Thursday, September 30, 2010

People v. Vance (Cal. Ct. App. - Sept. 29, 2010)

Yep.  It couldn't be more crystal clear that a prosecutor can't tell the jury that it should put itself in the victim's shoes.  That's why they call it the "Golden Rule."

Nor could it be more crystal clear that the prosecutor violated that rule here.  She totally, totally did.  Conviction reversed.

Don't know how the prosecutor could have made such a basic error.  Or how the trial court could have let it go. Thankfully, that's why we have a Court of Appeal.

One other, admittedly parenthetical and non-doctrinal, comment.

I know I shouldn't have sympathy for Andrew Vance.  The victim told Vance's girlfriend that Vance was cheating on her, and Vance decided to get back at him.  He lured the victim to a canyon on the pretense of getting more methamphetamine and then put the victim in a chokehold, tied his hands behind the back, and threw him into the canyon to "teach him a lesson".

Not cool.  Not acceptable.  Regardless of whether Vance meant to kill him or not -- and there's a fair piece of evidence that he was just trying to give him a strand him there -- the fact is that the victim died, and there's not the slightest bit of excuse in any event for what Vance did.

Nonetheless, when I read the transcript of Vance's interrogation, I don't come off with the impression that he's an absolute, unredeemable monster.  Moreover, the fact that the police are deliberately lying to the guy, and playing off his seemingly sincere emotions, only serves to make Vance look better by comparison.  A snippet of the interrogation:

“[Officer] KELLY: Look, dude, we're not here to . . . we just want to find the truth out, alright? We just want to hear your side of the story, how things went down, okay? We know Deuce is dead. That's fine, okay, and we are not sitting here saying you're some kind of crazy serial killer or something like that. Some bad shit happened. We just want to figure out what happened so we can tell Deuce's family, okay? Alright dude, we don't think anything of you, we're not here to judge you.  [That'll be the jury, when we indict you for first-degree murder.] We know it wasn't supposed to go down that way [-- though we'll say exactly the opposite at your trial --] and it did you know what I mean. Something went down. It wasn't supposed to go that way, but it happened, bro [Love the 'bro mention], and now we have to get to the bottom of it, figure this shit out man, you know? I know you are upset man, but let's get through this together all right? [We're totally on your side, dude!]  We're not here to fuck with you, man. [Yeah, right]
“[Officer] NORTON: It takes a big man to be honest all right and I know you have that in you all right. It takes a big man to be honest.
[VANCE begins crying]
“KELLY: Dude, it's okay, bro, alright. It's alright, bro. We're not here to mess with you, all right. We are here to listen and then to help you out.  [Yeah, bro.  That's totally what we're doing here.]
“VANCE: (crying) That's what everybody always tells me and then I end up getting fucked.  [Yep.  Couldn't be more right.]
“KELLY: Well, we're not here to do that bro, [!] we're just here to find out the truth about what happened.  And I think you have a lot on your chest right now, and I think you need to talk about this, I know you want to talk about this.
“NORTON: This has been weighing on you for the last two weeks.
“KELLY: The last two weeks have been fucked.
“NORTON: Tell us what happened. Come on Drew, what happened, buddy.
“KELLY: Keep it real with us Drew. Man we're not going to sit here and judge you, buddy.
“VANCE: (crying) It doesn't matter anyway I'm just going to go to prison and rot and never come out of there."

It just tugged a bit on my heartstrings, however inappropriately, that every word that Vance -- the defendant -- said was true, and entirely sincere and accurate, whereas everything the officers said was both a lie as well as a deliberate and intentional falsity.

Vance basically conceded at trial that he was guilty of second-degree murder.  Now he gets a new trial to see if that's the offense for which he's convicted.  Without a violation of the Golden Rule.

Valdevia v. Schwarzenegger (9th Cir. - Sept. 28, 2010)

Judge Bea writes a darn good certiorari petition here.  In his dissent (joined by Judges O'Scannlain, Tallman, Callahan, Ikuta and Randy Smith) from the denial of a petition for rehearing en banc.

There are some cases in which the original opinion stands for itself, and fully responds to a later dissent from denial of rehearing en banc.  The are others that would substantially benefit from someone responding to the subsequent dissent.  At least if you want the opinion to survive.

This, in my opinion, is one of the latter situations.

Notwithstanding the relatively small number of judges who join Judge Bea's dissent, I think there's a decent chance that the Supreme Court takes this one up.

Wednesday, September 29, 2010

In Re E.O. (Cal. Ct. App. - Sept. 29, 2010)

I want to say two things about this opinion.

First, I understand that we don't want a high school student bringing a folding knife to school.  But why are we requiring as a condition of probation that he not go within 25 feet of a courthouse unless he's a party or witness? Seems to me like we want people to learn more about the justice system, not less.  I'm glad the Court of Appeal reverses the condition.

Second, I like (and appreciate) Justice Rushing's ancillary discussion that mentions that probation conditions should be written clearly, and without excessive legalese.  Especially, as here, in cases involving juveniles.  He's clearly right.  We should make the effort in that regard, and often don't.

Nonetheless, I can't leave without comment the manner in which Justice Rushing "scores" the readability of the probation condition here.  Justice Rushing, in a footnote, gives an alternative that I agree is much clearer to the average reader than the condition imposed by the trial court.  But to prove it, he uses an online scoring system for readability -- which is actually pretty neat -- and says that the trial court's condition has a grade level of 28 years whereas the Court of Appeal's formulation has a grade level of around 7 years.

The problem is that those "readability" scoring systems are way too simplistic.  Sure, maybe a seventh grader could indeed understand the Court of Appeal's condition.  But I don't think it would take 28 years of education to understand the trial court's.  For fun, I also scored the "Discussion" section of Justice Rushing's opinion.  The five scoring systems come out with an average grade level of 8.16.  Not bad at all.  Though I somewhat defy an eighth grader to really understand the thing.  It's tough enough to get 1Ls to understand stuff like that.

Footnote six of the opinion, to me, proves the problem.  Justice Rushing writes that "Clarity is possible even where the concept is complex."  Dropping a footnote that reads:  "The phrase 'Discretion, like the hole in a doughnut, does not exist except as an idea left open by a surrounding belt of restriction,' has a readability score of 10.74. The words are from R. Dworkin, Taking Rights Seriously (Harvard 1978) p. 31."

Now, I don't consider myself an absolute idiot, but I gotta tell you, when I read Dworkin, even I'm not totally sure what he's saying half the time.  Including but limited to the quote cited by Justice Rushing.  I'm pretty sure he's talking about discretion and the overarching limits of legal regulation.  But a lot of me remains confused.  And hungry for a doughnut.  That this sentence is scored as a 10.74 is a darn good indictment of the scoring system, and hardly support for a conclusion that clarity is eminently obtainable.

For example, what do I mean when I say:  "Pithy nodes of thought scale the grand wonders of life."  Pretty readable and clear, eh?  The scoring system used by Justice Rushing gives it an average grade level of 4.76.  Another darn good indictment.  Since if we're writing probation conditions -- or anything else -- that read like that, we're in trouble.

