Monty v. Leis (Cal. Ct. App. - March 30, 2011)

It's pretty rare to read a unanimous opinion totally outside my areas of interest with which I strongly disagree.

Here's one.

To even state the question, in my mind, is to answer it:  Can a corporation with articles of incorporation that limit the number of shares to X nonetheless grant shares in excess of X and then allow those excess shares to vote to approve retroactively the increase in shares?

No.  No way.  Yet the Court of Appeal holds that it can.

I get the motivation.  Pacific Capital Bank (in Santa Barbara) was failing.  Like so many others during the credit crunch.  It's failing so bad that the Federal Reserve Bank and the Office of the Comptroller of the Currence give it until a certain date to increase its capital condition or be taken over and liquidated.

The Bank's articles of incorporation only authorize 100 million shares, and it needs a lot more than this to give to potential investors in return for capital.  So the Board issues a proxy statement and asks shareholders to increase the number to 500 million.  The shareholders agree.  Whew.

But the credit crunch only gets worse.  The deadline's approaching, the Bank has a potential investor, but the investor wants more than even the 500 million shares the shareholders have authorized.  It wants over 2.5 billion shares.  It also has the Bank over a barrel.  This is the best deal the Bank can find, and it doesn't want to be liquidated.  So it says, essentially:  "Fine."

Except, again, it doesn't have 2.5 billion shares.  It's under time pressure.  So it -- and its lawyers, of course -- do something "creative".  It gives the investor 225 million shares, which it can do since it only makes 500 million total (which the shareholders approve).  It also gives the investor 455,000 "preferred" shares.  That it can do too, since preferreds are okay under the articles of incorporation.

But it also allows those preferred shares to be converted into 2.275 billion shares of common stock.  That it can't do -- not without shareholder approval, anyway.  How do we make sure that the shareholders approve it?  By letting those 2.275 billion shares vote in deciding whether to approve the increase in shares.  A vote the outcome of which is certain because the 2.275 billion shares are 80 to 90% of the shares, and they'll all vote "Yes."

A shareholder objects, and files suit.  But both the trial court and Court of Appeal say, nope, that's all fine.  A company can increase the number of shares in excess of an express limit of the articles of incorporation and let those same shares vote retroactively to authorize the deal.

I disagree.  Strongly.  The whole point of share limits is to stop stuff like this.  Companies put limits like these in their articles because we want (and need) shareholders to rely upon them.  To know that if they have 500 shares, they own at least one-one-millionth of the corporation, since there are only 500 million authorized shares, and that without shareholder approval, that won't change.  To give a majority of the existing holders security in their ownership of the corporation, and to expressly prevent its dilution.

All that's undercut -- egregiously -- by the Court of Appeal's holding.  Because what's good for Pacific Bank in the credit crunch is equally good for Qualcomm (or anyone else) on a sunny day.  Bad facts make bad law.  And, in my opinion, this is really, really bad law.  Contrary to the central and express point of both the articles of incorporation and California law.

But the Court of Appeal's holding is not only wrong as a matter of first principles and public policy, but is also a terrible interpretation of the underlying statute.  There's a law about this, and it's Section 405(a) of the Corporations Code.  Which says that the shareholders have to authorize the shares first.

But the Court of Appeals says:  "Ah, but the statute says "[i]f at the time of granting option or conversion rights or at any later time," which means that you can authorize the excess shares later.  But the former's true -- those are the words of the statute -- but not the latter.  Because the statute says:  "If at the time of granting option or conversion rights or at any later time the corporation is not authorized by articles to issue all the shares required for the satisfaction of the rights, if and when exercised, the additional number of shares required to be issued upon the exercise of such option or conversation rights shall be authorized by an amendment to the articles."  Which means that the phrase "or at any later time" modifies "at the time of granting [the] option or conversion rights," not the latter part of the statute that discusses when the share authorization amendment is required.  Section 405(a) is just saying that if the shares are excess at any time -- either at the outset or thereafter (due to a decrease in the number of authorized shares), you've got to get shareholder approval to increase the number.  It doesn't say that approval can come later, and certainly doesn't say that the excess shares that you granted without the required shareholder approval get to vote on the validity of their issuance.  Because that'd be terrible, precisely for the reasons I mentioned above.

So, again, I get why the Court of Appeal comes out this way.  It's a crisis, and they feel bad for the Bank.  But that doesn't make it the right law.

Particularly since it's unnecessary.  Part I of the opinion notes that the transaction already closed, and that courts generally don't unwind mergers.  Which means the appeal of the preliminary injunction is moot, and the Court of Appeal expressly so holds.  Plus, as the Court of Appeal also notes, even if it did set aside the transaction, that'd require -- at a minimum -- a return of the $500 million investment.  Which the Bank does not have, so we can't unwind it anyway.  Making the appeal get again totally moot.

Notwithstanding all of this, the Court of Appeal goes on to decide the merits "in the interest of judicial economy."  I might be on board for that if it was essential, or if the law that was developed was right, or at least beneficial.  But it's not.  Far from it.  It's affirmatively bad.

So this is a case where bad facts unnecessarily make bad law.  Which is even worse than usual.

In short, I'm not on board for this one.

People v. Overland (Cal. Ct. App. - March 30, 2011)

You don't get many appeals for seat belt violations.  Why?  Because it's a penny-ante fine.  Not worth hiring an attorney.  Definitely not worth appealing.

For normal people, anyway.  Here's the exception.

Why does Barbara Overland appeal?  Because she thinks she's right, obviously.  How can she afford it?  She was driving a Lexus, so that's a clue.  But a 2002 Lexus.  Hardly the lap of luxury.

But here's another clue:  Her attorney's name is Mark Overland.  Which may give a hint as to why Barbara Overland can file an appeal.  (By contrast, the People don't even bother filing a brief in the appeal; they let the Appellate Division do all the work itself.)

It's not like the Overlands make totally frivolous claims.  Barbara was wearing a seatbelt.  It's just that she was wearing a lap belt, and had the shoulder harness tucked behind her back.  The officer ticketed her, and she objected.  All the way to the Appellate Division.

So the question is whether the Vehicle Code, which says you have to be "properly restrained by a seat belt," is satisfied when you're restrained only by a lap belt.  The Appellate Division says "No."  Some older cars, to be sure, only have lap belts, and for those cars, a lap belt is good enough.  But post-1996 cars are required to have shoulder harnesses as well.  Including Barbara's 2002 Lexus.  The Appellate Division says that you are not "properly" restrained in such a vehicle unless you strap on the shoulder harness as well.  No tucking it behind the back.

This is a plausible holding.  It also makes good public policy sense.  There's a reason we require shoulder harnesses.  They save lives.  You should wear them.  [Total tangent:  One of my first memories of being in California -- way back in 1985 -- was driving to Malibu down Topanga Canyon with my girlfriend (who lived in Canoga Park) and insisting that she wear a seat belt, and having her vociferously argue that they were a hassle and it was rational for her not to wear one.  (This was before mandatory seat belt laws.)  I distinctly remember thinking:  "Wow.  This is a totally smart woman.  How can she be so clearly wrong on this point?"  As well as winning the argument.  Which was a rarity -- and hence memorable -- for me.]

The Appellate Division's holding is nonetheless far from a self-evident proposition.  Why is it "proper" for a person driving a pre-1996 vehicle to wear only a lap belt but not "proper" for someone else?  The Appellate Division makes an argument that's superficially plausible, saying that Section 27314.5 of the Vehicle Code requires dealers of pre-1996 cars to put a sticker on them that expressly warns the buyer that the car does not have shoulder harnesses and saying that the things save lives.  So there's an arguable notice difference.  But the Appellate Division doesn't (1) note that this only applies to dealers, so many people might not have gotten notice, or (2) note that this notice is only required if a nonprofit entity gives these stickers to the dealer for free, which may or may not happen.

As a result, there are definitely people who are entitled to only wear lap belts.  Which is undoubtedly why Barbara and Mark thought that the ticket here was unjust.

But they lose.  At least in Los Angeles, wear your shoulder harness.  It's a good idea.  As well as the law.  At least after today.

People v. Moon (Cal. Ct. App. - March 29, 2011)

Chutpah.

William Moon gets drunk, smokes some pot, and drives through a residential area.  At over 100 m.p.h.  Not surprisingly, he crashes his car.  Killing his passenger.  Moon's BAC is .19.

So he's convicted of second degree murder.  His sentence:  Twelve years of probation and four years in jail (rather than prison).

