilty of domestic battery and vandalism. Is he also guilty of felony child endangerment? That offense requires proof that Mike engaged in acts "under circumstances or conditions likely to produce great bodily harm or death" to a child. Is throwing golfball-sized rocks under the circumstances described above an act that was "likely" to produce great bodily harm or death to Baby?

What do you think? And do you agree with Justice Gaut (and the rest of the panel) here?

Enjoy the long three-day weekend,all. Stay thirsty.

Thursday, May 21, 2009

In Re Estate of Beckel (Cal. Ct. App. - May 21, 2009)

Here's a good question for the California Bar Exam. One which, I might add, the lower court got wrong. It's a Trusts & Estates question -- a class I never took (anywhere) -- but I nonetheless was able to intuit the answer. See if you can do the same. (Or at least learn the answer now.)

Decedent dies intestate in California. Decedent has no living parents, siblings, etc., but does have some living first cousins. So the first cousins definitely get a share (indeed, equal shares) of the estate.

What about the dead first cousins? Obviously they don't get any of the estate. But what about their issue? In particular, what about the living children of the deceased first cousins -- i.e., first cousins once removed? Do they get a share?

So say you have three living first cousins, and one dead first cousin who had two children who are still alive. Do your three first cousins each get one-third of the estate, or do they each get one-fourth, with the two living first cousins once removed children getting one-eighth each (i.e., collectively, the share of their parent)?

Let's make it even more complicated. What about living grandchildren -- or even great-grandchildren -- of a first cousin; e.g., first cousins twice- or thrice-removed? Do they get a share?

These questions underlie our ultimate hypothetical. Which is this:

Decedent dies. She had four first cousins, only one of whom (FC #1) survived Decedent. The second first cousin (FC #2) had two children, only one of whom survived Decedent. The third first cousin (FC #3) had three children, none of whom survived Decedent, but two of those children of FC #3 each had two children of their own (FC #3's grandchildren) who survived Decedent. Finally, to make things easy, FC #4 had no surviving children or grandchildren, but had one surviving great-grandchild.

What share (if any) does each of the survivors get? Do only the most closely-related family members (i.e., the surviving first cousins) get a share? Do only the surviving first cousins and surviving children of first cousins get a share, with the rest cut off? Does everyone alive get a share, regardless of how removed they are? Does the degree of removal affect the amount of the share; e.g., the thrice-removed people getting one-fourth of the share of the first-removed people?

Draw a chart. Who gets what in our hypothetical? You have ten minutes.

Okay, okay. I hear ya. You aren't in law school anymore. The Socratic method -- and exams in general -- are dead to you. You just want the answer. Here it is:

Each survivor shares equally the share of their respective first cousin heir, living or dead. So surviving FC #1 gets 25% of the estate, the surviving child of FC #2 gets 25% of the estate, the four surviving grandchildren of FC #3 each get 6.25% of the estate, and the surviving great-grandchild of FC #4 gets 25% of the estate.

The trial court, by the way, thought that only the FCs and children of FCs got to share. But Justice Levy says: "Wrong. I'll give you a B- for effort, but the correct answer is as described above."

People v. Cadogan (Cal. Ct. App. - May 20, 2009)

So I'm reading this case, and my eyes flitter to the line that contains the name of counsel for the defendant. I notice that it's another case where the appellate counsel is appointed by the court -- nothing unusual there -- and I read the name: Marcia R. Clark.

Wait a minute. You mean that Marcia R. Clark? (Who looks like this now, not this.) Yep, the one and only. No longer prosecuting O.J., or writing books, but instead doing court-appointed appellate work.

So that's a big lifestyle change, eh? Which obviously is what it is. But what I further thought was: How long has she been doing it, and how good is she? Since obviously prosecuting high-profile cases at trial is quite a piece different than doing appointed appellate work.

So I checked it out. This is only her third case in which she's had a published opinion, but she's had a ton of unpublished decisions. Her first appellate case (to which, again, she was appointed, as she was in most of 'em) was back in 2006. So she's been doing this for roughly three years. And, in that time, she's had 52 cases in the Court of Appeal.

So that answers the first question. She's apparently doing this a lot, and had been doing so for a while. What about the second question? What's her track record?

She's won three cases, in whole or in part, in which the Attorney General has admitted that the defendant was entitled to relief. So at least she can win when the other side rolls over. She's also obtained minor relief in five of the cases; i.e., getting one of four counts dismissed, getting an enhancement dismissed and so cutting a year off her client's 28-year sentence, etec. Today's case is one of those: Like the others, she largely loses, but she's at least able to win on a particular issue that cuts off 3 years from her client's 37-year sentence. So that's the result in five cases; which, parenthetically, is smaller than the number of cases in which she filed a Wende brief (basically, "Here are the facts: I don't see anything even arguable, but you decide") and lost.