So I'm on completely board for Justice Rushing's sentiments.  But I'm gonna have to dissent from using the metrics upon which he relies.

Though citing Ronald Dworkin for the concept that clarity's possible continues to bring a smile to my face.  I bet that's the first time in history anyone's ever said that.  Much less in print.

Malatka v. Helm (Cal. Ct. App. - Sept. 29, 2010)

There are several downsides to the California judiciary's practice of writing opinions prior to oral argument.  Least among them -- but still worth mentioning -- is the fact that justices are, not surprisingly, often reluctant to dismiss an appeal as moot (even if it's precisely that) once an entire opinion has already been written.

It happens again today.

The appeal is moot because the restraining order of which appellant complains has already expired.  But counsel only let the Court of Appeal know that the day before oral argument.

Well, at that point, not like the Court of Appeal will just want to rip up all the work it's done.  It decides the appeal anyway.

Which is not all that surprising.  Justices are people too.

Tuesday, September 28, 2010

Polimaster Ltd. v. RAE Systems (9th Cir. - Sept. 28, 2010)

Opinions sometimes are relatively value-neutral.  That is, sometimes, politics and norms and the like only slightly play into the resolution of the case.

The classic example is when there's on-point (or sharply analogous) precedent.  But there are also cases in which we're just trying to get the right result on shared norms.  Tax cases, civil procedure cases, and the like often (but by no means always) fall into this category.

Take this case, for example.  In my view, reasonable minds could indeed -- moreover, do -- disagree about the outcome.  But this disagreement is based on largely shared principles.

The question is pretty simple.  An arbitration agreement between two sophisticated commercial parties in an international contract says that any dispute between the parties shall "be settled by means of arbitration at the defendant's si[t]e."  In other words, it's a arbitral choice of forum clause.

Here's the rub.  A files an arbitration proceeding against B.  Because B's home country (its "site") is the United States, A files at the defendant's (B) "site" -- the United States.  No problem.

But B wants to file counterclaims.  B wants to file them in the U.S. arbitration proceeding, claiming that it's still the "defendant" and that this would be efficient.  But A says that B can't do that; that any claims against B must be filed in A's "site" (Belarus) in a separate arbitration proceeding.

Who's right?

Even before reading the opinion, I had my initial impression about who was probably right.  Reading the respective opinions -- there's a majority opinion and a dissent -- only reinforced my initial (very slight) impression.  So before I tell you who won, what's your first-level take?  Are counterclaims properly filed in the initial forum, or do they need to be filed elsewhere?

Judge Wallace writes the majority opinion, joined by Judge Hug.  Judge Clifton dissents.  The majority reverses the district court, and holds that the counterclaims needed to be filed in Belarus.  Judge Clifton disagrees.

Even though I read the majority opinion first, and was definitely open to being persuaded, I'm wasn't, and find Judge Clifton's dissent the better of the two opinions.  See if you agree.

The one thing I thought was spot-on about Judge Clifton's dissent was his opening paragraph, in which he says that the arbitration agreement is ambiguous about where counterclaims should take place.  This seems clearly and unambiguously right to me, and I thought that the majority's claim that there was only one reasonable way to interpret the contract very implausible.  Mind you, I'm not entirely sure how much this ambiguity matters (though if it were crystal clear, of course we'd go with its unambiguous meaning), but by arguing that the contract clearly can only be read one way, I thought the majority substantially undermined its credibility.

The argument that I wish both the majority opinion as well as the dissent had focused on more clearly was one regarding efficiency.  Judge Clifton correctly notes that it's pretty darn inefficient to have two different arbitrations regarding a single dispute, which is why we have compulsory counterclaim rules, and that this argument favors a finding that the counterclaims here were filed properly.  Judge Wallace responds, not entirely inaccurately, that a policy-based approach to what's systemically efficient is irrelevant to a determination regarding the intent of the parties, since they are free to adopt even radically inefficient procedures.

But what Judge Wallace's opinion, in my view, fails to appreciate fully is that the efficiency arguments advanced by Judge Clifton are not only policy-based, but are also reasons why the parties might well have intended that an arbitration include counterclaims rather than inefficiently barring them.  Parties concerned about efficiency, which is a central reason for electing arbitration rather than formal litigation, are unlikely to intend to adopt a procedure that is inefficient, and that multiplies the expenses of those proceedings times two.  So the efficiency argument is indeed relevant, and sheds light on the likely intent of the parties.  Ditto for the default rules regarding the ability of parties to counterclaim; those rules, while facially inapplicable to arbitration, may be relevant to help ascertain the likely baseline views of the parties.  If the usual rule is that counterclaims can -- indeed, must -- be litigated in the initial forum, then parties who wish to displace this rule will likely express this intent clearly, rather than through a general clause that displaces this rule somewhat sub silentio.

What I liked about the majority opinion and the dissent was that they took each other on directly, and there was a respectful and healthy debate about the proper resolution of the case according to shared values  But in the end, I think that Judge Clifton has the better of the argument.  Even though he's outvoted.

Carter v. Cohen (Cal. Ct. App. - Sept. 28, 2010)

Jerry Cohen's a young attorney in the Valley.  (That's the San Fernando Valley for those not alive in the 80s or participants in the porn industry.)  Went to Cal State Northridge and then Loyola Law School.  Admitted in 1997.  Doing a little of this and a little of that.

He buys a house in North Hollywood.  There's a renter in the guest house who's been there for a couple of years, so Jerry let's her stay.  But he jacks up the rent.  She was paying $890 a month.  He makes it $1475.  Gotta pay those bar dues, after all.

A year later he makes it $1585.  Then, in another year, $1685.  The renter, Lauren Carter, has had enough.  She gives her 30-day notice to leave.  Fair enough.

Lauren wants to apply her security deposit to the last month's rent, but Jerry says no way.  When she doesn't pay the last month's rent (wanting, again, to apply her security deposit), Jerry files a lawsuit to evict her.  He voluntarily dismisses the eviction proceeding when she moves out.  Victory.

Or is it?

Lauren's no lawyer, but at this point, she's pissed.  So she reports Jerry to the L.A. Department of Building Services.  Which comes out and says, yep, the guesthouse was built without permits and no one should be living there.  So now Jerry can't rent the thing again.  Filing that eviction action wasn't the greatest move in retrospect, eh?

But that's not all.  Several months later, Lauren gets a lawyer of her own.  And sues Jerry, claiming that he increased her rent in violation of the L.A.'s rent control ordinance.


So now Jerry's got to go to trial.  And this one doesn't get voluntarily dismissed.  Moreover, at trial, he loses, and the jury finds that Jerry charged Lauren over $11,000 in excess rent.

But the pain's not over.  Post-trial, Jerry successfully avoids the trebling of the jury's $11,000 award by convincing the trial court that his conduct wasn't willful.  But that doesn't get him out of his own attorney's fees.  Or Lauren's.  In addition to the $11,000+, the trial court awards Lauren over $25,000 in attorney's fees, as well as over $5,000 in costs.

Jerry files an appeal.  But the Court of Appeal affirms.  Oh, yeah.  And expressly awards Lauren additional attorney's fees and costs on appeal.