That's a pretty good sentence if you're Moon.  Sure, it's four years in a not-fun place.  But you could easily -- easily -- have gotten much worse.

So Moon appeals.

His argument is that he should be entitled to work and good conduct credits to reduce his sentence, which the authorities aren't giving him.  He's got a decent argument.  Section 4019 of the Penal Code says, in no uncertain terms, that anyone who's sentenced to or in jail gets two days of work and conduct credits for every six days in jail.  That would shave quite a bit off his sentence.

But the authorities think he doesn't get any credit because Section 2933.2 says that you don't get credits if you're convicted of murder.  However, that's in a section that's all about credits for people sentenced to prison and who have been "convicted" (rather than having their sentence deferred).  Hence Moon's beef.

The Court of Appeal ultimately holds that Moon isn't entitled to any credits.  It's a reasonable holding, albeit one that could have gone the other ways as well.  But it's also one where Moon's chuzpah probably has an effect.  The Court of Appeal expressly notes that Moon got off easy, saying:  "This is, after all, a highly unusual case, where one who has been convicted of murder is granted probation."  So the fact that the statutet didn't really contemplate Moon's situation, and hence is confusing (and contains language and section headings that support Moon's position), doesn't stop the Court of Appeal from doing what it thinks is right.

So the good news for Moon is that things aren't worse.  The bad news is that things aren't better.

And the Court of Appeal basically tells Moon that, all things considered, he should consider himself lucky.  Far luckier than his passenger, to be sure.

King v. Trujillo (9th Cir. - March 28, 2011)

Sometimes the urgent need to represent your client means that you file things that have very little likelihood of success.  Like here.

It's the best the lawyers can come up with.  But far from good enough.  It's a petition unanimously rejected by the panel.  Doesn't help, I'm sure, that it's composed of Judges Kozinski, Kleinfeld and Tallman.  Not the panel you're looking for if you represent the defendant here.

As a result, Eric John King has less than 24 hours to live.  He's killed in Arizona at 10:00 a.m. tomorrow.

POSTSCRIPT - Dead.

Cafasso v. General Dynamics C4 Systems (9th Cir. - March 24, 2011)

As an analogue to the conversational principle "Whoever first compares the other side to Hitler loses the argument," I hereby propound the following litigation principle:

"Whoever attempts to file a proposed pleading in excess of a full ream of paper will lose the lawsuit."

Proof positive.

Proposed complaint is 733 pages.  Nope.  You lose.  Both below and on appeal.

Singh v. Holder (9th Cir. - March 25, 2011)

Appropriately enough given "March Madness" in basketball, Judges Kozinski and Noonan present for your consideration:  The Battle of Literary Maxims.

The question is whether we can judge harshly a husband in an immigration case who remains silent when his wife lies; e.g., impute his wife's dishonesty to him.

In the red corner, Judge Kozinski.  Current heavyweight champion of the Ninth Circuit (i.e., Chief Judge).  His argument:  Yes we can.  His quote:  "[T]he maxim of the law is 'Silence gives consent.'"  Citing Robert Bolt, A Man For All Seasons 152 (1990).

In the blue corner, Judge Noonan.  Current conscience of the Ninth Circuit (i.e., votes with strongly held moral beliefs).  His argument:  No we can't.  His quote:  "In Oliver Twist, when Mr. Bumble is informed that 'the law supposes that your wife acts under your discretion,' he replies, 'If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience — by experience.'"

Let's see how they match up.

Blue corner first.  I like the quote.  Famous.  A classic.  Funny that Judge Noonan leaves out the preceding sentence of that quote, which is even more famous (and equally applicable), in which Bumble says:  "If the law supposes that, the law is an ass -- an idiot."  Since essentially that's what Judge Noonan's saying about Judge Kozinski.  Something that I'd definitely watch on pay-per-view.

Red corner next.  Not nearly as famous.  Bold.  Definitely (and likely deliberately) non-PC.  Silence equals consent?  Not exactly something you're going to say on a first date.  Context definitely important.

I'd heard of the Oliver Twist maxim, but never the Man For All Seasons one.  So thought I'd check out the latter in a little more detail.  It's definitely used a lot less.  It seems to have been popular (or at least more so) in the early 1900s.  But no reported or unreported federal case has used it in the last three decades.  Except for one.  A dissent.  Written by . . . . Judge Kozinski.  Citing the same book.

What about the maxim's merits?  On the one hand, it's got a definite ring of truth.  At least in particular contexts.  If you sit there while your spouse lies on the stand, there's a pretty strong gut feeling that you're effectively adopting what she says.  So if she's a liar, you're a liar.  That's basically Judge Kozinski's point.

But on the other hand, Judge Noonan says that's not always the case.  In Oliver Twist or in the modern United States.  These people were represented by a lawyer (Randhir Kang) who has since been disbarred from immigration practice in the Ninth Circuit based on unethical and grossly inadequate representation of clients.  Maybe it was his fault.  Or maybe husband and wives in the United States aren't nearly as unitary in purpose or strategy as Judge Kozinski assumes.  Maybe wife wants to lie and husband can't stop her.  Any more than a husband can stop a wife from doing any number of things she wants but he doesn't.  That seems plausible as well.

This is where weighing the various maxims -- and their history -- actually be helpful.  For example, Judge Kozinski's maxim doesn't just come from A Man For All Seasons.  It's actually an old Anglo-American doctrine:  qui tacet consentire videtur.  That's old enough so that both Wigmore and Judge Friendly have talked about it at length.  With this to say:  "[T]he inference of assent may safely be made only when no other explanation is equally consistent with silence; and there is always another possible explanation namely, ignorance or dissent unless the circumstances are such that a dissent would in ordinary experience have been expressed if the communication had not been correct."  Even back then, authorities like these warned against incantation of this principle without simultaneous recognition of its limitations, saying:  "[T]he force of the brief maxim has always been such that in practice . . . a sort of working rule grew up that whatever was said in a party's presence was receivable against him as an admission, because presumably assented to. This working rule became so firmly entrenched in practice that frequent judicial deliverances became necessary in order to dislodge it; for in this simple and comprehensive form it ignored the inherent qualifications of the principle.”


So who wins the Battle of the Maxims?  Judge Kozinski has Judge Silverman in his corner, so he wins in the Ninth Circuit.  But as for who wins on the merits -- and in the court of public opinion -- only you can be the judge.  Since it's not just March Madness.  But American Idol and Survivor as well.  One of these maxims has to be voted off the island, while the other goes forward to the finals.

Best of luck to both the red and blue corners as they attempt to persuade.

People v. Gann (Cal. Ct. App. - March 24, 2011)

I felt something in common with this case.  Though I hope not too in common.

The relevant people live in San Diego.  Just like me.  It's a father and his two kids.  The daughter lives at home (she's 17), and the son goes to college in Arizona.  Just like lots of families in San Diego.

But things aren't great.  The mother killed herself the previous year.  Depressing.  And the father is the kids' stepfather.  He starts dating a new woman a few months after the suicide.  Things are getting serious.  And the daughter isn't feeling all that positive about her stepfather when he tells her that she should be ready to move out of the house once she's 18.

The solution?  Kill him, of course.

Daughter calls up Brother at College.  "Let's kill Father."  "Okay."  They withdraw money from the bank to pay a hit man, retrieve a gun that belonged to her mother, and put the cash, gun and key in a box out back for the hit man to use.  But apparently hiring a hit man involves more than just looking under the letter "H" in the Yellow Pages.  They can't find one.

So they decide to do the job themselves.  They want to kill Father on his birthday.  July 18.  (Hey!  That's my birthday too!)  'Cause nothing makes a birthday special like being killed by your kids.  But Father says he's going to spend his birthday with his girlfriend.  Change of plans.  We'll kill him the day after.

Which they do.

They make it look like a home invasion robbery gone bad.  Which sort of works.  For a while.  When the police interview daughter -- whose hands were tied by the "intruder" just like Father -- she tells the story they've agreed upon.  But slips up, and accidentally says:  "Then Nathan tied my hands."  Which is a problem because the alleged burglar had a black ski mask on, and her brother's name is Nathaniel.

The crack San Diego police department does not miss out on the connection. They write down the name "Nathan" in their interview book.  They also ask Daughter:  "Why'd you say Nathan?"  To which she replies:  "I didn't."  The police:  "Yes you did.  You said Nathan."  Daughter:  "No I didn't."  At which point the police -- being no dummies -- tape record the rest of the conversation.  Thinking, no doubt, that Daughter might not be so entirely innocent in the killing of her stepfather.

