Wednesday, March 31, 2010

National Meat Ass'n v. Brown (9th Cir. - March 31, 2010)

Remember that Humane Society video from 2008 that showed "downer" cows -- cows unable to stand or walk without assistance -- being kicked, electrocuted, dragged with chains and rammed with forklifts at a California slaughterhouse? It's pretty shocking. And also led to the largest beef recall in U.S. history.

Given that backdrop, the National Meat Association's pending lawsuit against the State of California -- which (after the video) passed a statute to ban the killing of downer pigs -- isn't exactly the most sympathetic action in the universe. Sure, they've got a preemption claim, arguing that since the pig slaughterhouses here are federally inspected, they should be allowed to do what they want. Even if that means killing pigs who can't walk, potentially diseased, and are rolling around in other animal's filth. Still tastes good as bacon, right?

The Meat Association is able to convince the Eastern District of California, which granted a preliminary injunction against the enforcement of the California statute. But not the Ninth Circuit. Which vacates the injunction. Holding:

"Regulating what kinds of animals may be slaughtered calls for a host of practical, moral and public health judgments that go far beyond those made in the FMIA. These are the kinds of judgments reserved to the states, and nothing in the FMIA requires states to make them on a species-wide basis or not at all. Federal law regulates the meat inspection process; states are free to decide which animals may be turned into meat."

Since it's a Chief Judge Kozinski opinion, it's also got your usual asides. Including this one:

"The district court sought to distinguish Cavel and Empacadora: 'A nonambulatory pig is not a ‘type of meat.’ A pig is a pig. A pig that is laying down is a pig. A pig with three legs is a pig. A fatigued or diseased pig is a pig. Calling it something else does not change the type of meat produced.' In effect, the district court reasoned that states may ban the slaughter of certain species, but once a state allows a species to be slaughtered, it cannot impose further restrictions. Hogwash."

A knee-slapper, to be sure.

Geographic Expeditions v. Lhotka (9th Cir. - March 31, 2010)

Words to the wise: Hikes up Mount Kilimanjaro aren't always fun.

Tuesday, March 30, 2010

People v. Johnson (Cal. Ct. App. - March 30, 2010)

This morning's opinion may give some insight into the nature of police work.

Someone robs a Shell station in Sacramento at gunpoint on June 25, 2005. The police investigate.

Three days later, on June 28th, someone robs a Arco station in Sacramento at gunpoint. Same description, same m.0. There's even a surveillance tape. The police investigate.

Thirty minutes later, someone robs a Shell station in Sacramento at gunpoint. Same description, same m.o. Numerous witnesses. The police investigate.

Two days later, on June 30th, someone robs a Valero station in Sacramento at gunpoint. Same description, same m.o. The police investigate.

Later that same day, someone robs a Chevron at gunpoint. Same description, same m.o. More witnesses and yet another surveillance tape. The police investigate.

On July 5th, someone robs a Valero at gunpoint. Same description, same m.o. This time the gunman shoots a couple of bullets at the cashier. More witnesses, yet another surveillance tape. The police investigate.

Thirty minutes later, someone robs a Chevron at gunpoint. Same description, same m.o. More witnesses. The police investigate.

Thirty minutes later, having used up some bullets in the earlier shooting, the gunman buys a pack of bullets from a nearby Big Five.

Two days later, someone robs a Shell at gunpoint. This time, the gunman kills the cashier.

NOW the police really investigate. And catch the guy (and his crew) a couple days later.

Which makes one think that the police perhaps might have tried a little bit harder to catch the guy before someone got killed.

I know, I know: Resource constraints, limited budget, blah blah blah. Still. A dude's taking off gas stations. He's got a gun. Someone's clearly going to get killed eventually. Seems like a high priority to me.

A.H. v. Superior Court (Cal. Ct. App. - March 11, 2010)

Father has his kids taken away but wants them back. However, it's going to take a lot -- and I mean, a lot -- of rehabilitation before that's even potentially going to happen, if only based upon the circumstances in which this kids were found:

"Father has four children: Robert (seven years old), Laura (six years old), Makayla (four years old), and Alfred (three years old). . . . On October 21, 2008, the children were taken into protective custody after their parents were arrested on outstanding warrants. They had been living in deplorable conditions. Their home was a filthy basement containing an open sewer hole full of urine and feces. There was no refrigerator, and the children did not have enough food. They were not fed on a consistent basis. Mother, Father, and other residents in the home smoked methamphetamine when the children were present. Father gave the police a false name and claimed to be just visiting. He had a criminal record and was affiliated with gangs. Mother appeared to be under the influence of drugs. There were three prior child abuse reports regarding the children, including a substantiated report Laura required hospitalization due to rotten teeth. . . . Laura said she saw her parents steal and argue frequently. She said it made her younger siblings cry. All the children suffered from severe tooth decay."

"Father missed several appointments to have a drug patch applied. He missed two random drug tests. One test had been positive for benzodiazepines. Father ignored the parenting education facilitator's attempts to invite him to meetings. He did not attend any meetings or appear at the pretrial hearing on November 26. On that day, he was arrested for shoplifting. Before the six-month review hearing, the social worker reported Father was released from custody on January 5, 2009. He failed to respond to the social worker's attempts to contact him. On January 20, the paternal grandmother reported she had kicked him out of her home because she knew he was using drugs. Father did not participate in any 12-step meetings, enroll in classes, or drug test while he was out of custody."

Drugs more important than children, apparently.

Monday, March 29, 2010

People v. Warwick (Cal. Ct. App. - March 4, 2010)

"Defendant was 18 years old when she gave birth to her son, later named Cameron, in April 2007. At the time, she was living with her mother, Barbara Villa, and her stepfather, Ray Villa, as well as defendant's aunt, Becky Hughey, and defendant's younger brother. Although she had apparently talked to her boyfriend and at least one friend about her pregnancy, she concealed her pregnancy from her family. She had seen doctors twice in April 2007 for other reasons, but did not inform them she was pregnant and did not seek any prenatal care.

In the early morning of April 15, defendant was at home and began having contractions. . . . the birth happened later in the morning, sometime after 9:30, perhaps around 10:30. She delivered the placenta and cut the umbilical cord with a pair of scissors; the cord did not bleed. Defendant did not hear the baby cry, but believed he was breathing. She 'wiped it off a little bit, cleaned his mouth off with a little, like a wet cloth.' Defendant stated that she 'tucked my blanket around him,' after which she fell asleep for 45 minutes or so. She woke when she heard the baby whimpering. Defendant felt exhausted, but she made sure the baby was breathing. She tried to breast-feed, but failed when the baby would not 'latch on.' After that, he did not whimper again, and according to defendant, he fell asleep.

At one point, Barbara came to the door, and defendant told her mother that she was tired. According to Barbara, this occurred at about 1:00 p.m., and she left defendant alone. Barbara returned, however, at about 3:00 p.m., and this time defendant opened the door and let her in. Defendant was very pale, and staggered out and went into the bathroom. Barbara went into the room and saw the baby on the bed. She called for help, and both Ray and Hughey responded.

Ray had CPR training from the military and through his job. At the time he entered the room, the baby had a blanket covering its forehead, but he was not wrapped in the blanket and was otherwise uncovered. Ray realized the baby was breathing and began performing CPR. Ray noticed the baby's nose and mouth had been cleared and saw that the umbilical cord had been cut. The baby was cool to the touch, was not crying, and appeared to be in distress. Hughey, meanwhile, called the paramedics. She described defendant as not acting like herself and thought she was in shock.

The paramedics arrived and discovered the baby had a very low respiratory rate, was pale, and generally unresponsive. The baby was nearly in cardiac arrest. At Riverside Community Hospital, emergency room doctor Ernest Woodhouse observed that the baby had a very low level of oxygen, was quite cool, and was in respiratory failure. The baby's temperature upon admission was 81 degrees. He was also in a coma, and the doctor described his overall condition as life-threatening.

Dr. Louis Martincheck, a neonatal specialist, described the baby as the most hypothermic he had ever seen. According to Martincheck, leaving an infant uncovered for five to six hours would explain the low body temperature, which is not a condition that is achieved quickly. Martincheck believed the baby would have died without medical intervention."

Words escape me.

Friday, March 26, 2010

Daniel v. Coleman Co. (9th Cir. - March 26, 2010)

Don't use an industrial heater inside a camper or tent. You can die.