Guess that North Hollywood guest house ended up costing a pretty penny, eh?

Monday, September 27, 2010

Ward v. Ryan (9th Cir. - Sept. 27, 2010)

Imagine that the government passed a statute that says that the first $50 in wages that you earn gets placed in a special account that you can't access until either (1) you become a member of Congress, or (2) you die, at which point the $50 goes to your heirs or for your burial expenses.  I would anticipate that there'd be a fury of protests, particularly from folks keenly concerned with property rights, and that a Takings Clause challenge would have a fair amount of judicial backing.

Now imagine that the government passed a statute that says that the first $50 in wages that you earn in prison gets placed in nearly identical special account, with the only difference that we change "become a member of Congress" to "get released from prison."  Any change?  Well, for a person who's serving a definite term, this seems like it's a burden, but a (relatively) minimal one.  But what about a person serving, say, a 197-year-to-life sentence?  The probability that this guy will ever get this $50 is likely less than the probability that any individual person will become a member of Congress.  What happens to that guy?

Well, for one thing, no protests, obviously.  No outcry.  He's a prisoner.  We don't care.  Indeed, the statute actually passes.  It exists today.

For another, we reject his Takings Clause challenge.  It doesn't take your money because you "might" get it if you're pardoned, etc.  Plus it goes to your heirs or final expenses.  Those arguments surely wouldn't be enough to stop strident opposition to a statute that imposed an analogous burden on "regular" people, but for prisoners, the arguments are persuasive enough.

All that said, in the end, I think that Judge Clifton is probably right that there's no compensable taking here.  I might have written the opinion a little differently than he did, since for me, I might have wanted to make it very clear that I'd have probably come out the other way if the money didn't go to the prisoner's burial expenses or heirs (or, in an appropriate case, if the prisoner can prove that he has no heirs and his burial expenses are pre-paid, I'd probably give him access to the money).  Judge Clifton's opinion carefully repeats the underlying facts here, but also deliberately avoids actually saying that these portions of the statute are prerequisites to its validity, presumably to give the panel (and future judges) wiggle room.  I'd have been more express.

But prisoners do have different rights.  Including but not limited to different property rights.  Whatever I might think of a statute more generally targeted -- and there's some analogue, I note, to social security and the like -- for those who are incarcerated, I don't think there's a takings here.  So I agree with the result.  Even if I might have written the opinion slightly differently.

Towery v. Schriro (9th Cir. - Sept. 22, 2010)

Let's say you want to do a drug deal. Or to kidnap and murder someone. Or perhaps all three. Where do you meet?

That's right. Denny's.

It seems to be the location of choice for your undesirable elements. Which wouldn't surprise you if you've ever been to one, as my family and I have on multiple occasions. (Let's hear it for the free kid's meals on Tuesdays!) So many opinions mention the place. Including but not limited to this death penalty case from Arizona.

But far be it from me to simply rely upon anecdotal evidence. (Though to give another example, check out this Ninth Circuit opinion -- rendered only the last week -- where the conspirators to an arson met at a Denny's to plan the crime.) So I dug a little deeper.

There are 78 Ninth Circuit cases that mention a "Denny's." Some of these involve the name of a participant, alleged race discrimination, franchise disputes, etc.

Taking those out. At a Denny's: three murders, one arson, one potential suicide, one illegal gambling, two robberies, one prostitution, one racketeering, and twenty-two different drug deals. Not to mention one sale of a stolen IRS badge and one fixing of a horse race.

And remember. These are only the federal cases. In the Ninth Circuit. We're leaving out all the state stuff, the cases in other circuits, and the cases in which the written opinion doesn't bother to mention the name of the place.

In short, Denny's motto should probably be: "Denny's. Where People Meet. To commit crimes."

Oh, and don't be thinking that it's the pancakes that made 'em do it. I looked up IHOP as well. Not a single Ninth Circuit crime there.

So don't you dare drag down the good name of the International House of Pancakes into the Denny's muck. Please. The criminals there are of a much higher class.

Friday, September 24, 2010

Uzyel v. Kadisha (Cal. Ct. App. - Sept. 22, 2010)

You can make a lot of money if you're a trustee and steal money from someone else's trust. Particularly if it's the 80s and 90s and you invest the money in Qualcomm.

But you can also get hit hard in subsequent litigation. Because your breach of fiduciary duty is, well, extreme.

But what a ride.

People v. Hoye (App. Div. - Sept. 22, 2010)

What does "approach" mean?

A municipal statute allows peaceful picketing at an abortion clinic -- which is protected First Amendment speech in any event -- but doesn't allow a person to "knowingly approach" within eight feet a potential clinic client without consent and with the purpose of harassing, interfering, or counseling such person.

Walter Hoye gets charged with violating the statute on multiple occasions. There were multiple different offenses and factual settings, and the defendant had a variety of defenses, including his argument that in at least a couple cases, he was simply standing still when others came up to his position. (He couldn't constitutionally be convicted if that's all he was doing on those occasions.)

The jury eventually sent a note that asks what "approach" meant. The trial court responded that it wasn't defined by the ordinance and had its ordinary meaning. The jury convicted on all counts, apparently believing the prosecution's witnesses over the defendant's.

The Appellate Division of the Alameda Superior Court reverses, holding that the jury must have been expressly told that "approach" doesn't include standing still, and that saying that the word has its ordinary meaning doesn't qualify.

Whatcha think? Would a jury think that knowingly "approaching" a person included standing still?

Thursday, September 23, 2010

Chubb Insurance v. UPS Supply Chain (9th Cir. - Sept. 22, 2010)

Every half-decade or so, the Ninth Circuit expressly invites amicus briefs in a particular case. Back in 2007, I noted one such order and thought it'd be a potentially interesting topic (about evidence) on which energetic lawyers or law students might want to opine. Then another one came out later that year, which I also mentioned. This time on an antitrust issue.

Fun stuff. You get to have an input on an actual case. Plus, sometimes, the Ninth Circuit thanks you by name in a published opinion.

Well, it's 2010, and the Ninth Circuit's done it again. Amicus briefs, anyone?

But this time, no way in Hades that I'm going to suggest that anyone actually crank out something. Here's the topic:

"The court invites briefs from amici curiae addressing the question whether Article 35 of the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45 ('Montreal Convention'), providing that '[t]he right to damages shall be extinguished if an action is not brought within a period of two years,' is applicable to indemnity actions brought by defendants against third-party air carriers."

Oh, yeah. I'll get right on it. Nothing could hold my interest more.

Plus, last time, you had 30 days to submit the brief. This time it's only 21. 'Cause this will definitely be the first thing on your plate.

P.S. - As with the last amicus invitations, Judge Gould is again on the panel. People are going to start calling him "Mr. Amicus" if he's not careful. Okay. "Judge Amicus."

Wednesday, September 22, 2010

City of Los Angeles v. Tesoro Refining & Mktg. Co. (Cal. Ct. App. - Sept. 22, 2010)

Tesoro owns that big refinery that's near Carson. You've seen it. Huge.

