Tuesday, July 31, 2012

Seltzer v. Paul Revere Life Ins. Co. (9th Cir. - July 18, 2012)

I wouldn't have certified this question to the Arizona Supreme Court.

It's a fact-bound issue in a diversity case:  Whether, in this particular context, the relevant state statute of limitations commenced in the 1980s or instead when the plaintiff turned 65 in 2009.  That's important to the parties, but not to many other people.

Perhaps the Arizona authorities aren't totally clear as to the correct answer to the question.  But that's life.  Lots of appeals are like that.  The Ninth Circuit is just as good as the Arizona Supreme Court -- or at least nearly as good -- at giving it its best shot.

This is the kind of fact-bound case that, if I were on the Arizona Supreme Court, I'd almost certainly say doesn't deserve review.  Regardless of how it came out below.  Both sides have plausible arguments, the resolution of the issue doesn't affect many people besides the parties, and we're not talking about grand principles.  Let the Court of Appeals decide that one.  The state supreme court (hopefully) has better things to do.  Similarly, even if the Ninth Circuit gets it wrong, this is not a case where forum-shopping is a critical problem (or concern).  You don't have dozens of these types of cases coming up every year.

I can imagine strategic reasons why you might want to certify the question.  But from the standpoint of judicial efficiency, this is case that should be put to bed.  It's already been briefed in the Ninth Circuit.  Just decide the thing.  Don't boot it to the Arizona Supreme Court.

Especially when the issue is what disability benefits the plaintiff should receive.  He's 68 already, and not getting any younger.  Just decide the appeal and finish it.  One way or the other.

I like comity as much as the next person.  But I'm fairly confident that the Arizona Supreme Court has better things to do than resolve this appeal.

Monday, July 30, 2012

People v. Tully (Cal. Supreme Ct. - July 30, 2012)

There are four lessons one can glean from this case:

(1)  Good police work is awesome to see.  Check out pages 19 to 21.  Wonderful work by Officer Scott Trudeau, then of the Livermore Police Department.  Caught a killer, essentially on a "hunch" (as well as careful listening), long after the official investigation into the killing had gone nowhere.

(2)  Bad stories can kill you.  Literally.  Check out pages 9 to 11.  Defendant's story as to why he was not involved in the killing was absurd.  Just made him look bad.  Certainly didn't help him avoid the death penalty, and might have even contributed to it.

(3)  Patently improper arguments can be made even in high-profile death penalty cases.  Check out Justice Kennard's concurring opinion.  Are you kidding me?!  During the closing argument of the penalty phase of defendant's trial, the prosecutor had a large chart -- entitled "The Bible Sanctions Capital Punishment" -- and went on a long religious discourse (complete with quotations from the Bible) arguing that God wanted murderers sentenced to death.  The impropriety of this extensive discussion is manifestly obvious to me.  Sure, defendant's lawyer did not object, and responded by using this same line of argument to maintain that Buddhists didn't kill, that Jews only killed every 40 or 160 years, etc.  But that hardly makes things okay.  A jury's job is not to resolve religious conflicts about whether God wants the death penalty.  Even if such a "resolution" by a human factfinder would  somehow be possible.  I agree with the Court that this doesn't require reversal here, since there was no objection.  But it's a darn good ineffectiveness claim on habeas.

(4)  Last lesson:  Death penalty cases take a lot of the California Supreme Court's time.  Check out page 160 (!) of the majority opinion.  Not only for the fact that 159 pages precede it.  But also for the Court's mention that the reporter's transcript contains over 3,900 pages, the clerk's transcript is over 15,000 pages, the opening brief is 745 pages (!) and the reply brief 522 pages, and even the Attorney General's brief is 375 pages.  All for a killing that occurred over a quarter-century ago.  In an appeal that is the first of many, many proceedings.  State habeas, another state habeas, federal habeas, appeal to the Ninth Circuit, successive habeas, etc.  Lots and lots (and lots) of resources.

Fortunately we've got money to burn.

Friday, July 27, 2012

Castaneda v. Department of Corrections (Cal. Ct. App. - July 26, 2012)

I'll end the week with a story.  A story based on this opinion from earlier today.  I'll enhance some of the dialogue a little bit.  It's a screenplay, after all.  But all the facts are true:

Act I, Scene I:  "The Troubles"

Prison Doctor:  "What's the trouble?"
Prison Inmate:  "Well, Doc, it's like this.  To be honest, my penis hurts.  Plus, there's something growing on it."
Doctor:  "Hmm.  Let's see.  Whoa!  That thing's the wrong color.  And I can't really pull back the foreskin.  You sure you're okay?
Inmate:  "That's why I came to see you, Doc.  Can you help me?"
Doctor:  "Well, I'm not really excited to see, much less touch, that thing.  Tell you what.  Why don't you try not to use it for a while -- you're in prison, after all -- and come back in three weeks.  We'll see if it's like a chameleon and changes color again."
Inmate:  "Seriously?"
Doctor:  "Yes.  Oh, yeah,  Maybe I'll eventually get you circumcised.  Never too late, you know.  Next patient, please."

Act I, Scene II:  "The Troubles (I'm Serious)"  Three weeks later:

Doctor:  "Ah, welcome back.  If it isn't Mr. Penis."
Inmate:  "I wish you'd give me a better nickname."
Doctor:  "Just having a little fun.  Let's take a look again and . . . . whoa!!  What the hell?  That thing smells!  Plus there's that gross discharge!  Yuk!"
Inmate:  "Yes.  I know.  I'm familiar with its problems.  It's attached, after all.  Help me, please."
Doctor:  "Okay.  But, to be honest, I'm a prison doctor.  I don't specialize in penises.  We call those special people urologists.  But I'm worried this might be cancer.  Of the penis."
Inmate:  "Oh my God!"
Doctor:  "Don't worry.  We can go ahead and order tests.  That way we can figure out what to do."
Inmate:  "God, yes.  Please.  This is one of my favorite body parts."
Doctor:  "I hear you.  Okay.  I just have to fill out this test request.  Let's see.  There are three boxes, and I've got to fill out one of 'em.  One says "Emergency."  One says "Urgent."  One says "Routine."  Hmmm.  Painful penis, discoloration, discharge, growth, potential cancer.  Got it!  I'll just check . . . 'Routine'.  Which means, under state policy, that we'll conduct the test in a couple of months or so.  No ore than three.  Cancer's not really that serious, after all.  Especially on . . . ."
Inmate:  "Ugh.  I assume a second opinion's out of the question."
Doctor:  "See these bars and guard towers?  That a good enough answer for you?  Next patient, please."

