Friday, September 28, 2012

Cudjo v. Ayers (9th Cir. - Sept. 28, 2012)

It's a death penalty case from California.  So you know three things.  First, the California Supreme Court heard the case and issued a published opinion.  Second, that if the death sentence was affirmed -- and it typically will be -- there will eventually be a published opinion from the Ninth Circuit.  Finally, we can be virtually certain that the temporal gap between (1) and (2) will be prolonged.

Today's no exception.

The California Supreme Court affirmed Armenia Cudjo's conviction and death sentence.  Not unusual.  No one wants to be the next Rose Bird, after all.

The Ninth Circuit, by contrast, reverses the dismissal of Cudjo's habeas petition and grants relief.  I hear you:  Not unusual either, you say.  That wacky liberal Ninth Circuit, after all.  Some support for that view derives from the fact that Judge O'Scannlain does indeed dissent.

Except for one thing.  The nubjob liberal who writes the Ninth Circuit's opinion granting habeas relief is Judge Randy Smith.  Joined by his equally leftie colleague Chief Judge Kozinski.

It's a good case that contrasts the politics of the California Supreme Court with the politics of the Ninth Circuit.  At least in death penalty cases.

But fear not.  One thing remains the same.  Delay.

The California Supreme Court published its opinion in 1993.  The Ninth Circuit's opinion was published nearly two decades later, in 2012.

The more things change . . . .

Miles v. Ryan (9th Cir. - Sept. 28, 2012)

There's a lot about this I like.  A lot.

It's unusual for appellate judges to make a published "Statement."  Dissents, concurrences and the like are routine.  But "statements" are rare.  So you know you're in for something good.

As indeed this one is.  Here's a large piece of what Judges Berzon and Tallman have to say:

"Appellant’s motion to recuse Judge Graber was, in its format, directed to all three judges on the three-judge panel in this case. Under this Circuit’s procedures, however, each judge may decide for himself or herself whether recusal is appropriate. [Cites] We therefore directed the motion to Judge Graber alone, who has denied the recusal request.

Should our silence be misunderstood, however, we wish to state that were it appropriate for us to have participated in the recusal decision, we would have voted to deny the motion. Indeed, we regard the request itself as an inappropriate one.

The basis for the requested recusal was a tragedy in Judge Graber’s life that occurred close to forty years ago, her father’s murder and the subsequent prosecution of the perpetrator. The suggestion was that Judge Graber cannot fairly decide this capital murder case because of that history and some broad similarities between the two criminal cases.

Judge Graber has been a judge for almost twenty-five years. In that time, she has sat on numerous capital murder cases, voting to affirm some and to reverse others. She has never been asked to recuse in any of them and never has. There is absolutely no reason she should do so now.

All of us as judges have had life experiences that could be said to affect our perception of the cases that come before us. Some of us have served as prosecutors and others have not; some have experienced discrimination as women or minorities and others have not; some are intensely religious and others are not, and our religions vary; some have children and other relatives with disabilities and illnesses, physical and mental, while others do not; some have had personal experience, directly or through family members, as crime victims, while others have not; some have relatives who are police officers, civil rights activists, or journalists, and others do not; some served in the armed forces and others did not; some had personal experiences as immigrants and others did not. These life experiences do not disqualify us from serving as judges on cases in which the issues or the facts are in some indirect way related to our personal experiences.

Here, the suggested basis for questioning Judge Graber’s impartiality is especially flimsy, as the acts on which it is based happened close to forty years ago. Judge Graber has had that much time to absorb her loss. And there can be no rational suggestion that Judge Graber has anything at all to gain by denying habeas relief in this capital case, which concerns a crime and a defendant with nothing to do with her loss. . . .

Further, the motion for recusal in this case is peculiarly timed. This case has already been decided, with Judges Graber and Tallman voting to affirm the denial of habeas relief in this death penalty case and Judge Berzon voting to reverse the penalty but not the conviction. The case is currently pending on a petition for  rehearing. Although new counsel was substituted while the case was pending, there is no reason why the information about Judge Graber recited in the recusal motion, derived from a very simple Internet search, could not have been found by the former lawyers or the new ones before the opinion issued. Indeed, the motion states that the general historical facts were known, but not the details. To make the motion after the initial outcome of the case was known renders it even more inappropriate than its content alone would indicate — which, as we have said, is itself considerable.

We well understand that this is a death penalty case, and that the petitioner’s lawyers properly regard it as their duty to try appropriately to raise every colorable issue that could possibly redound to their client’s benefit. But asking for the recusal of a member of this court who has decided capital cases for over two decades because of something that happened well before she became a judge is a request lacking even colorable merit. And doing so by reciting in detail the facts of a long ago, tragic incident in her life, requiring her to relive them yet again and exposing them anew to public view is, in our opinion, beyond the limits of appropriate representation."

As I said, I like it.  Strong words where appropriate.  Moderation in places where also appropriate.  Right rule, and right sentiment as well.

The only thing I might have changed was the last line.  Judges Berzon and Tallman conclude by saying that "reciting in detail the facts of a long ago, tragic incident in her life, requir[ed] [Judge Graber] to relive them yet again," presumably causing unnecessary distress.  As a factual matter, that may well be right; I know I might not like to read about painful experiences in my life, and the ones on my end are far less serious than the ones that Judge Graber had to endure.

But this point somewhat conflicts with Judge Berzon and Tallman's earlier statement that these events were so long ago that "Judge Graber has had [] much time time absorb her loss," presumably meaning that she is unlikely to be currently effected by these prior events.  Indeed, the central trust of defendant's motion for recusal, as I understand it, revolves around the argument that the facts and circumstances of the crime at issue are so similar to a prior traumatic event in Judge Graber's life that her judgment might be impaired.  I agree that argument's meritless, but I'm not sure it helps things to simultaneously say in response that (1) the events transpired long ago, so are unlikely to be present in her mind, and yet also arguing (2) that bringing them up again requires her to relive them and will have an emotional impact on her.  If (2)'s true, it seems to suggest that (1) may well not be true -- or at least that even neutral outsiders may be far from certain about the validity of (1).

So I'd have stuck with the themes that the motion is meritless, overly tactically timed, and simply in poor taste.  I -- like the panel -- have no doubt whatsoever that Judge Graber is a capable jurist in every case before her, including but not limited to those that may involve events similar to her prior life experiences.  I could perhaps understand a lawyer thinking (as potentially the lawyer did here) that if a juror might perhaps be excused for cause -- and that might arguably be the case were Judge Graber on the jury venire selected to potentially hear the underlying case -- then the equally fuzzy judicial recusal provisions might also apply.  Especially in a death penalty case.  But I also agree with the disposition of that argument here.  As well as the decision by Judge Berzon and Tallman to expressly support their colleague.

Which is not to say that these things aren't tough all around.  They are.

But my favorite paragraph was the one about the life experiences of the various judges .  Everything Judges Berzon and Tallman say there is totally true.  There are lots -- lots -- of different perspectives on the Ninth Circuit.  Which in turn make the institution a wonderful place.

And Judges Berzon and Tallman are not judge talking about these things in the abstract.  Every description they make silently refers to one or more particular judges currently on the Ninth Circuit.  From the very first category (former prosecutors) to the last (immigrants).  They're talking about someone they, and we, know.  It's true.  It's real.  It happens every day.