Apparently, the refinery straddles the border between Los Angeles and Carson. Which I'm sure is a minor jurisdictional hassle at times.

But I didn't realize it'd be a big hassle. You see, the refinery gets most of its electricity from the DWP (in L.A.), but some of it from Edison (in Carson). But presumably because Edison is charging cheaper rates, the refinery decides that it wants to power the plant with electricity from Edison. Makes sense, right?

Sure it does. So L.A. sues. Claiming that Tesoro has no right to use electricity within the borders of L.A. that it bought elsewhere.

The trial court agrees. It enters an injunction precluding Edison and Tesoro from providing and buying (respectively) electricity from anyone except the DWP for use on the L.A. portion of the refinery.

That just seems silly to me. Both because it just seems wrong as a matter of law and because I don't see why L.A. actually cares. Except for money reasons, of course. If Tesoro wants to buy electricity from someone else, and wants to transmit it over its own electricity lines on its own dime on its own property, why stop 'em?

Again, except for the whole: "Because we can."

But you can't. The Court of Appeal reverses. A city surely has a right to stop a new utility from using public streets and other public facilities without a permit. But that "exclusive franchise" to supply electricity doesn't extend to situations like Tesoro's.


Flores v. Enterprise Rent-A-Car (Cal. Ct. App. - Sept. 22, 2010)

Rental car companies can't rent to unlicensed drivers, and when they do, they've breached a duty and you can sue them. But they're free to rent to drivers who have had multiple DUI convictions and had their license suspended in the past 48 months.

They don't have to check. They can even rent the car if the driver voluntarily tells 'em all this stuff. As long as the driver's not actually drunk at the time of the rental, you can rent to 'em liability-free. ("[Even] if the driver had informed defendant about his prior drunk driving convictions, the defendant rental car company would not have been negligent in renting to the driver in light of that knowledge.") As a matter of law. No jury trial as to whether that's reasonable. Summary judgment.

The contrary decision by a federal court in the Northern District of California in 2005? Wrong. An erroneous statement of California law.

Tuesday, September 21, 2010

People v. Fenderson (Cal. Ct. App. - Sept. 17, 2010)

"Katherine Majerus died on January 22, 2006, at the age of 96. Fenderson had served as Majerus‘s caregiver.

Deirdre Kruse is an elder law attorney, with a practice in Santa Rosa. Kruse knew Majerus for approximately 23 years. Kruse met several of Majerus‘s care providers, one of whom was Fenderson. Kruse had prepared between six and eight wills for Majerus over the years. Kruse explained that '[Majerus] had no children and . . . she only had two elderly brothers and so she was very concerned about where her estate would go upon her death. [¶] . . . [¶] . . . [S]he had cats and a dog over the years and so always her bequest had something to do with nonprofit agencies that provided assistance for animals.' Majerus never discussed naming Fenderson as a beneficiary. In fact, in all of the wills that Kruse prepared, Majerus had never made a bequest to an individual who was not a family member. In Majerus‘s 2004 will, Kruse was named as executor.

Majerus‘s 2004 will was prepared by Linda Barker Perkins, an associate attorney in Kruse‘s office. The 2004 will bequeathed $5,000 to one of Majerus‘s brothers, with the residue to be split by Guide Dogs for the Blind, Forgotten Felines, and Valley of the Moon Children's Home. No other individuals were named in the 2004 will. Fenderson‘s name was never mentioned to Barker Perkins in connection with the 2004 will.

On January 26, 2005, Majerus told Kruse 'I don‘t trust [Fenderson,] . . . but I don‘t have anybody else.' Kruse offered to help Majerus find someone to replace Fenderson, but Majerus explained that she was fearful about starting over with someone else. Kruse and Majerus had similar conversations '[m]any times' over the years. . . .

Kruse learned of Majerus's death when she saw her obituary in the paper. Both Kruse and Fenderson attended Majerus‘s funeral. At the funeral, Kruse asked Fenderson for Majerus‘s bank records, knowing that Fenderson had helped Majerus with her banking. In reply, Fenderson said that she would bring the documents 'right over' to Kruse's office. Fenderson also asked if Majerus had changed her will. Kruse did not respond.

Kruse's office did not receive any documents from Fenderson until a month or two after the funeral. In March 2006, when Kruse received bank records from Fenderson, Kruse only received records from a couple of small accounts at Washington Mutual. Kruse was concerned because her understanding was that the majority of Majerus‘s assets had been at Wells Fargo. Kruse had not received any records from Wells Fargo, where Kruse assumed the proceeds from the sale of Majerus's home had been placed. . . . Concerned that a large sum of money derived from the sale of Majerus‘s house was unaccounted for, Kruse notified law enforcement.

Kim Nadeau worked as a paralegal in Kruse‘s office between October 2005 and July 2006. Beginning in February 2006, Nadeau tried to contact Fenderson eight times to obtain Majerus's bank records. Nadeau left a number of messages on Fenderson‘s answering machine. On February 27, 2006, Nadeau spoke with Fenderson after making two prior attempts. Fenderson explained that she was in the process of moving and was looking for the bank records. Fenderson told Nadeau that she would drop the records off the following week.

Ultimately, Nadeau received Washington Mutual bank records from Fenderson on March 27, 2006. Nadeau testified that she asked Fenderson about records from a Wells Fargo account. Fenderson indicated for the first time that '[Majerus] had given her that account and that‘s why she wasn‘t providing records for that account.' Nadeau informed Kruse of Fenderson‘s statements and filed a police report. . . .

Majerus‘s Wells Fargo records show that the proceeds from the sale of her home were deposited into her checking account on February 10, 2005. The records also show that $259,000 was withdrawn from the same checking account on April 7, 2006, after Majerus's death. . . . Fuston was not successful in contacting Fenderson, despite making telephonic requests. On September 19, 2007, Fuston met with a Wells Fargo employee who provided Fuston with a copy of a cashier's check. The cashier's check was dated April 7, 2006, and was made payable to Fenderson in the amount of $304,000. A Wells Fargo withdrawal slip, signed in Fenderson's name, shows a withdrawal of $45,000 from a Wells Fargo savings account on April 7, 2006. . . .

Robert Dortch, a senior investigator with Citigroup Investigative Services, testified regarding Fenderson‘s Citibank account records. On April 7, 2006, Fenderson's account showed a $304,000 deposit. In addition, Fenderson‘s account records showed the following transactions: withdrawals of $8,341.58 for April 2006; deposits of $883.51 and withdrawals of $20,370.61 for May 2006; deposits of $824.43 and withdrawals of $8,143.91 for June 2006; deposits of $1,048.92 and withdrawals of $14,050.87 for July 2006; deposits of $418.34 and withdrawals of $9,659.24 for August 2006; deposits of $397.91 and withdrawals of $15,948.97 for September 2006; deposits of $446.15 and withdrawals of $6,677.59 for October 2006; and deposits of $216.07 and withdrawals of $198,922.39 for November 2006."

Fenderson says she was giving everything she took. As between Fenderson and attorney Kruse, I totally believe Kruse. So did the jury. The Court of Appeal holds that there's enough evidence to support the convictions. As there surely was.