The police ultimately release Daughter.  Who then talks to Stepfather's daughter and says that a composite sketch of the intruder put out by the police is inaccurate.  Which Stepfather's Daughter finds interesting since Daughter has always insisted that she never saw the intruder's face.  So how'd she know it was inaccurate?

At which point the police now arrest Daughter.  And she confesses to the whole thing.

And that, my friends, is how crimes actually (1) occur, and (2) are solved.  At least down here in San Diego.

Not exactly CSI, is it?

U.S. v. Buenrostro (9th Cir. - March 23, 2011)

Let me try my hand at writing a concurrence to this one:

Martin, J., concurring:

I can't fault my colleagues for their holding.  That's what the statute indeed means.

But let's just be clear what we're saying.  As well as what we've come to.

Let me just change the facts a bit.  It's now your son, not Buenrostro.  He's 19 years old, and made a huge error.  He and four friends drove a car with drugs in it from Florida to Virginia.  He was caught and charged with conspiracy.

You bailed him out.  You talked to him.  He knew what he did was wrong.  You thought about cutting him loose, but you ultimately decided that (1) he had indeed changed -- maybe this was the wake-up call he needed -- and (2) he's still your son.  You love him.  You will help him try to diminish -- but not eliminate -- his penalty.  He'll be in trouble, but he'll have a life.  With your help, he'll turn this around.

So you hire him a lawyer.  You're not rich, but you pay the guy some money.  He seems okay.  His suit's a little wrinkled, he's not always on top of things, but he's nice enough , and seems to be experienced in criminal law.  So you go with him.  He says it's a serious charge, but there's a decent chance that your son could avoid serious punishment, and there's good chance he might even be acquitted.  You go to trial, and sit in the front row while your son is judged.

Your fears come true.  He's found guilty.

The lawyer says he'll appeal, and does, but nothing comes of it.  Your son goes to prison.

He writes you.  Tells you stories.  The loneliness.  The isolation.  The abuse.  You visit him.  He's terrible.  He's living a nightmare.

You hire another lawyer to file a habeas claim.  To try to minimize your son's sentence or get him out.  It gets filed.  You read it.  Something about an trial error your wrinkled-suit lawyer allegedly made.  Evidence or something.  Doesn't matter.  Denied.  All the way up.

It's now six months later.  Your hear a knock on your door.  It's the first lawyer you hired.  He comes in.  Hat in hand.  Says he has something to tell you.

He says he's a recovering alcoholic.  Has made a lot of mistakes in life.  Something about a twelve step process and a need to make amends.  He's got a secret that's been burning his soul for years.  The same number of years your son has been in prison.

He says the prosecutor offered your son a deal before trial.  Six months.  A deal you know your son would have taken.  But the lawyer admits that he never told your son about the offer.  He's not sure why.  Whether it was because he was drinking or wanted a big victory or simply forgot, he doesn't know.  But he knows he did it.  He's sorry.  He's willing to say what he's done.  No matter what it costs him.

Did I mention, by the way, that your son was sentenced to life in prison?  For your 19-year old son.  For a drug crime.  That's sixty years longer than the deal he was offered and that you -- and even your lawyer -- knows he'd take.  If only he had ever been given the chance.

So you hire yet another lawyer.  File another habeas petition.  Telling everything you now know.  We'd have taken the deal.  My son has already been in prison for five years.  Ten times longer than if he had an even marginally competent lawyer.  Please stop the nightmare.  Don't let my son rot in prison until he's dead.  Newly discovered evidence that we didn't know about -- and couldn't have known -- until the lawyer came to our door.

My colleages hold that even if everything I've described above is true -- even if the government admits that it's all true -- your son stays in prison for the rest of his life.  Yes, he's been denied his right to counsel.  Yes, the result would have been different -- dramatically different -- if he'd been provided with his rights under the Constitution.  Too bad.  He'll die in the prison infirmary.  You can visit him on Saturdays for the rest of his life.  However long that might be.

That's what the habeas statute says.  Because we just don't care.  It's usually not our son.  It's a 22-year old African-American we've never met.  Or 26-year old Hispanic.  Or a guy named Jose Luis Buenrostro.  Someone we've never met.  Never cared about.  Never lived next door.  It's more efficient not to hear these claims.  To say that no matter how terrible your story, no matter how unjust, we don't want to hear it.  So make procedural rules that don't even let you get in the door.

That's what the statute says.  That's what we've come to.  That's what we let happen.  That's the law.

People v. Yarbrough (Cal. Ct. App. - March 23, 2011)

Here's the opening paragraph of this opinion:
 "Defendant Jammal Yarbrough appeals from a judgment entered following a jury trial in which he was convicted of first degree burglary for having entered a second-floor unenclosed balcony of an apartment with intent to commit a theft. He contends the court erroneously instructed the jury that an unenclosed balcony is part of a building for purposes of the burglary statute and that the facts disclosed only an attempted burglary. We agree because the Supreme Court in People v. Valencia (2002) 28 Cal.4th 1 (Valencia) stated "the outer boundary of a building for purposes of burglary . . . does not encompass . . . [an] unenclosed balcony . . . ." (Valencia, at p. 12, fn. 5.).

To which I thought:  "Wow.  That's mighty big of you, Court of Appeal.  You're willing to follow the express and unambiguous holding of the California Supreme Court.  You must be mighty proud of yourself."

But then, midway through the opinion, I discover that it sort of is big of the Court of Appeal.  Since just last year, their colleages in Division Four (this opinion's from Division One) held otherwise, deciding -- notwithstanding the California Supreme Court's statement in Valencia -- that entering an unenclosed balcony was burglary.

So I take back my initial thoughts, Division One.  Sorry to have doubted you.

Let's see if the California Supreme Court takes up the split.  Seems like it's common enough so that whether you go to prison or not shouldn't decide on which panel you draw."Defendant Jammal Yarbrough appeals from a judgment entered following a jury trial in which he was convicted of first degree burglary for having entered a second-floor unenclosed balcony of an apartment with intent to commit a theft. He contends the court erroneously instructed the jury that an unenclosed balcony is part of a building for purposes of the burglary statute and that the facts disclosed only an attempted burglary. We agree because the Supreme Court in People v. Valencia (2002) 28 Cal.4th 1 (Valencia) stated "the outer boundary of a building for purposes of burglary . . . does not encompass . . . [an] unenclosed balcony . . . ." (Valencia, at p. 12, fn. 5.)."

Darensburg v. MTC (9th Cir. - Feb. 16, 2011)

We're already a post-racial society.  At least among the young.  In San Francisco.

So says Judge Noonan.

(I somewhat mock it.  Though he's actually got an interesting point.)

U.S. v. Fernandes (9th Cir. - March 14, 2011)

You went into a dorm room where an intoxicated co-worker lay on her bed, unbuttoned her blouse, and fondled and kissed her breasts.  You don't have a criminal record.  The district court thought your offense was only worth probation.  It didn't even think you should register as a sex offender, so it didn't order it.

Too bad.  Congress says you have to register.  It's mandatory.  Not a tough case.  Doesn't even need oral argument.

People v. Moore (Cal. Ct. App. - March 17, 2011)

The Court of Appeal repeatedly tells trial courts not to try to explain the concept of "beyond a reasonable doubt" because it just mucks things up and results in reversals.  Using the immortal words of Paul McCartney John Lennon (oops!) Court of Appeal repeatedly says:  "Let it be."  Read the instruction, let the jury use its common sense with respect to what this means, and move on.

In this case, the trial court -- Michael Knish, a temporary judge in San Bernardino -- didn't do that, and instead gave a lengthy series of examples to the jury about what wouldn't constitute "reasonable" doubt.  He started out by saying that even though the jury couldn't see all of the American flag behind him, since it was creased in various places, and hence it's possible that the flag had the judge's face on it or something, any doubt about whether this was indeed an American flag wouldn't be "reasonable".  He then says that if there was a jigsaw puzzle that looked like President Obama, but was missing a piece of his forehead, a piece for his chin, and a piece for one of his ears, any doubt that it was indeed President Obama similarly wouldn't be reasonable despite the missing pieces.  He finally said that if the jury was planning a party or something in San Bernardino in August at noontime, any doubt as to whether it would be higher than 50 degrees at that point wouldn't be reasonable.