So what about the rest of the cases? Of the 52 cases in the Court of Appeal, how many wins?


Back in 2007, she got a reversal in a case where a guy had his car towed from Scripps Clinic down here in San Diego, went into the reception area to figure out what happened ("Dude, where's my car?), got pissed off, and ended up throwing a glass flowerpot near the receptionist. Remanded for a new trial on the ground the court should have given a lesser-included offense instruction.

So if you've got a flowerpot case, Marcia Clark's apparently the attorney of choice. Bloody glove? Not so much.

So welcome back, Marcia. I probably should have noticed your name in one of the other couple of cases, but missed it. Regardless: Glad to see you're in the California Court of Appeal in addition to on E.T. Less glamor and fun, but at least the possibility -- however theoretical -- of victory.

Wednesday, May 20, 2009

U.S. v. Heron-Salinas (9th Cir. - May 20, 2009)

It's a big San Diego Day today. Only two published opinions total from the Ninth Circuit and California Court of Appeal thus far, both of which come from America's Finest City. A locale, I might add, at which it's currently sunny and 73 degrees. Per se usual.

I wish I could say the decisions today were fascinating. But I shan't lie. Here's the one from the Ninth Circuit: Is assault with a firearm a "crime of violence"? Duh. Of course it is.

We'll see what the afternoon brings. If there's nothing special, perhaps catching a couple of waves should be in the cards.

Ah, being an San Diego academic post-exams. Life is good.

Tuesday, May 19, 2009

U.S. v. Maness (9th Cir. - May 19, 2009)

You reside -- and are hanging out -- in Wasilla, Alaska. There are less than 6000 of you in the town. It's June 2001, so your mayor is Sarah Palin: someone as yet largely unknown to the rest of the universe. Perhaps you voted for her, perhaps you didn't. There's just one thing for certain: You're nutty. So nutty, in fact, that your wife rats out out, and Alaska state troopers come to your house to involuntarily commit you to a psychiatric institution.

But this is Alaska, for Christ's sake. Wasilla, Alaska at that. You're having none of it. So you flee from the troopers and, when they eventually catch up with you, point a handgun at one of the officers, who promptly wings you in the shoulder. Could be a lot worse.

But you're facing, inter alia, a federal charge of illegally possessing firearms, including a MAK-90. Even Alaska ain't the home of the entirely free in that regard. You're then sentenced to ten years, and you appeal, getting a limited sentencing remand.

At which point you want to represent yourself. 'Cause you've done so wonderfully in your regular life on your own. The district court says: Nope. And the Ninth Circuit affirms.

Just another day in Wasilla.

People v. Burgener (Cal. Supreme Ct. - May 7, 2009)

Tell me it makes sense to keep pushing this one.

This is already the third time the case has been back up to the California Supreme Court, not to mention the time in the California Court of Appeal. Justice Baxters says this appeal "may not be the last," but I can add to that: It definitely won't be the last.

It's a death penalty case. The conviction was almost three decades ago, back in 1981. The California Supreme Court has reversed and remanded twice previously, and this time makes Number Three (unanimously). Which will only give yet another appeal to the California Supreme Court after the present remand has concluded. If not multiple appeals, depending on what transpires below.

None of this even mentions the state habeas petitions, the federal habeas petition(s), and all the other stuff that you totally know will come in the future with any reimposed death sentence.

I'm telling you this right now: Michael Burgener will die in prison, but it won't be from an antiseptic needle in the arm. At this point, it'll be 40+ years after the conviction before there'd actually be an execution. And the justice of such a penalty -- though understandable in all its individual components -- seems far from clear.

Burgener shot and killed a 7-11 clerk an emptied the cash register of $50. He's not a nice man. He deserves to live the remainder of his life behind bars, and that's what will happen. Why -- at this point -- we're spending the millions and millions of dollars I'm sure is being spent to keep this one going is beyond me.

I know the counterarguments. They're not frivolous. I appreciate them. I truly do. But this one, in my view, you let go.

Throw away the key, declare victory, and be done with it.

Monday, May 18, 2009

Manhattan Loft LLC v. Mercury Liquors, Inc. (Cal. Ct. App. - May 18, 2009)

Sometimes cooling off makes a difference.