Act I, Scene III:  "Not My Problem"

The test request then gets routed to the Chief Medical Officer for the prison.  Who read the form and rules:  "Request for testing denied."  Why?  Because Prison Inmate's about to be transferred to a new prison.  It's their problem, now.  They can inspect the problem penis and deal with it.  Enjoy.

Act II:  "It Lives (Or At Least Moves)"

So now, several months later, Prison Inmate arrives in San Diego.  Albeit in prison.  Sunshine.  Nicer climate.  And slightly better medical care.  His penis gets the once-over from a nurse practitioner who says that, in her experience, "That ain't right."  Lesions.  Possible cancer.  Get it tested.

So the nurse orders him to go to a urology clinic.  In two months.

Okay.  Finally.  It's taken months, but this incredible growing penis problem is about to be solved.  At long last, an appointment with a prison urologist on March 29.

Three days before the appointment, however, the state transfers him to federal authorities -- ICE -- for deportation.  So they cancel his appointment.

Act III:  "Release (Not In A Good Way)"

I can't relay what happens in federal custody with ICE, but assume that the medical care there is stellar.  (*Sarcasm alert*)  Finally, around a year later, he's released from federal custody.  At which point he's finally -- finally -- free to choose a doctor and get his penis treated.

Nine days after being released, he gets diagnosed by Harbor-UCLA Medical Center.  Yep, it's cancer.  And it has spread.

They do the only thing they can do.  They cut off his penis.

Act IV:  "Bye, Bye, Birdy"

For naught.  He lives as a eunuch for a year, and then dies.  They say from cancer.  But I say from a broken heart as well.

Act V:  "The Lawsuit"

Days before he dies, Prison Inmate -- his name was Francisco Castaneda -- sues the Department of Corrections.  His wife also sues for loss of consortium.  He gets to trial.  The jury returns a verdict.  Awarding $1.5 million to Castaneda's estate and a quarter-million to his wife.

Act VI:  "The End"

The case gets to the Court of Appeal.  Judgments reversed.  Judgments entered for defendants.


Personally, I'm thinking Danny Trejo to play Castaneda.  Maybe Charlie Sheen plays the penis.

"We'd like to thank the Academy, and especially our incredible screenwriter, Professor Martin, for these Oscars.  Best Actor and Best Supporting Member.  Wow."

We can dream, can't we?

A dream with, at this point, just as much reality as the Castaneda's judgment.

Enjoy the weekend.

Thursday, July 26, 2012

Latif v. Holder (9th Cir. - July 26, 2012)

What do you do if you're on the no-fly list but you think you shouldn't be?

That's a fairly substantial question.  Not for those of us off the list, obviously.  But for those on it, it's huge.  Imagine not being able to fly.  At all.  That's a big deal.

Congress has set up a procedure to deal with this problem.  Basically, after you're denied boarding, you write a letter saying that you don't think you should be on the list.  Then the FBI, through one of its many agencies, will check out your letter and the list and decide whether they feel like granting you relief.

If it's an obvious mistake, presumably, they'll correct the problem.  But lots of times -- including with every one of the plaintiffs in this case -- they just send you a letter.  A letter that says, essentially:  "We are not going to tell you whether you're on the list or off the list.  But we've done whatever we feel like doing.  Have a nice day."

So plaintiffs here sue.  Raising procedural challenges -- e.g.,"Come on, you've got to let us at least challenge our inclusion on the list, including at least telling us whether we're in fact on it or not" -- as well as (most likely) substantive ones (i.e., "Remove us from the list.").

The resulting fight in the Ninth Circuit largely revolves around procedural questions.  First, did the plaintiffs make a substantive challenge?  Footnote five of the opinion calls the complaint "far from a model pleading" on this point.  But to get a true tenor of what the panel means by this, listen to the oral argument.  To say that both sides -- especially the government -- get beat up by the panel is to radically understate the case.  Whew.  Glad that wasn't me.  Brutal.

But the larger issue is whether, under the statute, the case belongs in the district court or must be brought directly in the Court of Appeals.  The court below held the latter, thereby dismissing the case for want of jurisdiction, and the Ninth Circuit reverses.

The most interesting substantive portion of the Ninth Circuit's opinion is the first sentence of its final paragraph, in which the panel says:  "At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No-Fly List?"  When I read this, I too was shocked by this preparatory oversight.  How could the DOJ attorney not have a ready answer to such an obvious question?

But I got to tell you:  I'm not sure this is a completely fair recitation of the oral argument.  The DOJ attorney did indeed get beat up on a ton of points.  Especially with respect to questions about the operative complaint.  Ouch.  On that, the DOJ lawyer was clearly fighting a losing battle, and not only did it show, but Judge Kozinski (in particular) wasn't shy about saying so in particularly unreserved language.

But as to the proper procedure, I thought that the DOJ lawyer did indeed answer the question, and did so in a straightforward fashion.  He said:  "Under the statute, you get your letter, and within 60 days you file an action in the Court of Appeal.  Just like you do so to challenge many other administrative decisions."

That's an answer.  Maybe it's right.  Maybe it's wrong.  But it's not symptomatic of being "stymied" by the question.  Could the DOJ lawyer have perhaps gotten their a bit more clearly?  Maybe.  But truth be told, it came out pretty quickly and forthrightly.  Especially since the procedural nature of this case doesn't really raise this precise issue.

Now, at oral argument, the panel did a pretty good job of identifying some of the problems with that answer.  For example, what's the record, beyond the mere letter that (essentially) says nothing.  The DOJ attorney (Joshua Waldman) doesn't have great answers to that question -- he says that maybe there will be in camera submissions or something like that -- and those answers aren't especially strong.

But the truth of the matter is, if he was honest, Mr. Waldman's most accurate response might well be:  "I know you don't have witness boxes and the like, Judge Kozinski, so I'm sure it will be a hassle for you to have original jurisdiction, but that's what Congress wants.  Even if its a stupid idea, Congress is entitled to pass stupid jurisdictional rules (and often does)."  You could see why he might not want to make such a statement, however accurate.  (Were I the DOJ lawyer, by the way, I would have something like said:  "This is the same problem the United States Supreme Court faces in analogous cases in which Congress has granted them original jurisdiction.  Maybe you appoint a special master, like they do.  It's as workable in the Court of Appeals -- perhaps even more so -- than in the Supreme Court.").

Nonetheless, you see where the panel's coming from.  We can all imagine ourselves, in a parallel universe, on the no-fly list.  And it just doesn't seem like a tenable situation to have the United States say:  "If you're on the list, even if we're wrong, there's nothing you can do about it.  We're in charge."

