Wednesday, February 10, 2010

Nunez v. Holder (9th Cir. - Feb. 10, 2010)

Rarely do I change my opinion as radically as I did when I read this case.

I'll describe my reaction temporally. The first thing I notice is that the respondent's name is Holder, which means it's an immigration case, and the second thing I see is that Judge Reinhardt authors the majority opinion and Judge Bybee dissents. Which gives you a rough outline of what's likely coming up.

Then I read the first two paragraphs of Judge Reinhardt's opinion. Remember: Judge Reinhardt is far from a shrinking violent. And yet his majority opinion begins with what can perhaps best be described as something like an apology -- an introduction that's radically atypical for him. This is not the usual firebrand opening gambit. It's the exact opposite.

But even after reading the first two paragraphs of the opinion, you still don't know exactly what the case is about. You know it's about whether a particular offense counts as "moral turpitude" under the immigration laws, and that morality varies from neighbor to neighbor, and that our precedent in this area is somewhat fuzzy. All well and good. And we hear Judge Reinhardt say not to be surprised if you're surprised by the results, ending the introduction with: "As some in today’s society might say, and with good reason, 'Go figure.'"

Only in Part III of the opinion (!) do we learn precisely what the case is about. Only then does Judge Reinhardt tell us that the offense we're talking about is indecent exposure, and hence that the opinion is going to be all about whether wagging your genitals in public counts as a crime of moral turpitude. And given that we already know the lineup of the opinion, we also know how the majority's coming out. Which in turn hinted to me precisely why Judge Reinhardt started out so meekly. Because of course indecent exposure is a moral turpitude offense! And yet I know he's going to hold it's not. Hence the unusually cautionary opening.

So, by Part III, I'm thinking: "No way I'm getting on board for this one. Moreover, no way the Supreme Court's not going to summarily reverse. It's just too much to hold that something like indecent exposure -- a classic moral turpitude offense -- isn't in fact moral turpitude." And that remains my exceptionally strong take even as I start to plow through not only Part III, but also the vast majority of Part IV. Come on. It has got to be moral turpitude. I'm definitely going to be with Judge Bybee on this one, and he's going to have to infinitely better of the argument.

But then I get to Part IV(C). Which takes me a while -- 14 single-spaced pages, to be exact -- but at that point, I'm all of the sudden not so sure. Because, remember, we adopt a categorical approach to these things. And Judge Reinhardt starts to persuade me that California's crime of indecent exposure sure covers things that constitute moral turpitude -- showing your genitals to a group of children, masturbating in public, etc. -- but also criminalizes lots of other things that may be qualitatively different as well. For example, "flashing" people at a bar who want you to flash them. (Think "Girls Gone Wild") Or people engaging in consensual oral sex through a glory hole in a bathroom -- people have been convicted for indecent exposure for doing that as well, even when no one else sees (or is supposed to see) it happening.

Once Judge Reinhardt tells me that California has extended its statute that far, as well as reminds me that consensual private sodomy -- now constitutionally protected -- used to be a classic "moral turpitude" offense as well, I start to be persuaded that his "harm others" line for moral turpitude offenses makes some sense.

Indeed, totally surprisingly, once Judge Reinhardt persuades me that he's actually right, I start to question -- crazily enough -- the tentative way the opinion begins. Because you know what? The problem here, I'm persuaded, is not that "morality" is too diffuse or uncertain, but rather that California has simply expanded its definition of indecent exposure too far, hence making an offense that typically does entail moral turpitude into something that may not. Moreover, the correct object of one's ire extends not only to the relevant state, but also to the judicial doctrine that created the categorical approach in the first place -- that's what causes the anomolous (and, to a degree, unjust) result here.

Plus, the government's to blame as well. Given what the doctrine says -- both the categorical approach as well as the expansive state law doctrine of indecent exposure -- why didn't the government introduce evidence that satisfied the modified approach and proved that Nunez was convicted (as I'm sure he was) of a true moral turpitude offense rather than due to his appearance on "Boys Gone Wild" or on one side of a glory hole?! Sure, I'm confident that Judge Bybee is correct when he says that "[w]hatever Ocegueda[-Nunez] did to get himself convicted of indecent exposure, we can be fairly confident that it involved more than being a nude dancer at a bar or a 'tasteless prank.'" But why didn't the government simply show that?! And if it somehow couldn't (and I'm not at all sure it couldn't), isn't that an indictment of the underlying doctrine (the "categorical approach"), not the result here?

So at the end of the day, I'm not only persuaded by Judge Reinhardt's opinion, but actually think it could legitimately have been more strident. Which was far, far from my reaction at the outset.

I, by the way, may well not be the only one who had their initial impressions altered by thinking this thing through and reading Judge Reinhardt's analysis. Notice, for example, that Reinhardt's opinion is joined by Judge Milan Smith. Who's hardly either a lefty or someone especially looking to help out perverts. Now, maybe Judge Smith is just a lot quicker than I am, so caught the right result even at the outset. If so: Congratulations to him, as well as to Judge Reinhardt. In any event, the fact that Judge Smith joins the opinion may also strongly suggest that notwithstanding my first impression, the majority opinion not only has persuasive power, but staying power as well.

I'm happy to admit it when I'm wrong. At least once I realize it. Here, I'm persuaded that my first reaction was misguided. And that ultimately, Judge Reinhardt is correct.

Good job getting the right result a lot, lot faster than I would (or potentially could) have.

P.S. - A random personal anecdote. The reference to the status of "glory holes" in California reminded me of a "Welcome to USD" party we once gave to an incoming colleague who had just joined us as a junior faculty member. (Fear not: Notwithstanding the overall topic, this not a "Penthouse Stories" tale.) To make a long story short, after a lengthy evening, the four of us -- all young professors -- ended up at 2:00 a.m. in a fairly seedy bar in downtown San Diego, the bathroom of which we soon discovered was replete with fully functional, and clearly well-used, glory holes. This, mind you, after we had spent the previous many hours inventing a new nickname -- "J. Lo." -- for our new colleague, and consistently referring to him by this new appellation. (As we occasionally do to this day.) At which point, I can only imagine, our new colleague must have wondered: "Precisely what type of faculty have I gotten myself into here?" Anyway, Judge Reinhardt's discussion reminded me of that younger, rowdier era.