Fenderson gets four years in prison. She got off easy, IMO.

Monday, September 20, 2010

Anthony v. Superior Court (Cal. Ct. App. - Sept. 20, 2010)

I knew that there was not statute of limitations for murder. But I didn't know that, in California, there's no statute of limitations for attempted murder either. At least if the attempted murder is premeditated, anyway.

Not something that's going to really affect my life on a day-to-day basis, but still good to know.

Friday, September 17, 2010

United States v. Bohn (9th Cir. - Sept. 17, 2010)

Exciting! A case involving the Property Clause. Which is hardly the most well-known, or most-often litigated, part of the Constitution.

To prove it: Do you know what the Property Clause is? See. Told ya.

Sure, the Clause makes sense. Which is perhaps why it's not often litigated.

But James Boehn is irate that he can't ride his motorcycle without a helmet on a federal road in the Stehekin Valley, and the Property Clause is his best argument.

Notice I said it's his "best" argument, not that it's a "winning" argument. He still loses.

So strap on your helmet. It's still a totally pretty place. Even with a face shield and a working cranium.

Lopez v. Candaele (9th Cir. - Sept. 17, 2010)

It's a rare First Amendment case in which the plaintiff has been actually injured -- as I believe the plaintiff was here -- and yet does not have standing. Here's one of them.

I definitely agree with Judge Ikuta on one thing. This standing issue is close. However, perhaps like Judge Ikuta, while I surely believe that what happened with Jonathan Lopez was due to the content of his speech, it didn't even occur to me (except for the resulting lawsuit) that this would have anything to do with an allegedly overbroad sexual harassment policy. My sense was, and remains, that Professor Matteson -- who was teaching Speech 101 at L.A. City College -- just did not like the content of Lopez's speech, and didn't think it was appropriate to talk about God and the like in class. Sure, subsequently, Matteson made (totally vague) references to the school's Student Code of Conduct. But I didn't take what Lopez did to be even alleged harassment, and so I understand where Judge Ikuta comes out on this one.

Still, it's close.

What's not close, however, is the propriety of what Professor Matteson did. Interrupting an assigned speech in class, calling the student a "fascist bastard," refusing to allow the student to finish his speech, telling the other students that they can leave if they're offended, and then -- when no one leaves -- dismissing the class. Wow. All that Lopez was doing to talking about his faith and the ways in which he believed God had acted in his life and in the lives of others. The assignment was to make an informative speech on the topic of the student's choosing. Seems to me like this qualifies. Regardless, even if it didn't, mellow out. Let the guy talk.

Plus, even if you're upset in the heat of the moment, at least upon reflection, I'd hope that when the student asked the professor what grade he got on his speech, the professor would not refuse to give a grade and instead write on the evaluation form: "Ask God what your grade is."

Stay classy, Los Angeles.

Thursday, September 16, 2010

Gabriel v. Wells Fargo (Cal. Ct. App. - Sept. 15, 2010)

Here's the litigation version of "Where's Waldo?" Which, in this context, is: "Where's My Million-Dollar Certificate of Deposit?"

To which the answer, according to the Court of Appeal, is: "We don't know, but you don't know either, so we're dismissing your lawsuit."

Wednesday, September 15, 2010

U.S. v. Waters (9th Cir. - Sept. 15, 2010)

I like this opinion by Judge Tashima. It's a classic example of an opinion that uses judgment, and identifies (in my mind) the essential nature of that quality.

There are areas in which I'm less persuaded than Judge Tashima is that the defendant has a good point. But regardless of any potential disagreements, I still think the opinion reflects a great deal of thinking and consideration. Qualities that are, sadly, sometimes lacking.

Parenthetically, when you burn down a building in the name of the ELF -- which someone surely did, although whether Waters herself was a lookout may indeed be subject to legitimate debate -- make sure that your target is actually what you think it is. Unless you think (as perhaps some do) that burning everything down is the correct way to go. "Smash The State" and all.

In the end, Briana Waters gets a new trial. We'll see how that one goes. I think it will be a lot fairer than her first one. Precisely for the reasons Judge Tashima identifies.

People v. Butler (Cal. Ct. App. - Aug. 24, 2010)

Stephon Butler was convicted of involuntary manslaughter -- a conviction affirmed by the Court of Appeal -- when he participated in a group that took one of their friends and "hit [him] repeatedly, tied [him] up, and silenced [him] with a sock placed in his mouth."

Too bad Butler didn't have Tom Cruise as his lawyer. Who obtained an acquittal in an analogous context. Albeit fictional.

The truth. Regardless of whether you can't handle it.

Tuesday, September 14, 2010

U.S. v. Pool (9th Cir. - Sept. 14, 2010)

Does taking DNA from an individual arrested for -- but not convicted of -- a crime, after a judicial finding of probable cause, as a condition of bail violate the Constitution?

Judge Callahan authors the majority opinion. Judge Lucero, sitting by designation from the Tenth Circuit, concurs and writes a separate opinion. Judge Schroeder dissents.

The testing requirement comes from the federal Bail Reform Act, and applies to pretty much every federal felony pretrial detainee. So it's an important case.

Given the significance of the case, as well as the lineup of the panel, I think you'll see this one taken en banc. Which makes sense, and the substantial tension between the majority opinion and prior Ninth Circuit precedent gives additional reason to take the case up.

Mind you, I don't think the decision of the en banc court is a foregone conclusion, and if it does go up, I'm confident it'll be a split decision. Moreover, I don't think that'll necessarily be the final judicial word on the subject, since the Supreme Court may well step in here -- particularly if the panel's decision is reversed en banc.

So this one's far from over. Though in the meantime, don't get arrested for a federal crime. Which is good advice in any event, but particularly so if you don't want the federal government to have your DNA.

P.S. - I've never seen someone's first name differ in the California State Bar records. The Bar has counsel for the defendant listed as "Rachel Barbour." However, the opinion has her listed as "Rachelle" Barbour. Since her e-mail address is, I assume that the opinion is right.
POSTSCRIPT - And I just gotta add this, which I received from someone who ought to know: "It's definitely 'Rachelle' -- one of the smartest annual law clerks ever to work for the California Supreme Court Criminal Central Staff." Nice!

Monday, September 13, 2010

Khatib v. County of Orange (9th Cir. - Sept. 13, 2010)

The Ninth Circuit held last year that a holding cell at the massive Orange County facility was not an "institution" governed by the federal Religious Land Use and Institutionalized Persons Act, and it was accordingly not a potential violation of that Act to force a Muslim woman to remove her hijab (headscarf). Chief Judge Kozinski dissented, and I discussed the case here.

Today the Ninth Circuit takes the case en banc. Which, particularly given the other facts we know, tends to suggest where this one's headed. Assuming a not-unusual draw for the en banc panel.

Stay tuned.

U.S. v. Terrell (9th Cir. - Sept. 13, 2010)

Judges Kozinski, Pregerson, Reinhardt and Milan Smith. They're definitely very different. But they also have some similarities.