Some people might effectively support such a position.  But you can see why lawyers and judges, especially those concerned about individual liberties -- even in a time of (unending) war -- might perhaps find such an answer unconvincing.

California Communities Against Toxics v. EPA (9th Cir. - July 26, 2012)

Count me as someone who agrees with the Ninth Circuit in this case that the appropriate remedy is to remand the case (as both parties recognize) but not vacate the EPA's rule in the interim.  Exactly right.

I'm not, however, similarly on board for the panel's blithe statement in the final paragraph of the opinion that saving an endangered animal species is morally equivalent to helping a new power plant come online a couple of years earlier.  The former is a species, and is irreversible.  Forever.  Whereas the latter is a machine, and while such a machine may well be important, the "risk of blackouts" for a brief period -- even if it exists -- simply lacks the gravity of the destruction of an entire species.

I'll hand it to the panel -- Judges Kozinski, Trott and Thomas -- for being honest and forthright about their policy preferences.  I just don't share them.

Doesn't matter in the present case.  Except attitudinally.

Wednesday, July 25, 2012

In Re Tapia (Cal. Ct. App. - July 18, 2012)

This seems right to me.

There may well be some people who think that Alex Tapia has served his time -- almost twenty years in prison -- for attempting to kill Salvador Vega, and so deserves parole.  And Tapia has indeed done great things in prison, and with only a minor disciplinary infraction (possession of alcohol) back in 1999.  So you can see why some people might think he's not a danger; indeed, everyone seems to concede that he's on the low end of that scale.

But I agree with the Court of Appeal that there's at least "some" evidence to support the Board of Parole Hearing's decision to deny parole.  It's a rational choice.  Within very loose bounds, its the Board's call.  And this one doesn't exceed their discretion.  So the trial court's decision to the contrary gets reversed.

Someday Tapia will get out of prison.  But not today.

Tuesday, July 24, 2012

Pacific Ship Repair v. OWCP (9th Cir. - July 24, 2012)

Judge McKeown begins this opinon by saying:

"The meaning of 'permanent' appears, at first blush, to be clear. But just as a museum’s permanent collection does not mean the works will stay in the collection for posterity and a permanent hair wave does not last a lifetime, neither does the term permanent necessarily mean forever. The word permanent takes on meaning in context and, in this case, within a statutory framework."

As we used to say in the 80s, using a phrase that seems quite well-suited to this textual analysis:

People v. McKee (Cal. Ct. App. - June 24, 2012)

When you read old cases -- and I mean, really old cases, like from the early 1800s -- you're often struck by how oddness of the reasoning.  This is especially true when the opinion concerns issues that have seen a sea change in the intervening years.

Read a cases about slavery, women, children or the mentally ill from the 1800s and you'll easily see what I mean.  It's not that the reasoning is internally inconsistent.  It's instead that the predicate assumptions, as well as the mode of analysis, is just so obviously antiquated to contemporary, more informed readers.  Yeah, everything the author says is "right," from a certain point of view as expressed by those living in the relevant era.  But, for future readers, the analysis and reasoning is just bizarre.  You sometimes leave those cases thinking:  "How could anyone think that?"  Even though,at the time the opinion was written, the vast majority of everyone thought precisely that.  So it was a "good" opinion for the time, despite the fact that it was (to modern eyes) clearly absurd.

I had these thoughts when I read this opinion by Justice McDonald.  Everything he says is right.  His analysis is spot on to contemporary eyes.

But I have a sneaking suspicion -- based on nothing more than history and intuition -- that we'll at some point view opinions like this one in a very unfavorable way.

I feel confident that our opinions about mental health, and sexually violent offenders, will change over time.  These views have changed a lot over the past century.  I have a strong feeling they'll continue to change.  And that the type of psychological and social analysis displayed here will not survive the test of time.  Or be viewed charitably thereafter.

Which is, again, not to say that the opinion is wrong.  It is what it is.

As with many things, ultimately, history is the final arbiter.

Monday, July 23, 2012

Chula Vista v. Gutierrez (Cal. Ct. App. - July 3, 2012)

Who's going to agree to serve as a receiver when you're (not) paid like this?

Not me, that's for sure.

(And don't think that the hypothetical prospect for being paid by the City -- as opposed by the Bank [which indisputably benefited from the receiver's services] -- will be sufficient.  Good luck with that.)

Friday, July 20, 2012

Baughman v. Walt Disney World Co. (9th Cir. - July 18, 2012)

Chief Judge Kozinski begins this opinion with:  "Segways at Disneyland?  Could happen."  And then proceeds, in classic Kozinski fashion, to (1) compliment (Roy) Disney, and (2) repeatedly insult Disney's lawyer.  See, e.g., Opinion at 8 ("We are disappointed to see such a retrograde position taken by a company whose reputation is built on service to the public.") & 13 ("Disney's other arguments that the regulation is invalid border on the absurd.").

Couldn't be written by anyone else.

P.S. - Personally, I might not second Judge Kozinski's assertion that Roy (and Disneyland) were innovators in service to the public and way ahead of the social curve.  Don't forget that this was the same place that didn't allow its employees to have any facial hair for decades -- too "hippy" (not even mustaches like Roy himself!) -- and still doesn't allow soul patches, beards longer than a quarter of an inch, visible tattoos, "extreme" hairstyles or colors, or body piercings (other than pierced ears for women).  Maybe one could call enforced conformity amongst employees "service" -- in the same way that Hooters employs the term -- but I'm not really sure that Disney "leads the way" in the manner we usually think about when we use that term.

Thursday, July 19, 2012

People v. Lara (Cal. Supreme Ct. - July 19, 2012)

I figure that I must be in a good mood today.  I reach that conclusion based upon wholly objective indicia.  In particular, earlier today, I read this opinion by Justice Willhite, and thought:  "Wow.  That's a wonderfully written opinion.  It's not only correct, but the sentences are crisp, concise and clear.  Well done."

This does not mean that I must be in a good mood because everything that Justice Willhite writes is, in fact, utter crap.  Far from it.  But I usually don't have that reaction to someone's writing, so it's somewhat unusual.

Still, that wouldn't be sufficient to convince me that I was in a state of 46-year old euphoria.  But right after I read Justice Willhite's opinion, I read this one -- which also came out earlier today -- from Justice Werdegar and had the very same reaction.  What are the odds that two incredibly well-written opinions would just so happen to be issued on the same day?  Surely, it can't be the California judiciary.  It must be me.

But then I got to footnote 9 of Justice Werdegar's opinion.  At which point I realized that, no, it wasn't me.  I'm my usual self.  Because that's when the following thought crossed my mind:  "This sucks."