I remember fondly using a Coleman heater when we would go on our yearly winter camping trip with my father and siblings. Having now gone "winter" camping without a heater with my own kids (I put "winter" in quotes because I'm in San Diego, where there's really no such season, with the exception of the mountains), I recall the heater even more fondly.

But use the right one. And be careful.

U.S. v. Castro (9th Cir. - March 26, 2010)

Let's say you're an illegal alien. Worse (for you), you were deported in 2003. Even worse, this transpired after you pled guilty to committing lewd acts on a 14- or 15-year old child. Presumably also after your prison term therefor.

For better or worse, you've now (again) illegally entered the United States. The country in which you want to live, I'm sure, but which (1) has deported you, (2) doesn't want you, and (3) knows about your prior conviction.

Two weeks ago, your ex-wife got arrested for smuggling illegal aliens to the United States. They know she's your ex-wife. Should you:

(A) Continue to hang out at her place. They wouldn't possibly come and search the place, would they? Or:
(B) Find another place.

Eduardo Castro said "(A)". An answer that gave him a sentence of around four years in prison to rethink this response.

Today, he gets remanded for resentencing. Due to the crazy categorical/modified categorical doctrine that occasionally results in bad consequences. Though even on remand, it's not looking good for Castro. He's still looking at years and years.

So for anyone out there in a similar situation: The correct answer is (B).

Thursday, March 25, 2010

Int'l Soc. for Krishna Consciousness v. Los Angeles (Cal. Supreme Ct. - March 25, 2010)

I'm excited to be able to describe an opinion of the California Supreme Court in a single sentence that merely links to a movie clip. A movie that I like, no less.

So here goes:

After today's opinion here, we'll see no more of this.

Winans v. Timar (Cal. Ct. App. - March 25, 2010)

We've got a lot of legal doctrines that shield the jury room from scrutiny. We know they're making sausage in there. We don't want to see it made, notwithstanding the fact that we desperately rely on the resulting product. To have faith in the system, we'd just rather not know.

We can do that with verdicts. Albeit at a cost. We can't, however, do that with wills. And we don't. When there's a will contest, we actively inquire into the circumstances under which the will(s) were made, and why.

Unfortunately, sausage sometimes looks good by comparison.

See if you had the same reaction that I did to this case from the Court of Appeal earlier today.

My reaction was: "Ewww." I didn't especially like the circumstances that resulted in any of the bequests at issue. There just seemed to be a lot of (actual or potential) scheming, manipulation and abuse in an attempt to get the estate's assets directed their way in the will. Yuk.

And unlike sausage, the results don't even taste good. Except to the victors, of course.

Wednesday, March 24, 2010

In Re Marriage of McManus (Cal. Ct. App. - Feb. 25, 2010)

The caption of this case is In Re Marriage of MacManus. Which is otherwise unexceptional. As is the issue in the appeal.

But upon reading it, my mind harkened back to "The Usual Suspects". A wonderful film in which Stephen Baldwin plays Michael McManus and Kevin Spacey plays Roger "Verbal" Kint.

It's a neat little flick. Rather than reading this opinion, I suggest the movie. A lot more drama. Plus a cool ending.

P.S. - My favorite character in that one was actually Pete Postlethwaite, who plays Kobayashi, the subordinate associate of "Keyser Soze". Great actor. Wonderful part.

U.S. v. Christensen (9th Cir. - March 24, 2010)

If you sign on with the screen name "horneyguy59405" -- 59405 being a zip code in Great Falls, Montana, where you live -- and all of the sudden a "15-year old girl" starts chatting you up, do I really have to tell you: (1) it's not a 15-year old girl, and (2) is (a) a guy, and/or (b) the police?

I know it might be cold and lonely in the 59405. But that's no reason to get irrational, or your hopes up. It's a dude. It's the FBI. (Here, his name is Dan.) It's not who you think, and not someone you want to offer to have sex with. Much do you want to offer to pay the person for sex, and to pay more if "she" can find another 15-year old to have sex with you too.

This advice comes too late for Mark Christensen, who now gets to spend the next 17-plus years or so in the federal pokey. Live and learn.

Tuesday, March 23, 2010

Amerigraphics v. Mercury Casualty Co. (Cal. Ct. App. - March 23, 2010)

Want to see an example of insurance bad faith? Something that even the trial court described as "really terrible," "really, really bad," "a disaster," "total disaster," and "a very, very, very solid case for punitive damages, as solid as I have ever seen in my time on the bench."

The insurance company is Mercury Insurance. Remember that when you're investigating insurers and wondering about their reputation. Apparently, Mercury Insurance is really, really bad.

The other thing that's interesting about the case, beyond Mercury's reputation, is that this is another example of the indeterminate nature of the Supreme Court's current "due process and punitive damages" jurisprudence.

The jury here awards $130,000 in compensatory damages, and adds on $3 million in punitive damages. The trial judge whacks that down to $1.7 million. Then the Court of Appeal holds that the maximum punitive damage award permitted by the Due Process Clause is a 3.8-to-1 ratio.

Why 3.8 to 1? Is it a coincidence that this makes a nice, even, round number: $500,000? I think not.

Somehow I doubt that the Constitution imposes a due process requirement that just happens to result in incredibly round numbers. And yet that's what you often see.

Not that I can necessarily come up with a better due process test myself. But sometimes the best critique of an existing test is simply the seemingly arbitrary nature of the results that it engenders. Including an interpretation of the Due Process Clause that just so happens to result in exact multiples of $100,000.

Compton USD v. Addison (9th Cir. - March 22, 2010)

"Addison received very poor grades and scored below the first percentile on standardized tests during her ninth-grade year in 2002-2003. . . . [She] perform[ed] at a fourth-grade level. In the fall of her tenth-grade year, Addison failed every academic subject. The counselor considered these grades to be a 'major red flag.' Teachers reported that Addison was 'like a stick of furniture' in class, and that her work was 'gibberish and incomprehensible.' Teachers also reported that Addison sometimes refused to enter the classroom, colored with crayons at her desk, played with dolls in class, and urinated on herself in class."

Think that might perhaps be indicative of a problem?! Geeze.

Depressing. And the fact that it's in the middle of Compton only makes it even more so.

People v. Townsend (Cal. Ct. App. - March 15, 2010)

Here's a combination that's never good: (1) delusional paranoia, and (2) an obsession with Molotov cocktails.

"Townsend's commitment offense in October 2006 involved possession of 'two unlighted Molotov cocktails.' At the time of this offense, Townsend had 'paranoid delusions.' These included his delusional beliefs that his neighbors were 'involved in systematically burglarizing homes . . . [and] malfeasance with the payment of mortgage payments . . . .' Townsend told law enforcement officers that 'he carries [Molotov cocktails] for self-protection.' [!!] Prior to his commitment offense, Townsend also had an arson conviction in March 2006.

Following his commitment offense, when he was a patient at a state hospital in 2008, Townsend sent a letter to a neighbor stating that he had placed 40 Molotov cocktails on her property. After the neighbor reported this incident, the police went to her yard and found 12 Molotov cocktails. Townsend subsequently told police that he was going to use the Molotov cocktails against 'bad guys in the neighborhood.'"

And you thought your neighbors were bad news.

Of course, I think there's an absolute Second Amendment right to carry Molotov cocktails for personal self-defense. Twenty-First Amendment too.

Monday, March 22, 2010

Xilinx v. CIR (9th Cir. - March 22, 2010)

Uh oh. It's an opinion by Judge Noonan. A concurrence by Judge Fisher. And a dissent by Judge Reinhardt. Look out! Here comes the battle of the century. High stakes. Critical principles. Vital constitutional liberties involving core ideological disputes. It's all about . . .

"[W]hether, under the tax regulations in effect during tax years 1997, 1998 and 1999, related companies engaged in a joint venture to develop intangible property must include the value of certain stock option compensation one participant gives to its employees in the pool of costs to be shared under a cost sharing agreement, even when companies operating at arm’s length would not do so."

Oh. Never mind.

Nonetheless, though the principles involved may not be critical to the ordinary person, this is actually an interesting opinion to read, if only because it's one of those incredibly rare cases in which a petition for rehearing actually matters and changes the result.

The original opinion, back in 2009, reversed the opinion of the tax court, in an opinion by Judge Fisher joined by Judge Reinhardt. But the petition for rehearing clearly changed Judge Fisher's mind, since a couple of months ago, he withdrew his opinion, and today, Judge Noonan -- who was the author of the original dissent -- writes the majority opinion, which affirms the tax court. With Judge Reinhardt holding fast to his original opinion.

