Monday, December 31, 2012

Nalwa v. Cedar Fair (Cal. Supreme Ct. - Dec. 31, 2012)

One bad thing about being in academia is that you don't have a keen sense of when (or if) "regular" people work over the holidays.  Do people really work on Monday, December 31?

Though I guess you could easily call that a good thing as well.

Fortunately the California Supreme Court lets me know.  Yes, Virginia, some people are indeed at work on New Year's Eve.  Cranking out opinions so the winners have something extra to celebrate and giving the losers an even bigger excuse to drown their sorrows on this particular evening.

It's a case about bumper cars and primary assumption of the risk.  The California Supreme Court has led the state courts in a relentless expansion of this doctrine in the sports context, applying the doctrine to immunize defendants in a wide variety of settings.  It does so again today, making clear that the doctrine doesn't just apply to "sports" (however expansively defined), but applies equally to a plethora of activities more broadly defined as "recreational" instead.  Barring a lawsuit, here, for injuries sustained in a bumper car accident.

Justice Kennard has been a vocal opponent of the expansion of this defense, and -- not surprisingly -- dissents here as well.  Repeating and expanding upon the arguments she's made in prior dissents.

But I think this is a bad case for Justice Kennard, and one in which it's difficult to articulate persuasively her position.  Instead, I think that Justice Werdegar's majority opinion is quite powerful.  Seemingly spot on, at least to me.  And this from someone who's somewhat sympathetic to Justice Kennard's reservations.

Justice Werdegar just seems right that the whole bumper cars is to bump, and that allowing liability for bumping accidents might indeed chill the underlying recreational activity.  Could a defendant institute technological limitations on, for example, head-on bumping -- for example, by only allowing one-way travel by the bumper cars -- or, as here, more rigorously enforce its internal policy against this practice?  Sure it could.  And, yes, such efforts might well have prevented the fracture here.

But it nonetheless seems right to me that when you get into a bumper car that allows multi-directional travel and in which some head-on bumping might occur, that's a classic example of assumption of the risk.  I also agree that there's a downside to chilling this practice.  Some people -- myself included -- may like the ability to slam (and be slammed) head on.  To impose liability -- or to permit post hoc explanations of subjective intent be largely dispositive -- would indeed risk elimination of this particular recreational practice.  That's not socially beneficial.  So creating a primary assumption of the risk defense in this context makes sense to me.

Could you obtain some of these benefits through more traditional (and limiting) doctrines?  Sure.  Some.  Not all.  Are there difficult lines to be drawn regarding what's "inherent" in a sport and what's not?  Yep.  Definitely.

But I think the judiciary can do that.  We all have -- or can fairly readily obtain -- some experience with the underlying recreational concepts.  We can draw lines between what's "inherent" in a sport and what's not in a way that preserves the utility of the underlying act.  Judges can likely do so better than episodic juries who are confronted by episodic cases involving sympathetic, uniformly injured participants.

So even if you're not a bumper car, or primary assumption of the risk, devotee, I think there's still a lot to be said for Justice Werdegar's opinion here.  Which is something I could (and would) readily sign onto.

But if you're headed out to an amusement park with your kids during the New Year, watch out for those bumper cars.  They might just get a tiny bit more violent after today.

Goodbye 2012.  Welcome 2013.

Friday, December 28, 2012

Alocozy v. USCIS (9th Cir. - Dec. 28, 2012)

We won't deport Aloczy because he attempted to rape someone.  But we won't let him become a citizen either.

Thursday, December 27, 2012

Damman v. Golden Gate Bridge (Cal. Ct. Appeal - Dec. 20, 2012)

Next time you drive over the (beautiful) Golden Gate Bridge, and stare into the traffic that's going the other way -- with drivers perhaps distracted by the wonderful view -- it may be worth knowing that (1) there's an easy way to stop head-on collisions on that bridge, one that's been used with great success on other bridges (including the Coronado Bridge down in San Diego), but (2) even though it's been strongly recommended that California install such a device on the bridge for over a decade, California hasn't felt like doing so.  With numerous serious injuries as a result.

But that's okay.  No liability.

Whether that's the correct moral choice, of course, is a separate question.

People v. Frazier (Cal. Ct. App. - Dec. 27, 2012)

Do you have a mental disorder -- e.g, are you subject to involuntary committment as a Sexually Violent Predator -- if you are an older man who finds teenage girls attractive?

What if you're an older man who finds teenage boys attractive?

Wednesday, December 26, 2012

U.S. v. Phillips (9th Cir. - Dec. 26, 2012)

Don't steal from a pizza place.  That can get you twenty five to life, and will only net you (at best) some pepperoni pizza.

Steal from shareholders instead.  That can get you several millions, and you'll only have to spend a few years in prison.

One more thing.  If you're caught stealing, definitely don't pay the money back.  You'll have to forfeit anything you bought with the stolen money, and even if you've already reimbursed the company, that reimbursement is not a defense to the forfeiture.

In short, if you steal, go big.

A timely post-Christmas lesson.

Friday, December 21, 2012

National Elevator Industry Pension Fund v. VeriFone Holdings (9th Cir. - Dec. 21, 2012)

I think the internal e-mails in this securities class action are even more damning than Judge McKeown does.  Either way, the dismissal of the complaint must be reversed.

Read the opinion if you invest in stocks and wonder if companies engage in accounting tricks to manipulate earnings numbers.  The focus on hitting a "target" regardless of the means employed appears overwhelming.


Thursday, December 20, 2012

Giraldin v. Giraldin (Cal. Supreme Ct. - Dec. 20, 2012)

I won't discuss the merits of this case.  Perhaps because I only dimly understand trusts and estates, a class I never took in law school (nor studied in preparation for the bar).

I instead just want to ask a question.

The case is about a trust set up by William Giraldin.  An early line of Justice Chin's opinion says:  "William was a successful businessman and inventor and accumulated a substantial fortune."

Which led me to think:  What exactly is a "substantial fortune?"  A million dollars?  Five million?  Twenty million?  One hundred million?  A billion?  If you had to guess, what amount of money are we talking about -- in the context of a person's net worth -- when we say that someone has obtained over their lifetime a "substantial fortune?"

I ask because, as it turns out, William was worth (according to Justice Chin's opinion) around six million dollars.  So, for Justice Chin, that amount of money is a "substantial fortune."

Which I thought was low.  I was thinking it'd be a lot more. But I wondered if my thoughts on this topic were distorted, or at least out of line with what common parlance would dictate when a speaker in this context says "substantial fortune."  So I thought I'd ask.  Am I off base here?

I'm not saying that six million dollars isn't a ton of money.  It is.  And if anyone would like to give me such a sum for Christmas -- or even a healthy fraction of it -- I'll happily provide my address.

But a "substantial fortune?"  My guess is that a nontrivial number of members of the California appellate judicary have "substantial fortunes" that meet or exceed this figure.  For example, Justice Baxter has himself has amassed (and currently owns) multiple millions.  Ninth Circuit judges are often even wealthier.  Judges Berzon and Gould, for example, respectively have seven figure positions in the Fidelity and Vanguard mutual funds alone, as well as tons of other investments.  Judge McKeown owns a healthy amount of stock in just about every major publicly traded corporation.  And is there anything that Judge Wardlaw doesn't own?!

So I don't know what the precise dividing line is between "a boatload of money," an "obscene amount of cash," and "a substantial fortune."

But I thought that the last of these required more than what it cost to repair Steve Austin.

U.S. v. Yepez (9th Cir. - Dec. 20, 2012)

It's an en banc criminal case in the Ninth Circuit.  One side argues for giving respect to the actions and determinations of state courts.  Comity's a good thing, they say.  The other side says, no, federal courts should enforce federal law.  Don't let states get in the way.  A classic liberal-conservative split.

Except the sides are opposite from what you'd usually expect.  Here's it's the liberals arguing for comity and the conservatives saying that we should ignore what the state court did.  Because unlike the typical habeas case, here, the state courts have diminished the sentence of a criminal defendant.

So the liberals argue for comity and the conservative say that value's overblown.

Nah.  These things aren't political or results-oriented.

Just calling balls and strikes.

Wednesday, December 19, 2012

V & P Trading v. United Charter (Cal. Ct. App. - Dec. 19, 2012)

I love this strategy.

When you're sued by a corporation, find out if the corporation's charter has been suspended (for nonfiling, nonpayment of taxes, etc.).  If you find out they're indeed suspended, do not raise the corporation's lack of capacity as a defense in your answer.  Nor should you file a demurrer or motion for judgment on the pleadings.  That would only notify defendant of the problem, and they'll obtain a revivor by paying their taxes, filing the relevant documents, etc.  That'll let the lawsuit go forward.

Here's what you do instead:  assert only a statute of limitations defense in your answer.  Wait for the limitations period to expire.  THEN file a motion to dismiss (or summary judgment motion, etc.) on limitations grounds.  Because at that point, plaintiff's screwed.  They can still get a revivor, but the fact that they were suspended mean the filing of the lawsuit didn't toll the limitations period.  So they lose.  Even if, on the merits, they're right.

I'm not saying that defendant deliberately did this here.  Indeed, in light of the defendant's somewhat inexplicable discovery strategy, there's some reason to believe they didn't.

But they should have.  And so should you.

And when you do, cite this case as proof that the strategy works.  With a footnote citing this post as proof that your approach isn't sleazy, but rather a product of zealous advocacy that totally rocks.

Because -- as I half-jokingly tell my students -- a procedural victory is often even sweeter than a victory on the merits.  Because it proves you're the better lawyer.  Even if your case stinks.