Not the overall opinion, mind you.  That's still really good.  Just the footnote.  Inexplicably, in the middle of an otherwise very good (and, again, correct) opinion, there's this huge stinker of an argument.  Something that's just flatly wrong.

The central issue in the case involves a straightforward statutory construction issue.  The Legislature passed a statute -- designed to cut down on prison overcrowding (and save $) -- that says that most prisoners are entitled to good conduct credits while in prison if they behave themselves, but that various inmates (e.g., sex offenders) can't.  Simple enough.  The complexity is that there's a different statute -- one that we use all the time -- that allows courts to "strike" various counts and/or allegations of a criminal complaint "in the interest of justice."  Courts use that latter statute all the time to avoid the Three Strikes laws, enhancements, etc.

So the simple question is:  Can courts do the same thing with respect to the good conduct provisions?  For example, here, the defendant had been previously convicted of burglary.  But when it sentenced him, the Court struck that provision (pursuant to its discretion) "in the interests of justice," which it was indisputably entitled to do.  That same prior conviction, however, bars the defendant from getting good time credits.  Is the court empowered to strike that prior conviction for good time credit purposes as well?

The California Supreme Court unanimously holds that the two situations are different.  And I think that's right.  Sentencing is different than good time credits.  There's lots of judicial involvement in the former, and little in the latter.  When the Legislature says that people with X can't get good time credits, courts don't have the power "in the interests of justice" to say that a defendant doesn't have X when he really does.  Is there a tolerable argument to the contrary?  Sure.  But I think the better view, consistent with principles of statutory construction as well as institutional responsibility, is the one articulated by Justice Werdegar.

So given that I pretty much agree with everything Justice Werdegar says, what's my problem with footnote nine?

Rather than describe what she says there, I'll just quote it in full:

"Today local prisoners may earn day-for-day credit without regard to their prior convictions. (See § 4019, subds. (b), (c) & (f), as amended by Stats. 2011, ch. 15, § 482.) This favorable change in the law does not benefit defendant because it expressly applies only to prisoners who are confined to a local custodial facility 'for a crime committed on or after October 1, 2011.' (§ 4019, subd. (h), italics added.)

Defendant argues the Legislature denied equal protection (see U.S. Const., 14th Amend.; Cal. Const., art. I, § 7) by making this change in the law expressly prospective. We recently rejected a similar argument in People v. Brown (2012) 54 Cal.4th 314, 328-330 (Brown).) As we there explained, 'the obvious purpose' of a law increasing conduct credits 'is to affect the behavior of inmates by providing them with incentives to engage in productive work and maintain good conduct while they are in prison.' This incentive purpose has no meaning if an inmate is unaware of it. The very concept demands prospective application.' (Brown, at p. 329, quoting In re Strick (1983) 148 Cal.App.3d 906, 913.) Accordingly, prisoners who serve their pretrial detention before such a law's effective date, and those who serve their detention thereafter, are not similarly situated with respect to the law's purpose. (Brown, at pp. 328-329.)"

On first glance, I thought that footnote made sense.  But something about it struck me as funny, so I read it again.  At which point I concluded that it couldn't be more wrong.

It's not that the result is wrong.  It isn't.  Any date limitation is inherently arbitrary.  The Legislature wanted to further ease overcrowding (and, again, save $), but it only wanted to free so many people.  So it decided to free those who committed future crimes rather than those serving time for past crimes.  Some decisions in this regard would violate equal protection; e.g., releasing only people with last names starting with A through L.  But the time limitation imposed by the statute isn't like that.  It satisfies the rational basis test -- a test that is not very onerous at all.

So I agree with where the Court comes out.  But not for the reason it provides.  A reason that is flatly inapplicable.

It's true that it giving good conduct credits for people who had already served their time wouldn't serve the legislative purpose of encouraging good conduct for precisely the reason that Justice Werdegar identifies; i.e., they didn't know about the statute when they decided to be good.  But that's not what the statute does.  The statute doesn't say you don't get good conduct credits for time you already served.  It instead says that even if you're still in prison, and even if giving you future good conduct credits for time you spend in prison in the future would encourage you to be good, we're not going to give them to you if you committed your crime prior to October 1, 2011.  That's the potential equal protection violation.  That's why the statute is arguably irrational:  because it makes no sense to say that the guy in the next cell --who was convicted of the exact same offense as you were -- is entitled to get credit for being good but you are not.  Contrary to Justice Werdegar's assertion, the incentive effects apply equally in both cases, to people committing offenses prior as well as subsequent to October 1, 2011.  So say otherwise -- that people still in prison can't have their conduct influenced by the statute -- is simply wrong.

Now, again, I think that the equal protection challenge likely fails on other grounds.  The Legislature might conceivably think, for example, that applying the statute only prospectively is a good idea not for incentive reasons, but rather to enable judges and prosecutors to know at the outset how much time the defendant will actually serve when deciding sentences and pleas.  That's at least a possible basis for deciding to do what the statute does, and that's enough under rational basis.  (I might add that, as a policy matter, it's somewhat bizarre to give people who commit future crimes good conduct credit but not those who committed past crimes; that seems to incentivize future crimes and diminish deterrence.  But that's up to the Legislature.  A potentially stupid statute is not an unconstitutional one.)

I still like this opinion.  But how something like the argument in footnote 9 garners the assent of all of the justices -- and presumably the chambers staff as well -- is beyond me.  Especially when its flaws seem so obvious (at least to me) even after only thirty seconds of reading it.

So I really think the court needs to revise footnote nine if it wants to be intellectually honest.  We'll see if that in fact matters.

I was worried that I was getting irrationally exuberant.  It's good to know that I'm instead as cranky at 46 as I was at 45.

Wednesday, July 18, 2012

Hester v. Vision Airlines (9th Cir. - July 18, 2012)

It's the summertime.  Few academic responsibilities apart from writing.  Living in San Diego, where the weather is perfect.  Staring at the wide Pacific Ocean.  Beautiful.  It's even my birthday -- and my son, Henry, turned three yesterday -- so life is wonderful.  That's my day today.

By contrast, let's see how the morning went for Vision Airlines and its Las Vegas attorney, Harold Gewerter.  Here's how the Ninth Circuit describes the case:

"Appellant Gerald Hester, a former pilot for Vision Airlines, sued Vision on behalf of a Class of other pilots and flight crew employees to recover “hazard pay,” which Hester and the Class alleged Vision had accepted on their behalf and never paid to them. After nearly two years of discovery disputes between Vision and the Class, the district court sanctioned Vision by striking its Answer, entered default judgment against Vision, and held a jury trial to determine damages.