Take, for example, today's modification. Just reading it, you wouldn't think it was anything special, much less worth noting. It just changed a couple of minor lines of an opinion by Justice Ashmann-Gerst, after all. Like this change: "The paragraph commencing at the bottom of page 12, second full sentence, line 3, beginning 'However, in so arguing' and ending at the top of page 13 with '(a) of that statute' is modified to read as follow: However, that argument overlooks the definition of "‘provisional remedy,’" as set forth in subdivision (a) of that statute." (Sure, a snarky perfectionist might note the grammatical flaw of using the word "follow" rather than "follows," but put that to one side.)

Compare the original opinion, however, to see what the changes actually entail. They essentially delete some pretty serious -- harsh -- slams on the attorneys at Bingham McCutchen. For example, Justice Ashmann-Gerst changes "Respondents attempt to avoid this result through certain misrepresentations in their appellate brief" by deleting the "mis" and changing it to "representations". And also changes the quick -- and, in context, harsh -- rejoinder "Not true" in the original to "Not entirely true." The final change is of similar effect. All of 'em serve solely to tone down the slam on respondent's counsel.

So a good start of the week for Bruce Friedman, Roland Tellis, and Heather Ristau. They still lose, of course. But at least they have a lot fewer black marks in the eternal pages of the California Reporter.

Friday, May 15, 2009

Mazda Motors v. M/V Cougar Ace (9th Cir. - May 8, 2009)

This is how Judge Fisher begins this opinion: "This in rem admiralty action requires us to decide whether the defendant ocean vessel may invoke a forum selection clause in the bills of lading governing ocean carriage on that vessel."

Oooh! Sexy!

You had me at "in rem admiralty," Ray. And I went totally over the top once I saw "forum selection clause" and "bill of lading." Baby!

What's the age-old technique of the "Himalaya Clause," you might ask? You wish. I'll take the secret with me to my grave.

It's my job to read every single published Ninth Circuit case. Sometimes, I read 'em so you don't have to. Like here.

Thursday, May 14, 2009

Balzaga v. Fox News Network (Cal. Ct. App. - May 14, 2009)

On the one side we have the plaintiffs, who are several immigrant day laborers. On the other side we have the defendant, the Fox News Network. Lots of people are going to make up their mind right there -- without any of the facts at all -- about who should win.

Let me nonetheless describe the case for you. No, wait, I've got a better idea. I'll let Justice Aaron do it. Here are the first three paragraphs of her dissent, which encapsulate quite well both the facts of the case as well as the issues upon which the members of the panel disagree:

"MANHUNT AT THE BORDER" is blazoned across the bottom of the television screen. A "Wanted" poster displaying photographs of plaintiffs is shown. The caption on the poster says: "Wanted [—] Robbery, Assault and Battery." In introducing the segment, Alan Colmes, one of the two anchors of the telecast, states, "The San Diego Police are investigating an attack on an anti-illegal immigration advocate [John Monti] near a migrant's encampment close to the San Diego/Mexico border."

In spite of these facts, the majority reaches the remarkable conclusion that no reasonable person viewing this telecast would have concluded that plaintiffs were the subjects of a manhunt being conducted by law enforcement officers. Further, notwithstanding the absence of any other express or implied reference to a manhunt throughout the remainder of the telecast, the majority concludes, "[T]he only reasonable conclusion is that the caption ['MANHUNT AT THE BORDER'] refers to Monti's own search for plaintiffs and his belief that they should be charged with an assault crime."

The majority's conclusion is based on the notion that any reasonable viewer of the telecast would interpret the word "manhunt" in a manner that is inconsistent with any known definition of the term, and inconsonant with the context in which the term is used in the telecast. Because I cannot agree with the majority's reasoning or its conclusions, I dissent.

P.S. - The facts of the case are also pretty interesting, and leave one with a pretty lingering question as to how nutty (if at all) this guy Monti is -- or whether he's instead a guy who's repeatedly gotten the very short end of the stick.

P.P.S. - Can I also just say that I had to smile when I saw that one of Fox New's primary defenses was that the stuff it says in its news show is "merely hyperbole". Let me just put those various words together again. Fox News Network. Hyperbole. News. Hyperbole. Fox.

United States v. Iribe (9th Cir. - May 6, 2009)

Especially for those of us down here in San Diego: Next time your friend asks you to have a fun time with 'em down in TJ, make sure they're really a friend.

Wednesday, May 13, 2009

Doody v. Schiro (9th Cir. - May 12, 2009)

This is what I said.

See why?

Not looking good for him.

Catz v. Chalker (9th Cir. - May 13, 2009)

Here's a nice little opinion. Short. Clear. Good.