Tuesday, December 18, 2012

People v. Lujan (Cal. Ct. App. - Dec. 17, 2012)

After reading what James Lujan did to multiple children -- including abusing one of them to death -- I'm not inclined to stretch out to assist him as he seeks to avoid the consequences of his acts.  Neither is the Court of Appeal.  Which holds that a trial court has the inherent power to permit a child witness to testify by closed-circuit television even when the relevant statute doesn't expressly authorize such a procedure because the child witness isn't a victim of a particular offense (e.g., a sex crime).

So Lujan gets to be in prison for 64 years to life.  Plus 11 years.

P.S. - Justice Hoffstadt does need to change one portion of the opinion, which clearly lost something in the editing process.  It reads:  "The trial court allowed Vanessa, age seven at time of trial, to testify over a two-way, closed-circuit TV. Vanessa sat in a separate room from which Lujan, his attorney, the district attorney. The jury could see her on a video monitor."

U.S. v. Bustos-Ochoa (9th Cir. - Dec. 18, 2012)

It's a federal criminal case against Roberto Bustos-Ochoa brought in the Southern District of California.  Illegal reentry.

Bustos-Ochoa wants to collaterally challenge his removal, claiming that he could have obtained voluntary departure instead of being deported.  Nope.  The panel gets in right.  In a per curiam opinion that's both straightforward and easy.  While the government might not have "introduced" evidence that Bustos-Ochoa was guilty of a felony (and hence ineligible for voluntary removal) at the removal hearing, Bustos-Ochoa was, in fact, guilty of the offense.  So he was indeed ineligible, and so wouldn't have obtained voluntary departure.

So Bustos-Ochoa gets to spend two years in prison.

Monday, December 17, 2012

People v. Watkins (Cal. Supreme Ct. - Dec. 17, 2012)

This case is a snapshot of some of the things that are wrong with the death penalty in California:

(1)  The murder is in 1990.  It takes less than two years to sentence the defendant to death.  But it then takes over twenty years for the first appeal -- the automatic one to the California Supreme Court -- to be decided. 

Moreover, those two decades are spent briefing and deciding a totally straightforward case in which there's no substantial issue on appeal that that -- to the surprise of no one -- results in a unanimous verdict affirming the conviction and sentence.  Twenty years for that.

Defendant was 21 years old at the time of the murder.  He's now 43.  He's still got an appeal to the United States Supreme Court, state habeas petitions, (probably multiple) federal habeas petitions, and Ninth Circuit (and U.S. Supreme Court) appeals about those habeas petitions to go.

He'll almost certainly be in his 50s -- or older -- when and if he's ready to be executed.  An old(ish) man executed for a crime he committed when he was barely old enough to buy beer.

That's not justice for anyone.  Not for the victim.  Not for the defendant.  Not good for society.  And not an impressive job of running these things by the California Supreme Court.

(2)  Why -- among all the murderers -- do we sentence this particular guy to death?  On the one hand, as I was reading the facts of the case, I was thinking:  "This guy's a classic criminal.  Holdups and all sorts of common robberies.  A plague on society."  Which is undoubtedly true.  Though that describes a great many non-murderers as well.  Sadly.

So I was inclined to be sympathetic to a death sentence.  And then I get to the circumstances of the murder itself.  So random.  Why did he shoot the victim?  No idea.  It wasn't a robbery, it wasn't a resisting victim, it didn't appear to be anything.  Which, at first glace, made me even more likely to support a death sentence.  A guy that shoots a random 62-year old who's about to take a shuttle to LAX?  Really?  You can see why we'd want to kill the perpetrator.

But then I hear defendant's defense.  Which is far from absurd.  He says that the shooting seemed random precisely because it was -- because he didn't mean to shoot the gun, which randomly went off.  Which was why there was no confrontation, no demand for money, no words spoken; not even contact other than from across the parking lot.  No one was meant to get shot.

Do I necessarily believe the defendant?  No.  Not necessarily.  But his story at least seems plausible.  It's at least possible that this was an accident.

Which isn't to say that the defendant shouldn't have been convicted of murder.  The jury heard all of the evidence and decided that the defendant wasn't credible.  The jury decided that for some totally inexplicable reason -- one for which there was utterly no evidence at trial, but which was nonetheless possible -- the defendant decided to shoot the victim, and that it wasn't an accident.  That decision might be right.  Perhaps even beyond a reasonable doubt.  Sometimes people do indeed do that.

But this nonetheless seems to me a perfect case where "residual doubt" in sentencing may well come into play.  Defendant never killed anyone before.  Never even shot anyone before -- as far as anyone can tell, anyway -- much less seems like the kind of person to kill people at random.  Indeed, reading about his former crimes, it would seem to me that any of those other offenses that he committed on the day of the shooting were far more likely to have resulted in a murder (random or no) than the one in which the victim here was shot.  If defendant were a hothead inclined to shoot people, why didn't he shoot those earlier people he actually robbed and who -- almost to a person -- gave him "lip" or otherwise (to a perverse mind)"deserved" to be shot?  It just seems weird.

That's not a substantial argument on appeal.  But it does make me think:  Why are we killing this particular guy?  What makes him special?  Why him and not the wide variety of (in my mind) worse offenders we read about in numerous pages of the California Appellate Reporter -- defendants who were sentenced instead to LWOP?  Is the death penalty, the ultimate sentence, really that random?  (And, yes, I understand that the defendant has not been a model prisoner, but we're talking about distinguishing murderers here -- people for whom the forfeiture of their life is an appropriate or inappropriate sentence.)

Plus, going back to the offense itself, I can't help feeling that it's possible -- possible -- that we're going to kill a man who in fact has never deliberately killed anyone.  Is it likely?  No.  Not if you agree with the jury's verdict, anyway.

But it's still possible.  We may perhaps be taking a life from someone who's never deliberately done the same.

Which is not, I might add, a reason for keeping him alive for 30+ years and then killing him.  If you believe in the death penalty, you want it to happen timely.  If you don't, you want it to happen not at all.  Mixing the two and adopting an intermediate position is in many ways the worst of all worlds.

Albeit the one we have.

There is -- in short -- almost nothing about this case that I like.  The opinion is straightforward, mind you.  But the underlying facts are not.

Washington Shoe Co. v. A-Z Sporting Goods (9th Cir. - Dec. 17, 2012)

You undoubtedly read International Shoe v. Washington when you were a first-year law student.  Here's another personal jurisdiction case involving a seller of shoes and disputed litigation in Washington state.  This time it's Washington Shoe.

Judge Bybee writes an outstanding opinion.  As befits a former law professor.  Very clear, very persuasive.  It explains extremely well the "effects test" as applied to intentional torts and applies that test to claims of wilful copyright infringement.

It's sufficiently good that I think I will assign it to my first-year law students, who are always confused after they read Calder and attempt to understand the contours of the effects test.  My only hesitation is that I'm not sure that the Ninth Circuit's sharp distinction between "contracts" and "tort" cases (vis-a-vis personal jurisdiction) is actually an accurate reading of Supreme Court precedent.  But that's not Judge Bybee's fault; he's just repeating what the Ninth Circuit has already held, and makes an appropriate caveat in this regard in a footnote.

Very good opinon.  Helpful to practitioners, litigants and law students alike.

Thursday, December 13, 2012

In Re Estate of Wilson (Cal. Ct. App. - Dec. 13, 2012)

Proof that transitions are a pain.

Same-sex couples couldn't legally commit.  Then they could enter domestic partnerships.  Then they could marry.  Then they couldn't.

What happens when you (1) enter into a domestic partnership, and (2) waive your rights to your partner's property, but then (3) marry during the brief period in which same-sex couples were (at present) allowed to marry in California, and then (4) your partner/spouse dies and leaves you out of the will?  Do you get your share?  Did the marriage "trump" the waiver of property rights under the domestic partnership?

The Court of Appeal -- in what I think is a fairly straightforward decision -- says "No."  You waived your rights.  Yes, it was a domestic partnership then and a marriage now, but for property purposes, that's the same.  No recovery.

People v. Moore (Cal. Ct. App. - Dec. 12, 2012)

Sometimes even small(er) crimes demonstrate a person's character.

Read this case.  Then tell me whether you have a similar sense to the one that I have:  That this will be merely one of the many times Jesse Moore will be sentenced to prison in his life.

Maybe I'm wrong.  I certainly hope so.

But I doubt it.

Wednesday, December 12, 2012

Richey v. AutoNation (Cal. Ct. App. - Dec. 12, 2012)

The Court of Appeal today changes this footnote:

"In arguing the arbitrator’s legal error in applying the honest belief defense is not subject to judicial review, AutoNation disingenuously asserts the Supreme Court in Pearson Dental 'refused to adopt the rule that "all legal errors are reviewable in this context."' It is difficult for us to accept this as simply an innocent misreading of the Court’s reservation of the question for another day."

to this:

"In arguing the arbitrator’s legal error in applying the honest belief defense is not subject to judicial review, AutoNation asserts the Supreme Court in Pearson Dental 'refused to adopt the rule that "all legal errors are reviewable in this context.’” AutoNation has clearly misread the Court's reservation of the question for another day."

In other words:  You've convinced us in your petition for rehearing that you're not necessarily sleazy, and perhaps are merely stupid.

P.S. - Given that I was slightly critical of the merits of the underlying opinion, I think being soft on the lawyers is the right -- as well as a nice -- move.

U.S. v. Simard (9th Cir. - Dec. 10, 2012)

The official summary of the opinion contains two paragraphs.  The actual opinion contains four.

If only everything was this easy to write.

Dahlia v. Rodriguez (9th Cir. - Dec. 11, 2012)

When I say it doesn't take a crystal ball to see that a case will be taken en banc -- as I did here -- you should believe me.  I don't have a crystal ball.  The case was just taken en banc.

I also said that, on the merits, the panel's decision would be reverved.

Stay tuned.