So clearly petitions for rehearing aren't always a total waste of time. Just most of the time.

Plus, just because a PFR might change a judge's mind in a tax case once in a blue moon is not much reason to believe that it'll do so in your run-of-the-mill cases. Tax cases are different. Trust me.

I'll end by quoting the last footnote of Judge Reinhardt's dissent: "I, like Judge Fisher, am less than enthusiastic about the Commissioner’s explanation of how he believes we should resolve this case. His preference is that we find somehow that the arm’s length standard is met by way of the all costs requirement. I must confess that I have difficulty following his reasoning and, like Judge Fisher, am not persuaded by that argument. However, the Commissioner then says that if we still believe that the two provisions are in conflict, we must apply the rule on which Judge Fisher originally relied and on which I continue to rely. I guess I am just not as sensitive as Judge Fisher. Simply because the Commissioner advanced an argument that we reject, but then argued that if we reject it, we should apply the rule that we held applicable in our opinion is hardly a reason for abandoning the rule that we believed to be correct. We can’t expect anyone, let alone the Commissioner of Internal Revenue, to agree completely with everything we say. Rejecting the Commissioner’s first argument leaves us exactly where we were before he advanced it: The two regulations are in conflict, and (as Judge Fisher and I once agreed) that conflict must be resolved by applying the specific regulation rather than the general one."

Too funny. A reminder that judges -- even appellate judges -- are people too.

Friday, March 19, 2010

In Re Marshall (9th Cir. - March 19, 2010)

Sorry, Anna Nicole Smith. (Or, more accurately, the spirit of Vickie Lynn Marshall, her 3-year old daughter Danniellynn Stern -- the heir to Anna Nicole Smith's estate -- and Larry Birkhead, the three-year old's DNA-established father.)

This saga has played out for the last 15 years, ever since the 89-year old billionaire's death, and includes litigation in a Texas probate court, a federal bankruptcy court, the Ninth Circuit, and even a decision on the merits in the United States Supreme Court.

But I think this one's pretty much all over but the shouting. Here's a decision on the merits. That finds, in a long and hyperprocedural opinion, that the relevant bankruptcy claim that gave rise to the $450 million judgment in favor of Smith was compulsory but non-core, and thus the Texas probate decision was the first "final" judgment, a judgment that voids the bankruptcy court's judgment as a matter of issue preclusion.

Yes, the last installment of this dispute, which involved the "probate exception" to federal jurisdiction, went up to the Supreme Court. So procedural things sometimes are subject to review by an authority higher than a panel of the Ninth Circuit. Particularly in high-profile cases.

But I don't think that's going to be the case here. I think this one's the end of the line. To the benefit of the heirs of E. Pierce Marshall (the billionaire's son) and to the detriment of the heirs of Anna Nicole Smith.

Thursday, March 18, 2010

People v. Gamache (Cal. Supreme Ct. - March 18, 2010)

It's a California Supreme Court death penalty opinion. So I don't have to tell you how it's coming out, or what the vote's going to be. That you already know.

But the one today has a twist. The California Supremes say, essentially: "I've got some good news, and I've got some bad news."

Bad news: We're unanimously affirming your conviction and death sentence. So there you go. Ditto for your three additional life sentences, and plethora of additional enhancements.

Good news: We're getting rid of one of your gun enhancements as duplicative. So you only have to be executed, spend three lives in jail, and 40 or so extra years, not 48.

Oh, yeah. More bad news. But we're also holding that the trial court gave you too little time on the gun enhancements on other counts. So maybe it's 48 -- or 53 -- additional post-death years as well. Sorry about that.

But when you die. On your death bed. You shall receive total consciousness.

So you got that going for you. Which is nice.

U.S. v. Cha (9th Cir. - March 9, 2010)

We don't have a plethora of published Ninth Circuit opinions coming out of Guam. Interestingly, though, while I haven't run the numbers, my gestalt impression is that (1) almost all of the "forced sex trafficking" cases come from Guam, and (2) those types of cases make up a palpable fraction of the number of published opinions from Guam.

What's also interesting about the opinion is that it gives an outside observer a little bit of insight into a couple of aspects of the culture of Guam. My younger brother Brian was a teacher in Guam for a couple of years, and my wife (then-girlfriend) once visited him there when she was a clerk and her judge was sitting by designation there. So I already knew a little bit about the place. But it's always nice to read things that confirm the accuracy of the stories you hear from others.

One thing about Guam is that there are a lot of snakes. But the Ninth Circuit's opinion focuses on two other somewhat unseemly aspects of the place.

First, prostitution. There's a lot of it. Including women who are forced into it by brothels who ship the women over (typically from Asia) and keep them confined against their will. As Judge Beezer puts it in this case:

"It was Saturday evening, January 12, 2008, in Tamuning, Guam, when Officers Manibusan and Laxamana pulled into the parking lot of the Blue House Lounge karaoke bar to investigate a report they had received earlier that evening. Sonina Suwain (“Ms. Suwain”), who was from Chuuk, had reported that the owner of the Blue House Lounge, Ms. Cha, had Ms. Suwain’s passport and was refusing to return it. When the officers arrived at the Blue House Lounge, Ms. Suwain told the officers that two of her cousins from Chuuk, Cindy and Vivian, were being held inside the Blue House Lounge against their will.

Officer Manibusan sent Officer Tan, who had just arrived with several other officers, into the Blue House Lounge to find Cindy and Vivian so he could determine whether they were there 'on their own free will.' When Officer Tan entered the lounge, the karaoke machine was playing and customers were drinking at the bar. He found Cindy waiting tables. Officer Tan asked the bartender where he could find Vivian, and the bartender pointed to several numbered doors in the back of the restaurant. Officer Tan recognized these rooms as 'comfort rooms,' which are fairly common in karaoke bars in Guam. [!!] In these rooms, customers 'can buy drinks and take the waitress into the room and watch TV or sing songs or just chat.' [Or 'whatever', I'm sure] Officer Tan heard a woman’s voice coming from one of the comfort rooms and knocked on the door. Vivian emerged looking disheveled, and a man stood hiding behind the door with his pants 'barely on'—unzipped, unbuttoned, and unbuckled.

Once Officer Tan and the two women were outside, the women, crying, reported that they were being prostituted against their will. They maintained that Ms. Cha kept their passports and that if they refused to have sex with a customer, Ms. Cha would refuse to feed them that night."

Second, the police. You can read the whole opinion for the full story of what transpired -- and, more importantly, why what the police did queered the prosecution. But here's a taste:

"The poignant facts of this case demonstrate why Fourth Amendment possessory and privacy interests are greatly affected by the seizure of a dwelling. Mr. Cha was rendered homeless for the duration of the seizure. When he left his wife at the police station at 8 a.m., he went home only to find that he was barred from entering. He then waited outside his house for most of the day until 7 p.m. when an officer finally accompanied him to retrieve his diabetes medicine. He then waited outside his residence until at least 1 a.m. The next day he waited outside as well, only to travel to his wife’s arraignment. The search began at 2 p.m., and he helped the officers during the search that lasted until 1 a.m. Tuesday morning. Only then was he allowed to return to his house—nearly 48 hours after being excluded. . . .

Officer Perez testified that he was never taught at the police academy that “'time was of the essence’ once the police have secured a premises” or “that the police had to act with deliberate haste to obtain the warrant.” See McArthur, 531 U.S. at 332. Indeed, the United States argues that “Officer Perez . . . did not know that he had a duty to diligently pursue the drafting and eventual approval of the warrant by a detached magistrate.” Appellant’s Br. at 23. The Guam police department’s failure to know the governing law was reckless behavior; the police officers were a far stretch from Leon’s “reasonably well trained officer.” . . .

[N]one of this delay was “unavoidable”—the officers had probable cause at 1 a.m., and Officer Perez could have drafted the warrant application at least after the 12 p.m. briefing. The officers, however, had a “nonchalant attitude” and proceeded in a “relaxed fashion.” . . . Not only were the police errors deliberate and culpable, they were systemic. Although the officers raided the Chas’ prostitution business at 1 a.m. Sunday, the officer tasked with preparing the warrant application was told only to arrive at the police station at noon. The investigating officers were supposed to have their reports completed by 3 p.m., but they did not finish them until 6:30 p.m.; it is unclear whether they knew that the premises had been secured at all. Officer Perez had a “personal preference” to read the reports, so he waited until 6:30 p.m. on Sunday to begin drafting the warrant application. And further delay was occasioned by the Chief Prosecutor,
who asked to review the warrant application Monday morning. Finally there was no departmental training or protocol instructing the officers that a warrant must be secured reasonably quickly after a premises has been seized. As far as this record shows, the “nonchalant attitude” that the district court condemned was pervasive in the Guam law enforcement apparatus."