Admittedly, it's about a totally hypertechnical procedural matter: Whether a Rule 60(a) motion filed within 10 days of the judgment tolls the time for filing an appeal. A question, I might add, which has a simple answer, which you can fairly rapidly discern from FRAP 4, which says: "If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the ime to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion. . . . for relief under Rule 60 if the motion is filed no later than 10 days after the judgment is entered." Pretty explicit, huh?

So the panel just follows the express language of the rule. Which, parenthetically, is what every other court to address the issue has done as well.

Still, the panel adds some additional -- nice -- touches that make the proper outcome even clearer. It's a nice opinion that reaches an obviously correct result.

Tuesday, May 12, 2009

People v. Zambia (Cal. Ct. App. - May 12, 2009)

I agree with Justice Kriegler that Jomo Zambia is guilty of pandering. It seems like a pretty broad statute, and the evidence shows that he was indeed trying to become Officer Cruz's pimp.

Let me ask a somewhat related question. Imagine I make the following statement to my readers: "Being a prostitute isn't such a bad thing. The pay and the working conditions are better than a lot of jobs, and it's not qualitatively different than many other business and personal exchanges."

Am I also thereby guilty of pandering, and subject to four-plus years in prison? California's pandering statute punishes anyone who "encourages another person to become a prostitute” by “promises, threats, violence, or by any device or scheme,” so it sems that if one of my goals in making the statement was to encourage people to think about prostitution rather than some other job, I'm guilty, right?

More analogously to the present case, what about if I make the following statement to my friend Laura, who -- against my counsel -- is working as a prostitute on a dangerous street, without any backup or support: "Laura, you're putting your life at risk. Stop being a prostitute. Or, if you remain one, at least get a reliable, safe pimp for support. Not an insane dude like Frank down the street, but rather someone who's gentle and respectful like Dave." Seems like I'm guilty of pandering in that situation as well given Justice Kriegler's holding in this case, which concludes that even trying (as here) to convince an existing prostitute counts as pandering; e.g., as precedent reflects, that a "substantial potential for social harm is revealed even by the act of encouraging an established prostitute to alter her business relations.

This may be another one of those areas where we deliberately pass statutes that are infinitely broad and that cover a plethora of innocent and/or socially beneficial conduct within their scope and rely exclusively upon prosecutorial discretion to separate the "real" bad guys from people like "us". Whether that's a good or bad idea as a policy matter is obviously subject to substantial dispute. But my sense is that that's what's going on here.

Keener v. Jen-Weld (Cal. Supreme Ct. - May 7, 2009)

It's not always so easy to count to 9.

Monday, May 11, 2009

Cooper v. Brown (9th Cir. - May 11, 2009)

I know, I know.

It's 113 pages. Single-spaced. Plus, that figure doesn't even contain the majority opinion, since we're talking about a dissent from the denial of rehearing en banc.

Still. If you're going to read one 100+ page dissent from the Ninth Circuit this year, this should be the one.

I say that notwithstanding the fact -- and I know this will turn some people off -- that Judge Willie Fletcher's dissent contains a number of graphs and a number of references to r-squared statistics and the like. Stuff that I appreciate, but I recognize that I'm in the minority on this one.

Let me just pitch the case with the first line from Judge Fletcher's dissent. "The State of California may be about to execute an innocent man." With 100+ pages of support.

Judge Fletcher's opinion is a tour de force. One that's even more impressive when you recognize both how hard it is to go into on appeal the level of factual detail that is evident throughout the opinion as well as when you recognize how (relatively) quickly the thing was cranked out. Wow. Honestly, I'm in awe.

And I say that wholly notwithstanding the merits. Whether you agree or disagree with him, what Judge Fletcher and his chambers have accomplished here is impressive.

Let me say one other thing, too: How much I love my former boss, Judge Reinhardt. Who writes another classic Judge Reinhardt concurrence. Which I totally love. Even when -- as here -- I'm part of the group that he's slamming.

For decades, Judge Reinhardt has wanted the votes of en banc calls to be public, and gets angry that he's not allowed to reveal 'em. And so both expresses that frustration as well as does everything but. His short (page-and-a-half) dissent here continues that refrain, and does so in his inimitable style.

He says that he's in favor of revealing the vote. He blames not only the district court for its failures (as does Judge Fletcher), but also the Ninth Circuit. He also lets you know -- even though he's not allowed to tell you the actual vote -- that "the vote is extremely close, closer than the list of dissenters would suggest." But that's not all. He also says that "The public, the legal academy, our colleagues on other courts, and appointing authorities have a right to judge us based on our performance on the bench," and goes on to say: "In this case, in particular, I believe that public disclosure is important. Revealing how we voted would provide information that would be of interest to those who follow the course of our circuit law and who have drawn certain assumptions about the jurisprudence of various judges that sometimes are unwarranted."

