U.S. v. Thoms (9th Cir. - June 29, 2012)

One of the things I do -- or, more accurately, try to do -- when I read opinions is to initially read them without looking first to see who wrote them.  I care about the author, sure.  I definitely look at the end.

But I recognize that I'm subject to bias just like everyone else.  If I know that an opinion is written by a judge with whom I generally agree (and/or respect), I realize that I may potentially view the opinion in a more generous light.  Ditto if the converse is true.

I try to avoid that by skipping over the author at the outset.  Sometimes my eye catches things, of course, and sometimes I can tell the author merely by the style of the opinion.  But I do my best to try to get an "impartial" view of an opinion, at least at the beginning.  Recognizing that it understates things to merely put the word "impartial" in quotes.  But I try.

I mention that because (1) I like to share things, and (2) I had that sense in spades when I read this opinion.  Here are its first four paragraphs:

"In a criminal pre-trial matter, it is well established in our circuit and in most others that, if a district judge is inclined to depart from credibility findings of a magistrate judge that were favorable to the defendant, he may only do so after holding a de novo evidentiary hearing. See United States v. Ridgway, 300 F.3d 1153 (9th Cir. 2002). This right is grounded in the Due Process Clause. Id. at 1155-56.

But what about the reverse? What if a magistrate judge recommends denying a motion to suppress, but the district judge wishes to reverse that determination because he is inclined to disbelieve the testimony of government officials? In that case, must he hold a de novo hearing for the benefit of the government, which is the plaintiff in a criminal case?

This appeal considers such a case, and our circuit has yet to address this question. The government primarily urges us to adopt a broad rule: the government’s right to a de novo hearing before a district judge is identical to that of defendants, even though the government cannot directly invoke the protections of the Due Process Clause. The defendants counter that, without the Due Process Clause to ground this right, the decision to hold a de novo hearing in such cases is entirely within the district judge’s discretion.

We disagree with both of those categorical options, and today we adopt a middle ground, though our rule counsels strongly in favor of holding a de novo hearing. We agree with the defendants that the government does not have an unqualified right to a de novo evidentiary hearing whenever a district
judge reverses a magistrate judge’s credibility determinations in a way adverse to the government. But we also agree with the government that its interest in the integrity and accuracy of judicial proceedings—which, after all, similarly underlie a defendant’s due process rights to such a de novo hearing— will often counsel in favor of such a hearing. Thus, we hold that a district court abuses its discretion when it reverses a magistrate judge’s credibility determinations, made after receiving live testimony and favorable to the government, without viewing key demeanor evidence, with one exception: where the district judge finds that the magistrate judge’s credibility determinations had no legally sufficient evidentiary basis, so that, were they jury determinations, judgment as a matter of law would issue for the defendant."

I had chills when I read that introduction, saying to myself:  "Holy crap.  This is good.  That's seems exactly right to me, and articulated with really good language.  Simply awesome."  A reaction on my part that was immediately followed by:  "Oh no.  I hope this isn't written by a judge I think is terrible!"

I read the rest of the opinion, and then went back and looked to see who wrote it.  Judge Bea.  Joined by Judges Gould and Bybee.  So a really good start by Judge Bea.  Well done.

That's not to say that I agree with every single thing in the opinion.  I'm probably a little less inclined than the panel to say that the district court has to always hear the witness in person if it's not a JML-like situation.  In part because I'm probably a little less confident than the panel that judges can actually make accurate calls on credibility (and I think I'm backed up by the research on this one).  And also in part because I think there's a process value -- somewhat distinct from (albeit intertwined with) the Due Process Clause -- that distinguishes when the government as opposed to a defendant is found uncredible.  There's a value in saying that you can't put someone in jail on the basis of finding him uncredible without hearing him out first.  It'd just seem wrong to do so.  For many of the same reasons we allow allocution before you're sentenced.  It's not just that there is an accuracy concern.  It's also one of process.  But that doesn't apply when you're finding a witness for the government uncredible.  You're not sending the witness (or anyone else) to jail; you're just disbelieving their testimony.  Not as big of a deal.

Plus, sometimes it's hard to find a witness uncredible when they're right in front of you.  And I say this from experience, having been on the bench numerous times in small claims court in which I've had to decide cases on the basis of pure credibility calls.  Usually you can come up with a "creative" way to sell the decision to the parties -- while simultaneously doing the right thing -- without expressly calling a witness or party a liar.  But sometimes you can't.  The pressure not to call someone a liar to their face (even when you think they are) is presumably even higher when the witness is a police officer or other government figure.

So sometimes -- and I admit it's rare -- I might allow a judge to not hold an actual hearing if the judge is convinced that no matter how credible the government witness seemed, there's no way the judge would change his or her mind.  This might even be one of those cases.  Look at what the district judge said for why he disbelieved the government witness:

"To conclude that Investigator Young did smell marijuana from the road, while in his vehicle would require the court to assume that Thoms’ filtration system was either saturated or not functional; that the odor of marijuana left the outbuilding unfiltered and remained warm long enough to stay above the vegetation behind the Thomses’ house; that it either traveled around the Thomses’ two-story residence or stayed warm long enough to traverse above it then suddenly dropped in the area Young claimed to smell marijuana; and that it followed the described 450 foot course without dispersing beyond perceptible levels. Those assumptions are contrary to a preponderance of the evidence presented at the Franks hearing."

That sounds like pretty decent reasoning to me.  In short:  "The story you're telling is just silly.  You thought there was marijuana there for different reasons but those weren't enough for a warrant, so you did what we know officers do all the time:  Said you 'smelled' it.  Sorry.  No dice.  I don't care how sincere or official you looked at a hearing or how smooth your uniform was.  I'm not buying it."

Now, maybe the panel here would say that if that was indeed the case, then the JML standards would apply (since the evidence is "implausible;" i.e., no reasonable jury could buy it).  But I'm not sure that this standard -- which is designed for the Seventh Amendment, an entirely dissimilar context -- is exactly right.  Instead, a district court might say:  "Look, it's not that a reasonable jury might not buy your argument.  It's just that I don't.  No matter how credible you look."  That's a different standard than the Ninth Circuit articulates, and I'm not sure it wouldn't make sense.  Why hold an evidentiary hearing to call someone a liar to their face when you're certain it won't make a difference?  And why require one if you fear (as I do) that having to call someone a liar to their face may in some cases make you hesitant to call them a liar even if you think they are.  That gets the wrong result, and at real cost.

Mind you, I think there's a different reason why I'd normally require district judges to hold evidentiary hearings in cases like this one. Again, a process reason. Sometimes you get more information when you hold a hearing not about pure credibility, but about actual facts. When the witness personally appears, the judge can ask questions. Those questions can either (1) provide additional evidence that the witness is lying (indeed, that's what they'll usually do), as the witness provides increasingly incredible responses to a judge's targeted inquiries, or (2) sometimes (albeit perhaps rarely), convince the district court that what might at first glance appear implausible is in fact plausible. Not because we're making a pure demeanor call or judging credibility. But because the interactive process of questioning reveals additional facts that change one's assessment (e.g., you learn that there was a really strange wind that night, that studies show that one can detect a marijuana smell from hundreds of yards away, etc.). [Parenthetically, since I live in a hippie-like area across the street from a beach, I can testify that the latter is, in fact, more plausible than you might initially think.]