Overall, Judge Beezer's opinion doesn't paint a very favorable opinion of Guam, I'd say.

I did like one thing, however. Apparently it's pretty sweet being a lawyer there. Or at least that's what I got from a tiny little snippet of the opinion. Which mentioned that when Mr. Cha went home at 8:00 a.m. -- after accompanying his wife to the police station for seven hours of interrogation -- he found that his house was guarded by police, who refused to let him enter. So what did Mr. Cha do?

"He called his lawyer, Mr. Van de veld, anxiously recounted the night’s events and told Mr. Van de veld that 'the police were still there and would not allow him access to the premises.' Mr. Van de veld told Mr. Cha that he would stop by as soon as he finished his golf game. [!!] Around 12:45 p.m. [!!], Mr. Van de veld, with his golf buddies in tow, arrived at the Cha residence."

Nice. "Look, I know your wife has been interrogated by the police all night, and is under arrest for forced sex trafficking and prostitution, and that you're being excluded from your home and can't get your diabetes medication. But I'm about to tee off. See you in five hours, okay?"

I wish we could get away with that in the States.

Wednesday, March 17, 2010

SIEU v. U.S. (9th Cir. - March 17, 2010)

I agree that when a statute says that a penalty of $20 a day "shall" be imposed upon a taxpayer that fails to timely file a tax return, except if there's a finding of reasonable cause, this penalty is mandatory. If, as here, the taxpayer doesn't timely file, and doesn't have reasonable cause, a district court can't reduce the penalty just because it seems a bit harsh. The statute says what it says.

The only thing I'd add to Judge Kleinfeld's opinion in this case are two brief comments. First, the case seems totally easy to me, and the opinion's only seven pages. How'd this one take almost a full year after oral argument to write? Second, I'm sure that the taxpayer is right that the IRS has abated many, many penalties notwithstanding the mandatory language of the statute. The opinion responds by saying "How do we know that for sure?" and by then distinguishing a couple of cases. But I think the more direct answer is that merely because the executive branch, as it executes the laws, may have discretion to abate mandatory penalties doesn't mean that the judiciary has similar discretion. Executives can plea bargain and grant clemency. Judges can't.

But the basic holding of the case seems totally right. "Shall" means "shall".

Tuesday, March 16, 2010

In Re Moses (Cal. Ct. App. - March 16, 2010)

The Moses in this case is not exactly like the other Moses. Unless history somehow failed to record that the old Moses -- like the current one -- "consumed copious amounts of alcohol and . . . visited Willie Rhodes, whose brother had killed Moses's father in a gambling dispute five years before, [whereupon] Moses shot Rhodes once at close range, killing him, and fled."

That said, while in prison, the current Moses apparently has been darn similar to his namesake. "Moses‘s behavior in prison has been exemplary. He has a nearly spotless disciplinary record (his only instance of misconduct was watching television without using the required headphones 27 years ago). He has performed years of outstanding work in the prison laundry. He has shown insight into the causes of his actions and worked to understand and change his behavior by engaging in decades of self-help programs such as Alcoholics Anonymous (AA) and the Victim Offender Reconciliation Group (VORG.) He has consistently taken responsibility and repeatedly expressed remorse for his commitment offense."

But this is California. In which, unless you're literally able to part the Red Sea, the Governator isn't going to let you out on parole if you've been convicted of murder. So "after 29 years, 13 parole consideration hearings, and three decisions to grant parole by the Board of Parole Hearings (Board), Moses remains in jail. Governor Arnold Schwarzenegger has reversed all three of the Board‘s decisions to release Moses. We ask why?"

Why indeed. Though, in truth, we all know the answer.

So the Court of Appeal is forced to take on the tasks deliberately abdicated by the political branches of the state. And does so here.

"The Governor found that Moses‘s release on parole posed an unreasonable risk of danger to public safety for three reasons, each of which is seriously flawed. First, the Governor concluded that the second degree murder was ―especially atrocious. This conclusion is not supported by the evidence, and not only because the Governor ignored, or inaccurately described, certain critical and undisputed factual circumstances. Second, the Governor concluded that, while Moses ―says he accepts responsibility for his actions and is remorseful, he maintains that he shot [Rhodes] in self defense. Moses has not maintained such a claim; furthermore, any discrepancies between Moses‘s account of the shooting are insignificant in light of his undisputed acceptance of responsibility for the crime, his repeated expressions of remorse, and his postconviction history. Third, the Governor stated that, at the time of the murder, Moses ―had a significant record of criminal violence, even though Moses did not have such a record. The Governor‘s analysis merely mentions without discussion other very significant parole suitability factors, such as Moses's flawless behavior in prison for the last 29 years. In short, the Governor‘s reasoning relies heavily on immutable factors, at times unsupported by evidence, and amounts to little more than the 'rote recitation' of only those factors suggestive of risk. (See In re Lawrence (2008) 44 Cal.4th 1181, 1210 (Lawrence).) . . . We conclude that there is no evidence in the record to support the Governor‘s repeated reversals of the Board's grant of parole and that further consideration by the Governor cannot fill that void. Therefore, we hold that the Governor‘s reversal of the Board‘s decision to grant parole violated Moses‘s due process rights. We grant Moses‘s petition, order the Governor to vacate his decision, and reinstate the Board‘s July 10, 2007 grant of parole."

In short, at least with respect to Moses, the Governator's decision was far from reminiscent of Solomon.

Mike v. FTB (Cal. Ct. App. - March 5, 2010)

A couple of things I already knew, even from my relatively skimpy reading of Indian law over the years.

First, states can't tax income that a Native American who resides on her tribe's reservation from activities conducted on the reservation. That makes sense. It's another sovereign. There you go.

Second, states can tax income that a Native American who resides outside a reservation receives, even from activities conducted on the reservation. That too makes sense. You're a resident on the lands of the taxing sovereign. That sovereign can tax you. Even for income that you receive from activities in another sovereign. No different than foreign countries. I get it.

Here's the tough part -- and the one at issue in this opinion. What if you're a Native American, and a member of a tribe, but you reside on another tribe's reservation? Can the state tax you on the income you receive from activities conducted on your own reservation?

That's a toughie. And I admittedly didn't know the answer before I read this opinion.

Even after reading the opinion, I'm still not 100% sure I know the correct answer. But (1) I at least now know (for sure) what the law is according to the California Court of Appeal, and (2) Justice McDonald convinces me -- on the merits -- that the right answer may well be "Yes."

So when Angelina Mike gets $365,000 in 2000, which is her share of her tribe's casino profits, California can tax it. That's the law. And Justice McDonald helpfully explains why.

I'm on board with that, I guess. With the simple caveat that it seems strange. In two ways.

First, imagine that we're not talking about an Indian tribe, but a different kind of sovereign; say, a foreign country. The analogy here would be: Can California tax a person who lives in Canada on income that she received from activities in Mexico? The clear answer would be "No". Yet, in the present case, change "Canada" to "The Agua Caliente Band of Cahuilla Indians Reservation" and "Mexico" to "The Twenty-Nine Palms Band of Mission Indians Reservation" and you've got a different result.

That seems weird. Now, I understand that tribes are "domestic" sovereigns, and hence the law somewhat different than "pure" foreign countries. But there' still something there.

Second, on a practical level, what are people like Angelina Mike supposed to do? Indian tribes didn't exactly thrive post-1776, if you know what I mean. In the present case, for example, Mike's tribe contains only twelve people over the age of 18. Plus, it's not like the government selected really great places upon which to place the reservations for Native Americans. Again, here, the reservation for Mike's tribe consists entirely of a 240-acre section near Coachella -- big enough for a casino, a parking lot, and a sanitation place, which is what's on it -- and a 160-acre section near Twenty-Nine Palms. The latter of which is pure, undeveloped desert land, with no electrical, water, or sewer facilities, and has no developed roads or other infrastructure.