And it's a good, not a bad, thing.

Thursday, September 27, 2012

Batarse v. SIEU Local 300 (Cal. Ct. App. - Sept. 27, 2012)

Law school graduate Ray Batarse was as good as litigating his own case in the trial court and on appeal as he was at being an attorney for others.

People v. Johnson (Cal. Ct. App. - Sept. 27, 2012)

Wonder why California's budget is in it's current state?  Here's a partial clue, from this morning's opinion by the Court of Appeal:

"An 'overpayment' occurs when a provider receives more benefits then what it was entitled to receive. If a group home provider has extra funds that are not spent on 24-hour care for the children in its care, the provider must put the funds back into the program. DSS has a recovery department whose employees collect overpayments in connection with public assistance programs, including foster care group homes. . . .

[Footnote]  Michelle Franklin, the supervisor for DSS's Investigation and Recovery Unit, testified to the grand jury that starting in 2006, her department had two recovery technicians designated for foster care because overpayments in that area were 'out of control.' Prior to that time, group home overpayments, even from the same home, could be handled by multiple recovery technicians. Franklin explained that for the most part, overpayments occurred because children left the home and the provider did not notify the eligibility worker of that occurrence.

A group home is selected for a fiscal audit based on a review of its financial audit report and assignment of a risk rating based on matters such as negative cash balances, overpayments, and debt. Providers with a risk rating of 7 or above (out of 10) would be referred for audit. T-Town fell within a high risk rating: in the 7 to 10 range, but it was not audited for some years due to budget constraints.

[Footnote]  Cora Dixon, the bureau chief of the Audits Bureau within the Foster Care Audits and Rates Branch, testified that as of May 2010, the audit office had no staff. However, the branch performed about 22 fiscal audits per year (at the time referred to as investigation audits) from 1999 through 2003. At the end of 2003, the audit unit was eliminated due to budget constraints, but was reestablished in fiscal years 2006 to 2009. The unit was eliminated again at the end of June 2009.

As of 2006, when DSS began running audits again, T-Town owed overpayments of $213,232 going back as far as 1999."

Wonderful way to control costs.  Eliminate the audit department.  Makes sense.

Wednesday, September 26, 2012

Cuellar de Osorio v. Mayorkas (9th Cir. - Sept. 26, 2012)

I generally give my normative take on a case.  Sometimes I get descriptive.

I'm going to limit myself to the latter with respect to this case.  I'll also limit my description to a pure prediction.

The Supreme Court will grant certiorari in this case.  It will reverse.  In a decision that's not nearly as close as the 6-5 split of the en banc court here.

Which, if I'm right, will be the first time that an appellate opinion by Judge Murguia gets reversed by the Court.  But not the last.

Now we just have to wait a couple of years to see if I'm right.

Sachs v. Republic of Austria (9th Cir. - Sept. 26, 2012)

Ever buy a Eurail pass while in the United States?  Read this.  And be glad you still have both your legs.

The opinion's about whether the commercial activity exception to the FSIA applies.  Plaintiff wants to sue the Austrian National Railway for losing her legs on the Eurail in Austria, and claims that she can sue them in the United States becasue they distribute tickets here, including the ones she bought.  Defendant responds by arguing that this exception doesn't apply because it doesn't directly sell the tickets here, but rather sells them through third party distributors.  The Ninth Circuit has to decide who's right.

The panel's hopelessly split.  Judge Tallman thinks that a prior Ninth Circuit case (Holy See), which interpreted a different exception to the FSIA (the "tortious act" exception), is controlling and bars a lawsuit here.  Judge Bea disagrees, arguing that Holy See is about a different exception and so doesn't apply, but nonetheless agrees that there's no jurisdiction.  Judge Gould, by contrast, agrees with Judge Bea that Holy See isn't controlling but doesn't agree that there's no jurisdiction, and so dissents.

Particularly on an issue as significant on this one, and in which reasonable minds can (and do) differ greatly, you might assume that the oral argument was particularly enlightening.  But, if so, you'd be wrong.  At least here.  There wasn't even an oral argument.  Whether that's because the parties didn't ask for one (weird) or because the Ninth Circuit didn't think it'd be helpful is unclear.  But the fact that Judge Tallman's opinion expressly describes plaintiff's briefs as "scattershot" may suggest that they didn't think that further participation by this Lincoln Law School graduate would be especially helpful in deciding the proper scope of the commercial activity exception to the FSIA.

Tuesday, September 25, 2012

People v. Gutierrez (Cal. Ct. App. - Sept. 24, 2012)

Two things about this case.

First, it's certainly in the running for "Worst Story Ever By Defendant Attempting To Claim He's Innocent."

Gutierrez murders his aunt by sneaking into her bedroom and stabbing her 28 times.  A family member sees Gutierrez immediately after he commits the murder and notices that his right hand is bleeding, at which point Gutierrez flees.  They then find the victim naked, face down on the floor with her legs spread apart, with a large knife protuding from her back and fresh bruises on her face and body and stab wounds to her back, shoulder, hands, chest, face and neck.

Gutierrez then admits himself to the hospital for his bloody hand, saying that he was stabbed by a gang member.  But a nurse finds blood on the tip of his penis.  Presumably not put there by the gang.  The police also find Gutierrez's DNA on the victim's perianal area, her buttocks and inner thighs, and on the bathroom wall by the light switch.  The police also search Gutierrez's bedroom and discovered bloody socks, shoes and jeans, as well as blood on the outside and inside of Gutierrez's car and a blooy dress shirt inside the car.

So a bloody glove and a dead stabbing victim.  Just like OJ.  But so much more.

The police interrogate Gutierrez.  He continues to insist that his hand was cut up in a fight with a gang member after leaving a party.  But the police tell him that they had that particular party under surveillance and didn't see a fight.  At which point Gutierrez changes his story, saying that, yeah, he entered his aunt's room and saw her, but she attacked him with a knife, not the other way around.  Also claiming that the victim stabbed herself with the knife in order to implicate him.  Yep.  Stabbed herself 28 times.  Leaving that huge knife in her own back to finish the job.  Makes sense.

What about the blood on his penis?  Oh, yeah.  She sexually assaulted him too.  What about the DNA?  Oh, that?  Yeah, well, during the struggle, Gutierrez says he "fell down," and when he did so, it's possible his penis might have penetrated his aunt's vagina.  Just maybe.  No explanation for why Gutierrez is apparently aroused and erect during a fight with his aunt in which she's stabbing herself.

Needless to say, Gutierrez gets convicted at trial.  Sentenced to LWOP.  If only because his story's so incredibly bad.

Second point. Justice Yegan affirms the conviction, holding that Gutierrez's Miranda rights weren't violated.  Gutierrez, who's 17 or 19, claims that he repeatedly asked to speak with his father during the interview, but that these requests were denied.  Justice Yegan says that these requests were unclear and equivocal.  Here's how Justice Yegan describes those requests in the text of the opinion:

"Appellant said, 'I wish by Dad could be here with me,' and 'Where is my father?' but did not ask the officers to stop the interview. . . . Appellant did not say he wanted to stop the interview, wanted his father to be present, or wanted his father to call an attorney."