Perhaps sometime in the past these four -- but only these four -- have signed onto something. If so, I've never seen it.

There's a lot of intellectual firepower there. Even in the context of a circuit that's very much on the bright side of the spectrum.

Friday, September 10, 2010

In Re V.V. (Cal. Ct. App. - Sept. 8, 2010)

V.V. is five years old. Her mother can't stop smoking methamphetamine, so we're going to assess whether to terminate parental rights and put V.V. up for adoption.

V.V. has some interactions with the family who wants to adopt her, and V.V. was asked about the family and potential adoption:

"[V.V.] was particularly excited that they had a large house, she could go to preschool, the family liked Disney, and they would take her fishing. If she could have a princess bed and an Ariel doll, V.V. would move to the new family right away."

Proving that you're never too young to make a good deal.

Here's hoping that V.V. becomes an attorney. It's clearly in her blood.

Thursday, September 09, 2010

Anderson v. City of Hermosa Beach (9th Cir. - Sept. 9, 2010)

You've got a First Amendment right to go to a tattoo parlor in the Ninth Circuit.

On the merits, this isn't that surprising. Tattoos are clearly expressive and protected by the First Amendment. Producing art on a canvas is protected speech, and that analysis doesn't change much merely because the canvas is your body. Sure, tattoos have hygienic concerns that oil paintings don't. But that only permits time, place and manner regulation (e.g., certification, inspection, etc.), not an outright ban. The Ninth Circuit accordingly unanimously strikes down Hermosa Beach's ban on commercial tattoo studios.

I think this case also reflects a broader jurisprudential theme as well. IMHO, this case would have come out differently twenty years ago. Did the First Amendment, or relevant doctrine, change in the meantime? No. Of course not. The only thing that's different is the prevalence -- and social acceptance -- of tattoos.

It's a common refrain among a certain group that "elite" opinion drives judicial decisionmaking. Guess what? They're right. At least in a certain (and I think small) category of cases. This one being one of them. We're just far more used to seeing tattoos nowadays than we were before, and we're far more accepting of them. Elite opinion has changed, in part because elites -- and their kids, and their clerks -- now sport the things. It's hard to think that tattoos are disgusting and/or bereft of social or expressive significance when you, your friends, your wife, or your clerks sport 'em.

Indeed, this is one of those rare examples of elite opinion "catching up" to mass opinion. Usually the critique is that elite judicial decisionmakers ignore the views of the public and instead use the Constitution to enshrine their own (minority) position notwithstanding public opinion. Think gay marriage or desegregation, which was disproportionately supported by elites. But here's a case where a practice was accepted by non-elites (think: bikers, etc.) long before it was accepted and adopted by upper class judges and their cohorts. So it's a little bit different, but it still reflects an observational truth -- subject to a normative dispute -- that social conditions, including but not limited to elite opinion, may in some cases dispositively affect the outcome of a case.

I think you might agree with me on that one. So let me go even more out on a limb. There are plenty of cases -- even recent ones -- in which courts have rejected claims identical to the ones accepted by the Ninth Circuit today and held that tattoo parlor ban do not violate the First Amendment. Illinois in 2008; Virginia in 2007; South Carolina in 2002; Indiana in 1986; New York in 1978; etc. What explains those cases? Well, for one thing, the Ninth Circuit obviously diverges politically from some of those other jurisdictions. For another, time; New York in 1978 is different than New York in 2010.

But here's another difference. Dollars to doughnuts says that the number of law clerks with tattoos is far, far greater in the chambers of Judges Bybee, Noonan and Clifton -- located in Las Vegas, San Francisco, and Honolulu, respectively -- than in, say, the Virginia Court of Appeals. In part because we're on the West Coast. And in part because, among the judicial clerkship set, there may be a sense that having an incredibly stunning resume -- which Ninth Circuit clerks clearly have -- grants you a little expressly "leeway" and allows you to, say, get a tattoo without limiting your career options in a way that might not exist if your resume is one for which your best shot at clerking is in the Virginia Court of Appeals. All of this even assuming that the latter tribunal even has recent-graduate law clerks, which often do not exist in the state tribunals in which many of the previous tattoo cases have been heard.

All of this is a way of saying that, in addition to friends with tattoos, I think that clerks with tattoos -- which, for many judges, may be their principal professional exposure to the practice -- might well have a fairly big impact on how a judge might view cases like this one. Wholly apart from the fact that having a tattoo (or innumerable friends with tattoos) would almost certainly affect the attitude of the relevant clerk working on the case, writing a draft opinion, talking to his or her judge, etc.

Not that I have any knowledge of the particular bodywork, if any, in the relevant chambers at issue here. But I'd be shocked if these places were entirely tat-free.

Wholly apart from the things that might influence the outcome, again, doctrinally, I think this is the right result. Even apart from doctrine, the result also makes sense. I mean, it's Hermosa Beach, for goodness sake. You mean to tell me it's permissible to down a dozen beers, smoke three packs of cigarettes, visit a local head shop, and partake of some "medicinal" chronic -- all of which, I assure you, you can easily do in Hermosa -- and yet it's not okay to get a tiny little rose tattoo on your ankle? Come on.

I doubt the Supreme Court will take this one up or that they'll be an en banc call, so I think it's a green light for tattoo parlors in Hermosa Beach and elsewhere. So I think the very first tattoo out of these places should be one applied to the butt on of a patron that says: "Brought to you by the Ninth Circuit."

I might even volunteer.

Wednesday, September 08, 2010

Mohamed v. Jeppesen Dataplan (9th Cir. - Sept. 8, 2010)

In keeping with my traditional practice, I won't say much about this case. Because as a high-profile case, it will get plenty of commentary elsewhere.

The Ninth Circuit, in a close 6-5 en banc opinion, employs the state secrets doctrine to dismiss at the pleading stage a lawsuit that alleges that private contractors knowingly participated in an illegal "extraordinary rendition" program run by the CIA in which individuals were tortured, "disappeared," and otherwise subjected to activities in foreign countries that would be illegal for the CIA to perform itself.

The majority opinion is far from overboard. It "reluctantly" dismisses the lawsuit. It mentions that courts should be "skeptical" of executive invocations of the state secrets doctrine in lawsuits that allege official abuse because the principle might well be used to hide executive wrongdoing in the cloak of national security concerns. It concludes by mentioning that there are other ways in which the plaintiffs might obtain relief; private bills, voluntary compensation by Congress, etc.

But in the end, the majority holds that the lawsuit gets dismissed in its entirety because the core of the lawsuit would require disclosure of state secrets and there's nothing short of dismissal that would solve this problem. So even if the plaintiffs had their rights severely violated, there's no judicial remedy.

Apart from simply describing the holding, I'll offer three very brief points that you probably won't read elsewhere, and that relate less to the merits than to procedure. Though, as usual, there's a big overlap there.

(1) The opinion is a direct product of the vote. The opinion is cautious and careful. It takes the matter seriously. It's not knee-jerk conservative or uncompassionate. There's a reason for that. Actually, several reasons, but they're closely related. The opinion is written that way because it is written by Judge Fisher. And it's written by Judge Fisher because, in this particular case, he's the Justice Kennedy of the Ninth Circuit.