What exactly is Mike supposed to do? Live alone, in the middle of the desert, with no electricity, water, or toilets? Or live in the sewage plant? Hardly palatable choices. So she does what any reasonable person would do, especially who cares about tribal membership and native heritage, and lives on the closest Indian reservation -- 18 miles away -- that's technically for a different tribe, but one that "share[s] many historical, familial, social, and genetic ties" with her tribe.

But that means she gets taxed. Even for stuff that occurs entirely on her reservation. So the price to be a truly "sovereign" Native American, at least for people like Mike, is that you've got to either live in sewage or without any sewage at all.

Seems harsh. Maybe that's indeed what the law says. But it's still harsh.

Monday, March 15, 2010

D.C. v. R.R. (Cal Ct. App. - March 15, 2010)

Cases involving "X.X. vs. YY" are often interesting. This one is no exception.

I recall reading about the underlying events somewhere. This is one of the lawsuits that followed.

Essentially, a 15-year old actor-student at Harvard-Westlake posted a facebook page that some people might find pretentious. Prompting an all-out assault by his way-too-cool classmates. Including a variety of outright threats of violence and unambiguously homophobic comments based upon the student's perceived sexual orientation.

The student then sued, and while he had to arbitrate his dispute with Harvard-Westlake, no so with respect to the students themselves. One of whom, in response to the lawsuit against him, filed an anti-SLAPP motion. The trial court denied the motion, the defendant appealed, and the Court of Appeal -- in a divided opinion -- affirmed.

I won't reveal all of the sophisticated commentary (*sarcasm alert*) that the other Harvard-Westlake students wrote on the student's facebook page; for that, read the opinion. But I'll share what the defendant here wrote, which is both at issue in the appeal and which will give you the general tenor of the comments the plaintiff received:

"Hey [plaintiff], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I've . . . wanted to kill you. If I ever see you I'm . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell."


Defendant says he was just "joking" -- though his lengthy declaration, not surprisingly, give a much more nuanced version of the message -- and asserts that his communication was protected by the First Amendment as well as a "communication in the public interest". Needless to say, I am somewhat dubious about the latter component, and the Court of Appeal didn't agree either. You're not a public figure merely because you have a facebook page. Even if you're a wanna-be actor too.

Justice Rothschild dissents, and it's a pretty strongly-worded opinion. Less strongly worded than the defendant's message, of course, but still, you get the jist. Here's a sample: "[T]he majority‘s reasoning [] alters the legal landscape to the severe detriment of First Amendment rights. In deciding that the post was unprotected, the majority holds defendants to an evidentiary standard that conflicts with controlling California Supreme Court precedent, disregards defendants‘ evidence on the basis of invalid factual inferences and unsupported legal theories, and ignores the relevant case law by failing to consider the entire factual context in which [defendant's] post occurred."

It's an interesting debate. As well as a reminder that there may well be consequences that you might want to consider before hitting the "Send" button. Especially if what precedes it entails a death threat.

P.S. - The majority opinion protects everyone's anonymity by using initials, but it's not too hard to figure out who we're talking about. Since the opinion also tells us the pseudonym the plaintiff uses in his entertainment work: Danny Alexander. From there imdb is but a click away.

Grotenhuis v. County of Santa Barbara (Cal. Ct. App. - March 15, 2010)

There are presumably many reasons why rich people transfer their home to "corporations" they control. Truthfully, I don't know what those reasons are. But I bet they have something to do with taxes and asset protection. In short, there are financial upsides to these deals.

We use alter ego liability to impose liability and avoid injustice. Not the other way around.


P.S. - Justice Yegan spells it right throughout the entire opinion, with the exception of the second paragraph. It's "principal" residence, not "principle".

Friday, March 12, 2010

Guggenheim v. City of Goleta (9th Cir. - March 12, 2010)

I feel bad repeatedly talking about en banc review during the last couple of days. I know I must sound like a broken record sometime.

That said, it's an important component of the process.

Here's a case that I said back in September would probably get taken en banc even though the panel opinion was joined by both Judge Bybee and Judge Goodwin. Even though it was a largely fact-bound opinion about whether a particular city's mobile home ordinance constituted a taking.

And today the Ninth Circuit did precisely that. If only to prove that even a broken clock -- like a law professor -- is typically correct at least twice a day.

(I say "typically" since a broken clock is potentially correct three times on the day that daylight savings time ends and potentially only once on the day daylight savings time begins.)

Norse v. City of Santa Cruz (9th Cir. - March 12, 2010)

I talked about the original panel opinion here. Noting that it's rarely a good idea to give a Nazi salute, or to compare pretty much anything to the Holocaust.

But we haven't heard the last of such time-honored practices. Because today the Ninth Circuit took the case en banc.

People v. Puluc-Sique (Cal. Ct. App. - March 8, 2010)

Yes, Virginia, the California Attorney General's Office really did argue that the appeal should be dismissed because the fugitive disentitlement doctrine applies to a criminal defendant who was involuntarily deported.

There's a world of difference between a dude that flees the jurisdiction and a dude who's thrown out of the jurisdiction. The former may well not be able to appeal his conviction, but the latter can. It's one thing for a court to say that a guy has to take the bad (his conviction) with the good (his escape from justice). It's wholly another to say that someone had to take the bad (his conviction) with the bad (his deportation).

Regular litigants often make a number of extraordinarily bad arguments, on the theory that it's sometimes worthwhile to throw a ton of stuff at the wall and see what sticks. But that principle usually doesn't apply to attorney general's offices, who are able to take a broader -- and more informed -- view.

But there's an exception to every rule. This one's one of 'em.

Thursday, March 11, 2010

Newdow v. Lefevre (9th Cir. - March 11, 2010)

That money in your pocket is just fine.

Rounding out the high-profile religion cases from today, the Ninth Circuit holds that the "In God We Trust" motto on U.S. coins and currency doesn't violate the First Amendment either.

The Ninth Circuit holds Newdow's got standing to raise a claim to the contrary -- though lacks standing to object to the federal statute that makes "In God We Trust" the national motto -- but holds on the merits that there's no Establishment Clause violation.

This decision is from the same panel that split 2-1 in the Pledge of Allegiance case: Judge Nelson, Reinhardt and Bea. But this time the decision is 2 1/2 to 1. Judge Bea again writes the majority opinion, and Judge Nelson again joins. But this time Judge Reinhardt concurs in the result. Saying, essentially, that given the crappy Pledge case, which he hates but which as of today is the law of the circuit, he's constrained to dismiss the Coin case as well.

So there you have it. Another Ninth Circuit decision that's not going en banc and that's not going to be reversed by the Supreme Court.

Tijani v. Holder (9th Cir. - March 11, 2010)

There are a lot of great Ninth Circuit decisions today. But I want to mention this one, which will get less publicity, and thus may well be overlooked.

Except by the Ninth Circuit itself. Since this one will, and should, go en banc.

It's a perfect storm. The opinion is a 1-1-1. The petitioner, who wants asylum, is totally unsympathetic. The author of the "majority" opinion (Judge Noonan), does one thing that the right wing will like (finding that credit card fraud its categorically an offense of moral turpitude) but another that it'll hate (ordering the IJ to decide whether the petitioner should be granted asylum but to assume that everything he says is true). Judge Tashima disagrees with (1) and argues that this holding is in "open defiance" with an en banc ruling last year. Judge Callahan disagrees with (2). In short, it's an opinion that no one other than Judge Noonan likes.

Which is why it almost certainly won't stand.

So read this one while you can. It'll set the stage for an interesting fight later this year.

Newdow v. Rio Linda USD (9th Cir. - March 11, 2010)

Hopefully you didn't forget about the Pledge of Allegiance cases. Because they're not over. Sure, the Supreme Court reversed the Ninth Circuit's earlier invalidation of teacher-led recitations of the 1954 version of the Pledge, which includes the words "under God." But remember that is reversal was only on procedural standing grounds, since the student's mother intervened to argue the other way. But that's easily solved. Plaintiffs got the parent of a new student -- this one with full custody -- to bring the same challenge. So we're back in the Ninth Circuit again.

The case was argued over two full years ago, back in December 2007. With everyone and his mother filing amici briefs.

So now the Ninth Circuit has to decide the merits of the case again. With the backdrop of both the Supreme Court's reversal (albeit technically on standing grounds) as well as the firestorm of controversy that accompanied its initial opinions.