Okay.  Those two statements quoted by Justice Yegan do indeed seem to be equivocal, and I agreed they don't clearly say that Gutierrez "wanted his father to be present."

But then check out footnote four.  Where Justice Yegan identifies two more statements by Gutierrez.  In which he asks "Does my father know I'm here?" and then expressly tells the police "I would like to see my dad," informing them that his father was working at Marie Calendar's.

Well, geeze.  Those other statements might well have been unclear.  But it's hard to argue that Gutierrez never said that he wanted his father to be present when we have a DVD of him expressly saying "I would like to see my dad."

Don't bury inconvenient facts in a footnote.  Address 'em head on.  Otherwise it looks like you're hiding stuff.

And, while we're at it, don't stab a relative to death and come up with a super-lame story to try to explain things.

Monday, September 24, 2012

Hall v. City of Los Angeles (9th Cir. - Sept. 24, 2012)

There was only one published opinion by the Ninth Circuit today.  But it's a pretty good example of competing approaches to justice.  So it's definitely worth a read.

Other people will focus on the facts.  And they're definitely fascinating.  If only because you might be extremely sympathetic to the plaintiff (as the majority is) or much less so (e.g, the dissent).

I'll instead focus entirely on the doctrine.  Because whether someone was unjustly in prison for two decades based upon a false confession coerced by misconduct is . . . well, a tough question.

But for me, the doctrine is not only where my intellectual interest lies, but also determinative of the appeal.

Let's start off where one of the Ninth Circuit judges gets it wrong.

Judge Ikuta argues in dissent that the Court of Appeals has no jurisdiction to hold the way it does.  Whatever the merits of the remainder of her dissent, that part's not right.

Constitutional law aside, here are basic facts needed to understand the doctrinal issues raised by the case:  (1) When plaintiff originally sued, he asserted a Fourteenth Amendment claim. (2) Two years or so later he moved to amend to change/add a Fifth Amendment claim.  (3) The motion to amend was denied.  (4)  Defendant successfully got the remaining Fourteenth Amendment claim dismissed on summary judgment.  (5)  Plaintiff appealed the resulting judgment.  (6)  Plaintiff's briefs alleged that summary judgment was improperly granted but didn't mention anything about the refusal to allow the amendment.  (6)  The Ninth Circuit affirms the dismissal of the Fourteenth Amendment claim but remands to allow the plaintiff an opportunity to amend.

Judge Ikuta's beef is with the last part of (6).  The basic thrust of her dissent is that the Ninth Circuit shouldn't "play lawyer" and raise (and decide) issues not raised by the parties.  She begins her dissent by asserting that this is not only a jurisprudential (pragmatic) principle, but also one that is founded on jurisdiction, and argues that what the panel did was jurisdictionally improper because the plaintiff only filed a notice of appeal with respect to the adverse summary judgment order, not the denial of the motion to amend.

But, with respect, that's clearly wrong.  Parties appeal judgments, not orders.  Plaintiff appealed the final judgment entered in the matter.  It so happens that this final judgment came shortly after (as it often does) the order granting defendants summary judgment, but that's irrelevant.  Appeals are -- as they must be -- to final judgments.  When you appeal that final judgment, you thereby appeal all prior orders that are merged into that judgment.  Including, as here, prior motions to amend that the court previously denied.  That's what we mean by merger, and that's why the prior orders aren't subject to interlocutory appeal.  You appeal them at the end when you file your notice of appeal with respect to the resulting judgment.  Which is exactly what plaintiff did here.  Entirely proper.

Judge Ikuta objects that the notice of appeal doesn't say anything at all about the prior orders.  But that's irrelevant.  Again:  You appeal judgments, not orders.  Any order that is merged into a final judgment is automatically appealed when you appeal that final judgment.  It may well be true that some lawyers make clear in their notice of appeal that they're also appealing one or more specific prior orders.  But they do that for the same reason they wear both belts and suspenders.  To play it safe.  Not because it's required.  Because it's not.  They do it just so no one gets confused and to minimize the risk that some appellate judge might erroneously conclude that s/he lacks jurisdiction because the notice of appeal doesn't specifically mention one of the prior interlocutory orders merged into the judgment.

So I'm confident that this part of Judge Ikuta's dissent isn't persuasive.  Because it's clear that as long as the party appeals a final judgment, the court properly has jurisdiction to entertain all objections to that judgment, including those manifested by an earlier order merged into that judgment.  As here.

By contrast, the prudential point of Judge Ikuta's argument is far more credible.  She says that even were the Court of Appeal permitted to entertain objections like the ones here (which, again, they are), the court shouldn't do so when those objections aren't made in the briefs, but are instead identified by the court.  This seems generally right to me.  We expect parties to raise the right issues.  When they don't that's their bad.  It's their job, not ours.

Even the majority -- Judges Nelson and Gould -- agree with this general proposition.  But they hold that this is an exceptional case because of the magnitude of the injury, its genesis (at the hands of the government), and the resulting wrongs.  So it's one of those rare cases in which we're okay with going beyond the issues raised by the parties and making sure that "justice" is indeed done.

Judge Ikuta's not persuaded.  Moreover, it's not that surprising that these competing visions are both held and expressed by their respective authors -- Judge Nelson on the one hand, and Judge Ikuta on the other.  Their visions of what "justice" entails are indeed very different from one another, and you see that over and over again, particularly (but by no means limited to) here.

But on this issue, I find myself somewhat closer to Judge Ikuta than Judge Nelson.  There are indeed situations we sometimes go beyond the issues the parties raise.  We don't want innocent people kept in jail, for example.  We sometimes raise issues on their behalf when there's plain error and when the consequences of ignoring those errors are too severe.  That's when we step in, and rightly so.

But we don't generally do that in civil cases.  And there are two reasons why.  First, because the parties generally (as here) have lawyers, and when a lawyer messes up and advances the wrong argument, that's on the party, not us.  Should have hired a better lawyer.  I've read plenty of cases where the losing party would/should have won had they had a better lawyer.  Plenty.  It happens.  Clients are responsible for what their lawyers do.  There are some exceptions to that general rule (e.g., incompetent counsel in criminal cases), but not in civil realms like this.  Plaintiff hired his lawyer and his lawyer didn't make the right argument.  Deal with it.  Happens every day.  Is not an "extraordinary circumstances" where we'll step in and make the right argument on his behalf.

Second, unlike criminal cases, in civil cases like this one, clients also have a remedy if their lawyers mess up.  It's called a malpractice action.  You may not be able to do that in criminal cases, and even if you could, money from a lawyer doesn't make up for decades in prison.  The two are not equivalent so we sometimes step in ourselves.  But when -- as here -- all you want (or at least are permitted to seek) from the defendant is money, if your lawyer messes up and you lose that money, we can fix that problem simply by letting you seek that money from your lawyer.  The possibility that you might lose money generally doesn't justify us intervening and making arguments on your behalf, since money's what you can get from your lawyer is s/he's indeed incompetent.  Otherwise we'll be working 24/7 making arguments for everyone.

Judge Nelson says that this is an unusual case, and it is.  But it's still about money.  Pure and simple.  And I'm not sure that really justifies a departure from the usual rule.