Tuesday, December 11, 2012

Verdugo v. Target (9th Cir. - Dec. 11, 2012)

I agree with the Ninth Circuit that certifying this question to the California Supreme Court is a decent idea.  No reason not to get a decision on this question straight from the horse's mouth.

But if I had to guess, I don't think that tribunal is going to agree with Judge Pregerson.  My prediction of state law would be that there's no common law duty for a business owner to have an AED (Automatic External Defibrilator) on the premises.

Monday, December 10, 2012

Veronese v. Lucasfilm (Cal. Ct. App. - Dec. 10, 2012)

Let's be glad that George Lucas is better at making movies than he is at the day-to-day running of his business.

It's not shocking at all that Lucasfilm gets spanked for pregnancy discrimation here.  Including an attorney's fees award of over a million dollars.  Yes, I know we're "mellow" and "hip" in Marin, and do things differently.  But the "concerns" expressed here -- as well as the questions that were asked -- are so clearly close to (and in some cases over) the line that there should have been a thousand red flags raised.  But it was instead the managers at Lucasfilm who were making all the errors.

The Court of Appeal ultimately reverses the jury's award for instructional error.  So Lucasfilm's incompetence gets saved -- at least temporarily -- by the trial judge's incompetence in numerous (fairly straightforward) instrutional errors.  So off we are to a retrial.

I'm all for being interacting with people as "people".  Particularly in occupational settings that are, as here, relational.

But some things go to far.  There's no way defendants would have had the same attitude displayed here if the issue involved race.  Taking an infinitely more "relaxed" view because it's pregnancy rather than racial discrimiation is neither justified nor an especially good idea.

People v. Conley (Cal. Ct. App. - Dec. 10, 2012)

What's the appropriate sentence for someone who's convicted of DUI -- one in which there's neither an accident nor an injury (rather, merely a straightforward DUI) -- and who's had several prior DUIs.

Twenty five years to life.

Fortunately for Patrick Conley, Proposition 36 passed.  So maybe he's going to get his three strike sentence reduced.

Can't get it reduced on appeal.  But maybe later.

Here was a dude with a lot at stake -- even more than Obama and Romney -- at the last election.

Friday, December 07, 2012

Hollingsworth v. Perry (U.S. Supreme Ct. - Dec. 7, 2012)

We get to see -- among other things -- if Judge Reinhardt's strategy in the Prop. 8 case (Perry) worked.

Basurto v. Imperial Irrigation Dist. (Cal. Ct. App. - Dec. 7, 2012)

There's DUI (Driving Under the Influence).  There's BUI (Boating Under the Influence).

Now there's ZUI.  Zangeroing Under the Influence.  For which Salvador Basurto gets fired.

Thursday, December 06, 2012

People v. McCloud (Cal. Ct. App. - Dec. 6, 2012)

Quiz for the day: 

When you shoot ten bullets into a crowd of 62 people, and kill two people, you're guilty of two counts of attempted murder and _______ counts of attempted murder.

Sixty?  Eight?  Zero?

The correct answer:  It depends.

The trial court here thought the answer to this question would be sixty.  Relying in large part on the "kill zone" theory of criminal liability that ostensibly says that if you shoot into a crowd you can be convicted of attempting to kill everyone in the crowd.

The Court of Appeal reverses.

Justice Rothschild does a good job of explaining -- very coherently, in my view -- the appropriate scope of the "kill zone" theory.  Yes, there's such a theory.  But no, it doesn't mean that you're guilty of a thousand counts of attempted murder just because you shoot a single bullet into a crowd not caring who you hit.

The theory instead applies when you attempt to kill a specific person in a crowd by killing everyone in the crowd.  Throwing a bomb into a crowd, for example.  You intend to kill X, but by killing X and everyone around him.  Spraying automatic weapons fire into a crowd designed to kill X because it kills everyone else too.  That's the proper scope of the kill zone theory.  A theory that's inapplicable here.  Ten shots aren't designed to wipe out the entire crowd of sixty.  They may create dangers to sixty -- and for that, you might be liable (assault?) -- but that's not the attempted murder of sixty.

That seems right to me.

Mind you, I think it creates some very difficult line-drawing issues.  Even the person spraying the assault rifle, for example, might say that he didn't "intend" to kill the crowd -- that was merely a byproduct of his attempt to kill X, so there's insufficient intent.  Similarly, what do you do about the shooter who fires ten bullets into a tightly packed group of five?  How do we decide whether this is a situation in which the shooter "intends" to kill X by killing all five or, instead, the other four are only "byproducts" of the attempt to kill X and hence there's no liability for attempt.  I'm really unsure how we'd choose -- or at least choose rationally -- between these competing interpretations of the facts.

But the existence of an uncertain line doesn't necessarily mean there's not in fact a line.  We don't know precisely how many hairs make a beard.  But that doesn't mean there's no difference between someone who's bearded and someone who's clean-shaven.  There is.

Wednesday, December 05, 2012

U.S. v. Hernandez-Estrada (9th Cir. - Dec. 5, 2012)

Want to know why it matters to nominate federal appellate judges who are smart?  Read Chief Judge Kozinski's brief concurring opinion in this one.

Truly smart people know when a doctrine simply makes no sense.  Even when that doctrine might support results that you would otherwise prefer.

And smart judges with integrity -- a subset of smart judges -- are willing to call nonsense nonsense when that's what it is.

I actually think that quality may be more present in places like the Ninth Circuit as compared to, say, the Supreme Court.  Not that there aren't incredibly smart people on the Court.  There are.  But they are also sufficiently smart and results-oriented -- perhaps corrupted (in part) by power -- to be willing and able to submit purported justifications for objectively silly rules.  Like this one.

I disagree with Chief Judge Kozinski a nontrivial amount.  But thoughts like this one keep the guy close to my heart.

Now let's see if they actually try to take the thing en banc.

Tuesday, December 04, 2012

In Re Bellingham Ins. Agency (9th Cir. - Dec. 4, 2012)

Judge Paez is looking to become the next Judge Fernandez.

It's not that I mind words like "epochal" (an "epochal" decision rather than a "seminal" one, page 11), or "quantum" (page 12), or "abjured" (page 14), or even "ineluctably" (page 16) and "exegisis" (page 18).  Those are all fine, even if they seem in places to be a little forced.

But having the second word of the opionion be "quotidian" (especially when the case is not, in fact, actually quotidian), and using words like "hierophancy" (page 15) -- a word that's not even in the online Mirriam-Webster (though the noun is) and also seems somewhat inapt in context -- make farly clear what's going on.

Judge Paez is using big words because he can.  He likes 'em.  And he feels like sharing.

Which is his right.  Though my personal view is that it make the opinion slightly more interesting but slightly less readable.

Though at least I learned a new word today.  Quotidian.  Never heard it before.

Doubt I ever will again.  (Unless Judge Paez, like Judge Fernandez, decides to reuse the same ten-cent words in different opinions.)

In Re Richards (Cal. Supreme Ct. - Dec. 3, 2012)

Read the first five pages of this opinion.  See if you think the defendant is guilty of murder.

Then read the next six pages.  Discussing the evidence that came out during the next two decades.  Do you think there's an innocent man in prison, erroneously convicted of murdering his wife?

The case was far from open-and-shut even at the outset.  It took four trials (and two hung juries) before the defendant was finally convicted.  Whether a jury would convict again -- based upon the existing evidence -- is even less likely than a conviction was the first four times.

But, in a 4-3 opinion, the California Supreme Court concludes that the trial court erred by granting the defendant a new trial.  With Chief Justice Cantil-Sakauye (again) providing the dispositive fourth vote.  Justice Chin -- who's far from "liberal" on criminal matters -- joins the dissent.

Justice is either profoundly served, or profoundly disserved, here.  Which do you think prevailed?

Monday, December 03, 2012

People v. Schmitz (Cal. Supreme Ct. - Dec. 3, 2012)

From now on, whenever you drive a friend to work, carpool, pick up a hitchhiker, or drive to the movies with a date, you'd better ask your passenger whether s/he's on parole.  Because if s/he is, you should know that you no longer have any expectation of privacy in the contents of most of your vehicle.  The police can search it without any suspicion of wrondoing whatsoever.  Just because of the identity of the occupant of your car.

A fairly broad reading of parole search conditions by the California Supreme Court.  In which Chief Justice Cantil-Sakauye provides the dispositive fourth vote.

Sino Century Development Ltd. v. Farley (Cal. Ct. App. - Dec. 3, 2012)

If -- as the Court of Appeal hold today -- there's in fact no authority under Rule 2.30 to award attorney's fees as sanctions in situations like this one, there at least should be.

And it might be worth saying so.

Friday, November 30, 2012

U.S. v. Arias-Espinosa (9th Cir. - Nov. 30, 2012)

If all published Ninth Circuit opinions were this obviously correct, I'd have a lot less to write about.

Surfrider Foundation v. California Regional Water Quality Bd. (Cal. Ct. App. - Nov. 30, 2012)

This is a big step forward for the proposed desalinization plant in Carlsbad.

The Court of Appeal's opinion also seems right.  No project is perfect.  But this one looks pretty darn good.

P.S. - There's no shortage of quality advocates on both sides.  Irell represents Surfrider.  The Attorney General and Latham represent the defendants.  Then Allen Matkins, Sheppard Mullin, and Best Best represent other project participants.  Lots of good arguments on both sides.

Thursday, November 29, 2012

In Re Gilbert R. (Cal. Ct. App. - Nov. 29, 2012)

A child outsmarts the California Legislature.

You can't own a switchblade.  You can own a pocket knife.  The Legislature says that a knife is the former if it opens automatically when the owner presses a button or traps a spring or the like -- or flicks his wrist -- whereas it's the latter if the knife has an arrest mechanism.

Gilbert's a prodigy.  He's one of a small number of people who's learned how to flick his wrist to open a knife that has an arrest mechanism.