Guess how the panel comes out? With the following (important) information: the panel consists of Judges Dorothy Nelson, Reinhardt and Bea.

Did you guess that the opinion was not unanimous? Of course you did. Did you guess that Judge Bea voted to find the Pledge constitutional, and that Judge Reinhardt voted the other way? Yep. Without a doubt. So which way does Judge Nelson vote?

I won't comment on the various opinions much. In part because this is an exceptionally high-profile case, so I'll have very little to add beyond what other people will say. But in large part because I can't add much beyond the various opinions themselves. Which span 193 single-spaced pages; as a result, most everything that can rationally be said has already been said by the authors themselves. When you've got over two years to write an opinion, and you know that every word you say will be exceptionally scrutinized, trust me, you do a good job. So I refer the reader to the opinions themselves.

The only thing I'll say is that this is (1) a classic Judge Reinhardt opinion, (2) a classic Judge Bea opinion (perhaps a bit more moderate given the inclusion of Judge Nelson), and (3) for better or worse, a somewhat predictable vote from Judge Dorothy Nelson. As for the latter, of course I do not know the inside of Judge Nelson's heart, or what she'd decide in a vacuum. But, given the prevailing context -- with the public and the current Supreme Court's view on the matter fairly clear -- I think Judge Nelson's decision is consistent with what one would expect. Judge Nelson and Judge Reinhardt are studies in contrast. Judge Reinhardt relishes a fight, and is more than willing to swim against even an overwhelming tide. Again, for better or worse, that's not Judge Nelson. Who has both a different personality as well as a different sense of what it means to be an appellate judge in these sorts of cases.

Notwithstanding the earlier Ninth Circuit opinion, I would not expect this one to be taken en banc. Sure, there may well be a call for a vote. But the Ninth Circuit has more Judge Beas and Judge Nelsons than Judge Reinhardts. Again, for better or worse.

Wednesday, March 10, 2010

Primiano v. Howmedia Osteonics (9th Cir. - March 10, 2010)

Here's a good primer -- as well as a holding -- on how to properly apply Daubert. Particularly, as here, to medical expert testimony.

The opinion, by Judge Kleinfeld, is written like an old-time law review article. The kind of thing we don't see anymore. Lots of quotes about and citations to standards, and then a discussion of those several pages of standards to the facts.

This is not your typical modern opinion, at least in style. But it works. And is persuasive.

Gravillis v. Coldwell Banker (Cal. Ct. App. - Feb. 26, 2010)

Kenny Gravillis bought a home in L.A. for $500,000 using Coldwell Banker as his broker. After buying the house, he concluded that Coldwell Banker had done a terrible job, and had failed to disclose some significant known defects in the house, so he sued 'em.

But the standard brokerage agreement had an arbitration clause. So Coldwell Banker filed a motion to compel arbitration, which Gravillis opposed. At the hearing, the trial court denied the motion to arbitrate, and asked Gravillis to prepare an order. Which it did -- to which Coldwell Banker responded by "objecting" to the proposed order with a reiteration of its arguments at the hearing. Inexplicably, this tactic worked, and rather than signing the proposed order, the trial court compelled arbitration.

At which point Gravillis filed a motion for reconsideration. Which also worked. At which point the trial court entered an order denying arbitration.

So Coldwell Banker filed an appeal. And the Court of Appeal reversed, and compelled the matter to be arbitrated.

All of this, as you might imagine, took years and years: We're talking way back in 2004 and 2005. So lots of transaction costs and attorney's fees.

So eventually, in 2008, Coldwell Banker gets its requested arbitration hearing. At which the arbitator awards plaintiff almost $400,000 in damages.

Coldwell Banker, not surprisingly, files a motion to vacate, which the trial court denies. Coldwell Banker then again appeals, claiming that the arbitrator failed to follow California law.

But you asked for it, you got it. The Court of Appeal affirms.

Lesson of the Day: Be careful what you wish for.

Tuesday, March 09, 2010

Najmabdi v. Holder (9th Cir. - March 9, 2010)

How do you feel about deporting to Iran a 60-year old woman who's been in the U.S. for the last 23 years?

If it matters, she's Westernized, has never committed a crime, studied fashion design while in the U.S., and is a small business owner who designs Western style clothing for Iranian women.

Here's what the Ninth Circuit does.

Judge Milan Smith writes the majority opinion. Judge Bybee joins. Judge Pregerson dissents.

Which may give you a hint as to how the case comes out.

Monday, March 08, 2010

Lobo v. Tamco (Cal. Ct. App. - Feb. 24, 2010)

See if this fact pattern applies to you as well.

I'll share how it looks like it works for me. I work at a university. I run or bike to work on occasion, but often drive. When I do, I drive my own car.

My employer occasionally asks me to go to various off-campus locations. Alumni events, bar activities, swearing-in ceremonies, presentations, etc. When I do, it reimburses me for mileage. Over the past ten years, I've driven my own car to maybe thirty of these things. My employer doesn't provide a car for me in part because it's cheap and in part because I don't do these things often enough to "justify" a company car. (Unlike, I might add, the Dean and the President of the University.) Normally, though, I just drive my car to and from my home.

Let's say I crash my car going home one evening. Or run into someone. Can I get worker's comp? Can they sue the university?

According to this opinion, the answer -- stunningly -- may well be "Yes".

Let's compare my (and your) situation to the facts of that case. There, the employer didn't provide the employee with a company car either. There, as part of his work, the employee occasionally had to go to off-site locations, and occasionally used his own car. During the past sixteen years, the employee had done so ten times or less. He was driving home one day -- again, to his home, not to a job site -- and smashed into someone, killing him. The trial court granted summary judgment to the defendant when the decedent's estate sued the employer, holding that the usual "coming and going rule" (i.e., there's no respondeat superior liability) applies when an employee's driving his own car to and from work. But the Court of Appeal reverses.

I'm dubious. Very dubious. But it's good to know. I'll definitely remember that the next time I get into an accident on the way home from work.

Rhodes v. Paskett & Henry (9th Cir. - March 8, 2010)

Paul Ezra Rhodes kills multiple people at various different times. Idaho sentences him to death multiple different times, and three of his appeals now reach the Ninth Circuit. Does he get relief?

No, no, and not now (or, likely, ever).

This is one person who's not likely to die of natural causes.

Friday, March 05, 2010

Smith v. Mahoney (9th Cir. - March 5, 2010)

It's a death penalty case. In the Ninth Circuit. With a panel that consists of three Democratic appointees, none of whom have the name "Tallman" and one of whom has the name "Fletcher."

No way the panel's going to affirm the death sentence, right?

Admittedly, this is not your typical death penalty case. For one thing, the defendant confessed to the murders. Not only to the police, but at trial as well. Moreover, not only did he confess, but he didn't offer any defense at all. Indeed, he said that he wanted to be sentenced to death, and told the sentencing judge "that he considered himself to be a violent person; that he was uninterested in rehabilitation; that he felt no remorse; and that part of the reason he killed the two men was that he had always had 'kind of a morbid fascination to find out what it would be like to kill somebody.'"

Well, not surprisingly, the judge obliged. Given these facts, even when the defendant later changed his mind (post-sentencing) and appealed, it's perhaps not surprising that his death sentence gets affirmed.

Mind you, there's some stuff on the other side too, which also makes this an unusual case. For example, Montana offered Smith a plea bargain that would have made him eligible for release in a little under 18 years -- and all he'd have to do is testify truthfully, like he did at trial anyway. So proving "prejudice" from any errors that might have been made isn't as tough as in a lot of other cases. Plus, you've got the facts that the defendant (1) was deeply depressed when he decided to "volunteered" to be killed, (2) had been in solitary confinement for some time, and (3) had received death threats from other inmates and believed that he would be killed in prison. Not to mention that even the majority opinion concludes that the defendant's lawyer "failed to properly investigate possible defenses to the death sentence and failed to present those possible defenses" to the defendant, and that these failures made defendant's representation ineffective as a matter of law.

So that weighs heavily on the other side. Which is why Judge (Betty) Fletcher dissents.

Nonetheless, you've still got a panel of three not-conservative judges on the Ninth Circuit affirming a death penalty. Not something you see every day.

P.S. - Let's all learn from defendant's mistake here. Before committing the murders, he felt “messed up emotionally” and felt like he "had to get away from the environment that [he] was in in order to get calmed down.” Makes sense. So he decided to go to Mexico. Okay, I can understand that. But if you're indeed "emotionally messed up," my strong sense is that it's a good idea not to "tak[e] between thirty to forty hits of LSD daily." That's not going to help. At all. And may even help contribute, as here, to some really, really poor decisions.