It's a close vote. There are four Republican appointees in the majority, counting Judge Tallman as a Republican appointee, which he is in all but name, plus Judge Rawlinson. There are five Democratic appointees in the dissent. Judge Fisher makes the difference. He's the crossover that makes the difference. So he gets to write the opinion the way he wants. Which is a smart move as a way to hold his vote. Ditto for the lack of a vitriolic concurrence. The opinion is what it is in substantial part because it's a 6-5.

Not that there aren't several judges in the majority who might write similar things and who have similar sentiments. There are. But what you read is a definite product of the vote.

(2) The case comes out differently in parallel universes. Half the time the case goes the other way with a fully random en banc draw. Who gets chosen sometimes matters. It does here.

(3) The case likely comes out differently if Obama had filled the four empty seats. Maybe even comes out differently if the Senate had confirmed the two nominations that have been pending for six months. Delay sometimes matters too. Here's another good example.

You'll be hearing about the merits elsewhere. Don't overlook what's underneath as well.

Vukmirovic v. Holder (9th Cir. - Sept. 8, 2010)

There's the soft touch, and then there's a hard touch. Rarely does one combine the two. Rarer still is a decision to employ both of these alternative approaches in adjoining sentences.

But Judge Rawlinson's dissent gives it a go.

The first sentence is a classic softie. "I respectfully dissent." Nice. Deferential. Traditional.

The second sentence, however, somewhat strongly contrasts with the first. It'd stay on theme to say something neutral like: "I disagree with my colleague's conclusion that the facts of this case present an 'extraordinary' circumstance." That says what you want to say consistent with the meme of the first sentence.

But Judge Rawlinson goes the other way. Her second sentence instead says: "I am in complete and total disagreement with the majority's conclusion that the facts of this case present an extraordinary circumstance." Saying that you disagree with the majority is neutral. Saying that you completely disagree with them ups the ante. Then adding, lest there be any ambiguity, that your "complete" disagreement is also "total" jacks up the rhetoric even more. In a manner that more often follows a stark "I dissent" opening -- or even a "I strongly dissent" -- than the classic manner employed by Judge Rawlinson.

I recognize, of course, that the "respectfully dissent" line is one that is subject to various uses, and doesn't necessarily mean what it actually says. Sometimes, for example, a judge ends a blistering, personalized dissent with the single line -- I respectfully dissent -- in a manner that's essentially sarcastic. As in: "This dissent is anything but respectful, and you and I and everyone who reads the thing knows it, and I'm ending this dissent by saying that my dissent is respectful only to let the world know how much I hate you and that I'd be even harsher if I didn't have institutional norms that I felt obliged to follow." So it's not that I'm unused to the lingo.

Still, I thought that this one was a funny study in contrasts. Especially given the relative brevity of the dissent. Judge Rawlinson ends her dissent by repeating: "Accordingly, I respectfully dissent." Even though that line concludes a relatively harsh paragraph that accuses the majority of distorting precedent, I thought it made sense there. Saying it at the conclusion made more sense to me than saying it at the outset and immediately adopting a contrasting style.

With due respect, of course.

Monday, September 06, 2010

In Re Estate of Ziegler (Cal. Ct. App. - Aug. 31, 2010)

This is justice.


This is justice?

Paul Ziegler was a retired school teacher in poor health. In 2000, Richard and Irma LaQue rented the house next door. About six months later, LaQue started doing Ziegler's plumbing, mowing his lawn, and doing other handyman work. Ziegler said he didn't have any relatives, and his friends only visited once or twice a year.

Starting in 2003 or 2004, Ziegler repeatedly told the LaQues that he wanted them to have his house, explaining that "he wanted somebody that's going to take care of the house that his mom and dad worked so hard for" rather than having it go to the government. When, in 2005, after a bout of flu, Ziegler stopped taking his daily walk, the LaQues began bringing him meals, making sure he ate, and Irma started cleaning his house twice a week.

Later that year, Ziegler was hospitalized, and LaQue visited him every day. When Ziegler got out of the hospital, he stopped leaving his out at all, and the LaQues continued to bring him meals, helped him get dressed, prepared his bath for him, and ran errands.

Finally, in late 2005, Ziegler asked the LaQues to come over, and Ziegler dictated and all parties signed a document -- one witnessed by others and the authenticity of which is undisputed -- that said:

“I Paul Daniel Ziegler home owner of 820 E. G St in Colton, California 92324, am signing over my home and property to Richard H. LaQue Sr. This written agreement between myself and Richard is for the exchange of my care and daily meals. This written note will be immediately active if and when I no longer can reside in my home due to death.”

The LaQues continued to care for Ziegler, who eventually got sick and was hospitalized, and they took care of the home during the extended period Ziegler was in the hospital. Eventually, Ziegler died. The LaQues arranged for Ziegler to be buried next to his wife. Relying on the agreement, the LaQues then moved into the house.

A Public Administrator eventually administers Ziegler's estate. There are no relatives. Or, more accurately, no relatives that really matter. But for a (big) piece of the pie, a company -- W.C. Cox & Company -- digs up nine residents of Germany who claim to be Ziegler's heirs, and demands the house. At which point LaQue says: "But I have a written contract." To which Cox says: "True. But I see that you filed that contract with the administrator one year and three weeks after Ziegler died. That's three weeks too late. There's a statute that says that, unlike regular contracts, contracts like this one (e.g., with a decedent for personal services in return for property at death) have to be filed within a year. So we -- and the heirs we found -- get the house, not you. Even though none of us ever knew or cared for the dude at all."

The trial court rejects Cox's argument. But the Court of Appeal reverses. It gives the house to Cox. And, in the last line of the opinion, also awards Cox costs. LaQue can't recover anything at all for the value of his services. Not contract, not quantum meruit, nothing. And he gets to pay Cox for the privilege of providing services to LaQue.

Let me make this clear, however. The Court of Appeal is probably right about the law. There's a one-year statute. It likely applies. The claim was indeed filed one year and three weeks late. A filing that was overdue, though there's absolutely no prejudice that resulted therefrom.

What's the right result? Give the house to LaQue anyway? Affirm in an unpublished opinion? Give the house to Cox but don't award costs? Split the baby? What's right here.

Law versus equity.

Friday, September 03, 2010

EEOC v. Prospect Airport Svcs. (9th Cir. - Sept. 3, 2010)

The facts can totally help you out.

Here's a great female-harasser/male-victim sexual harassment case. That the district court granted summary judgment to the defendant only makes it better. Read the first eight pages of the Ninth Circuit's opinion, which relay the facts. Even before you read any legal analysis, you not only know which way the opinion is coming out, but also know that it's right. This is harassment. Reverse the genders and it's crystal clear to everyone.

It's also a great case for Judge Kleinfeld to articulate his vision. The district court (Judge Dawson up in Las Vegas) granted summary judgment to defendant because the plaintiff admitted that most men would have been psyched by the alleged harasser's offers of sex. But Judge Kleinfeld hits that one out of the park, saying:

"It cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome. Lamas suggested this might be true of other men (the district court decision noted that Lamas “admits that most men in his circumstances would have ‘welcomed’ ” her advances). But that is a stereotype and welcomeness is inherently subjective (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual propositions.