I still end up thinking that the introductory paragraphs of this opinion are really good, and that the result is largely right. But I might nonetheless tinker with both the reasoning and the resulting rule to make it a little better. Because it seems nearly right to me, but the few cases in which it's a near-miss might be important ones.

National Federation of Independent Business v. Sebelius (U.S. Supreme Ct. - June 28, 2012)

I virtually never comment on high-profile and/or U.S. Supreme Court decisions.  There are lots of other people who are already inclined to do so.  That's even more true with respect to today's decision about the Patient Protection and Affordable Care Act.  Virtually everyone with a law degree -- and many without one -- will discuss it today.

It nonetheless seems wrong to me for me to say nothing at all about the most important (or at least most publicized) Supreme Court decision of our generation.  Especially since I spent this morning reading the entire 193 pages of opinions.

So I'll mention two things.  Incredibly briefly.  Because while I think it's worth it to say something, I also think it's equally important for me to play golf at Torrey Pines in 30 minutes.  Indeed, more so.

Here are my two statements of fact.  For which I admittedly have no concrete proof:

(1)  The joint dissent of Scalia, Kennedy, Thomas and Alito was originally a (perhaps tenative) majority opinion.  They wrote it thinking that Roberts was joining them.  It turned into a dissent when Chief Justice Roberts changed (or "clarified") his tentative vote after oral argument.  It shows how quickly things can change, and how important a single person can be.

(2)  Chief Justice Roberts would have voted differently if he wasn't the Chief.  His vote was foundationally an act of "statesmanship" and the act of a Chief Justice.  That doesn't mean he doesn't believe what he says, as I'm sure he does.  But one's views are sometimes affected by one's role.  And that transpired here.  What he did and what he said is consistent with his views about his position as well as his personality.  He doesn't take a view of history or of his role in the same way that (say) Scalia and Thomas do.  His preexisting beliefs in this regard are amplified -- exponentially -- by his position as Chief and it being "his" Court.  We saw this a little bit earlier in the week in the Arizona immigration case (where his vote with the liberals avoided a 4-4 split).  We see it, in a different context, today.  This doesn't portend a major shift in his ideology.  It instead means that in high-profile cases, where being the Chief may be viewed as pressing one towards a particular role, that can matter.  And it did here.

I won't attempt to defend those statements of fact.  But I believe both of them.

Off to hit little white balls into tiny holes.

U.S. v. Gonzalez (9th Cir. - June 27, 2012)

Judge Tallman begins this opinion with the line:  "The United States Constitution and federal law require that crimes be prosecuted where the offense was committed. This venue requirement, however, is more easily stated than applied."

The common reaction might be:  "Yep.  It's tough.  Couldn't agree more."

But personally, I don't think the rule's very difficult to articulate.  At all.  Here's how I'd state the rule, at least as applied by contemprary federal courts:

"Venue exists in federal criminal cases virtually anywhere.  Wherever there's even the most tenuous and/or government-manufactured contact with a crime, venue's proper there."

This case is a perfect example.  The crime's entirely outside the Northern District of California.  The defendant never steps foot there.  Never does anything there.  As far as we know, doesn't even know that the Northern District of California exists.  The only thing that happens there is that a confidential informant who's working for the government -- who's working to destroy the conspiracy -- makes a telephone call from there to the defendant.  The defendant didn't know the call was from the Northern District of California.  Didn't know the CI was working for the government.  Wouldn't have taken the call if he'd have known.  Never benefitted, one iota, from the Northern District.  Never purposefully (or otherwise) availed himself of the benefits of that forum.
In civil cases, we'd undeniably say that venue's improper.  But the Ninth Circuit holds -- as pretty much every other circuit would surely hold as well -- that venue's nonetheless proper in that forum.  Because even though proper venue's a constitutional requirement in only criminal (not civil) cases, as applied by the judiciary, that requirement's only really meaningful in the latter.

So you might have a variety of critiques about the federal venue rule in criminal cases.  But that it's hard to apply isn't particularly one of them.

Patterson v. Domino's Pizza (Cal. Ct. App. - June 27, 2012)

Who could resist reading a case about the intersection of Domino's Pizza and sexual harassment?

Not me, that's for sure.

Especially when the name of the Domino's Pizza franchise at issue is -- appropriately enough -- "Sui Juris."

U.S. v. Meredith (9th Cir. - June 26, 2012)

This makes it official.  I'm calling it "Jean-Claude Andre" month in the Ninth Circuit.

Jean-Claude's an AUSA, and he argued the appeal that gave rise to today's published opinion from the Ninth Circuit.  An appeal from consolidated tax evasion cases that (for some reason I can't figure out) was filed in 2005 and yet not resolved until 2012.

Jean-Claude also argued the appeal in this published opinion from Friday.  Child pornography, that time.  Two published opinions in less than a week.

Another case from Mr. Andre in June was this one, though it's unpublished (illegal reentry after deportation).  And four weeks ago there's this published opinion from the Ninth Circuit, which Mr. Andre argued.

Four Ninth Circuit opinions in four weeks.  And you thought being a government employee was just a nine to five job, eh?

Good job, Jean-Claude.

People v. Accredited Surety & Cas. Co. (Cal. Ct. App. - June 25, 2012)

Sometimes it doesn't take very long at all to deliver an opinion that's obviously correct.

Coito v. Superior Court (Cal. Supreme Ct. - June 25, 2012)

I'd write about this opinion even if I completely agreed with it.  Because it's important.  Almost all of us have obtained (or have thought about obtaining) witness statements.  Those of us in the civil arena have similarly almost invariably propounded and/or responded to form interrogatories.

We now know -- or at least have a more informed view -- of whether such statements are protected work product, and whether (or when) you have to answer Form Interrogatory 12.3.

So take a look.

The short answer is that witness statements are often work product -- indeed, often absolute work product -- according to today's unanimous California Supreme Court opinion.  Which means you'll obtain (and not turn over) witness statements a lot more.

Far be it from me to critique such a unanimous opinion.  But I'm going to do so anyway.

I think it's a major omission that nowhere in the Court's opinion does it mention, discuss or even cite Federal Rule of Civil Procedure 26(b)(3)(C).  It's almost as if the Court doesn't even know that this provision exists.  The Court holds that you've got to protect witness statements as work product or else the other side will freeride, attorneys will be deterred from getting statements, mental impressions will be disclosed, etc.  In other words, disaster.  And yet Rule 26(b)(3)(C) was enacted in 1970 in order to expressly provide that witnesses can obtain their statements without any showing whatsoever, much less the type of showing the California Supreme Court now requires in order to override work product protection.  And yet, somehow, the federal system soldiers on.

This matters.  If a person can obtain his own statement -- whether a party or not -- that creates all the perverse incentives that the California Supreme Court identifies.  After all, in the federal system, if you want to "discover" the "mental impressions" of the other side's lawyer, all you have to do is ask the person to request her statement -- s/he can even do it outside discovery -- and the opposing party has to provide it.  Parties.  Witnesses.  Doesn't matter.  Boom.  You've got the statement.  The exact statment that the California Supreme Court says must be difficult or impossible to obtain.  So you get to invade the mental impressions of the lawyer, freeride of her work, etc.  So the federal system takes the expresss view that these aren't very big (or realistic) downsides, and that the upsides -- settlement, disclosure, truthseeking, etc. -- are worth it.