Can you read between the lines? What message do you get from all that, and is it similar to mine? Because the import of that language is (deliberately) far from crystal clear, and yet surely reveals information.

Let's dissect it. Okay, so the vote is close. Even though only 12 of the 27 judges have written or signed onto opinions dissenting for concurring from the denial (and hence whose votes we know for sure), we can devine there's a fair number of votes to take it en banc. I figure it's a one-vote swing, or at most two votes. My guess is the former: 13-14 against taking it en banc.

That's the first sentence. The second sentence says it's important that "the public" (that's us), the "legal academy" (that's me), "our colleagues on other courts" (the Supremes), and "appointing authorities" (that's Obama) should know who's voted for what. That says something. He then adds -- in my favorite line -- that disclosing the vote breakdown would "be of interest to those who follow the course of our circuit law and who have drawn certain assumptions about the jurisprudence of various judges that sometimes are unwarranted." In the immortal words of Gary Coleman: Who you talkin' about, Willis?!

Okay, so I'll take that last comment -- intended or not -- as a (perhaps entirely deserved) slam on people who include myself. I'll also pick up the thrown down gauntlet, and reveal publicly my belief as to the breakdown. (I hasten to add that I've neither asked for nor received inside information on this point. Right or wrong, this is all my own external assessment.)

Here are my guesses. We know 11 votes in favor of taking the case en banc from their writing or signing onto dissents from the denial. They're mostly -- but not entirely -- predictable: Judges Fletcher, Pregerson, Reinhardt, Paez, Rawlinson, Wardlaw, Thomas, Fisher, Graber and Berzon (all Democratic appointees), plus Chief Judge Kozinski -- the last being one that's far from a certain vote, and who signs onto Judge Fisher's very nuanced concurrence that essentially says "I don't agree with everything Judge Fletcher says, but this is important enough to take en banc." We know only one published vote against taking the case en banc, Judge Rymer's, but many of the others are fairly predictable.

So let's assume -- for simplicity sake, if nothing else -- that every non-Democratic appointee (other than Chief Judge Kozinski) voted against taking the case en banc. With the 11 known votes in favor, that makes the vote 10-11, with Judges Schroeder, Hawkins, Silverman, McKeown, Gould, and Tallman left.

Here's my take. Gould and Tallman lean right in criminal cases, so -- from my "academic" court-watching chair, I'll put them down as no votes. Judge Schroeder does so as well, so add her to the list of "Shaun Martin Predicted No Votes." I'll put Hawkins and Silverman as "Yes" votes, even though I think they're less strident votes in this regard. Which leaves McKeown, who's especially interesting if only because I think Reinhardt's reference to "appointing authorities" is aimed directly at her end (since her name's been bandied about as a potentiall Supreme Court nominee). I'd put her down as a No vote on this one. Making the vote 13-14 against taking the case en banc.

All this is based purely on my personal assessment of the judges -- alongside, of course, the information that Judge Reinhardt reveals. All those of you on the Ninth: How's my prediction? Maybe not perfect, but I think it's at least close.

Anyway, it's an extremely interesting, if long, set of opinions. Definitely gets your mind flowing, and shows some real work on everyone's part.

Ileto v. Glock (9th Cir. - May 11, 2009)

It's Monday. Let's play a game.

Go to this opinion. It's about the liability of firearms manufacturers, and is interesting (and important) on the merits. But don't read it yet. And cover up the caption when you boot it up. Turn directly instead to pages 5578-80 of the slip opinion, which is where the majority responds to the dissent. Take a read.

A pretty classic -- tough -- response to a dissent, right? You might well get the following message from reading that portion of the opinion; essentially: "Ah, my pointy-headed liberal friend. Always anti-gun. Always trying to impose liability. Even when the best stuff you can find to support your view are isolated sentences from a concurring opinion by Justice Marshall and a dissent from a denial by White. Not even close. I'm totally right, you're totally wrong, and it shows."

So a classic conservative-liberal dialogue, right?

Well, yes. Sort of. Judge Berzon does author the dissent. But who's in the majority? O'Scannlain? Kleinfeld? Kozinski?

Nope. Judges Graber and Reinhardt. (!)