P.P.S. - One final note -- without commentary -- from the last paragraph of the majority opinion. The murders happened 27 years ago, and the decision to "volunteer" for death was similarly long ago. "By all accounts, Smith has reformed his life. He has developed strong relationships with various members of his family and has taken advantage of the educational opportunities offered by the prison that houses him. He has expressed deep regret for his deplorable actions. However, consideration of these issues are beyond our jurisdiction in this case. Clemency claims are committed to the wisdom of the executive branch. On the legal issues presented to us, we affirm the judgments of the district court denying Smith’s petition for a writ of habeas corpus.

Thursday, March 04, 2010

Coito v. Superior Court (Cal. Ct. App. - March 4, 2010)

With all due respect to Justice Kane, I'm going to have to agree with Justice Dawson on this one.

It's a case that's important to pretty much every California attorney (or at least every California litigation attorney): Whether statements made by a witness and recorded by a lawyer (or her representative) are protected work product. Some courts have held that they are, including the California Court of Appeal, and some courts have held that they aren't (including different panels of the California Court of Appeal).

Justice Dawson persuades me that it's not work product. Granted, on Tuesday, I just finished Upjohn with my class, and Justice Dawson's view is exceptionally similar to the federal rule on this subject, so maybe I was predisposed to find that position persuasive. But I slam plenty of federal cases. Both inside and outside of class. So think that this is really my true belief.

It's not that Justice Kane doesn't have a point. The questions that are asked may well reflect, to a degree, the mental impressions or conclusions of an attorney. But I don't think that's enough to make the notes work product and thereby impede important discovery. In this regard, I'm not sure I can say it any better than Justice Dawson did: "We do acknowledge that an attorney could reveal his or her thoughts about a case by the way in which the attorney conducts a witness interview. We are confident, however, that competent counsel will be able to tailor their interviews so as to avoid the problem should they choose to do so. We also note that, if there were something unique about a particular witness interview that revealed interpretive rather than evidentiary information, nothing about our holding would prevent the attorney resisting discovery from requesting an in camera hearing before the superior court and the opportunity to convince that court that the interview or some portion of it should be protected as qualified work product."

I think that the deeper problem with the majority rule is that it will encourage attorneys to take rough notes -- and by "rough notes", I mean "something that's their own mental impressions, not something totally or nearly verbatim" -- because that way it'll be protected work product. Indeed, after Coito, that's perhaps precisely what attorneys should do. The downside of which, of course, is that (1) it's harder to impeach people that way, and (2) your notes might not be as good as they would otherwise be. The latter concern being why Upjohn and related cases made up the work product rule in the first place.

Notwithstanding this fact, I'm persuaded that the Court of Appeal gets this one right. And on a more practical level, know the rule. Put away those tape recorders and verbatim notes. Or at least recognize that it's going to be subject to discovery.

Mortimer v. Baca (9th Cir. - Feb. 8, 2010)

Imagine that you're innocent, but you can't make bail. Imagine further that you go to trial -- presumably as quickly as possible -- and are acquitted of all charges.

You'd think that they'd then simply let you go home. That's what uniformly happens on television and in the movies, after all. You walk out of the courtroom.

Apparently, that does indeed sometimes happen. But not always. Occasionally, it seems, they keep you in jail for another day or so. While they're "processing the paperwork".

That's apparently fine, holds the Ninth Circuit. No Section 1983 violation there.

Interesting case.

Wednesday, March 03, 2010

People v. Nitschmann (Cal. Ct. App. - March 3, 2010)

Until today, I hadn't thought about the fact that the Court of Appeal might well have repeated, non-remand-based exposure to a particular defendant. But Justice Yegan reminds me that in California, the same division may indeed see appeals from a particular defendant on different charges over time. Morever, if the defendant is memorable -- say, has a unique name, like "Ralph Helmut Nitschmann" -- memory (or a reminder in the briefs) might serve them well.

"Fifteen years ago we said: 'Ralph Helmut Nitschmann has lead a life of crime.' (People v. Nitschmann (1995) 35 Cal.App.4th 677, 679.) Nothing has changed except the victim's name . . ."

Nitschmann must have had a pretty good sense that this was the way things were going to come out immediately once he saw the panel. His panel this time consisted of Justices Yegan, Gilbert, and Coffee. Guess who was on the panel 15 years ago? Two of the three same people: Justices Yegan and Gilbert. With the same person -- Justice Yegan -- writing the opinion in both cases. Both of which affirmed and both of which started out by referring to Nitschmann by name and in a way that was not especially positive.

Sometimes you can predict the future pretty well. This was one of those times.

Tuesday, March 02, 2010

Doe v. Kamehameha Schools (9th Cir. - March 2, 2010)

I profoundly respect the deferential standard of review we give to district courts about issues of fact. It's appropriate. It's right.

I recognize that it's often difficult for appellate courts to let something go forward that they think is wrong. But that difficulty only makes faithful adherence to the appropriate standard of review all the more essential.

In short, I'm a big believer in deference.

That said, with all due respect to the unanimous panel in this case, and with full recognition that we're talking about an intensely factual finding of the district court, I could not disagree more strongly with the holding in this case.

This is the latest installment in the longstanding judicial debate about whether the Bishop's Trust in Hawaii can continue to exclude all non-Native Hawaiians from the Kamehameha Schools. For those unfamiliar with the saga, I won't attempt to summarize it, but will instead simply refer to Judge Beezer's very good (and very concise) description in the first several pages of the opinion. Suffice it to say that there have been multiple prior lawsuits, two -- but only two -- non-Native Hawaiians admitted to the schools in the past, and that the latest litigation is a follow-on to a prior lawsuit that was settled at the Supreme Court certiorari stage.

But here's the rub. In the latest lawsuit, the plaintiffs want to file anonymously. And for darn good reason.

For anyone who's not hip to the racial politics of Hawaii, let's just say it's very, very polarized. Perhaps for (again) darn good reason, given the history of the place. But for our purposes, that polarization takes place in a very specific context, particularly when it involves non-Native Hawaiians requesting admission to schools currently reserved for Native Hawaiians. A context replete with both pervasive threats and potential and actual violence.

None of what Judge Beezer recounts is new to me, but it might be new to some readers. So I'll give a snippet of some of what transpires below. Which is important, because the whole appeal is about whether the plaintiffs are able to sue anonymously -- albeit with their identities revealed to counsel for defendants -- rather than being subjected to retaliation for filing the lawsuit:

"After the district court’s order [admitting a prior non-Native Hawaiian to the Kamehama Schools], the U.S. Attorney for Hawaii noted a 'growing sense of anger and rage' and threats of 'kill haole day everyday' [Ed - 'haole' is a derisive term for non-Native Hawaiians] . . . . [A]fter the amount of the Doe I settlement was leaked to the Honolulu press, there were calls to 'break [the plaintiff’s and his attorney’s] every bone and make [those] bastards suffer.' Others stated that 'now the boy will have to pay' because they knew people 'who want to kick this boys [sic] ****.' Still others urged that the identities of the Doe I plaintiff and his mother be exposed to force them 'to stand up and face those that they are robbing.' . . . [T]he plaintiffs called the court’s attention to violent crimes with racial overtones committed by Native Hawaiians against non-Natives. In some of these crimes, young children severely injured their non-Native classmates, calling the victims derogatory names related to their skin color, especially 'f------ haole.' . . . [When the magistrate judge denied the plaintiffs' request to sue anonymously,] the online forums of each [Hawaiian] newspaper generated myriad comments [such as] 'Good that the judge ordered them to make these little brats [sic] names known to the public, so they can be tormented by their fellow students and general public.' Another posting stated that these '4 kids . . . will need 10 bodyguards lol.'

Plaintiffs also introduced threatening comments made to their attorney, David Rosen. Rosen received a phone call on the afternoon the magistrate judge’s decision was filed. The caller warned that 'everyone is going to know who your clients are. Now, both you and your haole clients can get the lickins’ you deserve. Why do you f------ haoles even come to Hawaii?' He also received an email: 'You are a son of a bitch . . . I know so many kids that did not get into kamehameha schools with Hawaiian blood and you are trying to take that away . . . I am tired of haoles like you. yOU JEWISH SHITHEAD!!!! if i see you ever in worries . . . I will SPIT on you . . . . it will be my pleasure to beat the crap out of you.'"