Not exactly the "Let it be" traditionally expected by the Court of Appeal.

It's even worse than this.  There's a Court of Appeal case from 2009 that involved nearly an identical "explanation" in which the trial court similarly tried to explain reasonable doubt by reference to a jigsaw puzzle of the Statute of Liberty with six pieces but two pieces missing -- the face and the upper left corner.  Reversed.  Can't do that.

Plus, here, it's arguably even worse.  The big issue at trial is the judge's reasonable doubt instruction.  The defense counsel makes this issue a central point of his argument (since he's got, as in many cases, very little else to go on).  Saying that the judge was wrong about what counts as reasonable doubt, making arguments based on the judge's "American flag" analogy (claiming that he's actually snipped off a star), etc.  (Ignore for a moment whether it's a really effective defense strategy to take on the judge.)  The prosecution also makes a big deal about this stuff, saying that the defense is wrong, the judge is right, the law is what the judge tells 'em it is, etc.  So this is a central part of the trial.

So what does the Court of Appeal do?

Affirms.

It's a 2-1 vote.  With Justice Ramirez writing the majority opinion and Justice Miller dissenting.

See who you agree with.  And whether the trial court -- and/or the Court of Appeal -- should indeed have Let It Be.

People v. Lee (Cal. Supreme Ct. - Feb. 24, 2011)

One of the problems with killing people is deciding who lives and who dies.  We don't want this decision to be entirely arbitrary -- just left to the discretion of a particular 12-person jury -- so we establish rules.  But wholly apart from whether those rules are applied consistently across juries, there's also a question about the rules themselves.  Do they make sense?

Take this case, for example.

The dispositive issue is whether the murder here occurred during an attempted forcible rape.  If it did, Philian Lee gets killed.  If not, he lives.

There's little doubt that Lee attempted to rape the victim, Melemanunanilanililinokalani Kekaula ("Mele").  She was drunk, nearly passed out, said no, but Lee wouldn't stop (at least immediately).  That's an attempted rape.

But he didn't kill her during the rape.  She said no.  She pushed him off.  He removed himself .  Two witnesses in the same car saw everything.  But then Lee got out of the car, said he was going to "straighten [Mele] out," walked to the other side of the car where Mele was, pulled her out of the car, and moved her to the rear of the car.  The people in the car heard Lee and Mele talking, and heard Lee say something like:  "It's like that, huh?"  Clearly, Lee's not happy that Mele doesn't want to have sex with him.

So he pulls out a gun and shoots her in the head.  Repeatedly.  Killing her.

That's a horrific offense.  Terrible.  Amongst the worst of the worst.

But is it "during" the attempted rape?  Or after?  That's the difference between life and death for Lee.

It's a somewhat tough call.  Not for the California Supreme Court, mind you.  Which says, yep, it's during the rape.  Without dissent.

But let's ask the even tougher question.  Why should it matter?

We know why it does matter.  Because California's rules says it does.  It's special circumstance if it's during the rape.  It's not if it's not.

But why?  Extend the one minute time difference here into one day.  Imagine that Lee doesn't pull Mele out of the car right after the attempted rape, but instead waits an entire day, and kills her because she's refused his desire for sex.  You mean to tell me that's "better" -- less culpable -- than what happens here?

Let's rank order them.  Which of the following is worse:

(A)  During X's rape of Y, Y struggles, and X kills her.
(B)  X tries to rape Y.  X fails.  One minute later, X kills Y.
(C)  X tries to rape Y.  X fails.  One day later, X kills Y.
(D)  X asks Y to have sex.  Y says no.  X promptly pulls out a gun and kills Y.

Which of these is worse?  California says that (A) is death-eligible, the California Supreme Court says that (B) is death-eligible, but neither (C) nor (D) qualify.  You agree?

There are always line-drawing problems.  What's worth 2 years in prison versus 3?  But when the line is life versus death, the consequences of drawing the line in the wrong place multiply exponentially.

In Re B.T. (Cal. Ct. App. - March 16, 2011)

Here's something you don't see every day.

It's a statutory rape case.  Where Social Services takes away the resulting child.

Wait.  That's not that unusual.  So what's weird?

Reverse the genders.  Here the offender is Debra, a 38-year old woman married to someone else, who has sex with her 14- (or 15-) year old neighbor, who's a friend of Debra's elder son.  A child get conceived out of this unlawful union, and based on the statutory rape, Social Services takes the baby away from it mother.  Not only that, but it also takes away Debra's three other children, ages 17, 12 and 9, on the theory that the mother might sexually abuse them as well.  On the theory that if you sleep with your son's friend, you might well sleep with your son as well.

The juvenile court takes jurisdiction over the baby on the theory that he's at risk of sexual abuse, and decides to award full physical and legal custody to Miguel, with monitored visitation by Debra.  So the person who's going to actually raise this baby is his father.  Someone who spends most of his day at school.  In the tenth grade.  Who doesn't know the baby's birthday.  Who has no source of income.  Who has never taken the baby to the doctor and who did not know the name of his pediatrician.  Who, after school, spends two hours playing football and basketball during sports season.  That's the best parent.  Because the mother, after all, is a child molester.

The Court of Appeal reverses.  For reasons that I think are pretty clear.  Which I can't say any better than the author of the opinion, Justice Bedsworth.  So I'll just quote him:

"We reverse. After carefully examining the record, we cannot find substantial evidence to support the juvenile court's jurisdiction over B.T. [the baby] at the time the findings and orders were made. There was no evidence that Debra was likely to abuse or neglect B.T. On the contrary, she had an exemplary track record of child-rearing. While her relationship with Miguel certainly reflected poorly upon her judgment in one area, nothing suggested that it would cause her to neglect or abuse her baby daughter, especially since there was no evidence at all of any past abuse of her three other children, or of any other children. . . .

There is no evidence in the record that B.T. had suffered any serious physical harm or illness or any harm or illness at all while she was in Debra's care after her birth. B.T. was in fine shape when the social worker visited Debra's home on April 12, 2010, even though she was seven weeks premature. Debra's family had had no encounters with SSA before B.T. and the other children were detained. The record of Debra's visits with B.T. after she was detained confirmed that Debra is a loving and experienced mother, well able to take proper care of a small child. . . .

This record contains no evidence that Debra or anyone else ever sexually abused B.T. SSA, however, alleged that Debra's former relationship with Miguel placed B.T. at risk for sexual abuse.

SSA's position assumes an adult woman who has had a consensual sexual relationship with an unrelated 15-year-old boy will probably sexually abuse her infant daughter. This is, of course, a complete non sequitur, so it is not surprising that the record contains no evidence to support this assumption. There was, for example, no expert testimony to this effect. (Cf. In re Maria R. (2010) 185 Cal.App.4th 48, 68 [no scientific authority or empirical evidence cited to support conclusion that man who sexually abuses female child is likely to abuse male child].) If Debra were given to sexually abusing her children, she had three handy before B.T. was born, including two boys. All three older children denied ever being abused, sexually or otherwise; no evidence contradicted their denials or even called them into question. SSA presented no evidence of Debra‟s being accused of molesting another child in the past. The record is devoid of evidence of a risk to B.T. of being molested by Debra.

If Miguel's stories are credited, he was by his own admission a more-than-willing participant in the relationship, which is not surprising with an adolescent boy. Generally speaking, abused children do not repeatedly volunteer to put themselves in harm‟s way. This presents a situation far different from the one SSA proposed. It also presents a situation far different from the facts of the cases cited in SSA's brief to support its theory of threatened sexual abuse, all of which involved adults in some sort of parental role forcing themselves on unwilling and helpless children residing in their homes. [Citations]

We do not wish to be understood as excusing Debra's behavior or minimizing its gravity. In addition to being potentially a serious criminal offense, it was a many-faceted betrayal of people who had every right to trust her – her husband, her children, Elsa, and Miguel, to name the most obvious ones. The Penal Code statutes, designed to punish and deter, are in place to deal with her conduct.

Juvenile dependency proceedings, however, have a different focus: protecting children and serving their best interests, not punishing the parent.  Nothing supports the idea B.T. was at any risk of harm from Debra. Whatever her faults were with regard to Miguel, Debra has taken good care of her children. Her three older children, at least as far as this record reveals, do her and her husband great credit. No evidence presented at the time of the hearing suggested that B.T. would receive anything but the same upbringing and attention from Debra. On the contrary, the evidence showed that before SSA intervened, B.T. was thriving in her care. . . .