I have other reactions to other parts of the opinions as well.  But this post is already too long, so I'll just mention them briefly.  First, as to the merits of the denial of the motion to amend, it seems to me significant that it was nearly two years after the filing of the complaint.  You wait that long, you're begging to be denied, and it's tough to argue that it's an abuse of discretion.  Especially when, as in this case, the trial's scheduled right around the corner.  Judge Ikuta's arguments in this regard seem to me to be fairly strong.  It's true, as Judge Nelson argues, that the "new theory" didn't radically differ from the original theory of the case, so there might not be as much prejudice as you might think.  But a new theory two years in and right before trial nonetheless still mucks things up quite a bit.

But -- and here's my second point -- I'm not sure this is really the right way to think about it anyway.  We plead facts, not theories.  The proposed amendment didn't add any new facts, but rather merely changed the label.  Why does that even require an amendment, much less justify refusing one?  We are keen to say nowadays that you've got to plead facts, not legal conclusions, and although lawyers love to do the latter, as long as they do the former, we're fine.  Viewed in that light, the discussion of the motion to amend seems somewhat misplaced.  The complaint already says that defendants did X, Y and Z and that this violated plaintiff's rights.  Not sure you're required to do anything else.

Anyway, great case.  Read it all.

Friday, September 21, 2012

Native Village of Kivalina v. ExxonMobil Corp. (9th Cir. - Sept. 21, 2012)

Look through the list of counsel in this case.  It's a who's who of major litigators.  Think about how much money got spent every single hour.

All for a lawsuit that had no chance of success.

But when you sue all the oil companies, alleging that they caused global warming, you get noticed.

Which is perhaps the point.

Too bad all that money couldn't have been spent on something more productive.

Thursday, September 20, 2012

McCall v. Facebook (9th Cir. - Sept. 20, 2012)

There was a glitch with the Ninth Circuit's web site this morning, so the opinions were delayed.

But this one was worth the wait.

You've got two very, very different conceptions of modern class action practice here.  One's articulated by Judge Hug, who authors the majority opinion and approves the settlement.  The other -- a far more cynical view -- is presented by Judge Kleinfeld, who authors the dissent.

This is a pretty good case for Judge Kleinfeld to use to articulate his vision.  Because he gets to use lines like these: 

"The majority approves ratification of a class action settlement in which class members get no compensation at all. They do not get one cent. They do not get even an injunction against Facebook doing exactly the same thing to them again. Their purported lawyers get millions of dollars. Facebook gets a bar against any claims any of them might make for breach of their privacy rights. The most we could say for the cy pres award is that in exchange for giving up any claims they may have, the exposed Facebook users get the satisfaction of contributing to a charity to be funded by Facebook, partially controlled by Facebook, and advised by a legal team consisting of Facebook’s counsel and their own purported counsel whom they did not hire and have never met. Facebook deprived its users of their privacy. And now they are deprived of a remedy."

See what you think.

Wednesday, September 19, 2012

Stratton v. Buck (9th Cir. - Sept. 19, 2012)

I know this is something I've got to get over, but every time I read an opinion by Judge Kobayashi -- who's sitting by designation from the District of Hawaii -- I start thinking about Kobayashi from The Usual Suspects.

But at least I'm not channelling my (even bigger) inner geek and thinking about the Kobayashi Maru.

In Re Marriage of Left (Cal. Ct. App. - Aug. 23, 2012)

Here's proof that attorneys are no idiots.  They know how to manipulate the law.  Really, really well sometimes.

Andrea Nicole Left was a lawyer when she married her stock trading husband in 2001, and became pregnant that year as well.  She stopped working when she became pregnant, and the couple had two children (quickly).  Their marriage, however, didn't last very long; they didn't even make their five-year anniversary before getting married.

Andrea's to-be ex-husband's no pauper.  So the parties stipulate that Andrew (the ex-) will pay child support of nearly $15,000 a month and spousal support of over $30,000 a month.  Not bad.  Not bad at all.

Divorce proceedings sometimes take time, and even three years into this one, there's agreement on some things but not on others.  Meanwhile, Andrea wants to get married again.  This time to Todd.  They get engaged.  Start living together.  Send out wedding invitations.  Register at Bloomingdale's.  Rabbi Haim Asa will conduct the ceremony.  Palm Springs on May 2, 2009.  Should be beautiful.

As indeed it is.  Goes off without a hitch.  Beautiful wedding dress.  Sign a ketubah, which is a Jewish wedding contract.  Tell the kids they're married and Todd's the stepfather.  Just your traditional great southern California wedding.  Everyone has a wonderful time.

Only one thing.  Andrea's spousal support of $30,000 a month would get cut off if she remarried.  So while everyone at the wedding thinks it's a wedding, thirty minutes before the ceremony, Andrea tells the rabbi that there are "problems" with the license -- those problems being, to be honest, that she did not feel like getting one -- so to just go ahead and fake it.  Which indeed happens.

Seven weeks after the wedding, when Andrew wants to then stop paying spousal support, Andrea tells him that he can't, because she didn't "really" get married.  Andrew goes ballistic, Andrea goes ballistic when Andrew's not current on support payments, both sides file motions, and numerous lawyers get a lot of fees.

Andrea's no dummy.  She wins in the trial court.  And wins in the Court of Appeal.  It's not a marriage if you're not actually married.  Nor do principles of estoppel or anything like that operate.  So Andrea still gets her money.

Think about that the next time you're at a lawyer's second wedding.  Maybe it's real.  Or maybe they really know the law quite well.

P.S. - I think that Andrea and Todd are selling their house, if you're interested.  It's really, really nice.

Tuesday, September 18, 2012

U.S. v. Neilson (9th Cir. - Sept. 12, 2012)

This is certainly an interesting one.  See if you agree with Judge Tashima (who writes the majority opinion) or Judge Callahan (who dissents).

I know only one thing for sure.  If I had a twelve-year old daughter who called up an adult chat line and had phone sex with (and "sexted") someone she met thereupon, and who then promptly stole money from me to buy a bus ticket to Montana where she had four days of bondage and sadomachochistic sex (plus drug use) with a 6'4" 370-pound adult male who knew that she was twelve and who my daughter in turn knew was a registered sex offender, I would die. Have a heart attack and die.  Right then and there.  Especially when I learned that this wasn't the first time my "precocious" seventh-grader had used drugs and had sex with older men.

Not exactly a day I'd relish.

As for the law, Judges Tashima and Callahan don't agree on whether the twelve-year old girl in this case was a "vulnerable victim" for purposes of the sentencing guidelines.  Both have solid points, and you can probably intuit the competing arguments in this regard.

See which side you think's more solid.

And pray -- as is often the case with Ninth Circuit cases -- that you never have to personally confront the circumstances at issue.