Seems to me you'd want to at least mention (and hopefully evaluate) that opposing view, as well as the quality of justice that has resulted therefrom during the past four decades, when deciding that this is not a tenable (or preferable) system.

It also seems to me that lots of what the California Supreme Court says about the policy implications of its position are also questionable.  For example, the Court finds really troubling the concept that we would ever allow disclosure of what a witness said because that'd invade the mental impressions of the laywer (e.g., what questions she asked, etc.).  Okay.  I get that.  At least in theory.

But if that's true, why do we allow -- as we clearly do -- the witness to be asked in a deposition what questions he was asked (and how the witness answered)?  That "invades" the former attorney's mind and obtains her "mental impressions" too, right?  That "freerides" off the former attorney's work, too.  But it's entirely fine.  Why the discrepancy?

The only benefit of not turning over the notes is when the witness (or party) doesn't remember what questions or answers were provided.  Only then do any benefits arise from the Court's holding today.  But situations involving faded memories are precisely when you want discovery; when obtaining such information gets at the truth.

It's even more bizarre when you realize that the "witness statement" at issue may even be of a party or party-affilliated witness.  The other side has a "work product" protection in a recorded statement that your client gave them?  You have to give a "special reason" in order to obtain the statement that your client made?  Seriously?  I mean, yeah, you can just ask your client.  But why should you even have to?  Why can't you just get the statement -- as you can in federal court -- by simply asking for it?  And why do we protect the opposing party's "mental impressions" (e.g., their questions) only when the interviewee has forgotten the questions?  Weird.

We're not talking about the attorney's notes here.  Those are protected; everyone agrees.  We're instead talking about actual evidence -- stuff that can be produced at deposition, at trial, etc.  Stuff that, unlike notes, was never secret.  If you've disclosed that stuff already (by getting it signed, by having outsiders there, etc.), I don't see why we need to make that work product.  Moreover, I see downsides to doing so.  Very real ones.

So I'd have liked to see the California Supreme Court engage on this issue a bit more.  Because what they've said here doesn't especially persuade me.  There seem a ton of counterarguments -- including many that arise from the federal approach -- that deserve consideration (or at least mention).

U.S. v. Rivera (9th Cir. - June 22, 2012)

I'm of two minds on this one.

On the one hand, I entirely agree with the sentiment behind Judge Berzon's opinion.  It's good that a criminal defendant be allowed to have his family show up at his sentencing.  It shows the judge that there's a real person at issue, with a real family.  It may make things more concrete.  Defendant should have the ability to present that reality to a judge.  I agree.  Which means that district judges can't order a courtroom closed just to exclude family members from showing up.  Sure.  Seems right.

On the other hand, I'm not really sure that's what Judge Wright did here.  Sure, he sort of did that.  But what he really did was just to tell the defendant's lawyer -- forthrightly -- his preferences.  For his own personal reasons, Judge Wright doesn't like family members showing up.  He thinks it's lame.  It gives him bad vibes.  He thinks it's silly and hypocritical:  the defendant trying to look like a "family man" when the evidence reflects that, in the outside world, he's ignoring his family and spending all the time on criminal (or at least other antisocial) acts.  At least as applied to family members of Mongols (and, presumably, a wide variety of other criminal defendants as well).  Judge Wright just doesn't like the feel of it.  It doesn't "work" on him the way it might for other judges.

Judge Wright expressly told the lawyer here that he had hoped that it would "get around the Bar" that he didn't like family members showing up and that lawyers don't do their clients any favors by having them present at sentencing.  Defendant's lawyer apologized and said he hadn't heard that, and certainly didn't want to bum the judge out (not surprisingly).  So they rescheduled the hearing for the next week, at which time the family members -- surprise, surprise -- weren't present.

There's a fine line between "ordering" the courtroom closed and expressing a "preference" for who shows up.  Judge Wright unambiguously did the latter.  I'm not sure that he really did the former.

Nor, given the latter, did he need to.  Sure, in the future, Judge Wright now knows that he can't do anything formal like closing the courtroom.  Or something ambiguous that might look like that.

But nothing stops him from doing precisely what he referred to here:  trying to have it "get out" that Judge Wright doesn't like family members being present.  That it puts him in a bad mood.  Which is not something you want when you're in front of a judge who has wide latitude in how much of the rest of your life you're going to spend in prison.  Expressing that preference alone gets you what you want, which is a courtroom with no family members.  And if you bring 'em, well, that's fine, you're allowed to do that (thank you, Ninth Circuit).  Just remember that when you see the scowl on Judge Wright's face during sentencing and wonder why he decided, in his discretion, to sentence you to some portion of the guidelines range that's not at the lower end.  Enjoy the extra time in prison.  Oh, and good luck trying to get a reversal on that basis on appeal.  There's nothing at all on the record.  And your family members were indeed there.  Big win for you, eh?  Thirty more minutes together in a courtroom versus two more years apart while the defendant's still in prison.  I know which one I'd choose.

So I don't know.  I think that Judge Wright was expressing a preference.  A preference that admittedly maybe he shouldn't have, but that he nonetheless retains (and, I'm certain, will retain regardless of how the Ninth Circuit views the law).  Given that we can't do anything about his preferences, and that his ability to express those preferences effectively clears the courtroom, I'm not sure what we gain when we take an ambiguous expression of his preferences to be an "order" and reverse on that basis.  Either in a particular case -- though admittedly we can give the defendant here a new sentencing proceeding in front of a different judge (though I wonder if the sentence will really be different) -- or in general.

As to the latter, I'm sure that Judge Wright, now chastened by the Ninth Circuit for his on-the-record comments, will no longer tell uninformed counsel that he doesn't like children present.  Which means they'll be there.

Maybe that will help defendants.  Maybe it'll do the exact opposite.

Johnson v. Uribe (9th Cir. - June 22, 2012)

Yet again I'm more conservative than Judge Kleinfeld and Judge Milan Smith.

The district court made a factual finding on habeas that the defendant would have accepted a deal that would have conditionally sentenced him to the maximum appropriate sentence even if his lawyer had been competent.  It accordingly granted habeas relief but the remedy it imposed -- which is subject to review for abuse of discretion -- was to simply resentence the defendant to the maximum.

The Ninth Circuit affirms the grant of habeas relief but reverses the remedy, holding that the defendant is entitled to entirely withdraw his guilty plea.

Personally, I don't have a definite, firm conviction that the district court was wrong here.  I'm pretty confident that defendant would have accepted the deal -- indeed, virtually any deal -- in order to get out of jail in order to witness the birth of his child.  He accepted a really long sentence.  He would have accepted a shorter one.  And the government knew it had the defendant by the short hairs.

So I'm not certain that the district court erred.  So I'd have to affirm.

Save the Peaks Coalition v. USFS (9th Cir. - June 21, 2012)

This seems equitable.

Did plaintiffs engage in sanctionable conduct?  Yes.  Definitely.  So sanctions are proper.