Vision appeals, arguing (1) that the district court abused its discretion by striking Vision’s Answer, (2) that the claims in the Complaint are legally insufficient to support the default judgment, and (3) that the district court abused its discretion by certifying the Class. We reject Vision’s arguments and affirm those orders. The Class cross-appeals, arguing that the district court erred in dismissing, on the morning of trial, the Class’s claim for punitive damages. We agree and reverse the order dismissing the Class’s claim for punitive damages.

During the U.S. military occupation of Iraq and Afghanistan, the United States established an “air bridge” to deliver supplies through war zones to U.S. posts in Baghdad, Iraq, and Kabul, Afghanistan. The United States contracted with private airlines to deliver supplies to those posts, and it provided “hazard pay” for the pilots and crew members of those airlines.

In 2004, the United States contracted with Capital Aviation to provide bi-weekly flights to Baghdad and Kabul. The contract provided one set of funds for the flight services by Capital Aviation and another set of funds for the hazard pay for the pilots and crew members.

Pursuant to the contract, every pilot, first officer, and international relief officer was to receive $5000 in hazard pay per round-trip flight. Every other crew member on the flights, including attendants and mechanics, was to receive $3000 in hazard pay per round trip. The contract contained a “pass-through” provision to ensure that the hazard pay actually made it to the pilots and crew members who were risking their lives by transporting supplies through war zones. The pass-through provision required Capital Aviation to pass the hazard pay through to any subcontractors, who were also required to pass the hazard pay through to their employees without taking a cut for themselves.

Capital Aviation subcontracted with Vision Airlines to provide the flights to and from Baghdad and Kabul. For the average round-trip flight, Capital Aviation received from the United States $27,000 in hazard pay on behalf of the pilots and crew members. Capital Aviation then paid that full amount to Vision.

In the summer of 2005, at the beginning of Vision’s performance under the contract, Vision did pay some of the hazard pay to its pilots, but by August of that year, Vision stopped paying hazard pay to any of its employees, and it kept the money for its own benefit. In addition to ceasing its intermittent distribution of hazard pay, Vision also fired all pilots and crew members who knew about or had previously received hazard pay, and it replaced them with employees who were unaware that they were entitled to it."

Now, I'm no lawyer -- actually, I am -- but that seems like a darn good class action to me.  And from the way the Ninth Circuit's describing the case, I'm thinking that they may have the same reaction.  One that is not exactly in Vision's favor.  The Company seems . . . well, is "evil" too strong a word?

I need not describe the resulting years of discovery disputes in detail.  Which essentially amount to plaintiffs saying things like "Can I please have any documents that relate to hazard pay?" and defendants saying "I do not know what you're talking about."  Even though documents totally exist, the district judge starts realizing what's going on, and the result's exactly as the Ninth Circuit describes:  entry of default.  Read the opinion for more.  It's a study in how discovery should not be conducted.

Suffice it to say that the opinion holds not only the the entry of default was proper, but that the class was entitled to seek punitive damages, so it keeps its $5 million-plus judgment and gets to go after some more money in punitives on remand.

And then the Ninth Circuit ends the opinion with this paragraph:

"As a final note, based on the record before us, Harold Gewerter appears to have committed numerous ethical violations. We recommend that the district court, in the exercise of its discretion, report Mr. Gewerter to the state bar to determine whether disbarment or some other sanction is merited."

When the Ninth Circuit ends its opinion by suggesting not only sanctions, but your potential "disbarment," I think we can all agree that's not exactly a banner day.

For you, anyway.  Meanwhile, in San Diego, life is good.  Turning 46 is a lot better than watching a client get spanked for millions, face getting spanked for millions more, and contemplating being disbarred.

In Re Guardianship of Vaughn (Cal. Ct. App. - July 18, 2012)

Wouldn't it be cool if we could just live off the grid?  No job, no electricity, sleeping in tents in forests up in Humboldt County.  Living hand-to-mouth, smoking weed when we want/need it, just living life freely.  Isn't that awesome?

No.  Certainly not for our kids.

It's a tough case.  What do you do when the parents have made certain choices -- and are also constrained by circumstances -- that are really bad for their children, but nonetheless love them?  There's nothing that we would label classic "abuse" by the parents, but the kids are having a very rough go of it.  Moreover, there's an alternative:  the grandparents, in whose care the children thrive.

But that's not what their mother wants.  She's their parent.  She loves them.  She's not perfect, but then again, none of us are.  (Moreover, many of her imperfections are not her fault, though I think "fault" has little to do with the right choices in this area.)  What should we do with the kids?

A toughie for sure.

Tuesday, July 17, 2012

Goldstone v. County of Santa Cruz (Cal. Ct. App. - July 17, 2012)

Owner of mobilehome park:  "I know that the vote of the mobilehome owners in my park was 119 to 2 against converting the place, but really, the majority of people were actually in favor of converting, and besides, you're not allowed to consider what the residents want any way."

California Court of Appeal:  "Wrong."

Monday, July 16, 2012

U.S. v. Pariseau (9th Cir. - July 16, 2012)

Alaska's a beautiful place.  Cold.  But beautiful.

So there are definitely upsides of living there.  Cash, too:  No income tax and money from the state every year (from oil royalties).  Nice.

But there are some downsides too.  Even beyond the cold.  Lots of stuff is hard to get.  Needs to be imported into Alaska from other states.  Strawberries.  Peaches.  Things like that.

Oh, yeah.  And methamphetamine.

Poor Alaskans.  They have to get a portion of their methamphetamine imported from Arizona.  Including meth that's taped to the legs of a guy who has to change planes in Seattle and gets busted there.

Come on now, Alaskans.  There's got to be enough vacant (and/or government) land in Alaska to support a vibrant domestic meth manufacturing facility, no?

Something to work on in the future.  Let's apply that frontier spirit, eh?

People v. Riccardi (Cal. Supreme Ct. - July 16, 2012)

The unanimous opinion in this one is correct.  So is Chief Justice Cantil-Sakauye's concurrence (joined by three other justices).  So is Justice Liu's.  Everyone's right, even though they have starkly different things to say.

If I tell you that the opinions total 124 pages (!), you'll know what the opinion concerns.  That's right.  It's a death penalty case.  So we're talking about automatic review, over 15 years of delay -- the murder here occurred in over a quarter century ago (in 1983) and the death penalty was imposed in 1996 -- and a very high investment of resources.  Plus a horrible killing, this one involving a domestic violence victim who was terrorized by the defendant for a substantial period before he murdered her.  Terrible stuff.