Monday, September 17, 2012

Sheppard v. David Evans & Assocs. (9th Cir. - Sept. 12, 2012)

Does the following ADEA complaint -- reprinted in its entirety -- satisfy the detailed pleading requirements of Twombly and Iqbal:

1. Plaintiff, (Sheppard) is an adult female citizen in the federally protected age group under the ADEA, 29 USC 621 et seq. She is over the age of forty.
2. Defendant, (Evans) is an Oregon corporation that does business in Portland, Oregon.
3. Sheppard worked for Evans as an Executive Administrative Assistant from 11/28/05 to 2/2/09.
4. Sheppard was involuntarily terminated from her position by Evans.
5. At all material times her performance was satisfactory or better. She received consistently good performance reviews.
6. At the time of her termination there were five comparators employed by Evans in Oregon of which Sheppard was the oldest.
7. [Sheppard’s] younger comparators kept their jobs.
8. Age was a determining factor in the decision to terminate Shepard.
9. Prior to her termination, Sheppard requested Family Medical Leave for a serious illness. She qualified for both Oregon Family Medical Leave and federal Family Medical Leave.
10. In so doing Shepard was [pursuing] a right of public importance that belonged to her as an employee.
11. Sheppard was terminated immediately after she scheduled the surgery for which she requested Family Medical Leave.
12. [Sheppard’s]  attempt to use Family Medical Leave was a substantial motivating factor for her termination.
13. Sheppard was terminated because she pursued a right of public importance, Family Medical Leave,
that belonged to her as an employee.
14. Sheppard’s termination was therefore a wrongful act in violation of public policy under Oregon law.
15. [Sheppard] has met all administrative exhaustion requirements under the Age Discrimination in
Employment Act, and this complaint is timely filed.
16. As a result of her termination Sheppard lost and continues to lose wages and benefits.
17. As a result of her termination Sheppard suffered and continues to suffer emotional pain and a sense of

What do you think?

The Ninth Circuit, in an opinion by Judge Pregerson, holds that it does, reversing the district court's dismissal.

I'm not sure that Judge Pregerson is wrong as a normative matter.  But I am far from certain that the Supreme Court would agree.  Seems to me that the Court that decided Twombly and Iqbal might well require more than this.

But until the Supreme Court decides to grant certiorari (if it ever does), if you want to file a quick and easy ADEA complaint that you know for certain satisfies Rule 8, here you go.  Copy it (nearly) verbatim.  Easy enough.

U.S. v. USDC NMI (9th Cir. - Sept. 12, 2012)

Judge Clifton's opinion is exactly right.

It's permissible and makes sense for a district court to tell the parties that someone with "full settlement authority" has to personally participate in a settlement conference.

But not here.

Check it out.  The lesson to be learned is that sometimes even general rules that are entirely permissible need to give way to particular facts.

Friday, September 14, 2012

County of San Diego v. Mason (Cal. Ct. App. - Sept. 14, 2012)

Talk about a no-brainer.  The Court of Appeal is obviously right here.

More broadly, this is what you get when you hire a firm called the "Men's Legal Center" -- a for-profit law firm specializing in divorce -- to think up and advance constitutional arguments.

In other words, a loss.  (Presumably on the client's dime.)

Not exactly their forte.

There are some cases in which you take an aggressive position for tactical or other reasons that make sense.  This is not one of them.  It's just a loss and waste of time.  No benefit whatsoever.

U.S. v. Carmen (9th Cir. - Sept. 14, 2012)

It's no fun to be the target of an angry appellate judge.  At oral argument.  In a published opinion.  In a poker game.  Whenever.

That's true even if the ire is justified.  Even if it's not personal, but instead is directed at the policy or policies you're tasked with defending.

By contrast, to outsiders who share similar views to those of the judge, it's often a delight to see a judge go off.  To actually say what they feel in a heartfelt matter that leaves no doubt whatsoever that the target will remember -- and likely not repeat -- their misconduct.

There are two judges on the Ninth Circuit who are most likely to be really, really harsh.  One is Chief Judge Kozinski.  The other is Judge Reinhardt.

This is what happens when you put them on the same panel.

The opinion happens to be written by Judge Kozinski.  But it could easily have been written by the other.  The only difference between the two is that an opinion written by the former is -- as happens here -- much more likely to repeatedly cite Judge Kozinski.  Dissents, law review articles, etc.  We'll call this one "Kozinski on Kozinski."  Classic.

Count me as someone sympathetic to the Ninth Circuit's holding here, and to the substantive content of the opinion.  As well as, in large part, its tone.  Check out, for example, footnote 3.  What Judge Kozinski says there seems entirely true to me.  Is it necessary to the decision?  Of course not.  But it's nice, in my view, for judges to occasionally say to the parties:  "We're not idiots, you know.  We know the way things work.  Even if you think we don't."  Especially when the malefactors are government officials charged with keeping things fair and above board.

It's not that I don't see the other side.  I do.  Was it wrong that they deported the favorable witness?  Yes.  Judge Kozinski's exactly right.  Is it possible that they did so through good faith bureaucratic means that were subjectively thought to be fair, and then felt obliged to defend this conduct, as well as convinced themselves that they were right.  Sure.  Very much so.  That happens all the time.  Even to the best of us.  It's a part of being human.

It's nonetheless beneficial to remind people sometimes -- even in harsh, unrelenting language -- that we expect more.  Your parents did it to you when you were a child.  It doesn't mean they don't love you.  It means they want, and expect, you to do better.  And that, the next time you confront a similar situation, they want you remember what transpired last time and think -- really think -- about the lessons imparted from the previous experience.  The harshness reminds you that, next time, if it's close to the line, stop and think, rather than simply do what you're used to doing almost all the time.

That's what Judge Kozinski does here to the U.S. Attorney's Office of the Southern District of California.  It's a stern, and appropriate, talking-to.

Thursday, September 13, 2012

Maxwell v. County of San Diego (9th Cir. - Sept. 13, 2012)

Decide for yourself whether this is a case in which -- as Judge Ikuta says (in dissent) -- bad facts are making bad law, or rather (as Judges Farris and Clifton would say) the bad facts meet good law.

Everyone agrees, however, that these are bad facts.  An off-duty San Diego Sheriff's Department Deputy shoots his wife in the jaw.  Numerous officers and paramedics immediately respond after a 911 call.  All these people get there fairly rapidly and take the perpetrator into custody.  The victim's been shot.  They call for an air ambulance to get the victim to a major trauma center.  They've got to drive ten minutes to get her to the landing area.  Time's of the essence.  They put the victim into a c-spine collar.  The ambulance is there.  Engine running, ready to take the victim to the landing pad.

And then they wait.  And wait.  And wait.  And wait.

Among other delays, the police refuse to allow the ambulance to leave.  Because they want to interview the victim.  Because that's obviously more important than getting this victim of a gunshot wound, who's bleeding from her jaw, to a hospital.

Eventually the police officers let the ambulance go.  Half an hour or more after she's been shot.  She bleeds out on the way to the landing pad.  Dead.  At her autopsy, the coroner concludes that she need not have died.  Her injuries were survivable if she had been treated.

But don't think it ends there.

The victim lived with her parents.  Who were there.  They saw the ambulance leave, but the police refused to allow them to go with her.  Now they tell the father that his daughter's dead.  He wants to tell his wife, who's waiting inside the house, that their child has passed.

Nope.  Won't let him.  The police -- actually, the Sheriff's Department, the same institution the shooter was from -- insist that the "witnesses" have to stay separate.  Interviews, again.  Definitely can't let a family grieve, or even know that their child has died, until all the paperwork's done.