Who was responsible?  Primarily, the attorney, Howard Shanker.  He was representing the clients -- who filed an environmental lawsuit to stop a ski resort -- pro bono.  Are the clients legally responsible for their attorney's conduct?  Sure.  So we could sanction them.

But the Ninth Circuit doesn't.  It holds that the clients were misled by their lawyer.  And I can definitely see how that might well happen.  You're putting your name on a caption alongside many other people in order to create standing, and have little (if anything) to gain personally from the lawsuit.  What you know about the lawsuit comes almost exclusively from your lawyer, who's not billing you (so you have very little reason to actively supervise him).  It's very plausible that if your attorney deceived you or engaged in sanctionable conduct, you'd never know about it.

So I like what the Ninth Circuit does here.  Sanction the lawyer.  Leave the individual clients alone.

In Re Blixseth (9th Cir. - June 21, 2012)

The Great Recession hit most everyone.  Even the good folks in Montana.  Some were even forced to file bankruptcy.

Including at least one Montanan who had tens of millions of dollars.  (If not hundreds of millions.)

Mind you, she was married to this guy.  Who allegedly once owed $1.3 billion.  Check out the sections entitled "Divorce" and "Litigation, Bankruptcies and Defaults." 

Everything's bigger in Montana.

Sharp v. Superior Court (Cal. Supreme Ct. - May 31, 2012)

Who says the California Supreme Court can't be short and to the point?  Here's proof that it can.  Resolving a case in a single-digit number of single-spaced pages.

Of course, it's a case in which the Court accepted review of an unpublished decision of the Court of Appeal that's obviously right, and which the Court affirms.  So how hard's that?

Still.  Baby steps.

San Diego Municipal Employees Ass'n v. Superior Court (Cal. Ct. App. - June 19, 2012)

I'm not entirely sure what causes it.  But I've kept an informal running tally of the number of cases the City of San Diego has lost in the Court of Appeal.  My sense is that the City's ratios of wins to losses in the Court of Appeals is roughly the same as the Padres' on the baseball diamond.

Which is not good.  At all.

Add this one to the list of the City's defeats.

This seems a systemic problem.  It's not the fault of the current City Attorney:  my sense is that San Diego has had a substantially below-average win rate for around a decade.  And I'm not talking about low-level criminal cases (e.g., misdemeanors prosecuted by the City Attorney's Office):  rather, we're talking about big-ticket civil litigations.  Like this one.

The City of San Diego loses again in the Court of Appeal.  Hardly a "man-bites-dog" headline.

Garimendi v. Hennin (9th Cir. - June 19, 2011)

When I teach Rule 60 to my first-year Civil Procedure students, I tell them that Rule 60(a) is mainly designed to permit a court to correct clerical errors in the judgment; for example, a judgment that says that a plaintiff is entitled to "$10,000" when the jury's verdict was actually for "$100,000."  Things like transcription mistakes.

Like many things, the complete truth is a little more complicated.  As today's opinion from the Ninth Circuit decmonstrates.

You can in fact make lots of amendments to a judgment under Rule 60(a), including changes that arise from circumstances that are quite dissimilar to transcription errors.

It's a good opinion to read to complete your knowledge of the Federal Rules of Civil Procedure.  Which is an important life objective for everyone, I'm sure.

Nickell v. Matlock (Cal. Ct. App. - June 4, 2011)

Matlock represents himself in the Court of Appeal.  And wins!

Mind you, this Matlock wouldn't have had to appeal in the first place, as he -- unlike the present Matlocks --likely would not have had terminating sanctions imposed against him.  Moreover, the Matlocks at issue are almost certain to lose on remand.

Still.  A victory for Matlock.

Chalk another one up.

People v. Little (Cal. Ct. App. - June 15, 2012)

Everything about this opinion seems copasetic.  But the defendant gets sentenced to over two decades in prison in a non-three-strikes case for secretly taking some credit cards and a Nordstroms gift card from a purse during an open house?  Really?  Does that seem . . . I don't know . . . a little harsh?

Especially for a guy (like here) in his 50's.  It's essentially a death sentence, no?

Yeah, I know, it's technically burglary.  Yes, apparently, there's an enhancement if your burglary is in a house in which someone else (a non-accomplice) is present.

Still.  Knowing nothing more than what I read in the opinion, I was a bit surprised by the sentence.

Perhaps I shouldn't have been.  But I was.

People v. Souza (Cal. Supreme Ct. - May 31, 2012)

Matthew Souza gets some good news and some bad news from the California Supreme Court.

The bad news is that he's going to spend the rest of his brief life in prison before we kill him.

The good news is that we're cutting the $24,000 restitution order entered against him in half.

So he's got that going for him.  Which is nice meaningless.

Daniell v. Riverside Partners I LLP (Cal. Ct. App. - June 14, 2012)

Philosophers aren't the only ones who struggle with profound issues of personal identity.

The SLAPP statute says a person can move to dismiss a lawsuit against that person based upon conduct performed by that person in furtherance of that person's First Amendment rights.  Plaintiff files a malicious prosecution lawsuit against Defendant X based upon a lawsuit filed and dismissed not by X, but by Y, and asserts that X is Y's successor in interest.  X files an anti-SLAPP motion, but Plaintiff opposes the motion on the ground that X isn't being sued by First Amendment rights performed by X, so an anti-SLAPP motion is improper.  Which, at least foundationally, is right.  Y didn't do anything at all, much less exercise any rights.  So how can he file an anti-SLAPP motion under the statute?

The trial court rejected this argument as "too cute by half," and the Court of Appeal essentially agrees.  The latter holds that because corporations are fictional entities, they change forms all the time, and Corporation X effectively is Corporation Y, and hence can file an anti-SLAPP motion.  But the Court of Appeal expressly notes that its holding is limited to fictional entities like corporations, and expresses no view (one way or the other) as to anti-SLAPP motions filed by individuals.

The Court of Appeal gets the result right, and I agree with its assessment of the policy implications of its holding.  But I think it can reach this outcome more easily, and in a way that avoids the unnecessary limitation of its arguments to fictional entities.

When X is sued as a successor-in-interest to Y, it's being sued "in Y's shoes."  We do this all the time.  When you are sued in Y's shoes, you generally get to assert any defenses to the lawsuit that Y could assert.  I see no reason not to hold that those include anti-SLAPP motions.  It's just applying the usual rule.

Importantly, such a straightforward application of doctrine wouldn't rely upon the existence of the defendant as a fictional entity.  Nor would it be limited to situations that involve (as here) successors in interest.  Many parties -- both fictional and otherwise -- are sued in similar capacities.  Successors.  Executors.  Trustees.  Vicariously liable defendants.  Under my rule, we'd allow all of these parties to file anti-SLAPP motions not because they're fictional and have "shape-shifted" to a different entity, but rather because they're being sued in essentially a representative capacity.