But the underlying dispute is a relatively straightforward one, and one that's not unique to death penalty cases.  The Supreme Court holds X in a 5-4 opinion.  One year later, one of the justices that was in the majority in X has been replaced, and the Court takes and decides a new case, Y.  The facts of Y are slightly different than X, but the logic and rationale of X fairly clearly dictates that Y be decided the same way.  But we've got a new justice.  One who, quite frankly, would have joined the dissent in X.

The Court in Y does not feel like overruling X -- stare decisis and all -- but instead criticizes it and "limits it to its facts," holding that Y involves a different factual setting.  The four justices who were in the majority in X and who remain on the Court stridently dissent.  But the new five-justice majority holds that the rule in X only applies when the facts of X exist.

Fast-forward twenty-five years.  X and Y are still good law, though they're clearly in doctrinal tension.  In short, the distinction doesn't make sense.  But it nonetheless exists.  And the California Supreme Court gets a case that's pretty much identical to X.

The unanimous majority opinion holds that since the Supreme Court has decided X, and that's still good law, that's the relevant rule, and the court has to follow it.  That's right.

Chief Justice Cantil-Sakauye writes the majority opinion, but also authors a short concurrence as well -- one that's joined by the other conservative justices -- that says that X and Y don't make doctrinal sense; i.e., that they're inconsistent.  That's true too.  But that's what you get when you have a 5-4 decision and a Supreme Court that's (1) too concerned about stare decisis to forthrightly overrule the earlier case based solely on the replacement of one justice in the majority, but (2) not concerned about stare decisis enough to actually follow the earlier case in a new one.  And that hypothetical Supreme Court was exactly what we had when Justice Powell was replaced by Justice Kennedy.  It's also what we had in a ton of other situations as well, I might add.  In short:  That's the world in which we live.  But Chief Justice Cantil-Sakauye is correct that it doesn't make any sense.  (I'll leave for another day her implicit claim that the United States Supreme Court should grant certiorari in this case and overrule X.)

But Justice Liu is also correct.  He says that the courts have been able to easily deal with the cases that have arisen over the past twenty-five years, notwithstanding this doctrinal tension, by granting relief in X situations and denying relief in Y situations.  True true.  The dividing line between X and Y is fairly clear.  So we're not talking about big transaction costs (unlike some situations involving different precedent).  We're just dealing with a situation in which the distinction between X and Y doesn't make sense.  Which is bad, but we knew that when the Court first created the (silly) distinction when it decided Y.  No reason to take it up now.  (I'll again leave for another day Justice Liu's implicit claim that it'd be preferable to leave the rule as it is because if the conflict between X and Y were resolved by the current Supreme Court, it would almost certainly be resolved by overruling X, thereby resulting in a bad rule.)

Today's opinion involves the intersection of two flawed rules.  Both of which are motivated by good reasons but which nonetheless serve to make judicial resolution -- and justice -- suboptimal.  The first involves the application of stare decisis in a manner that facially preserves precedent but that "limits it to its facts."  The second involves the automatic direct review of death penalty cases by the California Supreme Court.

Everyone understands why those things happen.  But the result is far from pretty.

Friday, July 13, 2012

In Re O.P. (Cal. Ct. App. - July 13, 2012)


You'll rarely read a more strongly worded -- and powerful -- opinion than this one.

There are only a few opinions that make me think that I'm terrible as a writer.  This is one of them.

Well done, Justice Raye.

Dennis v. Berg (9th Cir. - July 13, 2012)

Here's a wide-ranging opinion that disapproves a class action settlement -- alongside the award of attorney's fees therein.  It should (and will) strike fear in the heart of class action attorneys who litigate in federal court.

It's not that Judge Trott's concerns are misdirected.  It's not that they're unprecedented.  But the truth is that the class action settlement here was better -- indeed, a lot better -- than many class action settlements that are routinely approved.  And still failed.  On appeal, no less.

If you're a consumer class action plaintiff's lawyer, that's scary.

Even in this particular case, the Ninth Circuit's holding isn't fatal.  The parties will have to rework their agreement, and be more specific in places.  But that's doable.  Plus, Judge Trott catches only some of the tricks used in these types of agreements; others get let go.  So, in the future, those will become even more pervasively employed.

The real losers here are plaintiffs' counsel.  They may well have to take a lower fee.  But, in the future, they'll just know that they'll have to churn the case.  Something that's hardly unprecedented anyway.  It's inefficient, to be sure, but it largely avoids the problem here.

I actually appreciate Judge Trott's inquiry here.  It's refreshing.  I'm not sure it gets to the heart of the problem, to be honest.  And it's got its downsides.

But it's a start.

Thursday, July 12, 2012

In Re ATM Fee Antitrust Litigation (9th Cir. - July 12, 2012)

Imagine that there's an illegal conspiracy to inflate the fees paid when a consumer uses an ATM machine owned by a different bank than the one in which the consumer holds an account.  Imagine also that one of these fees is technically paid by the card-issuing bank, but then is passed on to the consumer.  Finally, let's assume that these illegal fees amount to millions -- maybe hundreds of millions -- of dollars.

These are not, by the way, implausible assumptions.  At all.

Can you or I sue for the illegal antitrust conspiracy?

The Ninth Circuit holds we can't.  Nor can any of the other tens of millions of consumers injured by this illegal conspiracy to violate the Sherman Act.

We can't because we're "indirect purchasers" and it's plausible that the banks themselves -- the only ones with standing -- will sue.

Mind you, the conspiracy has been ongoing since the dawn of the twenty-first century, and many millions of dollars later, the banks still have not actually sued.  They're apparently just fine to pass on the costs to all of use, and we're happy to pay them.

But don't worry.  It's plausible that they'll sue.  And get the money back (and keep it for themselves).  And in the meantime, we get to keep paying the passed-on illegal fees.

Michelman v. Lincoln Ins. Co. (9th Cir. - July 12, 2012)

If you want to harken back to your first year of law school, and love reading a good interpleader case, here you go.

It's the story of a deceased child, a life insurance company, and ex-spouses who don't like each other.

What a way to start the morning.

Wednesday, July 11, 2012

SASCO v. Rosendin Electric, Inc. (Cal. Ct. App. - July 11, 2012)

As long as you hire good attorneys, there's no way you're going to get spanked for two attorney's fees awards of a half-million dollars each (in two different lawsuits) as a result of your decision to file a trade secrets lawsuit against a competitor that hired some of your employees, right?


Baseless litigation.  Subjective bad faith.  Ouch.

Tuesday, July 10, 2012

Melissa R. v. Superior Court (Cal. Ct. App. - July 10, 2012)

This is exactly what's wrong with textualism.