Well done.  He's not a delinquent.  Or -- more accurately -- the delinquency finding against him must be reversed.

If we could convince Gilbert to pay as much attention to his studies as he does to imitating a participant in West Side Story, we might have the next Einstein.

Wednesday, November 28, 2012

Alaska Survival v. Surface Trans. Bd. (9th Cir. - Nov. 28, 2012)

This one can be summarized fairly easily:

"We granted a stay because we thought the environmentalists might win.  But we heard oral argument and they're going to lose.  We'll write an opinion saying why once we get around to it, but in the meantime, we need jobs, and delaying the project will cost tax dollars.  So we hereby lift the stay."

P.S. - There's apparently an administrative tribunal called the Surface Transportation Board.  Who knew?

Tuesday, November 27, 2012

U.S. v. Munguia (9th Cir. - Nov. 27, 2012)

Smart panel.  Smart result.  Not an exceptionally bright defendant, but that's actually her only hope of staying out of prison.  Because even though any reasonable person would know that the goal of visiting 500 different pharmacies to buy nearly 1000 boxes of Sudafed -- which she unquestionably did -- was to make methamphetamine, the critical question is whether a reasonable person in HER position would share that knowledge.

She is probably still guilty, I think.  But has a shot.

Monday, November 26, 2012

U.S. v. Scott (9th Cir. - Nov. 26, 2012)

The Ninth Circuit notes that letting the government deliberately violate briefing deadlines and fail to file substantive written oppositions to motions in criminal cases would permit "strategic disrespect for the rules" and "disadvantage both defendants and the courts."

And lets it get away with it anyway.

Wednesday, November 21, 2012

Pouncil v. Tilton (9th Cir. - Nov. 21, 2012)

I know that this opinion technically only concerns the statute of limitations.  But it looks like there's a nontrivial chance that some California prisoners may be able to successfully argue that they're entitled to conjugal visits under the Religious Land Use and Institutionalized Persons Act (RLUIPA) because their religion -- Islam -- requires them to marry, consummate the marriage and father children.

If so, I've got a keen sense that if I'm ever sent to the Big House, I'm thinking that Islam may well start to look like the One True Religion to me.

For which I would be eternally thankful.  Even on a non-Thanksgiving.

U.S. v. Manning (9th Cir. - Nov. 21, 2012)

Let me get this straight:  The Sentencing Commission says that denying a crime -- for example, telling your  probation officer "No, I don't have any guns" -- doesn't count as obstruction of justice.  But according to today's opinion from the Ninth Circuit, saying "No, I don't have any guns; I gave them back to my brother" does indeed count as obstruction.

Yeah.  That makes sense.

I can see why this one's per curiam.  I wouldn't have wanted anyone to know that I authored the first full paragraph on page seven either.

Tuesday, November 20, 2012

People v. Gonzalez (Cal. Ct. App. - Nov. 19, 2012)

Possessing child pornography is worse than committing statutory rape.  At least according to the Court of Appeal.


U.S. v. Wiggan (9th Cir. - Nov. 20, 2012)

Judge Ebel, sitting by designation from the Tenth Circuit, thinks it's okay to call grand jurors to testify to their deliberations in order to prove that a defendant committed perjury.

What's next?  Calling judges as witnesses?  Calling jurors in civil or criminal cases?

We don't do that.  That's not how our system works.  We don't call jurors back to figure out what they "would have" done had circumstances been different, or why they reached the conclusion they did.

We don't do it in malpractice cases.  We don't do it in new trial motions.  We don't do it to decide whether an error is harmless.  We just don't do it.  For tons of good reasons.

Fortunately, the Ninth Circuit takes a different view than Judge Ebel.  Judges Fernandez and Berzon outvote him, and Judge Fernandez writes an opinon reversing the conviction and remanding for a new trial.

Exactly right.

Monday, November 19, 2012

People v. Sanders (Cal. Supreme Ct. - Nov. 19, 2012)

There are some darn smart people on the California Supreme Court (and in their chambers).

Take today's opinion, for example.  Check out footnote three, the sua sponte limitation of the issues in the grant of review, pages nine and ten, and the brief concurring opinion.

Not the product of dummies, that's for sure.

City of Alhambra v. County of Los Angeles (Cal. Supreme Ct. - Nov. 19, 2012)

When cities and counties spend tax money on lawyers to fight over allocating a limited pie of taxpayer funds, everyone loses.  By definition.

But, if you're nonetheless keeping score, chalk another "victory" up for the cities.  The County of Los Angeles loses this one in the California Supreme Court.

Friday, November 16, 2012

Hodjat v. State Farm (Cal. Ct. App. - Nov. 15, 2012)

Allen and Helle Hodjat -- who own "Luxury Auto Sports" in Santa Fe Springs -- lose their appeal.  They should be glad.  Because if justice was actually imposed, they'd probably be in jail, rather than simply owing State Farm some costs.

Read the whole thing.  Suffice it to say that Mr. and Mrs. Hodjat made some misrepresentations in an attempt to get their insurance company to pay for an allegedly stolen car.  Lots of them.  ("[T]he Hodjats‘ own statements illustrate how fraudulent their claim was.")

The Hodjat's attorney doesn't exactly come out smelling like a rose either.  Here's a representative line from Justice Bigelow's opinion:

"The Hodjats also contend there is no advice of counsel defense where the advice is not reasonable. It is telling that this argument is two sentences long. Accordingly, we dismiss it in one."


Thursday, November 15, 2012

People v. Luna (Cal. Ct. App. - Sept. 18, 2012)

It's no defense to a statute that imposes a sentence of 15-to-life for raping someone during a kidnapping that when you initially kidnapped them, you originally intended to murder them, and only thereafter decided to rape them instead.

Just proving that common sense -- and straightforward statutory interpretation -- sometimes prevails.

Wednesday, November 14, 2012

U.S. v. Maloney (9th Cir. - Nov. 14, 2012)

When I read the majority opinion by Judge Randy Smith, I thought it seemed right.  But then I read the dissent by Judge Gilman, sitting by designation from the Sixth Circuit.  Judge Gilman's right.

Whether the error is harmless is a close question.  Judge Gilman's right that the case -- a border marijuana bust -- involved a classic credibility call.  Defendant said he didn't know about the drugs, the U.S. Attorney tried to cast doubt on his story, and the question is whether the defendant is telling the truth.  Cases that turn almost entirely on credibility usually aren't ones in which we can say -- as Judge Smith does -- that the evidence is "so strong" that errors are harmless.  So I tend to think that Judge Gilman has the better of the harmless error argument.

That said, again, it's close.  Truth be told, were I on the jury, I'd probably have voted to convict.  The defendant seems guilty.  Beyond a reasonable doubt, even.  I'm pretty darn sure he knew the stuff was there.

But someone could easily take a different approach.  I wouldn't say they were nutty.  Which is why I think Judge Gilman has -- slightly -- the better of the argument.

But as to whether or not there was error, well, on that point, even though I was persuaded by Judge Smith at the outset, after hearing from Judge Gilman, I feel like that point's not close at all.  During his closing argument, the AUSA made a huge point of the fact that the defendant didn't have any luggage in the cab of the trailer, asserting that this proved that the defendant's story was false.  That argument was totally new.  It had never been made before.  And may not even have been based upon the record at trial.  Given those facts, I think it was indeed error not to grant the defendant the ability to respond to that argument in a brief surrebuttal -- as precedent in fact requires.  It's only fair that when the government makes a new argument, defendant is allowed to respond.  Especially when, as here, the AUSA admitted that he deliberately "sandbagged" the defendant by not making this claim until the closing argument, at which point defendant wouldn't have a chance to respond.

Judge Randy Smith argues that defendant "opened the door" to this argument because his closing argument alleged that his story was more credible than the government's theory of the case.  But that didn't "open the door" to anything:  it was instead the whole point of defendant's defense.  If repeating that theory "opens the door" to new arguments, then Judge Gilman's right that it "opens the door" to everything.  The AUSA could argue, for the first time ever, that defendant's a liar because he lied on his tax returns and committed adultery, with no opportunity for the defendant to respond (or to even point out that there's no evidence at all about either of these facts).  Since that allegedly "responds" to the defendant's claim that his story is more credible.  Seems wrong to me.  Too unlimited.

Usually I don't think closing arguments matter much.  It's an exceptionally rare case when I'd say that the failure to give a surrebuttal require a new trial.

But when, as here, the AUSA admits he sandbagged the defendant, and makes a new argument in closing that way well not be supported by the evidence and to which the defendant has not chance at all to respond; well, that may well be the exception that proves the rule.

P.S. - I still hate the font and format the Ninth Circuit now uses in the slip opinions.  I even hate it more when, as here, the Ninth Circuit leaves out the first line of the opinion that tells you who's writing the thing (or if it's per curiam) and so you have to go back and look at the caption.  Ugh.

Tuesday, November 13, 2012

Richey v. AutoNation (Cal. Ct. App. - Nov. 13, 2012)

The parties agree to arbitrate.  The arbitrator perceives the relevant law to be that expressed by the Seventh Circuit, and follows this law to reject plaintiff's claim and enter a judgment for defendant.  The trial court confirms the award, holding that even if the arbitrator was wrong on the law, that's not reviewable.  Arbitrators can get things wrong.  That doesn't justify a motion to vacate.  Otherwise the value of arbitration would be negligible.

The Court of Appeal reverses.

I'm sympathetic to the view that the arbitrator got it wrong.  But I think the Court of Appeal's decision goes right up to -- and perhaps crosses -- the legitimate line of deference that we have to give to arbitrators.  We admittedly don't want arbitrators to deliberately disregard the law, at least when (as here) statutory rights are at issue.  That's indeed the federal standard for the proper level of legal review.