Let me give you an example.  One which actually comes up all the time.  Imagine that Employee exercises his First Amendment right, Plaintiff sues both Employee and Employer (which is alleged to be vicariously liable for Employee's tort), and Employee and Employer both file anti-SLAPP motions.  The former is surely being sued based on the exercise of rights by "that person," but the Employer isn't -- the Employer hasn't really done anything.  (Ditto, by the way, if you replace "Employee" and "Employer" with "Minor" and "Parent".)  We'd have no problem -- indeed, have no problem -- with routinely letting Employer file an anti-SLAPP motion.  Not because Employer is a fictional entity whose identity is synonymous with Employee -- they're undoubtedly different entities.  But rather because Employer stands in Employee's shoes for purposes of liability just as it stands in his shoes for purposes of the anti-SLAPP motion.  And that rule makes sense.

So I like the outcome here.  It's just and makes sense.  But I'd get there in a different, and much broader, way.

P.S. - A random note.  In analyzing the case, the opinion mentions that even fictional entities have First Amendment rights.  That's unquestionably true.  There are literally thousands of cases that so hold, and in which expressive activity almost identical to the type at issue here was involved.  But rather than cite those cases, the Court of Appeal cites Citizens United.  Admittedly, that case did indeed so hold, and I surely understand that this might be the first case that springs to mind.  But it's a little bit like citing Dred Scott for the proposition that federal diversity jurisdiction only exists between citizens.  Sure, the case did indeed so hold.  But it might be preferable to cite an opinion less controversial, less likely to be overturned, or (at a minimum) more on point.

Harris v. Rand (9th Cir. - June 13, 2012)

Were I grading these performances in my Civil Procedure classes, I'd give just about everyone except the Ninth Circuit a "D".

Plaintiffs file a lawsuit in which they initially allege that federal diversity jurisdiction exists under Section 1332(a)(2), which provides jurisdiction over actions by U.S. citizens against citizens of a foreign state.  Strike one.  Defendants include a U.S. citizen, so the correct section is (a)(3).

Plaintiffs then amend the complaint to assert jurisdiction under the correct section, but the district court thinks (probably correctly) that the jurisdictional allegations are "patently insufficient" because they don't identify where the defendants are citizens.  So it (properly) issues an OSC that essentially orders plaintiffs to alleged where the defendants are located, and the order cites Hertz -- the recent opinion that held that a corporation is deemed a citizen of its state of incorporation and the state of its "nerve center" (generally, the state of in which its headquarters is located) to help out.  That order seems reasonable and fairly easily followed.

So a couple of weeks later plaintiffs respond to the OSC and identify where the defendants are indeed located -- Louisiana and Hungary -- and further states that diversity thus exists because "while plaintiffs come from several states and Australia, none are residents or citizens of Louisiana."  Strike two.  You can't just say you're "not" from a particular place to properly allege diversity.  You actually have to allege where you are a citizen.  That's crystal clear.  So the allegations are still deficient, if only for this reason (and potentially others).

But the plaintiffs at least conclude their response to the OSC by saying that if what they've said is still deficient -- which it is -- they should be given an opportunity to amend their complaint to rectify the problem.  Fair enough.  The district court responds by granting leave to amend, and the plaintiffs do so, and allege therein where each of the defendants resides and has its "nerve center" (and is thus a citizen).  Good.

Then the district court whiffs for strike three, and dismisses the complaint for lack of subject matter jurisdiction, holding that the plaintiffs failed to prove where the defendants had their nerve center, relying on the heightened pleading standard of Twombly and Iqbal.

The Ninth Circuit properly reverses.  You can make the plaintiffs properly plead their jurisdictional allegations.  You can even require the defendants to prove these allegations as a factual matter.  But the rules don't require the plaintiffs to provide facts that support their jurisdictional allegations.  Even a cursory view of the forms attached to the Federal Rules of Civil Procedure makes that clear.

There might -- and I'll emphasize, might -- perhaps be situations in which the jurisdictional allegations are so implausible that Twombly and Iqbal might potentially come into play.  Perhaps if you allege, for example, that President Obama is a citizen of Alabama.  Or Kenya.  Maybe then we can say that your allegations are so implausible that they don't survive a motion to dismiss.  But that's nowhere near the case here.

So the Ninth Circuit gets a passing grade, but neither the district judge nor the plaintiffs' lawyer come out smelling like a rose.

Rijal v. USCIS (9th Cir. - June 13, 2012)

We don't need oral argument.  We don't even need to write an opinion.

All we need is nine days after the oral argument would otherwise have been scheduled to tell you that we're adopting in full the district court's opinion as our own.

Brannan v. Lathrop Construction Assocs. (Cal. Ct. App. - June 12, 2012)

Sometimes it rains.  Sometimes you slip in the rain.  That doesn't create liability.  Even if someone at work is empowered to call off work if the rain makes it unsafe.

Avina v. United States (9th Cir. - June 12, 2012)

It's not okay to point a gun at a child while s/he's handcuffed and on the ground.

Even if you're the United States.

U.S. v. Grant (9th Cir. - June 11, 2012)

The Leon exception has always been somewhat perplexing to me.  At least its application.  I understand the underlying rationale:  that we rely upon the magistrate to sort out the good warrants from the bad, so if it's a close call, we're not going to suppress the evidence.  Fair enough.  You can agree or disagree with this rule as a policy matter, but I get from whence it's coming.

The harder part for me is deciding when the exception applies on a particular set of facts.  Maybe that's because I have a particular view of police work, at least insofar as warrants are concerned.  When a police officer wants one, she wants one.  She cares very little (if at all) about the particular intricacies of the Fourth Amendment.  She just wants to uncover evidence of a crime.  So she dumps whatever information she has into an affidavit and gives it a shot.  Or at least that's my theory.

She may admittedly have a sense of how likely she is to successfully obtain the warrant.  A theory that may perhaps be based -- incredibly loosely -- on whatever she's been taught (or learned) about the application of the Fourth Amendment.  There may be some occasions where she (or her superior) says:  "This isn't even worth the effort.  No way I'm going to get a warrant."  But on those occasions she's not likely to seek one.  There may be other occasions where she (or her supervisor) says:  "This seems like a stretch.  But it's worth a shot.  Maybe I'll get lucky."  Those are the ones that may raise the Leon rule, at least for those occasions in which she in fact succeeds.

Leon says that if it's clear, then there's suppression.  But, again, I think it's incredibly rare for officers to seek warrants when it's totally clear.  (Put to one side cases of perjury in the affidavit etc.)  Sure, they may seek a warrant in circumstances in which they're not positive, or think there's only a twenty percent chance that one will issue.  But that's why we have judicial officers:  to decide these things.  The policy behind the good faith exception seems to apply in such cases.

So what to make of the exception?  It seems like it almost necessarily swallows the rule.  If they bothered to apply for the warrant, it was probably at least somewhat unclear, so no suppression.  And if they didn't think it worth the effort to apply because it was so clear, then there's no warrant, so no suppression exists there either.  It seems like virtually every case in which a warrant is issued it'll be sufficiently unclear such that the exception will apply.

Those were my thoughts when I read this opinion.

Everyone -- or at least, every Article III judge to consider the issue -- agrees that the warrant here wasn't sufficient.  As indeed it wasn't.  It was a whole lot of information that loosely tied the participants to evil events (that they were bad dudes pervades the affidavit), but no probable cause to tie them to a particular crime that a search would help prosecute.  But the magistrate thought otherwise, so a warrant issued, and evidence (albeit of a different crime) was found, so now we've got to decide whether to suppress.