It would not make sense to try to treat welcomeness as objective, because whether one person welcomes another’s sexual proposition depends on the invitee’s individual circumstances and feelings. Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons. He might feel that fornication is wrong, and that adultery is wrong as is supported by his remark about being a Christian. He might fear her husband. He might fear a sexual harassment complaint or other accusation if her feelings about him changed. He might fear complication in his workday. He might fear that his preoccupation with his deceased wife would take any pleasure out of it. He might just not be attracted to her. He may fear eighteen years of child support payments. He might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not.

That is not to say that there is nothing objective about welcomeness. For the conduct to be unwelcome for purposes of employer’s liability for not stopping it, unwelcomeness has to be communicated. Sometimes the past conduct of the individuals and the surrounding circumstances may suggest that conduct claimed to be unwelcome was merely part of a continuing course of conduct that had been welcomed warmly until some promotion was denied or employment was terminated. That is a credibility issue.

But here Lamas unquestionably established a genuine issue of fact regarding whether the conduct was welcome. Lamas swore under oath that it was not. It made him cry, both at the time and repeatedly in the deposition. He sought medical services to deal with the anxiety it caused him. Lamas had no prior romantic or sexual relationship with Munoz. He did not approach her. He told her expressly and plainly that he did not want a relationship with her. He explained his troubled response plausibly, as stemming from his Christian beliefs and his recent widowhood. Some recipients of sexual advances doubtless have difficulty coming up with a tactful way to refuse them without damaging their ability to get along at work, so unwelcomeness may in some cases be unclear. Here, though, Lamas repeatedly told Munoz 'I’m not interested' and that he was 'just not looking for any kind of thing like that' yet she kept making the sexual overtures she knew were unwelcome."

Yep yep yep.

Now, I'm not sure that the line about "eighteen years of child support payments" really applies to Munoz's alleged offer to give Lamas a blowjob, since last I checked things don't work that way, or that many men really feel that chivalry obligates them to accept whatever sexual offers come their way from married women they're not attracted to, but those are nits. Judge Kleinfeld has a larger point that seems right on. You can't bounce a case because a man -- or most men -- do or should "want it" from their co-workers. Any more than you could or should do so if the roles were reversed.

Good facts. Good law. Good case.

P.S. - It also proves that, notwithstanding the slogan, what happens at Vegas -- even at the airport there -- does not necessarily stay in Vegas. Sometimes it matters elsewhere. Including but not limited to an oral argument in San Francisco.

Thursday, September 02, 2010

Lu v. Powell (9th Cir. - Sept. 2, 2010)

Xue Lu and Jie Hao are both from China, and both filed applications for asylum. They don't know each other, but both have the same attorney.

Lu's asylum petition was denied by the asylum officer, and she alleged that about a week after her interview with him, he called her up, met her at her house in Monterey Park, and demanded a bribe (and tried to fondle her), and said that if he resisted her -- which she did -- he'd deny her asylym application. Of course, Lu has no witnesses to support her allegations. Except that Hao says the exact same thing happened to her too. But remember, they have the same attorney.

More absurd, frivolous allegations from asylum applicants just looking to prolong their stay in the United States, right?

Except that after it happened to Lu, her lawyer convinced the Justice Department to put a wire on Hao. And gets the whole thing on tape.

The asylum officer gets convicted, Lu and Hao sue, and there's a bunch more stuff that happens. I mention the case simply because sometimes, even though there might perhaps be an incentive to fabricate, the stuff that people say is actually totally true. Even if your initial impression may be the exact opposite.

Something to remember.

Wednesday, September 01, 2010

People v. Mendez (Cal. Ct. App. - Sept. 1, 2010)

I'm impressed.

As I started to read the opinion, I was thinking that this was going to be a classic Court of Appeal opinion in a criminal case. Especially since the defendant, Victor Mendez, is hardly a nice guy. He's in a gang. Has been for a while. Went on a crime spree on the night of June 30, 2007, robbing a lot of people at gunpoint alongside others in his gang. Not someone you really want to keep out on the streets.

Sure, he was only 16 when he committed the crimes, and his sentence was pretty long -- 85 years. So Mendez has a tolerable argument that this sentence is essentially LWOP (life without the possibility of parole) -- which the Supreme Court held was unconstitutional for minors -- since the first time he'll be even eligible for parole is when he's 88 years old, which is well past even the life expectancy for someone who's not living in prison.

But it'd have been so, so easy for the Court of Appeal to simply say: "But the sentence here was not LWOP. Parole's an option, albeit when he's 88. Maybe he'll live that long. Who knows? The Supreme Court only held that LWOP is unconstitutional, and this ain't that." And truthfully, that is exactly what I thought the opinion would say, in reasoning precisely that shallow.

But it didn't. Justice Doi Todd instead writes a cogent, coherent opinion that explores this issue meaningfully, ultimately holding that, yep, the sentence may well be unconstitutional, remanding the case back down to the trial court to reconsider the sentence.

It's an unusual case. On the one hand, we've got a person who's lived essentially his entire life as a gangbanger. On the other hand, that entire life's been lived as a minor, and he's never known something else. Who knows that the guy will be like at 50 or 60? There's a strong tug to say we can't just ignore the prospect of rehabilitation and require the guy to be locked up even if, in 40 years, he becomes Mahatma Gandhi. Just doesn't seem fair.

Plus, it's not like Mendez killed anyone. Or even tried to. His offenses were simply robbery. A carjacking, to be sure. And with a gun. But stealing property. While that's bad, especially given the consequences to the victim, and particularly when someone gets hurt during the process, but it's not like we haven't seen much, much worse. Finally, we're also dealing with a trial court that was really throwing the book at the guy -- who could easily have made the sentences concurrent, but instead made 'em consecutive as a means of ensuring that Mendez never, ever walked out of prison.

So an unusual case. And unusual result. To the credit of the authors, IMHO.

U.S. v. Melchor-Meceno (9th Cir. - Sept. 1, 2010)

"It's just catch-and-release at the border. We never actually do anything to people who illegally enter the country."

Tell that to Merced Melchor-Meceno. Who gets deported twice, and when he's caught a third time, he gets sentenced to 75 months in prison. A sentenced affirmed by the Ninth Circuit.

It's true that we don't throw you in prison the first time you come over. (Though we do "detain" you in prison if you can't make bail and don't agree to be immediately sent back.) But it's not at all true that you can come into the U.S. as many times as you want without consequence. Especially if you've previously been convicted of a crime.

U.S. v. Wipf (9th Cir. - Aug. 31, 2010)

Here's one of the many reasons why I'm not a PCP dealer. Because, as the Ninth Circuit holds, a ten-year statutory mandatory minimum sentence is indeed a minimum sentence. A court can't depart downwards. Even if it wants to. And even if the federal sentencing guidelines suggest a sentence substantially lower than ten years.

Ten years is mandatory. It's a minimum. Get it?