A California statute says that you don't have to be provided with full reunification services with your child if a previous child of yours was removed "pursuant to Section 361" and the court found that this prior removal was because you (essentially) didn't even try.  That provision makes sense.  The basic point of the statute is to say that we'll still give you a shot at getting your kid back, but we're not going to give you the full panoply of rights -- and keep the kid in additional limbo for years -- when it's fairly clear based on past experience that you're not going to do what's required to keep your child (e.g., stop shooting heroin and meth).
But what if your prior child was removed in a different state rather than California?  Is that a removal "pursuant to Section 361"?

The Court of Appeal here says, categorically, no.  Here's what Justice Margulies says:

"In our view the language of section 361.5 is clear and unambiguous, rendering it unnecessary to resort to any extrinsic aids.  The plain language of the statute is limited to cases involving the removal of a sibling or half sibling from the parent "pursuant to Section 361."  (Italics added.) The Legislature
did not include any language that would permit the extension of this provision to a circumstance in which a sibling was previously removed pursuant to the dependency law of another jurisdiction, whether or not that law is comparable to section 361.  It is undisputed here that a half sibling of C.R. was previously removed from Mother‘s custody pursuant to Wisconsin law, not pursuant to Section 361.  The clear language of section 361.5, subdivision (b)(10) does not apply to these facts."

With respect, I strongly disagree.

It's not that the phrase "pursuant to Section 361" doesn't have meaning.  It does.  But that language is in no way as categorically dispositive as the Court of Appeal frames it.

Imagine, for example, that Wisconsin has the exact same statute as California.  Even calls it the exact same thing:  "Section 361".  You mean to tell me that if the statutory scheme is identical, the judicial findings exactly the same, and the facts exactly on point, the statute requires a different result merely because the judge in one case was in California and the judge in another was in Wisconsin?  That's silly.  Both as a practical matter as well as an interpretive one.  It's not remotely what the Legislature would have envisioned.  (And, parenthetically, even if it did, I think such a statutory regime might well violate the Full Faith and Credit Clause.)

The whole "statute is unambiguous so that's the end of the matter" line simply doesn't work.  It's no different than if the Legislature had amended the statute so that the first child was taken away under "Section 360" -- a statute subsequently renumbered to 361.  Doesn't matter.  Same intent.  Same purpose.  Same result.  Purportedly "unambiguous" statute notwithstanding.

So the Scalia/Thomas-like analysis here is, I think, simply wrong.  Profoundly so.  To say that the mere fact that we're talking about an initial removal in Wisconsin makes the statute categorically inapplicable not only elevates form over substance, but does so both erroneously and perniciously.

That said, the Court of Appeal may perhaps reach the right result in this particular case.  Later on in the opinion, Justice Margulies argues that Wisconsin's statutory regime may contain provisions that are substantively different than California's.  So be it.  If Wisconsin doesn't have an analogue -- and a darn close one -- to Section 361, then that's indeed dispositive.

But that's the relevant question.  Not the mere fact that the removal was in Wisconsin rather than in California.

And yes, yes, I know that the Legislature could have easily said "a statute like Section 361" or something like that.  But guess what?  Sometimes the Legislature doesn't think of everything.  Or employs shorthand.  Or relies on -- wait for it -- the judiciary to employ common law construction.  How crazy is that?

Not very, in my view.  Not at all.

So I think this opinion makes a textbook (and serious) error.  But one that is, unfortunately, increasingly common.  Despite the fact that it may well reach the right result.

The only danger is that someone will actually believe what the Court of Appeal says and think that, yep, text like this is both unambiguous and categorically dispositive.

People v. Baker-Riley (Cal. Ct. App. - July 2, 2012)

Jesse Baker-Riley gets to remember for 35 years to life that things don't always go like they do in the movies:

"Peter Davis was at home with a friend, Dylan Baumann, when he heard a knock on the front door. Davis opened the door. Appellant and his cohort, the murder victim, Kelsea Alvarez, stood in the open doorway. Appellant pulled out a gun from under his shirt, "put it in [Davis's] face," and said, "You're fucked." The gun was approximately one foot away from Davis. Appellant and Alvarez entered the residence. Appellant demanded cash and marijuana.

Baumann said that he was leaving. Appellant replied: "No, I'm a fucking thug, I'm not fucking around. . . . I'll fucking make you paralyzed for the rest of your fucking life. I'll shoot your fucking kneecaps." When appellant said this, the barrel of his gun was "very close" to Baumann's knees. Appellant waved the gun "around" and pointed it at Baumann's head. At this point, the gun was less than three or four feet away from Baumann.

When appellant and Alvarez entered the residence, Davis and Baumann were eating. Appellant "proceeded to grab [Baumann's] food and eat it." "[H]e was laughing and pointing his gun at [Baumann's] head and eating [Baumann's] food." He asked Baumann if he had ever seen the movie, "Pulp Fiction." Baumann said he had not seen the movie. Appellant again started to laugh.
Appellant pointed his gun at Davis, ate some of Davis's food, and ordered him to open a fortune cookie. Appellant said, "Open that fucking cookie, . . . read that shit, . . . read it aloud." Davis opened the cookie and read the fortune. It said: "If opportunity comes, take it!" Appellant laughed and said he would take an opportunity.
Appellant pointed his gun at Davis and Baumann and ordered them to empty their pockets. They did as they were told. Appellant said, "I'll fucking kill. I'll fucking shoot you right now." Appellant was repeatedly "clicking his weapon, clicking the safety on and off." Baumann thought, "I can't believe I'm going to die and I haven't lived the life I want to fulfill."

Appellant then "said, 'Oh,' and he got all happy because he saw some cannabis drying on a string." The cannabis was in a back room. Appellant pointed his gun at Davis and ordered him to go into the room and sit on a bed. Davis sat on the bed and begged appellant not to kill him. Appellant did not respond to Davis's plea. Davis thought he was going to die.

Appellant turned around, and Davis grabbed his own handgun, which was "tucked in between the bed and the mattress." Davis stood up and fired four or five times at appellant. He missed appellant but one of the bullets penetrated the lungs of appellant's accomplice, Alvarez. He died from the wound. Appellant tried to fire back at Davis, but his gun jammed and would not fire."
So I guess it's sort of like that scene in Pulp Fiction.  Except that in the real-life version, the dude hiding in the bathroom doesn't miss.  So John Travolta dies earlier, and Samuel Jackson doesn't get to make his cool little speech.
P.S. - Check out footnote 3.  How you can fail to take the opportunity to explain Pulp Fiction to the jury is beyond me.  I've have tried to show 'em the whole thing.  Hoping that the judge was a big Tarantino fan.