Can you tell that there's at least a little love there? Sure. If only from the sentence that opens the attack on the dissent, which reads: "We respond briefly to the thoughtful views of our dissenting colleague on the topic of constitutional avoidance." A sentence -- or at least the word "thoughtful" -- that was, I'm confident, added to the draft opinion by Judge Berzon or Reinhardt themselves, and that at least begins the salvo more softly than you might ordinarily see.

But then goes on, as usual, to leave few holds barred.

So a neat lineup to begin the week.

Friday, May 08, 2009

People v. Mays (Cal. Ct. App. - May 8, 2009)

What can we learn from today's opinions, heading into a warm and wonderful weekend?

Here's something: Never believe the police.

Yes, we know, as a matter of doctrine, the police are allowed to lie. To suspects, to witnesses, to anyone. It doesn't make statements involuntary.

At some point, though, this has to take a toll on law enforcement's credibility, right? Unless, of course, you're of the belief that the police only lie to "other" people -- never to someone you care about.

Thursday, May 07, 2009

Doe v. California Dep't of Justice (Cal. Ct. App. - May 7, 2009)

You pled guilty (or are convicted) to lewd acts upon someone under 16 (or 14), so pursuant to Megan's Law, your name and picture is on California's sex offender website. Because the victim was a family member, you're eligible for probation, to which -- presumably for good reason -- you're sentenced and which you successfully complete. Thereafter, you have your conviction dismissed and expunged under Section 1203.4.

Since you've successfully completed probation, and otherwise meet all the requirements, Megan's Law allows you to get yourself deleted from the web site. Sure, you may still have to register, so the police will know all about you, but at least you won't have to publicly carry the scarlet M (for "Molester") for the rest of your life.

So, a decade-plus after your conviction, after you've done everything that's required, you apply to get yourself taken off, and the California DOJ grants your application. Thank goodness. The nightmare now becomes only the lifetime registration requirement -- reregister every birthday, notify them of every move, etc.

Except for one thing. A month or two after your application is granted, the Legislature amends the statute, and now says (inter alia) that you're only eligible to be taken off the website if you're a parent, stepparent, grandparent, or sibling of the victim. You're an uncle.

But you did your time, right? Plus, your application has already been granted. Surely this is an ex post facto law, right? You can't change the rules to punish someone more once they've done what's required. Or at least this seems a violation of your vested rights, or a violation of equal protection, or something, right?

Nope. We can do what we want to you.

I admit that I'd have thought the ex post facto argument, at least, was a winner. But I agree that under the Supreme Court's 2003 decision in Smith v. Doe, this argument's a loser. Since the Court says that this stuff is "civil", not criminal, so the ex post facto clause doesn't apply.

Mind you, Smith was a close case, with several dissenters. Plus, with Justice Souter (who joined the majority) leaving, and with Rehnquist and O'Connor (also in the majority) now gone, perhaps this holding might not last forever. Who knows, for example, how Chief Justice Roberts would vote? He seems like a thoughtful guy.

Oh, wait a minute. I do. Who was the lawyer who argued the case for the government in Smith? None other than John G. Roberts himself, back when he was at Hogan & Hartson.

Okay. So not even a glimmer of a hope there. Recusal, anyone?

Fries v. Rite-Aid Group (Cal. Ct. App. - April 22, 2009)

Never assume something's true just because the Rutter Group says so.

Wednesday, May 06, 2009

321 Henderson Receivables v. Sioteco (Cal. Ct. App. - May 6, 2009)

You've seen the ads on late-night television: "We want to take advantage of your misfortune and rip you off when we buy your structured settlement! Call us now: J.G. Wentworth."

Okay, so they leave out the words between "to" and "we". Still, they want to buy your structured settlement. And I got the other part of the message by implication. (P.S. - Any company with the slogan "Get Cash Now" pretty much screams "Predator" to me.)

I didn't know all that much about the gory details of this industry, but thanks to this opinion, now I do. Fascinating stuff. As is the Court of Appeal's slapdown of a judge (Judge Simpson, up in Fresno) who was trying to do something about what he concluded was a manifestly abusive process. Reversed.

I will say one other thing as well: The tax angle on this stuff is also intriguing, and not something I previously fully understood. Sure, I knew that if you get a lump sum in a personal injury settlement, that amount is not taxable, but that any future returns on that amount (interest, dividends, etc.) are. Lest that be it, Congress then gets convinced to let people avoid taxation on all of it by entering into a structured settlement, so now your $500,000 tax-free is $1.5 million tax-free (including appreciation) over time. Sweet loophole. On the theory that if you don't have the right to the $1.5 million now, it's not really "yours" yet, and it's all on account of personal injury. Then, of course, people want to buy and sell the stuff. So we let them do that as well, since capitalism rocks. But that threatens the tax dodge. So Congress passes a new law: Even if you have the right to (or get) all the money now, it's still not taxable. Sweet!