The district court thinks the good faith exception applies.  The Ninth Circuit doesn't.  The latter thinks it's pretty darn clear.

I don't know.  My view on the issue is undoubtedly muddled by (1) my respect for the relevant district court judge -- Judge Wu -- who's an extremely bright (and conscientious) guy, and (2) my fuzzy doctrinal thoughts about the Leon exception itself, as revealed above.  Both of these things make me think:  "Really?  Would a reasonable police officer really know that this warrant was wrongfully obtained?  As opposed to merely thinking that it's unclear and hence worth a shot?"

Read the opinion and see if your thoughts on the issue reach a clearer conclusion than mine.  I usually have a pretty good sense about whether an opinion's right or wrong.  Especially when it's unanimous.

But not here.

POSTSCRIPT - An alert reader also noticed that the opinion says that the search warrant here was signed by "a judge on the California Court of Appeal."  This is apparently authorized, but it still seems unusual -- I don't recall seeing a similar appellate-signed warrant in the past.  So I did some digging.  The Culver City Police Department apparently got the warrant -- actually, more than one -- from Justice Paul Turner in 2009.  Justice Turner also gave 'em authority to serve it at night.  Justice Turner is the presiding judge in Division Five of the Second District.  He also lives in Culver City.  I can't tell why he's regularly issuing search warrants (as opposed to the hundreds of other lower-level judicial officers in Los Angeles), but presume there's a reason.  As a policy matter, I'm not sure I really want my appellate judges deciding whether to issue search warrants.  I'm sure they have the expertise -- after all, most of 'em (like Justice Turner) were lower-level judges previously.  But unless there's some special reason to get them involved, I would generally prefer that judges on the appellate courts stick to deciding cases rather than getting personally involved in advancing a criminal prosecution.

(Judge Berzon's reference to a "judge" on the California Court of Appeal is technically accurate, though the preferred term is "justice".  Just like you could call Justice Scalia a "judge" (since he is one), but might want to use the term "justice" instead.  At least that's better than the United States' brief in a related case.  Which referred to Justice Turner as sitting on the California Court of Appeals.)

Beeman v. Anthem Prescription Management (9th Cir. - June 6, 2012)

I don't recall seeing a Ninth Circuit case previously in which it has granted en banc review for the sole purpose of certifying the case to a state court.  But that's what the Ninth Circuit does here.

It also makes sense to me.  I agree that forum-shopping and comity concerns seem to militate strongly in favor of certification here.  So I wouldn't dissent from this unanimous decision of the en banc court.

Mind you, that's not what the panel did.  It decided the merits.  But neither Judge Reinhardt or Betty Fletcher was on the en banc draw.  And while Judge Wardlaw was, she dissented on the panel, so she's pretty happy with the decision.

I think this is a good call.

Magness v. Superior Court (Cal. Supreme Ct. - June 7, 2012)

The California Supreme Court is very bright.  Though it might want to brush up a little bit on physics.

It holds today that in order to count as "burglary" some part of your body or tool or something from the outside has to actually enter the building.  We'll call that the "air space" test (for lack of a better term).  It's not enough that you "break" (e.g., open a door) a residence.  You've also got to "enter."  The classic definition of "breaking and entering."  Your entry doesn't have to be much.  Just the tiniest little bit counts.  Either of a part of you or of something else.  Something from the "outside" of the building.  But when nothing from the outside comes in, you haven't entered, so it's not burglary.

I agree.

That's admittedly a somewhat artificial test.  It means, for example, that when you open a door that opens out you haven't committed burglary (because your hand never entered) but when you open a door that opens in you have.  But I agree with Justice Liu when he says -- responding to a different hypothetical -- that just because lines may be somewhat arbitrary doesn't mean they're wrong.  We have lines because they roughly approximate our values and diminish uncertainty and transaction costs.  That they're only approximate doesn't negate their validity.

So I agree with the test the California Supreme Court adopts.  As do all the justices.  The opinion is unanimous.

But I nonetheless must take issue with two components of the opinion.

First, Justice Liu discusses a couple of cases in which someone broke down a door with their foot and was convicted of burglary and says that those opinions are correct because it's reasonable to conclude that if you do so some portion of your foot entered the building on the follow-through.  That may well be wrong, for two reasons, one of which is doctrinal and the other of which is factual.

Doctrinally, the opinions in those underlying cases affirmed the conviction even though the prosecutor argued (and the court agreed) that even if the foot didn't enter the building it was still burglary because the door did.  Justice Liu rightly holds that the latter theory doesn't work, but that the former does, and says that since the former works, the conviction stands.  But if there are two theories presented at trial and allowed to go to the jury, and one is legally insufficient, that makes the conviction improper -- not proper -- since you can't tell which one the jury bought.  So those cases should come out the other way as a matter of law.

Moreover, factually, it's simply untrue that when you kick in a door -- or use another object to bust it open -- your foot enters at least a portion of the residence on the follow-through.  Not if you do it the right, and most effective, way.  Physics teaches us that you get more power off of recoil than you do with follow-through.  That's why solar sails, for example, are reflective.  And why tanks are covered with collapsing material and cars have crumple zones.  The right way to bust down a door is not to go hog wild with the follow through but to have your foot (or battering ram) bounce off the door, thereby maximizing force.  So you don't enter the residence at all.  You hit it, bounce off, and stay outside the residence at all times.  (Sure, there's necessarily a nanometer or whatever of compression, but that's no more "entering" than is a polite knock on the door:  compression remains on the "outside.")  So it's not like you can say that kicking a door down necessarily (or even generally) enters.  You've got to have some evidence that there was actually entry.  Not mere speculation that the defendant probably did it the wrong way.

So that's my first physics lesson for the day.  From a guy who last took it twenty five years ago.

My second piece of physics advice relates to the application of the Court's principle to the case at hand.  The defendant here was charged with burglary when he used a remote control to open the garage door of the residence (but was run off by the homeowner before he physically entered).  The Court holds that on no version of the facts did anything from the outside actually enter any portion of the residence -- even though a body part or tool or anything else from the outside would count -- and so the defendant categorically can't be charged with burglary.

Even though I agree with the test, I'm not so sure that's right.

The Court's right that the guy himself didn't enter, nor did a lockpick or anything else.  But I'm pretty certain that one thing from the outside did enter the garage, and directly resulted in the opening of the door:  the radio or surface acoustic wave from the remote control.

Virtually all garage door remote receivers are located inside the garage; i.e., inside the residence.  The defendant deliberately used the remote to transmit an electronic wave inside the residence in order to affect his break.  The wave entered.  The wave resulted in the break.  Isn't that just as much of an entry as a lockpick or the sole of a shoe?  Why isn't that sufficient?

You might perhaps articulate a theory that electronic entries are categorically different.  But I'm not sure such a position would be tenable.  And at the very least, you'd have to articulate the theory.  Not merely assume without deciding that it's true, which is what the California Supreme Court does here.

any set of facts that might suffice, the indictment stands, right?  The facts here might indeed be sufficient.