The father's irate.  Says he didn't see anything at all relevant to the shooting, so has nothing to say.  Says he's telling his wife, and they'll have to shoot him to stop him.  Walks towards his house to tell his wife.

The Sheriff's Department sprays him three times with pepper spray.  Hit him with a baton.  Handcuff him.  All for a guy who's just lost his daughter and never resisted arrest.

Oh, and then -- true to their word -- they keep all the "witnesses" apart.  Interview them.  For five hours.  At the end of which they say:  "By the way, your daughter died a long time ago."

Plaintiffs sue.

The Ninth Circuit holds that there's a genuine issue of fact about whether what the police did to both the daughter and to the other family members (delaying treatment, excessive force, seizing witnesses for hours, etc.) violated their rights.  And that the individuals from the ambulance company could be sued, notwithstanding tribal immunity, in their individual capacities.

Judge Ikuta agrees as to the tribal ambulance employees -- the tribe's lawyer at oral argument didn't have good answers even to some fairly basic questions -- but disagrees as to the other defendants.

Bad facts.  Really, really bad facts.

People v. Kramis (Cal. Ct. App. - Sept. 13, 2012)

Imagine that you're someone rich.  Private jet.  Yacht.  Multiple homes.  Life's good.

Let's also say that you decide to take your yacht to Catalina.  You take a woman there as well.

Do you really think it's a good idea to have everyone get stumbling drunk and then have an evening of domestic arguments while you boat to and from the shore?  I mean, it's not like there's any precedent for that sort of thing, right?  What could possibly go wrong?

Admittedly, this time, the girl doesn't die.  But the man does go to prison for four years.

Don't drink and boat.  Or fight.  Especially in Catalina.

Wednesday, September 12, 2012

In Re Taylor (Cal. Ct. App. - Sept. 12, 2012)

What to do with sex offenders?

You don't want them living near schools or parks.  I get that.  That's why voters passed "Jessica's Law" (Proposition 83) in 2006.  It's not like sex offenders are a sympathetic group.  Plus they clearly can't afford to run a campaign or buy advertisements.  They're going to lose an election.  And, on the merits, you can understand why voters might legitimately be concerned.

But particularly with an initiative, things can get out of hand.  (Though, truth be told, as applied to disfavored groups like sex offenders, things can equally get out of hand in the Legislature.)  Relevant here is Proposition 83's requirement that sex offenders live more than 2,000 feet from all parks and schools.  That's a fair distance.  So much so that it means that, in urban areas like San Diego, there's almost nowhere anyone can live.  Or at least almost no place that's actually feasible.  Sure, there are homes in Rancho Santa Fe and La Jolla that are 100 acres and cost several million dollars and that are 2,000 feet away from schools and parks.  But you're not likely to be able to afford to buy those places with the $200 in gate money they give you upon your release from prison.  For the most part, if you're a sex offender, you're stuck living in cheaper multiunit apartments -- in particular, those who will rent to people without conducting a criminal background check (which you'll fail).  Nearly all of which are in downtown areas and are too close to schools or parks.  That's the inherent nature of urban density.

So let's see how it works out practically.  Then we can judge the wisdom of this particular initiative; or, more more practical purposes, whether the restrictions imposed by Proposition 83 are "reasonable" given the parolee's constitutional rights.

This case involves several representative plaintiffs.  The first is Taylor.  He's a sex offender but his conduct was with an adult.  He's nonetheless subject to Proposition 83; not allowed to live near kids.  He wants to live with his nephew, whose wife is a health care professional.  But he can't because their house -- like most houses -- is within 2000 feet of a school or park.  Taylor also has AIDS and lots of health problems (three strokes, a heart attack, etc.).  Can't leave near most health facilities either; those are generally downtown and too near schools and parks as well.

So Taylor asks his parole officer where he can live.  'Cause he can't live where he'll be taken care of and can't find a place.  His parole officer tells him -- pursuant to department policy -- that he can't say.  It's up to Taylor to find a place.  The only place the parole officer is permitted to mention is the alley behind the parole office.  That's a permitted spot.  So that's where Taylor leaves.  Along with 20 or so other sex offenders, all of whom were also told by their parole officers about that alley.  Wonderful life.  So much better to live in an alley than in a residential drug facility.  Which Taylor desperately needs, but can't attend because they're also too near schools and/or parks.  Fear not.  Taylor's surely better off in the alley with dozens of other sex offenders than in drug treatment.  Definitely will not roffend.  Definitely.

Or take Briley.  She molested her daughter.  Upon release, she wants to live with her sister.  No dice.  Within 2000 feet of a school.  What about a sober living facility?  Nope.  Too close also.  What about one of the homeless shelters for women?  Not there either.  All of 'em with beds are too close.  Where does Briley end up?  Same alley behind the parole office.

What about Todd?  He was 15 when he molested his 10-year old sister.  Recovering heroin addict and addicted to meth. Wants to live with a friend at a hotel in downtown San Diego.  Nope.  Too close.  Fear not, though.  Todd's parole officer doesn't relegate him to the same "offender-compliant" alley as Taylor and Briley.  No, Todd's tells him about a much better place.  The riverbed of the San Diego River.  I drive or bike alongside it -- and (presumably) Todd -- every day to get to work.  Compliant with Proposition 83.  Wonderful place, too.  If you don't mind the dampness, overflowing trash and stench of human feces.  But I'm sure it's a really good place for an ex-heroin user who has problems with meth.  We definitely want this guy living in a riverbed rather than in a noncompliant hotel.

I won't mention the other plaintiffs except to say that they share similar fates.  (Glynn, for example, can't live with his wife -- noncompliant house -- so he sleeps in a van.)  I leave it for others to decide whether these residency restrictions really serve the public interest.  They admittedly keep offenders from sleeping next to places where kids congregate.  Whether they decrease -- or actually increase -- sex offenses and/or other crimes I leave for others to decide.  But I can't imagine that a rule that says the only place you can live is an alley or riverbed is really good at reintegrating people into society.

Does this mean there are no places in San Diego that are available for sex offenders?  No.  There are still the big homes in La Jolla.  Good luck with that.  Does it mean there are no places where a person can live for less than $850/month with criminal record?  Nope.  There are some.  Mind you, it took a couple of professors fifty or sixty hours driving all around San Diego to find such a place.  Good luck accomplishing this same task if you're a just-released offender with $200.

The Court of Appeal holds that, at least as applied to San Diego, this is impermissible.  It's not a reasonable blanket restriction in light of the parolee's interests in association, right to travel, etc.  You've got to do a lot of work, I might add, to come to such a conclusion doctrinally.  Because the state has a decent argument that as long as there are some places to live -- as there surely are -- the statute doesn't really burden people's rights.  But the Court of Appeal takes a more practical approach.  As a practical matter, it means people often can't live anywhere.  That's not reasonable.  Particularly when, as with several of the plaintiffs, you're barring people from living in places that make sense (e.g., with their wives or relatives) and that are close to essential health care.  Forcing those people to shoulder incredible burdens to find a place that almost no one can actually find isn't permissible.