But that's clearly not what transpired here.  The arbitrator took a certain view of the law.  A view supported by some very bright jurists, and one that's unambiguously the law applied to millions of people.  Maybe that view is right, maybe it's not.  But it's clearly not "manifestly disregarding" that statute.  To permit the Court of Appeal to review that decision comes exceedingly close to allowing appellate review of alleged legal errors in arbitration decisions.

I'm also not entirely sympathetic to the plaintiff here.  He took leave claiming that he was too sick to work and then worked at his own restaurant.  Not exactly what we're trying to protect by a statute that authorizes medical leave when you really need it.

Cottonwood Duplexes v. Barlow (Cal. Ct. App. - Nov. 13, 2012)

Oooh!  An opinion with plat maps!  Exciting.

We call this the "hold out" problem in academia.  "Rent seeking."  You don't need a particular property right (here, an easement), but someone else does.  So you seek to charge an arm and a leg.

Which, right or wrong, you're entitled to do.

Monday, November 12, 2012

Los Angeles Int'l Charter H.S. v. LAUSD (Cal. Ct. App. - Oct. 11, 2012)

I'm ambivalent about charter schools.  Don't think they're nirvana.  Don't think they're the devil.  I see their upsides as well as downsides.  Happy to take a shot at innovation.

But this opinion is assuredly right.  Charter schools (and charter students) surely shouldn't be favored over public school students.  So when LA Int'l Charter H.S. wants space, it's entitled to get it from the LA Unified School District, if there's space available.  But that doesn't entitle the charter school to get space in exactly the place it prefers if there's a nearby facility that has space available with massively less disruption to existing public school students.

Like here.

Exactly right result.  Both below and in the Court of Appeal.

Friday, November 09, 2012

West Washington Properties v. California DOT (Cal. Ct. App. - Nov. 5, 2012)

Call me crazy.  But before I spend ten million dollars or so to buy a building primarily because it has a huge wallscape facing I-10, I'd go ahead and make sure it had a permit.  I wouldn't just "assume" it had one since the thing had been up for a long time.

'Cause maybe it's not, in fact, permitted.  Maybe the Department of Transportation will eventually tell you to take it down.  Even though you rent it out for $50,000 a month.  You might assert defenses of estoppel and laches.  But you might well lose in the trial court.  As well as in the Court of Appeal.

The lesson -- as always -- is not to spend a lot of money on things that might well be illegal.

Thursday, November 08, 2012

People v. Verduzco (Cal. Ct. App. - Nov. 8, 2012)

Information about how to manufacture methamphetamine is already available over the internet.  And thanks to Justice Johnson, step-by-step instructions are now also available in the California Appellate Reporter.

Heck.  Why not disseminate this vital information here as well:

"[T]he manufacture of methamphetamine requires five steps. The first four produce the substance; the fifth step converts it to a smokable (crystal) form. Step one involves ephedrine extraction from cold tablets containing pseudoephedrine. Ephedrine is difficult to get, so methamphetamine labs purchase cold medications such as Sudafed. The pseudoephedrine in cold tablets is not water soluble. Denatured alcohol, acetone, and other solvents are used to break down the pseudoephedrine into ephedrine. The pill dissolves in the solvent, and the filler in the pill forms a solid at the bottom of the container. The liquid is strained off and after the solvent evaporates, pseudoephedrine remains.

Step two converts the pseudoephedrine into methamphetamine by knocking off an oxygen molecule to create D-methamphetamine. This step requires an acid solution of 57 percent or higher; the preferred acid is hydriodic acid, which is heavily regulated and controlled. As a result, meth labs mix red phosphorus with iodine to produce an acid solution of 57 percent or greater. This solution requires heating and simmering for 12 to 72 hours.

The third step separates the waste product from the liquid solution and reduces the acid level. Soyhydroxide, ice, and caustic soda is used. The ice is necessary because this step generates its own heat. An organic solvent (Freon, acetone, or denatured alcohol) is used to extract the methamphetamine molecules, which are suspended in the solvent.

In step four, the methamphetamine is ―salted out,‖ converted from a liquid to a solid. This uses hydrogen chloride gas; such gas can be manufactured from battery acid, sulphuric acid, and rock salt. The gas is infused in the solvent mixture and the methamphetamine forms a solid. This solid is dried off.

The last step converts the methamphetamine to a crystal form by dissolving it in a solvent, such as acetone, and heating it until the solvent evaporates."

Now you too can become Walter White.  Good luck.

People v. U.S. Fire Ins. (Cal. Ct. App. - Nov. 8, 2012)

The Ninth Circuit has been silent for the last couple of days.  Perhaps still processing the election. and figuring our their likely future colleagues.

Not so the California Court of Appeal.  Today we see, for example, this opinion.  Which shows that it's possible to dispense with a totally easy appeal in six double-spaced pages.  Including the page-and-a-half caption.

Why the Fresno County Counsel thought that recoverable "costs" in a bail forfeiture proceeding include attorney's fees is beyond me.  Yes, the statute allows "costs" to be recoverable, and yes, counties don't incur many "costs" in these proceedings because they're a municipality.  But that doesn't mean that costs include fees.  Costs include costs, even if you don't have any.

Justice Levy decides the case the right way.  Though he make the parties bear their own costs, whereas I might have applied the usual cost-shifting rule.  Which seems only appropriate given the topic of the underlying appeal.

Wednesday, November 07, 2012

Kyablue v. Watkins (Cal. Ct. App. - Nov. 6, 2012)

Gambling contracts are legal in California.  At least when the underlying gambling is legal.  And you can invest in another gambler and enforce the resulting contract.

Just showing how the twentieth-first century on this issue is substantially different than the twentieth.  In the old days we didn't like gambling.  In the new days we're much, much more lenient.

People v. Franzen (Cal. Ct. App. - Nov. 6, 2012)

Since you're reading something on the Internet, I thought it appropriate to highlight Justice Rushing's contemporary thoughts about this media:

"The Internet contains, or more accurately is connected to and thus capable of conveying, a large and growing part of all of the recordable information in existence. Some of this information is as reliable as any traditional source of information. But some of it would be almost universally considered not only unreliable but extravagantly untrue. If this technology provides the means to store and convey every truth any human has ever articulated, it also has the capability of 'publishing' every misconception, error, delusion, or outright lie anyone has ever set down. The world of print has known its share of infamous frauds, libels, and fantasies packaged as fact, but at least the cost and difficulty of publication has had some tendency to inhibit the circulation of erroneous information. That inhibition has now all but disappeared."
This sentiment underlies the holding in the case.  Which concludes that "published compendium" exception (Evidence Code sect. 1340) to the hearsay rule only applies to "old media" (like printed telephone books and the like) rather than compendia on the world wide web.
At first glance one might tend to write this view off as the rambling of an old fogie who resists and fails to comprehend the significance and wonder of the Internet.  But Justice Rushing does a pretty good job of articulating the various reasons why Section 1340 might indeed best be limited to the types of "hard print" investments prevalent in old (but not new) media.
Check it out and see what you think.
In the meantime, maybe I'll use Justice Rushing's words about the Internet as the informal motto of this blog.  A means of disseminating "[e]very misconception, error, delusion, or outright lie anyone has ever set down."

Tuesday, November 06, 2012

People v. Anzavoleh (Cal. Ct. App. - Nov. 6, 2012)

Ever knowingly drive though a red light?

That's assault with a deadly weapon.  Seven years in prison.  At least if you're speeding and accidentally hit someone.

U.S. v. Zamarano-Ponce (9th Cir. - Nov. 6, 2012)

Ugh.  Ugly format.  Bring back the old style, not these crazy slip opinions with summaries.  Please.

Monday, November 05, 2012

Johnson v. Uribe (9th Cir. - Nov. 5, 2012)

Once again I find myself on the same side as Judges Kozinski, O'Scannlain, Tallman, Bybee, Callahan, Bea and Ikuta.

I said when the original opinion came out in June that I wasn't persuaded that the defendant was entitled to habeas relief.  Today the above-mentioedn judges agree, and file dissents from the refusal to take the case en banc.

That the en banc vote failed wasn't surprising.  Judges Kleinfeld and Milan Smith signed onto the original panel opinion.  When you don't even have those votes, it's unlikely that the conservatives on the Ninth Circuit will prevail in an en banc call.

But that the vote failed doesn't mean the panel's opinion was right.  I continue to think that it has some serious problems.

P.S. - I'm fairly loose with my language -- as befits a blog by an academic -- but Judge Kozinski is often even worse.  His dissent from the denial includes a variety of lines like this one:  "Prisoners will be dancing in their cells once word of this gets out."  Hyperbole far beyond even anything I've ever written.  Which is saying a lot.

People v. Anguiano (Cal. Ct. App. - Oct. 22, 2012)

You see a nontrivial number of people who are "Junior" -- e.g., "Hank Williams, Jr." -- convicted.  It is more unusual to see people who are "Seniors" convicted.

Happens here, though.  Big time.

I bet that Raymond Anguiano, Sr. wishes that he had stayed on the porch instead of running from the police.  But he'll have around sixty of his "golden years" to think about that decision.  Three Strikes plus.

P.S. - I wonder if there's a research study here.  Hypothesis:  Children given family names -- e.g., "Juniors" -- are less likely to end up in prison than others.  Even stronger for children given longer standing family names; e.g., "III" or "IV" (for example, Hurston Howell III).  Intuition:  Children with historical family names may be different on socioeconomic bases (e.g., more wealthy) and may also differentially be first-borns, and those factors may lead them to become incarcerated at a lower rate than others.  It may also be that being given the same name as your father suggests that the child has an actively involved father in his life, similarly leading to reduced incarceration rates.  Think I'm right?

Friday, November 02, 2012

People v. Brandao (Cal. Ct. App. - Oct. 25, 2012)

It's not that common for an opinion by the Court of Appeal to persuade me that my initial considered views on a subject are erroneous.