Monday, July 09, 2012

People v. Stanley (Cal. Supreme Ct. - July 9, 2012)

When you buy a truck for its fair market value of $950, and two years later someone vandalizes it, it's not a "windfall" for the court to order the defendant to pay you over $2800 -- which was the estimate that you got to repair your $950 car.

So holds the California Supreme Court.  Unanimously.

Flores-Lopez v. Holder (9th Cir. - July 9, 2012)

We've got to resolve cases like this faster.

It's a immigration (removal) case.  The Petitioner (Flores-Lopez) resisted a police officer, and the question is whether that's a "crime of violence" that gets him deported.

The correct answer to that question is not crystal clear.  So it takes several hearings before the immigration judge, and two trips to the BIA, before we receive the BIA's final answer.  Those administrative proceedings last from 2007 to 2008.

The present appeal to the Ninth Circuit has an 08- docket number.  And gets resolved in the summer of 2012.

That's way too long.  Especially when, as here, the Ninth Circuit decides to remand to the BIA yet again.

I looked at the docket sheet.  The only marginal complexity in the case was a motion to remand -- a motion that was denied.  That shouldn't cause an immigration appeal to take nearly four years.

The delay was not largely the panel's fault.  The oral argument was in February 2012 and the opinion was issued in July 2012.  That's not an excessively long delay to craft a published opinion.

But the briefs were completed in February 2010.  Taking two additional years until oral argument for a case that has already been pending since 2008 is too much.  There's got to -- or at least should -- be a process in which cases with low docket numbers are expedited.  Especially when, as here, they're time-sensitive matters in which delay constitutes a substantial downside itself.

It's even worse in this particular case, because the Ninth Circuit ends up doing exactly what the United States asked it to do over three years ago when it filed a motion to remand the case to the BIA.  A motion that the Appellate Administrator denied and then the Motions Panel similarly denied.

Sometimes that happens.  Occasionally there's nothing one can do about that.

But one can try one's hardest to make sure that appeals don't linger for four years.  And that, sadly, did not happen here.

Thursday, July 05, 2012

Allgoewer v. City of Tracy (Cal. Ct. App. - July 5, 2012)

I don't even know how a trial court can make this error.

Plaintiffs in an excessive force case aren't required to introduce expert testimony.  Is such testimony admissible?  Sometimes.  Is it helpful?  Often.  But is it required?  No way.

The trial court thought otherwise, and granted a motion for nonsuit when the plaintiff wanted the jury to conclude that an officer shouldn't have knocked down and then tased the plaintiff for (allegedly) no real reason.  That's silly, as the Court of Appeal rightly holds.

Some things are permissibly within the lay expertise of juries in deciding what's reasonable.  This is one of them.

Back v. Sebelius (9th Cir. - July 5, 2012)

This opinion by Judge Fisher contains exactly the right tone and content.  It's the right result -- dismissing an appeal as moot.  But doing so nicely.

It's good to see judges remembering that appeals involve real people with real problems.  Even when you're not able to entirely solve them all the time.

Tuesday, July 03, 2012

Annachamy v. Holder (9th Cir. - July 3, 2012)

Imagine that there's a statute (which there is) that says that you can't get asylum if you've helped a terrorist organization in your home country.  Imagine further that you're an immigrant who one day indeed helped such a group, but who did so at gunpoint -- for example, you dug a ditch for them (or contributed $37), but did so only because they quite credibly threatened to kill you if you didn't do so.  This too is no hypothetical.  You can amp it up if you'd like; imagine that you refused to dig a ditch for them, but then they put a gun to your wife's head, you still refused, so they shot her dead, and then they put the gun to your daughter's head, so you dug the ditch.

Do you think the statute applies?  Are you still ineligible for asylum?

The Ninth Circuit holds that you are.

This seems a plausible reading of the statute.  As long as you're largely concerned only about the particular words used -- which admittedly seem phrased in categorical language -- and not the equity or justice of the result.  The whole "plain reading versus common law" dispute.

The Ninth Circuit notes that a different statute appears to allow the Attorney General, in his total discretion, to occasionally waive the requirements of the statute.  That seems a somewhat hollow saving grace.  For one thing, there are utterly no controls.  No standards, no review, no due process, nothing.  For another things, this alleged discretion appears never have been used to waive the statute for an individual.  Sure, sometimes the AG waives it for those people who have provided support to particular terrorist groups that we (relatively) like.  But I don't see it ever used in the "safeguard" way the Ninth Circuit suggests it could, in theory, be used.

So let's just hope you're not faced with a situation in which someone puts a gun to your head.  Because while the criminal law provides a defense, immigration law apparently does not.

Happy July Fourth.

Monday, July 02, 2012

B.F. v. Superior Court (Cal. Ct. App. - July 2, 2012)

Usually when you file a writ against the Superior Court there's a real party in interest somewhere.  But not here.  The kids are actually saying the Court is doing something wrong, even though there's no one on the other side.

And the Court of Appeal agrees.

U.S. v. Yepiz (9th Cir. - July 2, 2012)

I wouldn't start an opinion (as Judge Rawlinson does here) by saying that "One of the most valuable weapons in the arsenal of the trial attorney is the peremptory challenge."  For one thing, I don't think it's true.  As a trial attorney, I'd give up peremptory challenges before I'd give up a lot of other important things (e.g., if you're a defense attorney, reasonable doubt, unanimity requirements, etc.; if you're a prosecutor, conspiracy charges, etc.).  Moreover, since both sides have them, strategically, their use seems a wash.  Plus, the empirical evidence on whether challenges can be used effectively is slim at best.  Attorneys may think they're bouncing potential jurors who are biased against their side (or unlikely to rule their way), but the reality is starkly different.

Moreover, views about peremptory challenges have changed a lot over the past several decades.  I think there's a recognition nowadays that they're troubling.  Not only administratively -- because they engender all the Batson-like challenges -- but also because emplying these things seems inherently suspect.  It may well have been that, forty years ago, most trial lawyers would have said that peremptory challenges are essential to justice.  Nowadays, I think that such a sentiment would be substantially weaker, and a contrary view much more pervasive.

Noe of that suggests that peremptory challenges are going away anytime soon.  Though I think that's the direction (if not the wholesale result) we're headed.  And I get why some people think that the availability of at least some peremptory challenges is a good idea.

But I wouldn't write an opinion that calls them one of the most valuable weapons available to a trial attorney.  Especially if that opinion is going to hold -- as Judge Rawlinson's does here -- that taking away a full twenty percent of those challenges from the defendant is harmless error because he can't prove that a replacement juror was biased.