We'll see if the California Supreme Court takes this one up.  I doubt it will.  If only because Justice Benke writes a pretty persuasive opinion about the equities and practical consequences of Jessica's Law in a place like San Diego.  One that doesn't put the statute in a particularly favorable light.  To either the offenders or to society as a whole.

In Re B.S. (Cal. Ct. App. - Sept. 12, 2012)

An unfortunate case caption.  Though I know a lot of civil cases that could accurately be similarly captioned "In Re B.S."

Tuesday, September 11, 2012

Frankel v. HTH Corp. (9th Cir. - Sept. 6, 2012)

The Pacific Beach Hotel is a nice place in Waikiki.  But how it treats its workers is anything but.

Check out this unanimous opinion by Judge Schroeder.  Which ends with:

"Our rulings likely come as no surprise to the parties. Two themes repeat themselves in the decade-long history of this dispute. The first is HTH’s defiance of the Labor Act and its employees’ statutory rights. The second is HTH’s consistent losses before the agency and the courts. A skeptical adjudicator
might question whether HTH has ever taken seriously its obligations under the law."
I'd add that you don't necessarily have to be skeptical to come to that conclusion.

Monday, September 10, 2012

Yeager v. Bowlin (9th Cir. - Sept. 10, 2012)

Even if you're the first one to break the sound barrier, that doesn't permit you to submit an affidavit in opposition to a motion for summary judgment in which you suddenly (and inexplicably) "remember" all the things that you repeatedly "did not recall" during your sworn deposition.

We call that a sham affidavit, and it's inadmissible.  Even if your name's Chuck Yeager.

Hibbler v. Benedetti (9th Cir. - Sept. 10, 2012)

Kenneth Hibbler tried to kill his eight-year old daughter multiple times during the early morning hours of July 24, 2003.  He's been in jail or prison ever since then, having pled guilty in 2005 and been sentenced to 5 to 15 year.

He now wants to withdraw his guilty plea, claiming that he was incompetent at the time.

Emotionally, I almost want to let him.  He's already served almost ten of his (maximum) 15 years.  My heart tells me to let him withdraw the plea, charge him with attempted first-degree murder, and try to get an enhanced sentence.  Dude tried to slice his daughter up.  I wouldn't feel bad if we gave a shot towards piling some some extra time onto his sentence.

But, logically, Judge Ikuta gets it right.  Habeas petition denied.

Friday, September 07, 2012

People v. Whitus (Cal. Sup. Ct. App. Div. - Sept. 6, 2012)

You've got to read this one to believe it.

It's a case study in what not to do at oral argument.  Particularly when you're an attorney who's trying to overturn sanctions imposed against you for repeatedly not showing up in court when you were expressly ordered to do so by the judge.

Here's just a portion of the Court of Appeal's reaction to what the attorney in question -- San Luis Obispo Santa Barbara attorney Darryl Genis -- thought would be a good way to conduct an appellate oral argument:

"It is not an overstatement to categorize Appellant’s oral argument as a parade of insults and affronts. It commenced with his demand that the deputy district attorney be removed from counsel table, and it culminated with his rude insistence that the court 'state for the record that this is not a contempt proceeding.'

In between, the trial and appellate judges were repeatedly disparaged.  The appellate division was referred to as 'the fox [watching] the hen house.' Appellant demanded that each appellate judge disclose for the record whether he had discussed the case with the trial court, saying: 'But it’s common knowledge in the legal community, and you would be insulting me if you suggested otherwise, for us to believe that you judges don’t talk like women in a sewing circle about us lawyers.  You do.  I know you do.'

In response to questions about the adequacy of the appellate record, and whether the recorded proceedings (which, as stated, had been provided to Appellant by the trial court) had been transcribed, Appellant stated:  'I don't need to give you the universe of evidence in these proceedings. . . . You don't need a transcript.' In response to a question regarding a case citation from one of the appellate judges, Appellant retorted: 'It must have been a while since you read the brief.' . . .

In discussing the actions taken in the court below, the trial judge was repeatedly referred to by his first name rather than his title.  When admonished not to do so, Appellant responded as follows:  'OK.  Well, hereinafter, I will honor your request.  But before I proceed to honor your request, I'll tell you that in the 33 years that I’ve practiced law, I've appeared in front of many great men and women judges, including you three.  And I've appeared in front of a few who are an embarrassment to our profession and [first and last name of the trial judge] is one of those people.'

Throughout, the trial judge was castigated, disparaged and even the subject of a veiled threat: 'When I came in and ultimately had a hearing, I had listened to the whole proceeding and I heard everything that [the trial court] had to say, and I addressed that in my arguments prior to his reaching his pre-printed ruling.  And he said he didn't care.  He was the epitome of the completely sealed and closed shut mind.  You know . . .  a human mind is a lot like a parachute.  If it doesn't open, it will get you killed someday.'
These are but some of the inappropriate comments made during the course of the appellate hearing.  Moreover, what is missing from the discussion is the tone of Appellant’s entire argument, something not captured in a written transcript, which can best be described as confrontational, accusatory and disdainful."


Thursday, September 06, 2012

Martin v. Van Bergen (Cal. Ct. App. - Sept. 6, 2012)

That fence may have been there since before World War II.  All owners -- on both sides -- may helped build the fence and thought that it accurately marked the boundary between the properties.

But if someone conducts a survey and it turns out that the boundary actually runs elsewhere, you've got to move the fence.

Reynoso v. U.S. (9th Cir. - Aug. 28, 2012)

I don't know why you make substantial payments of estimated taxes (e.g., $200,000/year) but then don't actually file a tax return.

But I do know it's a bad idea.

Wednesday, September 05, 2012

Farmer v. McDaniel (9th Cir. - Sept. 5, 2012)

Defendant commits multiple murders in 1982.  Defendant is sentenced to death. 

The Ninth Circuit issues an opinion on February 7, 2012.  Defendant loses.  Habeas petition denied.

Two months later.  Defendant finally gets what's coming to him for thirty years.

Justice, right?

Not quite.

Defendant died in prison.  Not in the execution chamber.

So the Ninth Circuit orders today that its opinion from February gets vacated.  Which is what happens when you die during the appellate process.

For those who might think that this just proves how utterly bonkers the Ninth Circuit is, you may have a point.  But consider two brief facts before you hold this case to be further evidence of such a view:

(1) During the nearly thirty years of continuous litigation, the Ninth Circuit never once vacated the defendant's death sentence.  Only the Nevada Supreme Court did so.

(2) The defendant wasn't even under a death sentence when he died.  Nevada had just indicated its desire to retry him to try again to sentence him to death.  He claimed double jeopardy and filed an habeas petition.  A petition both the district court and the Ninth Circuit dismissed.

All moot now.  Opinion vacated.

Lavan v. City of Los Angeles (9th Cir. - Sept. 5, 2012)

I'm definitely conflicted about this one.

On the one hand, it definitely seems harsh -- unduly harsh -- to seize and immediately destroy the possessions of homeless people that they happen to leave unattended on a sidewalk.  Homeless people have to eat, go to the bathroom, go to court, etc.  They can't take their possessions with them everywhere they go.  To take someone's property -- their pictures, sleeping bags, etc. -- and destroy it seems really punitive.  Especially when you're destroying, in many cases, literally everything they own.  That L.A. thinks it can do that simply by passing an ordinance that says they feel like it doesn't seem to comport with what we traditionally think of as "due process."  Traditionally we think you're entitled to a hearing before the government permanently destroys your stuff.  Ditto for the homeless.