This one did.

The question is whether it's a legitimate probation condition for the court to tell Antonio Brandao, who has been convicted of felony possession of methamphetamine, that he's not permitted to have any contact with gang members.

Admittedly, Brandao wasn't a member of a gang, and none of his prior offenses were gang offense.  But my strong sense upon beginning the opinion was the same as the trial court's.  Sure, maybe he's not a member of a gang now, and maybe won't be in the future.  But the dude's got a long rap sheet.  I'm sure that letting him hang out with gangs in the future definitely won't help him rehabilitate.  And may well hurt.  Indeed, my sense in that regard is even stronger.  If the guy hangs out with gang members, he's definitely going to reoffend.  So a probation condition that stops him from doing what's assuredly harmful to him seems both reasonable and hence permissible.

But the Court of Appeal reversed.

As I was reading Justice Marquez's opinion, I consistently disagreed.  That Brandao wasn't currently a gang member and that his current troubles didn't stem from that area wasn't dispositive for me.  It seemed to me that what the trial court did was not only a "reasonable" thing, but was affirmatively good.  Good for potential victims.  Good for society.  Good for Brandao.

Simply put, a guy with a long rap sheet and a problem with methamphetamines shouldn't be hanging out with members of a gang.  How is it "unreasonable" to so conclude?  As I, for one, assuredly do.

But then I got to this paragraph of the opinion.  The third one from the end.  And it changed my mind about the proper outcome of the case.  Because it seems right to me:

"The People argue that a probation condition must be upheld if it has any possible beneficent effect, even when the condition lacks a reasonable connection to a criminal defendant's background or crimes, or the defendant's prospects as related to the defendant's background or crimes.  We disagree.  If the courts could forbid probationers from having contact with any person or entity that could conceivably tempt an individual to stray from the path of the straight and narrow, they could forbid probationers to watch violent television programs and movies; to play violent video games, which our Legislature has determined to have malign influences on minors (Civ. Code, §§ 1746-1746.5, held unconstitutional in Brown v. Entertainment Merchants Assn. (2011) 564 U.S. __, __ [131 S.Ct. 2729, 2732, 2742, 180 L.Ed.2d 708]); to read works ranging from comic books to classical literature that contain violent or antisocial themes (see id. at p. __ [131 S.Ct. at pp. 2736-2737]); or to eat foods to which some have ascribed crime-inducing effects (Covey, Temporary Insanity:  The Strange Life and Times of the Perfect Defense (2011) 91 Boston U. L.Rev. 1597, 1601, fn. 18 [referring to the “junk-food overdose defense”]).  Our guides must be People v. Lent, supra, 15 Cal.3d 481, and subdivision (j) of Penal Code section 1203.1, and we read them as stopping short of authorizing conditions to shield probationers from exposure to people and circumstances that are less than ideal but are nonetheless unrelated to defendant‟s current or prior offenses or any factor suggesting a risk of future criminal conduct."

Yep.  I guess that's right.  I was wrong.  It might well be good for Bandao to eat vegetables, watch PBS, and to step away from the XBox.  But we're not allowed to make those judgments.  Even if they're right.  Including the judgment imposed by the trial court here.

There's a right to associate.  There's a right to watch what you want to watch.  For better or worse -- and I remained convinced that, for Bandao, it's worse -- individuals get to make bad decisions sometimes.  As we sufficiently fear governmental overreaching, and value individual freedom, that we create rules that sometimes prevent us from ordering even those things which we're relatively certain would be good for other people.

Justice Marquez persuades me.  Well done.

Thursday, November 01, 2012

Alamo v. Practice Mgm't Info. Corp. (Cal. Ct. App. - Oct. 18, 2012)

I'm glad that Justice Zelon decided to publish this opinion.  If only to remind employers that even if you're not totally happy with a particular employee, it's incredibly unwise to pull her into the office and fire her three hours after she returns from a three-month maternity leave.

The jury decides it's pregnancy discrimination.  The Court of Appeal affirms.

Defendant should be happy to only get spanked for $10,000 in damages and $50,000 in attorney's fees.  Could have been much, much worse.

Wednesday, October 31, 2012

In Re Destiny S. (Cal. Ct. App. - Oct. 31, 2012)

You read lots of cases in which DCFS is way, way too late in taking a child away from abusive parents.

And then there are cases like this one.

The Court of Appeal gets this exactly right.  Destiny S. belongs with her mother.

Happy Halloween, Destiny.

Ayyad v. Sprint Spectrum LLP (Cal. Ct. App. - Oct. 29, 2012)

These are the best lawyers that Sprint can hire in a huge, multi-million dollar (and successful) class action case?  Seriously?  And those lawyers -- from McGuireWoods and Kelley Drye -- can't file a brief better than the the one they filed here?  Really?

The Court of Appeal finds it pretty stunning that Sprint's arguments (and briefs) are so bad.  So do I.  This was an appeal -- and argument -- with absolutely zero chance of success, that that pretty much completely ignored fundamental principles about jurisdiction on remand and law of the case.  How a bunch of sophisticated lawyers could overlook this stuff -- deliberately or not -- is beyond me.  Nor do I see why it benefits their client to file an appeal that has no chance of success and that only serves to increase the number of hours for which class counsel gets to recover once they file their attorney fee motion.  Particularly since -- if I had any say -- class counsel would highlight in any such motion the Court of Appeal's opinion here and its repeated reference to what a fundamentally silly appeal this one is.  It demonstrates concretely both that defendants have needlessly multiplied the litigation and that a multiplier on fees might well be appropriate.

Sometimes the wisest course as a lawyer is to decide what battles not to fight.  Here's a perfect example.

Tuolomne Jobs & Small Business Alliance v. Superior Ct. (Cal. Ct. App. - Oct. 30, 2012)

When you write an opinion that creates an express conflict with another opinion from the Court of Appeal, you'd better write a pretty good one.  Especially when, as here, it involves a fairly important issue, and hence one that the California Supreme Court's likely to take up after you create the split.

Justice Wiseman does exactly that.

I wouldn't at all be surprised to see the Cal Supremes take this one up and adopt Justice Wiseman's view.  Projects that are approved by the voters in a voter-sponsored initiative are exempt from having to prepare an environmental impact report.  But having fifteen percent of the voters sign an petition to get an initiative on the ballot, and then having the City Council adopt the initiative as a statute in lieu of an election, isn't the same thing.  That doesn't create an exemption.

Tuesday, October 30, 2012

Fink v. Shemtof (Cal. Ct. App. - Oct. 24, 2012)

I'm glad that Justice Fybel decided to publish this opinion.  I think it meets the definitely meets the standards for publication.

Despite the fact that I'm tentatively of the view that the Court of Appeal got it wrong.

I'm not sure that the statutes relevant to the issue are particularly controlling.  Instead, I think we're dealing with a classic common law issue:

Is it okay for an individual who is not an attorney (1) to buy a claim from someone, and (2) then litigate that claim in pro per?

Clearly step (1) is okay.  My students are often surprised when I tell them that most rights under a lawsuit can be bought and sold.  But it's true.  We commonly sell intangible rights -- contractual and otherwise -- so that we permit individuals to do the same as regards rights against a third party seems fine.

But step (2) is troubling, at least when combined with (1).  What you essentially have there -- and what, in truth, you have here -- is someone who's a nonattorney acting as an attorney.  X has a right, but doesn't want to (or can't afford to) enforce it in court.  Similarly, X doesn't want to (or can't afford to) hire an attorney, on contingency or otherwise, to enforce those rights.  So along comes Y.  Y's not an attorney, so can't enforce X's rights on X's own behalf.  So X and Y (in truth, Y, who's motivating all of this) come up with a practical expedient.  X sells his rights to Y, who then enforces them in pro per.  Bingo.  Problem solved.  Y gets to in essence act as X's attorney, but since Y's now acting on his "own" behalf, it's okay.  At least according to the Court of Appeal.

Again, I'm not sure that Justice Fybel reads the statutes the wrong way, but I think there's an easy solution to this problem, and one that the Court of Appeal decides not to follow.  Courts have an inherent power -- one that's embodied in the separation of powers -- to control litigants before them, including but not limited to the inherent power to control representative and pro per litigation.  I think it's a bad idea to allow litigants to get around the unauthorized practice of law statutes by permitting devices such as those employed here.  So I'd be inclined to hold -- contrary to what Justice Fybel does -- that even though an individual is entitled to buy intangible legal claims, that doesn't necessarily create a right to litigate those claims in pro per.  Get a lawyer and we'll allow you to litigate them.  Otherwise, even though the assignment is valid (and I'd so hold, for the same reasons that Justice Fybel does), that doesn't mean that you're inherently authorized to litigate by yourself.  The two are related issues, but subject to differential control.  We have inherent power to regulate participation before the judiciary.  And I'd utilize that power to deny the validity of pro per litigation over claims obtained in such a fashion.  Precisely for the reasons identified by the trial court.  Because we don't want nonattorneys -- e.g., disbarred attorneys, suspended attorneys, people who failed out of law school or who couldn't pass the bar -- getting around their disability through precisely the machinations demonstrated here.

Which is exactly what the Court of Appeal allows.  And that, after this opinion, should only be expected to increase exponentially.

So I'm glad Justice Fybel publishes the opinion.  The opinion indeed makes relevant -- and important -- law.

But if I were on the California Supreme Court, I'd grant review.  And reverse.

Monday, October 29, 2012

Laurel Park Community LLC v. City of Tumwater (9th Cir. - Oct. 29, 2012)

This may well be the most well-written opinion I've read this year.  (And I've read a lot.)

I'm not talking about substance.  Though that's good too.  I'm more focused on the writing.  The organization, the sentence structure, the way the introduction sets up the analysis, the flow:  all of these are accomplished masterfully.