And even if I'm wrong, isn't the California Supreme Court simply wrong to say -- as it expressly does -- that "[o]n these facts, defendant may be charged with attempted burglary, but he cannot be charged with a completed burglary."  Seems to me the most it can say is that the can't be charged with a completed burglary unless the electronic entry was sufficient, in which case he can.  So you'd either have to (1) decide the issue, or -- more likely -- remand to the lower court for a determination.  Rather than do what the Court here does and dismiss the indictment entirely.

So I like what the Court does here.  It's smart.

But I think it could be smarter.

Sourcecorp v. Shill (Cal. Ct. App. - June 6, 2012)

Steven Shill is a debtor against whom a multi-million dollar judgment for fraud has been entered and who's trying to shield his assets from collection.

Nice last name. 

M.M. v. Lafayette School District (9th Cir. - June 6, 2012)

This is an otherwise unremarkable opinion.  But it -- like the other Ninth Circuit opinion this morning -- contains a new "Summary" section that looks very much like the "Syllabus" in opinions of the United States Suprme Court.  So this may perhaps be a continuing feature.

I initially intended to make no comments about the new section.  Personally, I don't ever read syllabi in Supreme Court opinions -- I find them generally unhelpful and duplicative -- so my sense what that these sections aren't really for people like me who actually read the opinions.  At the same time, I understand that people don't always get to read an entire opinion, so sometimes summaries are helpful.  That's a tiny part of what this blog does, after all.  So I certainly understand the sentiment behind including a section that purports to summarize the opinion.

I'll just make two comments.  First, if the Ninth Circuit is going to do something like this -- and I have a vague recollection of something like this being a part of slip opinions when I was clerking -- then it should probably include a footnote of the sort that the Supreme Court drops that makes clear that the sumamry isn't part of the opinion and can't be relied upon or cited.  I've seen briefs and student papers that cite West headnotes (sadly).  This looks even more official.  Shouldn't be cited or relied upon, and no harm in reminding everyone of that.

Second, the person(s) responsible need to do their absolute best in the summaries.  Most of the time the summary is essentially lifting sentences from the opinion, which is fine (though, again, the value of doing so does not seem especially high to me).  But other times portions of the summaries just seem weird.  To take but one example, this one ends by saying "The judgment of the district court had to be affirmed."  That's just a weird way of saying it.  Plus, it's not even really what the opinion said.  Judge Callahan just said she was affirming.  Not that she "had" to affirm, or did so reluctantly.  Just affirmed.

Ditto for some of the "headnote" markings that are part of the summary.  For example:  "[3] Several cases indicate that a party may not proceed as an aggrieved party under the statute until a final decision has been issued following a due process hearing. [4] The Supreme Court has also used language that suggests that a party in an IDEA case must wait for the final decision following the due process hearing before filing suit in district court."  These don't seem like separate headnotes to me; the court's just citing and discussing cases for an underlying proposition.  Looks weird.

Admittedly, lots of this might best be viewed as a matter of personal style and taste.  Which is why I initially thought I'd refrain from saying anything.  Plus, I'm extremely confident that the people who are doing this are doing their absolute best.  (Though that rarely stops me from making constructive, or sometimes even not so constructive, critiques.)

But if I'm going to have to jump over a dozen or so pages of Ninth Circuit opinions every day from now on, I figured I should at least say a brief word about the appearance of the summaries on the web versions of the opinions.  Then I can be silent for the duration.

Which is my plan.

People v. Mason (Cal. Ct. App. - June 5, 2012)

I appreciate the fact that appointed counsel have to raise on appeal (and the Court of Appeal has to decide) any nonfrivolous argument in favor of the criminal defendant.  It's a worthwhile rule.

But this opinion begins:  "Defendant Jeffrey Allen Mason was convicted of residential burglary and sentenced to life in prison. On appeal he challenges a $129.75 '[c]riminal justice fee' the court ordered him to pay to the City of Sunnyvale pursuant to Government Code section 29550.1."

Which makes me think:  "Seriously?!  Life in prison and the only thing we're briefing is a $130 fee he's never going to pay anyway?"  A fee that's also totally swamped by the cost of briefing and deciding the issue.

Were one designing a criminal justice system from scratch, it seems to me one might want to create some sort of exception for issues like this.  Ones that might well not be worth the transaction cost to litigate.

Perry v. Brown (9th Cir. - June 5, 2012)

It says a fair piece when the dissent from the denial of the petition for rehearing en banc of one of the most high-profile opinions of the Ninth Circuit in the last decade (1) contains only three paragraphs, and (2) has only three judges sign onto it.

Suever v. Connell (9th Cir. - June 4, 2012)

Recusal's a funny thing.  Judges are generally really, really careful about making sure that there's no actual or perceived impropriety resulting from their participation in a case.  Especially federal judges.  Judges usually go out of their way to make sure that their financial self-interest doesn't even arguably affect the outcome of a case.

This is often a huge pain.  Witness recusals in the Supreme Court.  Own one share of stock in a publicly-traded company that's a litigant?  Recused.  Participate minimally (or merely formally, like having your name on a brief) in defending a statute when you were a federal official before you were confirmed?  Recused.  Recusals like these sometimes mean that decisions are 4-4 and have to be reheard again, years later, with the resulting cost in the meantime.  Moreover, these recusals are generally for things that no one in their right mind would think would actually change a judge's vote.  Is X really going to decide Y because s/he owns some stock and might potentially see an insubstantial upswing in a stock price?  No.  Not on the level we're typically talking about (e.g., pennies).  This recusal practice also imposes costs.  Money gets put in a blind trust in order to avoid recusal even though the individual prefers to actively manage it.  Spouses have to be told where they can or can't put their money, or when they have to dump it.  That's a pain.

That's not to say there aren't some cases where recusal for financial self-interest isn't warranted.  There surely are.  We're rightly worried about judges taking bribes.  Either under the table or (via self-interest) over it.  As a result, it doesn't especially bother me when judges are overly recusal-oriented (as I think they are).  Often, it's a nice thing to see.  I think of it as a sort of tip-of-the-hat to the importance of impartiality.  The recusal itself is meaningless, because no one would actually think that staying on the case would matter.  But taking one's self off the case is a way of saying:  "We care about these things.  So I'm going to take myself off just to reaffirm that message."  Most every recusal is thus effectively just wearing a yellow ribbon that says that the judge appreciates the importance of not selling a judicial vote.

That overly long prologue may help explain how I viewed Judge Dorothy Nelson's published order earlier today.

Judge Nelson got assigned to a panel in a case involving a putative class action about unclaimed property held by California.  She (or more likely, someone in her chambers) discovered that she, in fact, had some unclaimed property.  Probably by checking this site.  Which you should too.

As a result, she's part of the potential class.  So if she permits the class action to go forward, she might potentially get some money.  She accordingly has to decide whether to recuse herself.

This is a perfect example of what I'm talking about.  As I read her order, I said out loud:  "I bet she's got like $25 in there."  So I checked it out.  Bingo.  California's holding $25.56 in dividends from Southern California Edison that never made it to her.  (I'm omitting the link because it shows Judge Nelson's home address.)