On the other hand, however, trash on Skid Row in L.A. (and elsewhere) is a serious problem.  If you've ever been there for any extended period -- as I have -- you can't help but think that it causes significant social harm to permit the daily accumulation of massive amount of junk on the sidewalks.  Which unquestionably happens.  Even apart from the (fairly persuasive) "broken window" theory, we are talking about lots of litter, trash, and junk on the sidewalk.  This stuff has consequences.  That's why L.A. passed its ordinance, and if you can't take the property, the place necessarily stays the way it is.  That's a problem.

Plus, as Judge Callahan notes, it's not like the City's just making random grabs whenever it feels like it.  The "sweeps" only happen on weekdays between 8 and 11 a.m.  And the City has put up signs all over the area that clearly tell people to make sure that they get their crap off the street during this brief period.  Is it really too much to ask to tell people to make sure that, for three hours only, they not leave their property on a sidewalk?  Yes, you may have things to do.  But for those three hours a day, keep your stuff close by.  Moreover, as Judge Callahan again notes, there are also public storage spaces in the area that you can use to house your stuff during this period.  For free.  Doesn't it seem more than reasonable to require that people do so?

So I'm torn.  Seriously torn.

Ultimately, though, I think that one argument that Judge Wardlaw makes persuades me.  (Even beyond the doctrinal point that we're only evaluating the standard of review in this appeal, not the underlying factual determinations of the district court.)  One that she repeats in her majority opinion and to which I don't think Judge Callahan has a good answer.

Judge Callahan thinks there's no reasonable expectation of, well, anything because the homeless put their property in an illegal public place after notice that it was improper to leave it there.  But Judge Wardlaw says that's no different than when you park your car illegally (or leave your dog unattended) in violation of a similar ordinance.  Sure, it's illegal.  But does that mean that the state is entitled to immediately crush your car or kill your dog?  Without any notice, a hearing, or an opportunity to be heard?  Surely not.  Ditto with the homeless.  Their sleeping bag and your Escalade are in the same boat.  What's good for the rich is surely similarly good for the poor.

Judge Callahan responds that the City doesn't crush cars, so it's a straw man, but the point remains that if we're unwilling to allow one we can't allow the other.  She also says that illegally parked cars don't create social harm like abandoned property does, but why not?  They obstruct traffic, create blight, take up valuable parking spaces, deprive the city of parking income, etc.  All the reasons we don't allow illegal parking in the first place.  Seems analogous to me. 

Judge Callahan finally claims that illegally parked homeless property is worse than illegally parked cars because the former is unsanitary (so needs to be immediately destroyed), and also needs to be picked up -- like unattended bags at the airport -- to avoid terrorist attacks.  But while I agree that unsanitary abandoned property (feces, drug needles, etc.) gets to be discarded, the district court's injunction allows that; moreover, the destruction of that property doesn't justify destroying all the property, including the stuff that's not unsafe.  As for Judge Callahan's terrorism argument, it not only fails on its own terms -- al Queda isn't likely to use its IED's to target Skid Row, for Christ's sake -- but also again fails to distinguish illegally located homeless property from illegally parked cars.  Only the latter of which, I might add, has actually been used in a domestic terrorist attack.

So I think that, for me, Judge Wardlaw's parked car/abandoned dog analogy carries the day.  Hence the majority gets it right.

But Judge Callahan does seem to nonetheless have a good secondary point.

She argues that surely we're allowed to seize the property even if we can't destroy it.  Doesn't that seem right to me as well?  Go back to the car and the dog.  We get to seize (tow) the car and seize (impound) the dog.  Maybe we can't crush 'em.  But we don't have to leave them on the street as well.

That sounds right.  The practical difficulty here is that seizure with the dog and the car works because the owners will pay money to get them back.  So we can enforce the law -- thus effecuating

That's a practical problem.  One that I'm not sure how to resolve.  If I allow the seizure, which I'm leaning towards, can I successfully distinguish the destruction?  I can doctrinally.  That's easy.  But practically, does it matter.

Ultimately, of course, I can bite the bullet and say that's not the Constitution's problem.  The law is that you're entitled to a post-seizure hearing.  That way you can contest an erroneous seizure and, even if it's not erroneous, get back your stuff if you pay a fine.  That hearing has value.  It's Due Process.  That it might not solve all the problems -- that some property might still be destroyed -- is irrelevant.  It's what the Constitution requires.  And it's better than destroying all the property without any notice or opportunity to object before all of your worldly possessions are incinerated.

So I think that's how I come out.  With respect to a problem that I'm unambiguously convinced is a serious one.  On all sides.

Tuesday, September 04, 2012

Halajian v. D&B Towing (Cal. Ct. App. - Sept. 4, 2012)

Someone's suing a towing company.  Which evokes two emotions.  First, like probably most people, I don't especially like towing companies.  So some natural pro-plaintiff sympathy there.  But second, as someone who reads (and hears) a lot of cases, I understand that towing companies get sued a lot.  Partly due to the first emotion:  because people hate towing companies, they also sue 'em, even (at times) when the claims are silly.

But, nonetheless, I'm still somewhat sympathetic to claims that a car's been towed illegally.  If it's a valid claim, I'm more than happy to hear it.

So, on the one side of this dispute, we have a towing company.  And, on the other, and individual.  It's pretty clear where one's emotive sympathy might ordinarily lie.

But then you read on.  At which point you learn that the plaintiff, Barry Halajian, got his car towed after being stopped by the Fresno County Sheriff's Department.  You learn that Mr. Halajian did not have a driver's license.  That the light truck that he was stopped in (and that was impounded) wasn't registered.  And that the reason that no such licenses exist is because Barry's pretty certain that as a "free inhabitant of the California Republic" he's not required to have any of these documents before he exercises his constitutional right under the Articles of Confederation (!) and other principles to drive along the highways and byways our Our Great Nation.

In short, that while the towing company might not be that sympathetic, neither is the plaintiff.  Who represents himself, both below and on appeal, pro per.

You'll be shocked -- shocked -- to learn that Mr. Halajian doesn't prevail on his claim that he's got a right to drive without registering his car or getting a driver's license.  And that, accordingly, it's okay to impound a vehicle driven under circumstances similar to those here.

I know the "sovereign citizen" movement will view this opinion as yet another blow struck by the California Court of Appeal against liberty.  But it seems pretty darn reasonable to me.

Sanchez-Avalos v. Holder (9th Cir. - Sept. 4, 2012)

Since when have we included the address of the attorneys in the "Counsel" listing?

Price v. Stevedoring Svcs (9th Cir. - Sept. 4, 2012)

The vote is 10-1 in this en banc case, an opinion that reads like a final exam in a Federal Courts class.  Chevron and/or Skidmore deference as applied to the litigation position of the Office of Workers' Compensation Programs.  Plus an involved policy discussion of simple versus compound interest.

I'd give the opinion an A.  Judge O'Scannlain -- who's the 1 -- would give it no more than a B.

Read the opinion, take a step back in time to your Federal Courts class, and see who's right.