[T]he kids were all right. The three older children were well cared for and displayed every indication of having had a secure family life. They gave no hint of feeling any need to be protected from their mother. [Debra's husband], who was understandably angry at both Debra and Miguel, had nevertheless rallied round to protect the children in this crisis. The baby was doing fine. The most searching interviews and home inspections revealed no evidence of any kind of child abuse or neglect, any domestic violence, any drugs, any previous trouble with the law or with social services. SSA, however, became so busy demonizing Debra that it abandoned its role as protector of children and preserver of families. SSA took all four children away, exacerbating the existing family turmoil. The older children were sent to live with their paternal grandparents, who speak no English. (The older children speak no Spanish.) The baby, not yet five months old, went to a county facility, then to Elsa and Miguel's home. . . .

Medical professionals caring for B.T. quite probably would listen more to the mother of three healthy children than to a 16-year-old boy without prior parental experience who believes – as Miguel testified – that a body temperature above 93 indicates fever and who would treat a fever by putting the baby down to rest. Would anyone focused on B.T.’s best interests oppose such a preference? . . . .

Debra made a grave mistake, regardless of whether she or Miguel is telling the truth about their relationship. But depriving B.T. of her mother's care as punishment for this mistake is not in keeping with the purpose of the dependency statutes and is inexplicable in any terms other than misplaced moral outrage."



Though I wonder if Justice Bedsworth's -- or my -- reaction would be different if everything were the same except the genders.  Imagine that it's a 38-year old male and a 14-year old girl.  Same result?

Tough question.  Even for me.Strong stuff.  But also powerful.  To me, anyway.

Khatib v. County of Orange (9th Cir. - March 15, 2011)

Last year, Judge Trott authored an opinion holding that an extremely large pretrial holding facility ("jail") in Orange County was not an "institution" governed by the federal Religious Land Use and Institutionalized Persons Act and that it was thus not a potential violation of that Act to force a Muslim woman to remove her hijab (headscarf).  Judge Wardlaw joined the opinion, and Chief Judge Kozinski authored a characteristically entertaining dissent.  I discussed both the holding as well as the dissent here.

Later that year, the case was taken en banc.  Which I noted was a pretty telling sign, and wrote that I anticipated that the panel's holding would (rightly) be reversed.

Which it indeed was.  Chief Judge Kozinski was -- of course -- on the panel, so you know his vote already.  But it wasn't even close.  11-0.  On a panel that included people like Judges O'Scannlain and Ikuta.  And that didn't include either of the two members of the majority on the panel (Judges Trott and Wardlaw).

It didn't take long, either.  Oral argument was December 13th.  The en banc opinion comes out on March 15th.  Three months.  Which is light speed for an en banc adjudication.

Plus, the en banc opinion isn't authored by Chief Judge Kozinski.  Nor does it use much of his stuff.  That's the downside of authoring something that's idiosyncratic.  Can't cut-and-paste much from it even when the en banc court totally agrees with you.  Judge McKeown instead has to write it herself.  (With a little help from her clerks, of course.)

So some speedy justice here.  In an outcome that's (1) utterly predictable, and (2) that even the Supreme Court would have a hard time reversing.

Helman v. Alcoa Global Fasteners (9th Cir. - March 11, 2011)

Four quick things about this case:

(1)  It's a really well-written opinion.  I'm usually dubious about opinions that say "This is an easy case.  The plain text of the statute is clear."  Usually appeals are more difficult than that.  Especially when, as here, there is another circuit that has expressed a holding on the issue, in a split opinion.  Even more so when, as here, the district court certified the question for appeal as being a close one.

Notwithstanding this prejudice, I'm persuaded by Judge Betty Fletcher's opinion.  Not only is it well-written, but it entirely persuades me.  The statutory language does indeed give you the correct answer.  (Though I concede that the "backup" arguments about legislative history, amendments, etc. definitely helped me to reach this conclusion -- one which I would not have so readily reached had the mere language been the sole genesis of the opinion.)  Well done.

(2)  It's an example of the randomness of life (and litigation).  A Navy helicopter crashes in the Pacific, killing three people.  Everyone agrees that if it crashes three miles or less offshore, the decedents get to sue (under state law).   Everyone agrees that if it crashes twelve miles or more offshore, the decedents can try to sue (under admiralty law), but that's incredibly harder.  Everyone disagrees about what law applies when the crash is between three and twelve miles offshore after Reagan extended our territorial boundary from three to twelve miles in 1988.  So whether plaintiffs win or lose depends upon the happenstance of just how far out to sea they were when they smashed into the water.  Here, 9.5 miles.  A fact also happenstance because this is the distance not to the California coastline, but to Catalina Island.  This is the stuff that matters.

(3)  The next time someone says you can't interpret a statute to make words in the statute meaningless, this holding is a pretty good rejoinder.  Because that's exactly what the Ninth Circuit does.  The statute says that state law is preempted when a crash occurs "on the high seas beyond three nautical miles from the shore of the United States."  Plaintiffs say that it's not the "high seas" because it's within the expanded U.S. territorial limits.  The Ninth Circuit says, nope, the words "on the high seas" are meaningless.  As long as it's beyond three nautical miles, the statute applies.  Sometimes words are indeed redundant.

(4)  Why write dissents, you might ask?  Because sometimes other courts follow them.  Particularly when you are subsequently elevated to the Supreme Court.  Which may make your reasoning sound even more persuasive.  The Ninth Circuit rejects the Second Circuit's holding in the TWA Flight 800 case.  Electing to follow instead then-Judge Sotomayor's dissent.

Lessons of the day.

In Re Marriage of Urbany (Cal. Ct. App. - March 14, 2011)

You'd think that the Court of Appeal wouldn't have to remind a trial court that before you impose sanctions, you have to (1) provide at least some notice, and (2) have the sanctions supported by the record.

But apparently a reminder is indeed necessary.

People v. Smith (Cal. Ct. App. - Feb. 28, 2011)

I had various reactions to this one.

I first read the initial seven pages of the opinion, involving an appeal filed by a serial rapist who was sentenced to life in prison. Those first pages discuss the facts of the rapes.  My reaction?  "I'm incredibly happy they caught this guy and put him in prison.  Hopefully forever."  That feeling persists.

Then I read the next dozen or so pages, involving a legal discussion of the Confrontation Clause and the obligation (or not) to put on the testimony of the actual person(s) who conducted the DNA testing.  This is an incredibly messy area.  The Court of Appeal does a decent job of trying to sort it out.  Including parsing out which Supreme Court justices said what -- and the implications thereof -- in the relevant precedent.  Dry stuff, but important.  So I thought:  "Pretty good.  Especially on a tough topic."  Though you can somewhat tell that there's a bit of a thumb on the scale towards doing whatever needs to be done to uphold this guy's convictions and keep him in prison.

Then I read the next half-dozen pages, starting at page 19.  Which involves a discussion of alleged prosecutorial misconduct in various arguments made by the government during the defendant's trial.  At which point I think:  "Holy crap.  The thumb on the scale is way, way heavy here.  Too heavy.  Not only is the prosecutor doing really bad stuff, but both the trial court and the Court of Appeal are letting him/her get away with it.  Holding that what, to me, are clear errors aren't errors, or that certain statements don't "necessarily" mean what they obviously do, etc.  None of that's pleasing.  At all.  Maybe some of these errors are harmless (or maybe not), but saying that they're okay is just wrong.  Both on the merits as well as because it encourages similar conduct in the future.  So for those eight to ten pages, I'm really not happy with the Court of Appeal and the trial court.  Which I assume is how the opinion is going to end.

But then I get to the final couple of pages of the opinion.  In which, IMHO, the Court of Appeal finally gets it -- as did the trial court -- and does something about it.  Below, the defense counsel moved for a mistrial based on a variety of things the prosecutor said, the vast majority of which the trial court allowed.  That's usually totally a totally useless motion, and even here, the trial court denies the motion.

But the trial court nonetheless says that some of the prosecutor's arguments were indeed "troubling," adding that "no attorney should get so wrapped up in winning that they forget their professional obligations."  It then stated that, for the first time in 17 years on the bench, she felt that the misconduct was sufficiently serious to warrant a curative instruction to the jury.  And, accordingly, instructed the jury:

“Ladies and gentlemen of the jury, before I give you your final set of instructions, I need to clarify certain matters.