I could not have written an opinion that was even a third as good.  Really:  Well done, Judge Graber and chambers.  An outstanding, outstanding job.

(The case, by the way, is about zoning mobile home parks and whether it's a taking.  I've read two or three dozen opinions about this topic over the years, and none have even approached the clarity or the persuasiveness of this one.  And I say that having no strong feelings either way about the merits.  The opinion is outstanding not because it reaffirms my preexisting prejudices, but rather because I can tell a well-written opinion when I read one, and this is definitely it.)

The one caveat I'll make -- if only because I'd otherwise be gushing -- is that the very end of the opinion (the portion about spot zoning) wasn't as good as the rest of the opinion.  That part seemed rushed and overly conclusory.

So nothing's perfect.  Not even this opinion.

But it comes darn close.

Friday, October 26, 2012

People v. Delgado (Cal. Ct. App. - Oct. 26, 2012)

Congratulations, Mr. Delgado.  The Court of Appeal rejected the Attorney General's argument that your appeal should be dismissed because you're not allowed to appeal the sole issue of custody credits when you haven't raised the issue below.  Huge victory.

Oh.  One more thing.  The Court then ruled against you on the merits.

Thursday, October 25, 2012

In Re Maricela (Cal. Ct. App. - Oct. 25, 2012)

You think your daughter doesn't respect your authority and is occasionally "out of control"?  Compare her to Maricela H. to get a sense of just how worse it could be:

"Maricela was born in 1995 to mother and C.H. (father). . . . Mother had no control over Maricela, who would come and go as she pleased, without telling mother her plans.  Mother did not know what Maricela was doing.  Maricela associated with 'the wrong people,' as she put it, used drugs, drank, and fought.  She stopped going to school.  In 2010, when 15 years old, Maricela gave birth to a child.  Her relationship with the baby's father involved methamphetamine abuse and domestic violence.  Mother provided the baby with a home.

Mother tried to control Maricela by talking to her.  She enrolled Maricela in an independent study program and kept her at home.  However, Maricela frequently ran away for days at a time and continued engaging in risky, self-destructive behavior.  She chased after older men, had unprotected sex, and used drugs and alcohol.  Against her better judgment, mother gave permission to Maricela to go out with a girl, and Maricela did not return for two days.

When Maricela left home on September 16, 2011, mother filed a police report and called the Department of Children and Family Services (Department) because Maricela threatened to take the baby from mother‘s care.  The Department detained the baby and offered Maricela a voluntary placement and services plan.  Maricela was placed in a group home in Pasadena, was enrolled in school, and agreed to participate in counseling and a substance abuse program.

Maricela stated she wanted to change and follow her program, but she continued abusing drugs, fighting, disregarding rules, and running away.  On November 8, 2011, she ran away from the group home to the alleys of Los Angeles after she had assaulted two peers and a teacher."


Let's let CS&N deliver a more uplifting message.

People v. BNSF R.R. (Cal. Ct. App. - Oct. 16, 2012)

The California Public Utilities Commission passed an order that essentially says that railroads can't block an intersection for more than 20 10 minutes (!) without a good reason. You can see why.  It's a big hassle for automobiles/passengers/pedestrians to wait at a train crossing for a long, long time.  It may even be a safety issue.  Can you imagine how bummed you would be if you were in an ambulance on the way to the emergency room and had to spend a half hour or so at a train crossing?  Bummer.

But the Burlington Northern Santa Fee Railroad occasionally violates that rule.  Sometimes it blocks intersections for as long as two hours (!).  Fairly regularly, even.

Eventually, the City Attorney of Richmond got fed up, and filed a misdemeanor complaint against BNSF for violating the order.  BNSF was convicted and sentenced to pay a fine of $1000.  But BNSF wasn't done.  It filed an appeal.  Paying far more than $1000 on attorney's fees.  For the principle of the thing.  The principle of getting to block street traffic for hours at a time and not letting the state do anything about it.

The Court of Appeal agrees this is a valid principle.  Reversing BNSF's conviction on grounds of federal preemption.

Those pesky states.  Always getting in the way of progress.

Wednesday, October 24, 2012

People v. Jackson (Cal. Ct. App. - Oct. 24, 2012)

This makes total sense.

Just because your marijuana collective is huge -- here, 1600 people -- doesn't mean that it's not a legitimate collective.  The trial court's contrary holding gets it wrong.  So the Court of Appeal is required to reverse the conviction.

But Justice Benke's opinion is equally right that the size of the collective is relevant to whether it's a legitimate collective or instead merely operates to make money.  So a jury could legitimately find that the size of the collective made it more likely that it was designed for profit rather than merely to give a means for members of the collective to obtain access to their medicine.  As a result, a trial court should instruct the jury accordingly on remand.

I think that's exactly right.  A jury could decide that it's a fake based on the number of participants.  But a jury could reasonably go the other way as well.

(Ditto, by the way, for the presence/absence of financial records, corporate minutes, etc. All of this is relevant to whether it's a legitimate medicinal enterprise.)

In Re Marriage of Barth (Cal. Ct. App. - Oct. 22, 2012)

Jeffrey Barth gets divorced from his ex-wife, and she wants child support.  She files for divorce in Ohio, and Jeffrey litigates for years -- including a trip to the Ohio Supreme Court -- in his successful claim that Ohio doesn't have jurisdiction, and that the matter has to be litigated in California instead.

But once the case eventually gets to California, the California courts order child support payments that are way higher than those ordered by Ohio.  Way.

Because Justice Moore is slightly older -- and perhaps more sophisticated -- than I am, here is how she introduces her opinion in that case:

"If ever there was a case where the adage 'be careful what you wish for' applied, this is surely it."  Dropping a footnote to a fable by Aesop from the sixth century, B.C.

Pretty fancy.

But younger readers might have even more readily understood a more contemporary reference.  They don't read Aesop.  They watch American Idol.  So they'll easily understand the following equally-apt reference, from Chris Daughtry's bestselling song Home:

Be careful what you wish for.
'Cause you just might get it all.
You just might get it all.
And then some you don't want.

I think that the Daughtry reference is especially applicable because he's talking about going home.  Which is precisely what Jeffrey wanted:  litigation in his home state.  Which he got.  And then something he definitely didn't want.  Including but not limited to the resulting opinion from the Court of Appeal.

Tuesday, October 23, 2012

Martinez v. Robledo (Cal. Ct. App. - Oct. 23, 2012)

Pets rule.  At least according to the Court of Appeal.

The traditional rule is that you determine a plaintiff's loss by the market value of the property.  As a result, when your pet -- the market value of which is often zero -- gets injured, you're simply out of luck.

But times are changing.  And they're not going back.

The Court of Appeal has now decided a couple of cases that hold that you can recover even tens of thousands of dollars in vet expenses if your animal is injured and actually incur those expenses, and can do so even if those expenses exceed the market value of the animal.

Because pets are different.

How far this will eventually go remains to be seen.  Right now we're just talking about out-of-pocket expenses being "reasonable" even though they exceed market value.  Whether, in the future, you can recover for emotional distress, loss of consortium or the like remains indeterminate.

But it's a big step just doing what the Court of Appeal is now willing to do.

Animal law.  Not just dog bite cases anymore.

Chesbro v. Best Buy (9th Cir. - Oct. 18, 2012)

From the "No Duh" files:

You can't get around the prohibition on commercial robo-calls by saying that you're calling your customers to "remind" them that their coupons or gift certificates may expire.  There's a reason you're calling them, and it's not simply because you're nice.  It's because you want them to buy stuff at your store.

That's covered.  No robo-calls.  Dismissal of complaint reversed.

Monday, October 22, 2012

Center for Biological Diversity v. BLM (9th Cir. - Oct. 22, 2012)

Freaking Ninth Circuit.  Don't they know that gasoline is five dollars a gallon!

A natural energy company wants to build a natural gas pipeline from Wyoming to Oregon.  Create jobs.  Supply energy.  Heat homes.  Yes, in the midst of its 678 miles, it's going to inevitably cross some rivers and streams.  Two hundred and nine of them, to be exact. 

And, yes, constructing the pipeline will inevitably cause some damage to the wildlife that calls those streams homes.  Especially to some crazy species I've never heard of before -- perhaps because they are so uncommon as to be threatened and/or endangered -- like the Lahontan cutthroat trout, the Warner and Lost River suckers, the Modoc sucker, etc.

But the federal government nonetheless approved the pipeline, holding -- after exhaustive review -- that the project wouldn't actually make any of these species extinct.  Sure, there would definitely be some incidental disruptions while they dug through the streams, and yes, a tiny number of late-born little ones would surely die.

But that's the price of progress.  Everything we do is going to kill something.  And need I remind you:  Gas is five dollars a gallon.  People need to heat their homes.  Electricity needs to be generated.  The pipeline makes sense, which is why it gets approved.

Of course, the inevitable muddle-headed tree-huggers file suit.  But the district court dismisses the action, finding that the federal government's approval was far from "arbitrary and capricious."  So the gas gets to flow.

At least until the Ninth Circuit gets involved.  Which, today, reverses and remands.  Stopping the pipeline in its tracks.

Shades of the Keystone Pipeline, eh?  Except now it's unelected judges instead of a president we can boot out of office.

All of the above is one way to look at the issue.  And assuredly is the way a large number of people will spin today's decision.

But let me suggest that Judge Berzon's opinion actually makes a fair amount of sense.

It's true that the federal government approved the project.  But it did so in light of a lot of promises by the owner of the pipeline that they'd do lots of stuff to mitigate (i.e., reduce) the impact of the project on wildlife.  Without those repeated promises, a lot more fish would die, and approval might well not have been forthcoming (and/or justified).