Ever get the sense that there's -- oh, I don't know -- an industry somewhere pushing all these favorable tax rulings? Nah. Couldn't happen in a democracy. It's all neutral, publicly beneficial principles.

Millender v. County of Los Angeles (9th Cir. - May 6, 2009)

The real fight here is about qualified immunity. And every member of the panel -- Judges Callahan, Fernandez and Ikuta -- has his or her own take. The various opinions are definitely worth a read. And they're not even all that long.

I just wanted to say two things. First: For anyone who thinks that, in a big city like Los Angeles, there must be pretty good safeguards to make sure that warrants make sense, think again. This is a warrant that no way should have issued as framed. Its overbreadth seems fairly stunning to me, and it has the distinct read of a magistrate's use of a veritable rubber stamp.

Second, while I (of course) agree with Judge Fernandez that we prefer that police officers seek a warrant before -- as here -- smashing down the doors of innocent people's homes at 5:00 a.m., I don't think we see this process entirely eye-to-eye. Do we have a variety of doctrines to require and/or encourage warrants? Definitely. Rightly so. Judge Fernandez's concurrence articulates the vision that we do so because we like the fact that -- to use the words he wrote in an opinion way back when I was clerking on the Ninth Circuit (and which he quotes today) -- "when the employees of LAPD were faced with what can only be called a complex and uncertain legal issue, they sought legal advice and then followed that advice."

I don't recall thinking much about those words at the time, but I had a definite reaction to them now. Maybe it's the whole "torture-memo" thing or old age or what have you, but I have a keen sense that police officers who seek a warrant are doing nothing of the sort described by Judge Fernandez. They aren't "seeking legal advice" at all. They're pitching.

They want a warrant. They want a "Yes". They don't want neutral advice. They don't want the best statement of the law. They want to get the thing signed. Sure, they'll do what they have to do to make it valid, and since we suppress evidence and impose liability if they lie or omit critical information, they'll follow those rules. But don't be mistaken. They're not seeking a warrant in an attempt merely to figure out what the law is and then follow it. It's a result they want, not counsel. Want proof? Take away the rules that require a warrant or impose consequences on shading the affidavit and see what you get. It won't be the status quo, which it would be if the police were merely trying to get the advice of a neutral observer as to what's right.

Might there be some officers out there who use warrants in the manner described by Judge Fernandez? Maybe. Though even there I have my doubts. Regardless, I think we shouldn't pretend that qualified immunity and the good faith exceptions exist because police officers are just "seeking counsel" when they present a warrant. They're not. These doctrines instead exist because even though we know that police officers are pitching, we think that's okay -- or at least shouldn't create liability -- within a limited series of constraints: if they can persuade a neutral magistrate, if they don't lie, if the warrant they obtain isn't totally obviously invalid, etc.

But let's not pretend. Police officers aren't "seeking legal advice" when they request a warrant from a magistrate any more than you and I are "seeking legal advice on complex issuse" when we pitch a motion to a trial judge or an appeal to the Ninth Circuit. Sure, it's difficult. Sure, we present the facts. Sure, we operate within constraints. Sure, we'll ordinarily do what the judge says. But we ain't seeking advice. We're doing whatever we can legally do to get the result we want.

That's my reaction to this one, anyway. Again: It's a good one. Check it out.

Tuesday, May 05, 2009

People v. Henning (Cal. Ct. App. - April 29, 2009)

Ten years for defrauding lots of vulnerable, disabled elderly people.

Seems about right to me. And no, I'm not being sarcastic. I'm happy to have that guy peddle his wares in prison rather than on the streets.

Monday, May 04, 2009

Bova v. City of Medford (9th Cir. - May 4, 2009)

Too late now, sadly (since this just denies the petitions for rehearing and publishes the opinion). But I think I could have saved this one for you.

Oregon law says that cities have to give their retirees health insurance, but the City of Medford doesn't, so plaintiffs -- who are currently employed by Medford -- sue. Judge Graber holds that there's no Article III standing because their claims are unripe, since they haven't yet retired. The rationale: "Plaintiffs could change jobs, be terminated, or die (though we hope not) before retiring. Or, by the time Plaintiffs retire, the City may have abandoned its current policy in favor of one that provides insurance coverage to retired employees, mooting the substantive questions at issue."