As I told you before, statements that the attorneys make during argument [are] not evidence. Your decision must be based on the evidence. The attorneys may properly comment on the evidence and suggest how you should view the evidence, but they must do so in an appropriate fashion.

On several occasions, the District Attorney improperly attempted to appeal to your passions and sympathies. For example, the District Attorney . . . suggested to you that Jane Doe . . . 1 has lived with fear for 15 years and she would now finally get peace. The District Attorney also improperly suggested that we in society have a special place in the criminal justice system for people who rape children.

Moreover, the attorneys may not knowingly misstate the law to you. The District Attorney improperly suggested that you should ignore the law regarding applying the standard of proof beyond a reasonable doubt, telling you that it is a shield for the innocent and not a loophole for the guilty. The determination of guilt must be based upon application of the reasonable-doubt standard, and you cannot separate your determination of guilt from that standard.

As I also mentioned at the outset, this is an emotional case. Your job is to set aside your emotional reaction to the charges and, quite frankly, to set aside any conduct by the lawyers, to view the evidence objectively, to determine if the charge has been proved beyond a reasonable doubt, and then reach your decision regarding the defendant‟s guilt based upon your consideration of the evidence and the law.”
 
Let's hear it for that.  Actually doing something about misconduct rather than simply justifying -- and ratifying -- it.  Even in a big case in which the defendant truly deserves incarceration.  Let's tell the jury what's up and trust it to do the right thing even knowing that what the prosecutor has done is wrong.  I like it.  I liked it a lot.
 
Moreover, just as the trial court was somewhat redeemed in my eyes, so too was the Court of Appeal.  Which added, albeit in a footnote, the following:

"We are not in any way condoning the prosecutor‟s misconduct discussed in Section C. The trial judge was rightfully troubled by the manner in which the prosecutor argued the case. She stated that for the first time in 17 years on the bench, she felt the misconduct was serious enough to warrant a curative admonition to the jury. In three prior appeals, of which we took judicial notice, the same prosecutor was criticized for improper conduct, including the observation in People v. McKenzie (Aug. 1, 2007, A112837) [nonpub. opn.], page 1 that the prosecutor had engaged 'in a troubling and extensive pattern of misconduct.' We direct the clerk of the court to send a copy of this opinion and the Request for Judicial Notice with copies of the three prior opinions of which we took judicial notice to the Alameda County District Attorney Nancy O‟Malley so that she can personally address this matter with the prosecutor so that this type of misconduct does not reoccur."

Good job.  Exactly right.  I might have liked the Court of Appeal to say the same thing without some of the ratification that I saw in Section C.  But at least the footnote was a start.  As well as an express recognition that something was wrong here and worthy of correction.  Both in this case as well as in others.

So lots of thoughts when I read this one.  Some good stuff as well.

California School Boards Ass'n v. State of California (Cal. Ct. App. - Feb. 9, 2011)

Want to see why California state government is such a nightmare?  Here you go.

The contemporary state budget is a shell game.  It's worse than street three-card monte.  If only because it blatently violates the California Constitution, in addition to its inherent dishonesty and horrible consequences.

That the Governor(s) and Legislature have gone along with stuff like this is embarrassing.  Truly.

But, as one might expect, the judiciary isn't going to solve the problem.  Separation of powers and all.

Oh well.  Let's just watch as the state runs itself into the ground.  It's not like this concerns anything important.  Like the education of our nation's youth.

Oops.

In Re Marriage of Kochan (Cal. Ct. App. - March 9, 2011)

I get what Justice Bigelow is saying here.  And agree.  You generally can't "impute" income to a spouse (in a divorce case) just because s/he could make more money doing a different job.  Sure, if they're not doing anything, that's one thing.  But you can't say, for example, that a superior court judge -- to take an setting near and dear to many of our hearts -- can have extra income inputed to him just because he could easily retire and take a better-paying job with JAMS.

There are, however, exceptions.  You can't deliberately underemploy yourself.  You can't leave your doctor job and become a janitor just to spite your wife and reduce your support obligations.  So the "no-imputation" rule isn't nearly as categorical as one might think.  We do indeed impute income on occasion.

Now, for me, I think the dividing line is that a spouse should be able to stay at their existing job if they want.  Maybe there is a limited exception; for example, if -- without good reason -- a spouse refused to accept an obvious promotion, I might be willing to impute income there as well.  So the actual rule is:  "Imputation sometimes.  No imputation other times."  With the general caveat that you get to stay put.

But this is a case that seriously tests that proposition.  Perhaps even justifying another caveat.

Roman Kochan was (and is) the Dean of Library Services at Cal State Long Beach.  He's been at CSULB since 1969, and we know what that means.  Big pension.  One that's worth over $1.5 million.

But that's not all.  It also means that Kochan can retire and still collect a hefty chunk of his salary.  Under a collective bargaining agreement available to Kochan, Kochan is entitled to (1) retire, and thereby draw his full retirement benefits; (2) have those benefits untaxed by Social Security (unlike his current salary); (3) stay at CSULB as a senior librarian, performing the same duties he's doing now, working half-time and obtaining half pay, as well as obtaining benefits.

But Kochan has an even bigger incentive to do so.  If he continues to work, his retirement benefits actually decrease, since he's already maxed out on years of service and is just getting older every day (which thus reduces the value of his benefits).  So there's a huge reason to retire, go half time, and still do your job.

Except for one big thing.  Retiring helps his ex-wife.  Conversely, staying on the job screws her.  Which is what he feels like doing.  Reducing the value of his retirement benefits hoses his ex-wife because she owns part of those benefits, whereas any salary he earns at this point is all his.  Plus, if he retires now, she's fine if he dies.  But if he doesn't retire, and then he dies, she gets a huge decrease in benefits.  So by continuing to work, his last thought on his death bed will be how he's stuck it to his ex-wife one last time.

You may say to yourself:  "Shaun, you're being overly harsh on Kochan.  I'm sure that's not his thought process."  Because who would ever want to harm financially their former spouse, right?  As for whether Kochan's that kind of guy, see if this gives you a little insight:  He recently stopped paying all his debts (including his community debts), and filed bankruptcy.  After the bankruptcy was over, he also stopped paying his mortgage, and still doesn't pay it, figuring he could live in it rent-free until the bank foreclosed on the house.  His ex-wife -- who owned part of the house -- was desperate for him to sell it, but he testified he just "never got around to it."  Oh, and he could pay the mortgage on the house if he were to retire and use his enhanced salary to do so.  But he just doesn't feel like it.

The Court of Appeal reverses the trial court and holds that it can't impute income to Kochan for his failure to retire and obtain an increase in salary on the theory that you can never "force" someone to leave their job for another one.  I understand the principle.  But this may be -- or at least comes darn close -- to an exception.  It'd be one thing if Kochan's retirement stopped him from working.  But he can retain nearly the exact same job even after retiring due to the collective bargaining agreement, albeit half-time.  And you know what?  If he wants to work full-time, go right ahead.  Don't tell me that CSULB will say:  "Since we're only paying you to be here two and a half days, we're not going to let you work all five."  University libraries would love for a little volunteer work.

When the only reason you don't maximize your income is to game the process (or out of spite), I'm not sure that imputation is inappropriate.

U.S. v. Eriksen (9th Cir. - March 9, 2011)

Judge Smith begins his opinion by saying:  "Defendants-Appellants Sigmund Eriksen and Raymond Eriksen appeal their convictions stemming from their misappropriation of employee 401(k) contributions to pay their company’s operating expenses."

Which made me think:  "Hmmm.  I wonder what their sentences will be?  Personally, I think that stealing from your employees' retirement plans is pretty darn serious.  A lot more serious than other crimes; e.g., stealing a slice of pizza.  I bet the ERISA criminal penalty provisions are pretty harsh.  Rightly so."

So I was perhaps surprised to learn, halfway through the opinion, that they were only sentenced to two years of probation, a $20,000 fine, and 240 hours of community service.

I was perhaps even more surprised that, by the time I reached that part of the opinion, I didn't necessarily think that sentence was overly light.  Certainly wasn't too harsh.  But maybe not all that evil.

Check out the facts and see if you agree.

Gould v. Corithian Colleges (Cal. Ct. App. - Feb. 22, 2011)

Want to see concise, speedy, entirely equitable justice?  Here you go.

I couldn't agree more with Justice Gilbert's opinion.  Short.  Fair.  Right.

Love it.

Salomaa v. Honda Long Term Disability Plan (9th Cir. - March 7, 2011)

Fair warning:  I'm about to be a jerk.  But a principled one.