Those promises, however, were often written in classic lawyer-speak.  The builder promised to do X but only "in its sole discretion" and the like.  It promised to engage in Z but only if funds -- which it only agreed to partially pay -- were "forthcoming," and if not, would merely "consult" about what to do next.  Moreover, these promises were made, and the federal government could enforce them if it wanted to.  But if it didn't -- if it thought that energy was more important -- no one else could enforce them, because the conditions weren't enforceable under the Act; e.g., environmental groups could not sue if the builder failed to comply with its obligations and started killing endangered species willy-nilly as a result.

You can see why the Ninth Circuit -- even a non-"fuzzy headed" one -- might have a problem with that.  Were all the promises kept, it might well be that the project wouldn't have a big impact on the environment.  But there was insufficient proof that this would, in fact, be the case, and the approval impermissibly assumed that these non-enforceable conditions would invariably be performed.  When there is, in fact, a fair reason to believe they might not be.

One more thing.  The project will require using over a third of a billion gallons of water in order to keep down dust, test the pipeline, etc.  The federal government says that "might seem like a lot" to an unsophisticated person.  Especially in an area (like the one at issue here) that's not exactly teeming with excess water; e.g., is partially a desert.  But the government assures us that a third of a billion gallons ain't that much when you really think about it.  After all, the Pacific Ocean is 187 quintillion gallons.  What's a third of a billion between friends?

But Judge Berzon responds that a third of a billion still seems like a lot, even after she thinks about it.  To which the government responds:  But, you silly federal judge, you shouldn't worry about the impact of the project using up all that groundwater, because the project's using groundwater, not water from a stream, and fish only live in streams, not underground.

To which Judge Berzon responds:  "Duh.  I'm not an idiot."  Noting that even though fish don't live underground -- and thanks for that update, counsel for the government -- when you take water out of the ground, that may well affect the amount of water in a stream.  Because guess where some of that water in the stream comes from?  The ground, dude.  You know.  Seepage and stuff.  Or at least that's what we learned in third grade Earth Science, and I'm pretty sure is still true today.

Its for these reasons that the Ninth Circuit reverses and remands.  Holding not that the project cannot be approved, but rather, that such approval should be based on a rational assessment of the impact of the project on the environment.  And that an approval that -- as here -- operates under an erroneous assumption that numerous promises will invariably be followed (despite the absence of any means of private enforcement) and that groundwater won't affect streamwater doesn't qualify.  It's arbitrary and capricious.  So try again using accurate assumptions.  And if approval's again forthcoming, that's fine.  Just make it make sense.

So one way to view this case is yet another example of a hippy vegan Ninth Circuit siding with their similarly unkempt environmental brethren to stand in the way of progress.  But the reality, I'll submit, is actually quite different from the way many commentators will view and/or spin today's opinion.

Friday, October 19, 2012

Garfias-Rodriguez v. Holder (9th Cir. - Oct. 19, 2012)

Chief Judge Kozinski says that this en banc opinion -- which has six different authors articulating six different views -- fails the en banc court's duty "to bring clarity to our laws."  He says:  "By the time lawyers in this circuit get through reading all our opinions, they'll be thoroughly confused."

I can help.

Judge Bybee's opinion is joined by a majority of the judges on the court.  Right or wrong, it's now the law.  The result of a 6-1-1-1-1-1 decision is no more "confus[ing]" to lawyers than the result of a 6-5 opinion.  Guess which opinion matter?  The one with the six votes.  The others just speak to what the law arguably should be, not what it is.  The law's no more confusing in that case than it is when the en banc court votes 11-0 but there are five law review opinions criticizing the result.  Interesting, to be sure.  Fraught with competing perspectives, no doubt.  But hardly "confusing" to anyone who can count to six.

So I think that Judge Kozinski's critique is inapt.  As, by the way, is his (typically creative) manner of demoninating his concurring opinion as a new-fangled "Disagreeing With Everyone" rather than what it actually is:  a straightforward concurrence.  They're both articulted in classic Kozinski fashion.

But, upon closer examination, neither one of these statements is really accurate.

Or at least I can help.

In Re: Christina Adams and Jack A. (Cal. Ct. App. - Oct. 16, 2012)

Father and Mother have a child.  The child has Asperger's Syndrome, a high-functioning form of autism.  Father and Mother get divorced.

Father's a special education attorney and has a master's degree in psychology.  Mother has written a published book on autism, give lectures on the subject, and plans to write several more books on the subject in the future.  Father and Mother both care deeply about their son, but have diametrically opposing views about how best to deal with their child's disabilities.

What could possibly go wrong?


I'll let you read the whole thing.  Two well-meaning parents.  But a total train wreck nonetheless.

Mother thinks that Father's an uncaring, selfish and profoundly dangerous parent who's letting the child view pornography, play with knives and potentially drown on a boat.  Father thinks that Mother is a nutjob who "has turned our son's disability into a cottage industry.  She spends her time researching treatment methodologies for autism that often have little or no proven validity.  For example, Mother has for several years fed [our son] camel's milk as a purported treatment for autism.  Mother stopped taking [our son] to his previous pediatrician of seven years because the pediatrician was critical of camel's milk as a treatment for autism . . . . [and now] takes [our son] to a 'naturopathic doctor."

Yikes all around.

Needless to say, the parents can't agree on what middle school their child can attend.  And can barely talk to each other at this point.  Prompting nuclear litigation that needs to be resolved by the Court of Appeal.

I'm not kidding when I say this is a train wreck.  You don't want to watch.  But you can't help yourself.

Thursday, October 18, 2012

People v. Walker (Cal. Ct. App. - Oct. 18, 2012)

I'm confused.

Justice Duffy's opinion in this case seems to correctly analyze the facts.  Police officers detain Everett Walker -- who's riding a train in San Jose -- because he purportedly looks like a suspect who sexually assaulted a woman at the same train station a week earlier.  But we've got a description of the suspect, and there's indeed a similarity.  Both the suspect and Walker are black.

That's about it.  Everything else is markedly different.

So Justice Duffy doesn't say so, but essentially, Walker got detained for TWB (a lesser-known variant of DWB).  Training While Black.

That's not okay.  Not reasonable suspicion.  Not a basis for legitimately stopping Walker.  So the conviction gets reversed.

That I understand.  Here's the part I don't get:

The officer initially comes up to Walker and asks him for his train ticket; i.e., proof that he paid the fare.  Walker responds by giving him a copy of a student identification card with the name "Aalim Moor" on it and a valid VTA sticker attached.  That'd be valid fare payment if Walker was indeed Aalim Moor.  So the officer calls in a record check, finds out that the birthdates don't match (and that Walker's way, way shorter than the actual Aalim Moor), at which point the officer arrests Walker for providing false identification and, in a search incident to arrest, discovers the drugs.

I agree with Justice Duffy that all that goes away if the initial stop was impermissible.  And I also agree that you can't justify the stop on the basis that Walker purportedly looked like the suspects in the prior sexual assault.

But what about the ticket?

Officers can legitimately ask riders to produce their ticket.  That's permissible.  Indeed, the officer's duties in the present case included fare enforcement.  Sure, that's not why -- in fact -- he decided to pick out Walker as opposed to anyone else.  But we already know that subjective intent is irrelevant to the validity of a stop.  What matters is simply is whether the detention was authorized.  Which the request for the ticket was.

Justice Duffy says in a footnote that the Attorney General conceded at oral argument that the officer didn't have reasonable suspicion to believe (prior to stopping him) that Walker hadn't paid the fare.  I get that, and am certain that this concession is true.  But what I don't understand is the predicate; i.e., why the officer even needed reasonable suspicion.  You can ask people for their ticket even if you have no particular reason to believe they're not carrying one.  Train conductors and transit officers do it all the time.  That's not a violation.  No suspicion at all is required.

It's true that the officer didn't ask everyone for their ticket, only Walker.  But that doesn't make it a violation either.  You can ask some people for tickets and not others.  True, you can't do it on a basis that's constitutionally impermissible; e.g., you can't only ask black people to show their tickets but not whites.  But there's no evidence or discussion on that point at all.  Justice Duffy doesn't hold that the stop was race-based (and hence a violation of the Equal Protection Clause), but rather that it was conducted without reasonable suspicion and hence an unreasonable search.  But it can't be the latter if the officer was permitted to stop Walker -- amongst others -- to ask him (as he did) to show his ticket and to investigate whether the ticket that was produced was indeed his (as, again, the officer did).

So I'm truly in a quandary as to why this case comes out the way it does.  Even if I agree with every word that's said.

It may be (I admit) that there are additional facts of which I'm unaware.  For example, it seems that the officer may have stopped Walker shortly after he hopped off the train, rather than while he was still on it.  Maybe that matters.  Maybe at that point an officer needs reasonable suspicion, since the search is not longer "administrative" (or some such variant).  But the facts may also be otherwise; I am confident, for example, that many mass transit systems have a rule that says you have to have a ticket to even be at the station (e.g., at the immediate loading/unloading area), which is where Walker appears to have been stopped.  Plus, I'm not even sure it matters.  If Walker could be asked to show his ticket while still on the train, why not immediately once he got off?  Or does getting off the train mean there's now a heightened requirement before you can be demanded to show your ticket?  If so, next time I ride the train, I'm going to be sure to hop off promptly once I notice that there's an officer coming around who's actually checking tickets.  Problem solved.  Fare successfully evaded.

I concede that, at some point, reasonable suspicion is required.  I'm sure, for example, the officer could not follow Walker home and -- two feet from his doorstep and fifty minutes after he got off the train -- demand to see his ticket.  Reasonable suspicion seems applicable at that point.  But I'm not at all confident that the right dividing line between these two doctrinal fields is immediately at the door of the train.

So I wonder what the truth is here.  Either legally or factually.  Because it seems to me that the stop might well be justified.