The class action likely doesn't involve the actual $25 -- which Judge Nelson can get just by submitting a form -- but rather something like interest on this money or reinvestment or something like that.  So what's really at stake for Judge Nelson is probably something more like 75 cents or so.  I guess that in theory that might be enough to convince her to decide a case more favorably to the plaintiffs.  But come on.  She could get more money by simply looking through the cushions of her couch.  A lot more easily, I might add.

Judge Nelson presumably realizes all this, but she nonetheless remains financially self-interested in the outcome.  Which generally means recusing yourself.  Though that's a huge pain.  Especially when you realize that you're recused only after you've been assigned to the panel, drafted a disposition, prepared for the oral argument, etc.  Recusing yourself at that point requires a duplication of effort as someone else takes your place.  All over a paltry amount that won't actually matter.  It's silly.

So Judge Nelson doesn't recuse herself.  She instead publishes an order that says that she'll refuse to accept any benefits from the class action.  Thereby avoiding any self-interest.

Problem solved.

As I said, in my mind, there's in fact no actual problem to solve.  Nonetheless, for symbolic as well as bright-line rule reasons, I get (and appreciate) what Judge Nelson does.  It makes sense to me.  Fine.  Appropriate.  Good job.

But if the truth be told, I don't think she had to do this.  And if she did have to do it, I'm not sure that what she does actually solves the problem.

Sure, giving up the benefits of a litigation effectively negates the monetary self-interest.  But you're still nominally a party since you're a member of the putative class.  Parties aren't supposed to be judges too, right?  So if we're talking about the need to enforce a bright-line rule, repudiating the proceeds doesn't solve the problem.  Just like it wouldn't solve the problem if Justice Breyer said "Yes, I own stock in X, but I agree to donate any appreciation in X's stock price on the day my decision about X is rendered to charity."  He'd still own stock and be formally recused notwithstanding that decision.

Similarly, even if financial self-interest wasn't at stake, you've still in part of the underlying transaction.  We can say (with confidence) that 75 cents won't swing your vote one way or another, and yet we still recuse.  I think there may be a similar -- or even greater -- problem with the fact that even if you don't have money at stake (any longer), you still had the events that are at issue in the lawsuit happen to you.  Once conduct that was directed at you is at issue, you're not longer merely a judge deciding a hypothetical case that involves a plethora of people you've never met and don't especially care about.  You're adjudicating a dispute that is in some ways personal.  The state took Judge Nelson's money.  The state didn't pay Judge Nelson interest (or whatever).  The state ripped her off.  You might well understand the recusal rules to say that it doesn't matter that you decline to accept the benefits of the lawsuit.  You nonetheless retain a stake in the litigation -- albeit a less concrete one -- because the lawsuit's about something that involved you personally.  Even if it involved thousands of other people as well.

You could see how this might matter, at least potentially.  The sting of having money "taken" from you might make you more pro-plaintiff.  You'll feel the loss greater.  "How dare they take money from me!"  "I can feel the plaintiff's pain; I didn't get the interest either."  A different judge might have the opposite reaction.  "This lawsuit is trivial.  It's 75 cents.  Not even worth getting, which I'll prove by giving up my stake.  It's just about lawyers getting money."  "This is bogus.  I never expected any interest, nor do I feel entitled to it.  I never even thought about this stuff."  The fact that a judge might have a personal reaction would persist even if the judge gave up the actual financial benefits.

This is theft, after all.  At least allegedly.  So maybe a judge would have a personal reaction.  Change the facts slightly and make the class action one about trespass.  X hacked into the e-mails of millions of people, including federal judges, and a class action is filed.  Y secretly deposited toxic chemicals on the lawns of everyone in Southern California, including federal judges, and another class action is filed.  We'd expect that a judge would recuse herself from both of these class actions even if she entered a published order that said she'd waive any financial benefits from the litigation.  We wouldn't want the fact that the judge was involved personally in the underlying events to potentially cloud things.  Ditto for a judge who had been mugged who is assigned to a panel reviewing the restitution order entered against the mugger.  That the judge agrees not to take a dime doesn't obviate the problem.  She's still involved in the underlying transaction.

Again, I don't think that any of this means that Judge Nelson should have recused herself.  Nor does it mean that what she did was wrong.  It may reaffirm that what she did was in fact unnecessary.  But we do lots of things that are unnecessary but nonetheless worth doing.  Holding doors open for other people springs to mind.  Gestures.  Like this one.  That are good.

But we shouldn't lose sight of what the rule should be in cases like this.  And, to me, the right rule relates to de minimus benefits or involvement.  Getting 75 cents is de minimus.  Ditto for $25.  Owning one (or even a thousand) shares of stock that might potentially benefit is generally de minimus.  Participating marginally in a formal capacity is de minimus.  Having your spouse be a conservative activist who's publicly against X is de minimus.

You can recuse yourself if you'd like.  It might even be a nice gesture.  But it's unnecessary, and especially when recusal imposes substantial costs, you might not want to do it.

I'll trust Judge Nelson to adjudicate this case fairly regardless of whether she'll pocket 75 cents either way.  So should everyone else.

Juror No. One vs. Superior Court (Cal. Ct. App. - May 31, 2012)

This sophisticated discussion (and accompanying litigation) would all be unnecessary if Juror Number One had followed the judge's instructions and refrained from posting comments about the pending trial on Facebook.

Remember that the next time you're on a jury.

Nordyke v. King (9th Cir. - June 1, 2012)

Sometimes cases end not with a bang, but with a whimper.  Even if they've lasted over a decade and have been repeatedly taken en banc.

Sometimes oral argument matters.  Especially when attorneys make concessions at oral argument.

This case exemplifies both of these propositions.

It's the Nordyke case, which involves gun shows at the government-owned Alameda County Fairground.  The case lawsuit was filed in the twentieth century.  It's been before the Ninth Circuit a plethora of times.  The Second Amendment -- or at least its interpretation in the federal courts -- has repeatedly changed during this period.  Time and time again the case gets decided, appealed, remanded, decided again, appealed again, remanded, etc.

But now it ends.

But it ends very simply.  Plaintiffs say that the relevant county ordinance prohibits gun shows.  But counsel for Alameda County says at oral argument before the en banc court that, no, our definitive interpretation of the statute now says that an (otherwise somewhat unclear) exception applies, which allows guns to be at the show as long as they're secured to a table.

I watched the entirety of the hour-long oral argument.  It was clear from that argument that this concession radically changed the case.  Before it was a straightforward (though tough) Second Amendment case about whether the government could ban gun sales on its property.  After the concession, it's about a much, much easier issue:  Whether it's a reasonable restriction to require that the guns be secured to a table or the like (by a cable) when they're not in the hands of a participant.  That issue, as opposed to the ban, is not very hard to decide; indeed, the en banc court resolves it (as well as ancillary issues) unanimously, at least with respect to the ultimate outcome.

No settlement, despite an order by the Ninth Circuit to go to mediation.  No attorney's fees, because the federal courts don't allow a catalyst theory.  (Though I wouldn't be surprised to see plaintiffs file a motion given their partial practical victory, it'll be denied.)  No grand Second Amendment holding.  Just a decision that, yeah, what the County now says seems reasonable.

There you have it.  Twelve-plus years.  Only to end a case with a partial concession.

Too bad it couldn't have come earlier, eh?