There's a complicated ERISA case.  It gets briefed by the parties and argued in May 2009.  The panel is split.  Two judges write a majority opinion, and one writes a dissent.

It takes a while.  Over a year, actually.  But finally, things are just about finished.  There's some tinkering with the opinions that still needs doing, but it's minor stuff.  Things will be ready to file in mere days.

Then one of the judges dies.

What do you do?  What can you do?

You obviously can draw a new judge.  But all that time and effort has already gone into writing the opinions.  Do we really have to reinvent the wheel?

Does it matter whether the deceased judge was one of the two judges in the majority or not?  Can you count her vote even when she's no longer with us?  Wholly apart from whatever the rules and/or statutes say, does Article III of the Constitution provide an independent limitation on the courts?  Appeals have to be heard and decided by such judges:  Would counting the vote of a deceased member violate Article III?  Do you cease to be an Article III judge upon death?  (The text of the Constitution says that judges shall hold office during "good behavior" -- there's nothing about termination upon death, or whether dying counts as bad behavior.)

Those were my thoughts, anyway.  I'm not sure that I had a fully worked-out vision of Article III constraints.  But I do think that there may be something there.  Take an extreme case:  Three judge panel, briefs and oral argument happen, two judges say they're voting for plaintiff and one says he's voting for defendant, and after nearly finishing the opinion the two plaintiff votes die in an automobile accident.  Would the Constitution allow an appellate court to say that the two votes prevail and hence plaintiff wins?  Would that be a decision by an Article III court, when the only current Article III member voted the other way?

I could go on and on about this (and probably already have), but my tentative conclusion is that (1) there's a constitutional minimum here somewhere, but (2) there's also some degree of flexibility, assuming the creation of rules in advance, about what counts as a "final" decision.  I think that a court could, consistent with Article III, say that dead judges get a vote, as long as their decision was sufficiently clear in advance pursuant to specific rules that said that certain acts weren't merely "tentative" and were intended to be final even in the face of an intervening death.

Why did I think all this, you might ask?  Am I simply feeling a keen sense of mortality today?

No.  I had all those thoughts when I read this opinion.

It's not an extreme case like the two-death example I articulated earlier.  But it did raise the issue.  Since it's very much like the example I started with.  Two judges remain (Judges Kleinfeld and Silverman), and the one who dies is Judge Hall, whose long battle with cancer ended February 26, 2011.

Nine days later, Judges Kleinfeld and Silverman do what one might expect in this situation.  Particularly since they agreed and Judge Hall was the one who dissented.  They publish both their opinion as well as Judge Hall's dissent.  Noting Judge Hall's passing, and her instructions to publish her dissent, in a footnote.

Which is a sweet thing, and entirely appropriate.  They were, after all, already in the majority.  Two judges is a quorum.  The case was decided.  No need to let Judge Hall's wisdom be wasted.

But was it right?

On this I'm of mixed thoughts.  On the one hand, it's a dissent.  So it doesn't "mean" anything anyways.  It's not a holding.  It's just some ideas.  Presumably that's just fine.

Plus, as a practical matter, you and I both know that nothing was going to change in the next nine days.  The case had been under submission for almost two years.  The opinions were written.  All that was left was the final proofreading.  They were essentially as "final" as they were ever going to be.

On the other hand, where do you draw the line?  What about a judge who expresses a view at oral argument and then promptly dies.  Do those votes count as well?  Does it matter which way the vote goes?  Does it matter if this judge never, rarely or often changes his mind?  What about a judge who expresses a view in a bench memo prior to oral argument?  Does that count?  At what point do we invest a decision with sufficient finality so that even when the judge dies, we recognize that vote?  We know what the rule is for juries:  After polling.  What's the appropriate rule in the Court of Appeals?

So those are my theoretical issues.  Backed up, again, by Article III concerns.  We know that we can (and often do) replace a judge who has died with another judge.  I've seen that time and time again in the Ninth Circuit (and elsewhere):  someone dies, a new judge is drawn, the new judge listens to oral argument, and a new vote is taken.  The tougher question is when you can do otherwise.  Was what Judges Kleinfeld and Silverman did here right?

Let me add just one additional piece to the puzzle.  Perhaps the most troubling one.  We actually have a rule about this in the Ninth Circuit.  It's General Order 3.2(g).  Which says:  "If a member of a three-judge panel becomes unavailable by reason of death, disability, or departure from the court and the case is under submission, the Clerk shall draw a replacement by lot."  The case here was clearly under submission.  So it seems like, if you follow the rule, you have to draw a replacement.

Not only that, but there's also a Ninth Circuit opinion about this as well -- one that was generated after Judge Ferguson's sudden death in 2008.  There, Judge Ferguson joined Judge Reinhardt to hold (briefly) that X was unconstitutional (but defendant entitled to qualified immunity), Judge Smith concurred (arguing that X wasn't unconstitutional), the opinion issued, Judge Ferguson died, a replacement was drawn, the replacement (Judge Tallman) agreed with Judge Smith, and Judge Smith (over the objection of Judge Reinhardt) vacated the prior opinion wrote a new one (joined by Judge Tallman) holding that X wasn't unconstitutional.  In that opinion, Judge Smith defended the changed result by arguing that the collaberative process -- including the evaluation of petitions for rehearing -- "strengthens the final quality of those opinions," and cited Ninth Circuit precedent noting that no decision is final until the conclusion of "the period in which either party may petition for rehearing."  Those same principles, as well as General Order 3.2(g), arguably equally apply with respect to Judge Hall.

Don't get me wrong.  I'm not saying that Judges Kleinfeld and Silverman did anything wrong.  They could have said:  "We're deciding the case.  Here's our opinion.  We attach some contrary thoughts from a friend and former colleague.  Consider them if you'd like."  There's no rule, after all, about attachments or exhibits.  There's similarly no pragmatic rule about how an Article III judge decides.  The Ninth Circuit could have drawn a replacement, and that replacement could permissibly say:  "I may have my own views.  But I've decided to articulate Judge Hall's and vote the way she would.  Here's her dissent, which I adopt as my own."  That's clearly a decision by an Article III could, and done according to the rules.

So I thought it worth considering whether Judge Kleinfeld and Silverman's decision was the same one that I would have adopted in their shoes.

U.S. v. Williams (9th Cir. - March 7, 2011)

Dude.  You were convicted of sexual assault when you grabbed a nine-year old and thirteen-year old girl in 2000.  After you were released from your subsequent conviction, your supervised release was revoked when you skipped sex offender treatment sessions and got a job at a fair frequented by children.

Thereafter, you were busted for possession of child pornography that depicted incest and child rape.  Which you admitted turned you on.  A crime for which you were sentenced to the mandatory minimum (fifteen years in prison) plus a lifetime of supervised release.

Did you really think that you had even the slightest chance when you appealed to the Ninth Circuit claiming that subjecting you to a lifetime of supervised release was "cruel and unusual" punishment?  Seriously?

Not a chance.  Not even if Judge O'Scannlain hadn't been the one writing the opinion.  This sentence not only fails to be "grossly disproportionate," but seems just about entirely right.  Indeed, any lesser sentence would raise issues with me.  Not this one.  At all.

Affirmed.

McCollough v. Johnson, Rodenberg & Lauinger (9th Cir. - March 4, 2011)

Sometimes it takes a very fancy attorney to take on a law firm.  Sometimes it doesn't.

Johnson, Rodenberg & Lauinger -- a North Dakota law firm -- files lots of debt collection lawsuits.  For example, in Montana, the firm files an average of five a day.  One of these Montana suits was against Tim McCollough, a former school custodian.  McCollugh opened a credit card with Chemical Bank (which was later purchased by Chase) and fell behind in his payments, ultimately resulting in a charge-off of $3,000.

So the debt gets sold (per se usual) by "Collect America" -- nice name -- which is now known as SquareTwo Financial.  Which hires the law firm to collect.

Most of the firm's lawsuits result in default judgments.  Which is why it's a pretty productive practice.  Perhaps for that reason, the law firm doesn't just sue for $3,000.  But instead sues for almost $10,000, which includes the account balance, interest, attorney's fees, etc.

But this one doesn't end in a default.  Barely.  McCollough files a "response" to the lawsuit, pro se, that says:  "FORGIVE MY SPELLING I HAVE A HEAD INJURY AND WRITING DOSE NOT COME EASY
(1) THE STACUT OF LIMITACION’S IS UP, I HAVE NOT HAD ANY DEALINGS WITH ANY CREDITED CARD IN WELL OVER 8½ YEARS (2) I AM DISABLED I GET 736.00 A MONTH
S.S.I. . . ."  You get the point.  Not exactly the greatest answer in the universe.
 