True enough. Plus, I like the "we hope not" caveat. Plus I agree with Judge Graber that it's not enough for plaintiffs to allege that they may delay retirement or go to another employer. You gotta allege something that's concrete.

But what if one or more of the plaintiffs alleges either of the following, which may well be true: (1) that they will retire if they prevail in the litigation (and since they all say they're retiring within three years, and the case will likely take at least that long, this seems quite plausible); and/or (2) that they are seeking jobs with other employers (if they can find 'em) in order to get post-retirement healthcare (and this, again, seems totally plausible; why wouldn't you at least try to get another, potentially better, job if it gives you health care that your present job doesn't). Either of these facts would establish a concrete loss, at least in my mind, and give you standing. And, quite frankly, seem both plausible and entirely true.

I'm not saying that the panel would necessarily be convinced (though I have no reason to think otherwise). But I know it would have been good enough for me. Especially if we're talking -- as we are here -- about Article III, rather than prudential, standing. The suggested allegations would more than qualify.

P.S. - Potentially, by the way, this still might work; since the panel's dismissal was without prejudice, plaintiffs can presumably refile if they (1) in fact retire, or (2) start looking for other work, or (3) decide to retire but do not do so due to the current policy. Though plaintiffs might want to see how this one comes out before doing so.

Sentry Select Ins. Co. v. Fidelity & Guarantee Ins. Co. (Cal. Supreme Ct. - May 4, 2009)

As I've occasionally mentioned (e.g., here and here), the Ninth Circuit has been on a certification tear recently. Which has a lot of things going for it. (Plus, they add yet another one to the list today.)

But there are downsides. As today's decision from the California Supreme Court reflects.

Here's shorthand for what the California Supreme Court said:

"The Ninth Circuit asked us a question on an issue about which the lower California appellate courts were split. A month later, the California Legislature amended the relevant statute. As a result, we don't especially feel like answering the question, so we won't. Moreover, on the facts of this particular case, it's crystal clear that X should win regardless of what the answer is. So there you have it."

Which is helpful, of course. And potentially entirely appropriate?

But what's the downside? How long did it take the California Supreme Court to not answer the question in this totally easy case?

Three years.

Imagine how long it'd take if it was a close case and they actually had to come up with an answer.

U.S. v. Park Place Assocs. (9th Cir. - April 22, 2009)

Did you know that the United States once (and recently, at that) owned and operated a casino in Los Angeles? It did.

The resulting litigation has been a byzantine nightmare. The latest installment of which is this opinion by the Ninth Circuit.

But fear not. There will be more.

The case is a good reason to pay attention in your upper-year class on Federal Courts. Because the stuff is incredibly, incredibly complicated. As well as exceptionally valuable. Here, it's a $100+ million issue.

So think about that the next time you're considering blowing off class and/or skimming those difficult Ninth Circuit opinions. Sometimes, this stuff matters. A ton.

Friday, May 01, 2009

In Re Boyajian (9th Cir. - May 1, 2009)

Is it a new Ninth Circuit thing? Or is it Willie?

Today brings something new -- or at least new to me -- in the list of counsel in the Ninth Circuit. In both of the published panel cases today, the opinion lists the name of the relevant law firms or legal organizations involved (but not the attorneys) in ALL CAPS. So, for example, in this case, the listing for "John Randall Dudrey (argued), Williams Fredrickson, Portland, Oregon" becomes "John Randall Dudrey (argued), WILLIAMS FREDRICKSON, Portland, Oregon."

Attorneys often do a similar thing on the caption, so maybe this makes some sense. Though in a written opinion it does abnormally stand out, AND IS ALMOST LIKE WE'RE SHOUTING OUT THE LAW FIRM'S NAME. So it's a bit weird.

Plus, it does lead to some perhaps unexpected difficulties. For example, check out the other published panel opinion today, this one. Who represented the appellant? Howard N. Madris; Alan G. Tippie, SULMEYERKUPETZ. "Sulmeyerkupetz"?! What the hell is that? A jumble of letters in German? Makes more sense in traditional lower case. SulmeyerKupetz. No space so we're cool. But when it's in all caps, you don't know where the gap would ordinarily be.

I say I don't know whether this is a Ninth Circuit or Willie thing because, on the one hand, it's the first day of May, so maybe we're starting a new thing. Alternately, however, all of the opinions published by panels today are authored by Judge William Fletcher, so maybe that's just how he's doing it. The en banc opinion published today, authored by Chief Judge Kozinski, doesn't use all caps. So I guess we'll find out on Monday whether this is a new thing or merely an anomaly.