To give context to these comments: As Judge Beezer notes in one of the footnotes, “'Kill haole day' is an unofficial tradition in Hawaiian public schools when some Native Hawaiian children 'beat[ ] up Caucasian students on the last day of school.'"

Notwithstanding all of this, the Ninth Circuit holds that the district court could properly refuse to allow the plaintiffs to sue anonymously because it did not abuse its discretion when it found that the plaintiffs' fear of harm was unreasonable. It's not that the panel thought that this conclusion was clearly right; indeed, Judge Beezer expressly says that "were we permitted to make findings and weigh the factors anew, we might have held that anonymity here was appropriate." But the standard of review, the panel concluded, was determinative. It was reasonable to conclude on the evidence that plaintiffs' fear of harm was unreasonable.

Again, I care about the standard of review, and admire both the practice and implementation of deference. But this is the exceptionally rare case in which, in my view, the evidence is crystal clear, and in which the plaintiffs' fear of harm was indisputably entirely legitimate and as well as reasonable.

I'm not at all surprised that once they were not permitted to sue anonymously, the plaintiffs elected to dismiss their lawsuit entirely. I'd have done the same. Precisely because their fear was both palpable and infinitely reasonable.

I understand and appreciate that other people might perhaps disagree, and I agree with Judge Beezer that it's a lot easier to make anonymous threats on the internet than to actually beat people up.

But let me make just three simple points.

(1) People are actually beat up. Already. Young children. For simply being Caucasian (or of another non-Hawaiian race); that's the whole point of "Kill Haole Day." And this all happens to kids who haven't forced their way into the Kamehameha Schools. To think that at least that (or worse) might well happen to plaintiffs seems more than reasonable. This is not merely random fantasy stuff on the internet. It happens. It's real.

(2) Maybe it's my own sense of history. But does anyone else's mind, upon hearing the issue here, harken back to this photograph? Mine does. Change the colors. Make Elizabeth Eckard white (rather than black) and Hazel Bryan native Hawaiian (rather than white). That's what I think we're talking about. Would the Ninth Circuit's ruling really be the same as it is here if we were talking about Little Rock in 1957? Would the Ninth Circuit really say that a district court could legitimately have found that the Little Rock Seven unreasonably feared for their safety? I think not. And, in this regard, the colors may have changed, as well as the reasons (and perhaps even the legitimacy of the opposition). But as far as safety is concerned, the analogy -- sadly -- still holds.

(3) I'd ask the panel, which I sincerely respect, this question: What if it was your own child? Assume you wanted the best education for your child, and thought -- rightly or wrongly -- that s/he was illegally excluded therefrom, and wanted to bring a lawsuit. You saw the exact same things the district court saw. The routinized, race-based beatings. The internet threats. The letters and e-mails to your lawyers. The overarching racial polarization. Do you think that any reasonable observer could rationally call your fear for your child unreasonable in this setting?

For me, all of those points come together, but the last point seems dispositive. One of the express factors in the anonymity test -- a "significant" one -- is the youth and vulnerability of the plaintiffs. Here, the plaintiffs are young students. They are alone and isolated at school, in a racial milieu that's already extremely polarized.

To reveal their identities will unquestionably cause them harm. They'll unquestionably, in my mind, be insulted, picked on, harassed, and otherwise abused by various classmates. Will such abuse also include physical assault? Maybe. But all together, I have no doubt whatsoever that the harm here is sufficiently concrete to justify anonymous litigation. Particularly in the context of a lawsuit in which the identity of the plaintiffs is largely irrelevant to the merits, and which is brought on behalf of pretty much everyone similarly situated.

So I've often opined as to the need for deference. But there are limits. With respect, this is one of them. And, in my view, clearly so.

Monday, March 01, 2010

People v. Mills (Cal. Supreme Ct. - March 1, 2010)

Here's an opinion today from the California Supreme Court. It's 73 pages long. See if you can figure out what happens even before you're told.

"Eric Thomas and victim Sherri Farrar were a young couple living in the Sacramento area. They had a young son, who was born in 1992. On February 10, 1994, they wished to go out and arranged to have their friend, Nancy Warner, babysit their son. After dropping him off at Warner's house, they went to the Sierra Inn, where they played pool and shared a pitcher of beer. . . . Thomas was ready to leave around 11:00 p.m., as he had to be at work at 7:00 the next morning. Farrar apparently was not ready to leave and they argued, but they eventually left Warner's house around 11:30 p.m. with Farrar driving. During the drive home, Farrar admired the starry sky and accidentally allowed the car to swerve onto the shoulder. Thomas yelled at her and an argument ensued. Past hurtful incidents were recalled, escalating the argument. Farrar eventually stopped the car, grabbed her jacket and purse, and got out. Thomas tried to convince her to return, but she refused and walked away. . . .

By this time it was past midnight. Thomas walked around and tried to find Farrar but was unsuccessful. She was apparently not going to return that evening; Thomas described her as a very stubborn person. He could recall at least six other times an argument had caused her to abandon the car in this fashion, but she always came home after she had cooled off. He also recalled four incidents in which she had hitchhiked. He assumed Farrar would walk to International Billing Services (IBS), a warehouse business where she had previously worked. IBS was open 24 hours a day and was approximately five miles away from where Farrar had gotten out of the car. IBS was open 24 hours a day and was approximately five miles away from where Farrar had gotten out of the car. Four members of her family worked at IBS, and she also had family members who lived in the area. In the meantime, Thomas was in a quandary. Their young son was in the car, and Thomas had to get him home. Thomas also knew he had had a lot to drink and was worried about driving himself, as he had past arrests for drunk driving. He eventually decided to drive home and wait for Farrar. He arrived home without mishap, put his son to bed, and waited for Farrar on the couch in the living room. He eventually fell asleep."

Needless to say, Farrar never comes home.

Once they catch the murderer, I'd have thought that his defense would be: "Thomas did it." After all, there was opportunity, motive, etc. Pretty good defense.

Except for this stuff:

"Defendant worked at IBS as a warehouseman. On the night of the crimes, he was out with fellow IBS employee George Solorzano and his girlfriend, drinking and shooting pool. Defendant liked to drink bottles of Miller Genuine Draft beer. They agreed that defendant would spend the night at Solorzano's house in the Placerville area so they could carpool to work the next morning. Sometime between 11:00 p.m. and 1:00 a.m., they left for Solorzano's home in separate cars. Defendant, driving a red car with gray primer paint on it, followed Solorzano for a bit but turned off the highway and never arrived at Solorzano's house. He did not show up for work the next day, and calls to his home were not answered.

Between 5:45 and 6:45 the next morning, several people driving to work along White Rock Road reported seeing a red car on the side of the road. Some drivers noticed the car also bore gray primer paint. Two reported seeing a man who looked like defendant. Others reported seeing a White man in a blue shirt with a logo on it. Two reported seeing the body of someone lying on the ground near the man.

Police investigated and discovered the lifeless body of Sherri Farrar along White Rock Road about 3.7 miles from the IBS warehouse. She was naked and her throat had been cut. Police found a Miller Genuine Draft beer bottle between her buttocks. The bottle bore defendant‟s thumbprint and had feces around the rim. His fingerprints were also found on other items at the crime scene. A pathologist later estimated Farrar had been killed between 3:00 and 7:00 a.m. A massive wound to her throat caused her death from loss of blood and was probably caused by six to 12 slashes from a blade. Detective Bell testified that police later found box cutters and knives in defendant's car and bedroom . . . . Mary Hansen, a criminalist, found evidence of semen on vaginal and rectal swabs. A DNA analysis found the semen was consistent with defendant's blood, and the chance the semen would match another Caucasian was only one in 12 billion. . . . Police impounded defendant's car, and a police investigation revealed that fibers found on the victim matched the carpet in the car. Tiny spots of blood in the car were consistent with the victim's blood and inconsistent with defendant's."

Oops. That pretty much eliminates the "It wasn't me" defense. (Unless, perhaps, you're a former NFL running back. But let's call that a special case.)

You can also figure out what happens next. Defendant is sentenced to . . . death. Of course. The placement of the beer bottle pretty much sealed that fate.

And then to the California Supreme Court. Where your fate's also sealed. Can you spell: "Unanimously affirmed." Of course you can.