But guess what?  That does the trick.  Because, indeed, the stacut of limitacions -- or something like that -- has indeed expired.  As a result, not only is the law firm eventually forced to dismiss the lawsuit (with prejudice), but McCollough sues 'em, and obtains statutory damages of $1000, $60,000 in punitive damages, and $250,000 in damages for emotional distress.  As well as costs, attorney's fees, etc.  A judgment the Ninth Circuit affirms.
 
Admittedly, McCollough isn't able to do this entirely on his own -- had he stayed with all-caps pleadings and the like, instead of getting a lawyer, I'm entirely confident the result would have been the exact opposite of what it turned out to be.  So lawyers are important; indeed, critical.
 
But it all started with that first response.  Without which this would be yet another successful debt collection case by a law firm.

People v. Troyer (Cal. Supreme Ct. - Feb. 22, 2011)

I'd have liked the California Supreme Court to at least address the policy consequences of its decision here.

Seems to me that one consequence of this holding is to deter people in an emergency from calling 911.  The 911 call recounted a shooting in which a person had been shot by suspects driving a two-door Chevrolet, and the police responded.  When they got to the house, they saw an injured woman on the front porch who had been shot.  The suspect's vehicle was nowhere in sight, but the owner of the house was tending to the shot woman.  The police ask the owner what happened to the suspects, at which point the owner responds that they fled westbound in a two-door Chevy Tahoe.

The police then ask if anyone's inside the house.  The owner waits for a while in responding, and eventually says "I don't think so."  The police then ask again, and the owner stares at the police for a long time, and then says:  "No."

The police then ask for permission to search the premises.  The owner expressly says "No."

Why do you think he's saying "No?"  The police have a keen idea.  So they search the house anyway, without consent and without getting a warrant.  Allegedly looking for other victims or other people in the house.  But in fact finding drugs.

The Court of Appeal hold the search to be a violation of the Fourth Amendment.  The California Supreme Court reverses.  With Justices Kennard and Moreno dissenting.

Remember that rule the next time you're thinking about calling 911.  There's an upside:  the injured person may receive vital treatment.  But there's also a big downside:  the police may also search your home without your consent.  And when you've got marijuana in there, that may potentially result (as here) in a prison term.

Which may make someone think twice.  Which the relevant social consequences.  Which seems to me to be something at least worth mention.

Gularte v. Pradia (Cal. Ct. App. - March 3, 2011)

Even if it's not signed by two witnesses (as required by the Probate Code), if you dictate a will to someone, they write it down, you sign it, and several people see you do all this, that's enough for a valid will.  So holds the Court of Appeal.

Now, admittedly, in the present case, the testator did something else as well.  In front of the witnesses, he also got out a copy of his old will, urinated on it, and burned it.

But I'm pretty sure that's optional.

Cabrera v. E. Rojas Properties, Inc. (Cal. Ct. App. - Feb. 24, 2011)

Here are some bar examination questions for you.  Not a real ones.  I made them up.  (Okay, they're a real questions.  With real answers.  But as far as I know, they're not on the Bar.)  See if you can get them all correct:

P is injured by D.  P goes to the hospital, which bills P $50,000 for the medical services it renders.  P sues D, and the jury finds that D is entirely responsible for the medical expenses incurred by P.  No other damages are alleged or sought.

Question (1):  Assume that P has heath insurance and that P's insurance company pays the hospital $50,000 in full satisfaction of the debt.  P's out-of-pocket losses are thus $0.  Given these facts, P will be entitled to how much at trial?
(A)  $50,000.
(B)  $0.

Question (2):  Assume that P has health insurance and that P's insurance company pays the hospital $30,000 in full satisfaction of the debt.  P's out-of pocket losses are thus $0.  Given these facts, P will be entitled how much at trial?
(A)  $50,000.
(B)  $30,000.
(C)  $20,000.
(D)  $0.

Question (3)  Assume that P has no health insurance, but that she is able to negotiate with the hospital, which accepts $25,000 from P as full payment for the medical services it provided.  Given these facts, P will be entitled to how much at trial?
(A)  $50,000.
(B)  $25,000.
(C)  It depends on whether the negotiation took place before or after trial.

Got your answers?

I hope you got (1) right.  The correct answer is (A).  That's the collateral source rule.  Could even be on the Bar.

Question (2) is more difficult.  The Court of Appeal holds here that the answer is (B).  But that seems troubling to me.  Not necessarily wrong, but maybe wrong, particularly for what such a holding would mean for Question (3).  A similar issue is currently pending before the Califonria Supreme Court in Howell.  Seems to me like the Court of Appeal might have wanted to hold the present case pending Howell rather than reasoning from first principles and incurring transaction costs to both the judiciary as well as the parties.

Question (3) seems the toughest.  The collateral source rule suggests that the right answer is (A).  The Court of Appeal's decision seems to suggest that the right answer is (B).  But under the Court of Appeal's decision, in practice, the correct answer is probably (C).  Since if the negotiation is before trial, we know that the losses are only $25,000, so (as here) the recovery should only be this same amount, since the hospital was willing to accept this amount in full satisfaction.  Just like with insurance.  But if the negotiation is after trial, there's been no deal yet, so P gets $50,000.  In which case (C) is the right answer.  Moreover, it suggests that what we should instruct the jury at trial is not to decide how much the hospital billed, but "What is the amount that you find that P will likely have to pay as a result of this bill?  Will she be able to settle the bill for a lesser amount?  How good of a negotiator is she?"  Which in turn seems silly.

Did you get all the answers right?

They're tough questions.  Even for those of us that have been in practice for a while.  They don't seem quite fair.  Even for a bar examination like California's that's the toughest in the nation.

We'll see how the California Supreme Court answers Question (2) shortly.  But for now, it's (B).  And if the Supreme Court agrees, I hope it has the guts to answer Question (3) as well.

Sonic-Calabassas-A, Inc. v. Moreno (Cal. Supreme Ct. - Feb. 24, 2011)

You get more 5-4 decisions in the United States Supreme Court than 4-3 decisions in the California Supreme Court.  Here's a classic example of the latter.

It's about "Berman" hearings; basically, wage claims by an employee in front of the Labor Commissioner.  There are lots of advantages of such hearings.  At least for the employee.  So the question is whether you can waive those rights as part of an arbitration agreement, or whether such a waiver is instead against public policy.

The Court holds in favor of the employee, concluding that they're invalid.  Given that holding, you can guess who are the 4 and who are the 3.  The latter being Justices Chin, Baxter and Corrigan.

The majority opinion is authored by Justice Moreno.  Likely his last 4-3 opinion, and perhaps one of his last opinions ever.

Holding in favor of -- fittingly enough -- a guy named Moreno.

People v. Superior Court (Salter) (Cal. Ct. App. - Feb. 24, 2011)

George Salter gets committed to Atascadero State Hospital.  After he's served his time, the medical director at Atascadero seeks to keep him there, believing him to be a mentally disordered offender.  So the State files the appropriate charges.  Thereafter, Salter gets reviewed by two independent experts.

The first expert says, nope, Salter's fine.  He should be released.  Though a second expert disagrees.

At which point the medical director at Atascadero says, after reading the expert's reports, well, I guess we were wrong about Salter.  I agree that at this point, he should be released.

So most everyone thinks he should be freed.  Including the director of the hospital.  So the trial court lets him go.

The Court of Appeal reverses.

Nope.  Even though the evidence may be fairly strongly one way, the People are still entitled to a trial.  And to keep Salter in involuntary treatment in the meantime.  (Which is also why the Court of Appeal granted a stay of Salter's release.)

U.S. v. Watson (9th Cir. - Feb. 23, 2011)

I'm not going to complain about Judge Milan Smith's opinion in this case. which holds that you're still a fugitive (for purposes of the period of federal supervised release) even if you're arrested on state charges.

But I would like to say that I'm not all that impressed with federal supervised release if federal authorities fail to supervise -- or catch -- you when, as here, you're arrested eleven different times during this period.

Sure, these arrests were by state (rather than federal) authorities.  Still.  The federal government's incapable of running the record of a guy who's on supervised release to see if he's been arrested anywhere?  Really?  Wow.

Impressive.