Lal v. California (9th Cir. - March 31, 2014)

You can take police on a high-speed chase on the 101 for 45 minutes at speeds in excess of 100 miles per hour.  You can tell the police that you want to kill yourself or have them shoot you.  When the cops disable your vehicle with a spike strip, you can get out of your car and scream at them "just shoot me, just shoot me".  You can pick up a large rock, repeatedly bash it against your forehead, and then start throwing rocks at the officers.  You can even try to pretend that your cell phone is a pistol, and try to trick the cops into shooting you by "firing" it at them.  To which the police will hopefully respond the same way that they did here:  By screaming to the other officers not to shoot you because it's a phone, not a gun.

But when you take your football-sized rock and start advancing on the officers, getting with a few feet of them, at that point, they're not going to be able to wait for the K-9 they called for backup.  You'll get your wish, and they may well feel compelled to shoot and kill you.

So congratulations.  You've "won".

But when your estate sues the officers for alleged excessive force, well, that's a different story.  That one's going to be an unambiguous loss.  Qualified immunity.

Or, to put it differently, in the game of life, "Gun Beats Rock".

Ceron v. Holder (9th Cir. - March 31, 2014)

Back in April of 2013, Judge Graber wrote a majority opinion that distinguished circuit precedent in a deportation case, but Judge Ikuta dissented, contending that the majority was bound by that precedent.

In September, the case got taken en banc.  Which meant that Judge Graber's opinion could no longer be cited.

But guess what?  Judge Graber gets drawn for the en banc panel.  Judge Ikuta does not.  And, today, the en banc court issues its opinion.  Authored by Judge Graber.

It's 9-2.  Judge Bea, joined by Judge Gould, dissents.  This time Judge Graber gets to say what she wants to say without being constrained to "distinguish" circuit precedent.  So squarely overrules the prior circuit precedent "to the extent it's inconsistent" with today's holding.

So that puts an end to that.

Ventress v. Japan Airlines (9th Cir. - March 28, 2014)

If a lawsuit lasts nearly a dozen years, it's got to be looking good for the plaintiff, right?  Surely the defendant's inability to get the case finally dismissed for all that time means that they're going to have to eventually settle the thing, right?

Not at all.

This case lasts exactly that long, and goes up to the Ninth Circuit three times.  Plaintiff won the first two times.  The Ninth Circuit first held that plaintiff's claims were not preempted by the Friendship, Commerce and Navigation treaty.  The second time, it held that those claims were not preempted by the Airline Deregulation Act.

But the third time was a charm for Japan Airlines.  At that point, the Ninth Circuit held that the claims were preempted by the Federal Aviation Act.

Too bad Japan Airlines hadn't started with that one.  It would have saved a lot of time and money.

For everyone.

Rouse v. Wells Fargo (9th Cir. - March 27, 2014)

You've got to be a monster civil procedure geek to read nearly twenty single-spaced pages about what Congress meant when it said that, for purposes of diversity jurisdiction, national banks are deemed to be “citizens of the States in which they are respectively located.”  Does "located" mean where they have branches, or do a substantial amount of business, or simply where their headquarters are?

I am, however, precisely such a geek.  So I read the thing.  (Which is more than I can say for the plaintiffs/appellees.  Who didn't file a brief, didn't enter an appearance, and didn't even respond to letters from the Ninth Circuit about whether they wanted oral argument.  Clearly, they care deeply about the resolution of this appeal.  Not.)

Judge McKeown's majority opinion holds that the right rule is that they're only "located" where their headquarters are.  Judge Gould's dissent says that he "regrets" that he's constrained to disagree, and thinks that especially for entities like Wells Fargo -- a traditional California entity and one with its principal place of business here -- it's silly to say they're not "located" here.

But Judge McKeown gets Judge Bybee's vote.  So there you have it.

People v. Black (Cal. Supreme Ct. - March 27, 2014)

The majority opinion (written by Justice Chin) has a point.  Justice Liu's concurrence (joined by Justice Kennard) has a point as well.  One that -- as Justice Liu mentions -- is not necessary inconsistent with the former.  (Though, to be honest, I think that Justice Liu may be expressing a hope rather than giving a neutral evaluation of the majority's holding.  Lots of what the majority says is somewhat inconsistent with Justice Liu's proposed caveat.)

The California Supreme Court holds that it's not reversible error to fail to discharge jurors for cause as long as the defense is able to strike those jurors with peremptory challenges.  Even when, as here, the defense then runs out of them.  You can see the majority's point.  Defendant was able to remove those jurors anyway.  No blood, no foul.

But Justice Liu has a point as well.  To put it somewhat differently than he does:  What's the incentive for the trial judge to get cause challenges right if it's never reversible error?  The challenges here are a good example:  it's crystal clear that the jurors should have been struck.  The trial judge nonetheless was more than happy to seat 'em.  So defendant was forced to waste precious challenges.  Given the California Supreme Court's holding, there's absolutely no reason for trial judges to pay serious attention to even legitimate challenges for cause.  What's the defense going to do if the challenge is denied?  Get a writ granted in the middle of jury selection?  Good luck with that.  Since it's not reversible error, the trial judge can just say "Denied" to even the most obviously meritorious challenges.  No problem.  No reversal.  No remedy.

Justice Liu's concurrence says that maybe reversal should be allowed when the trial judge "repeatedly" makes errors, since that creates an illegitimate balance between the challenges granted to the defense versus the prosecution.  I agree with him as a policy point.  Though I'm not sure why that's not in fact precisely the case here.  Since the trial judge did it twice, with two different jurors, so it seems to me that qualifies as "repeatedly".  Justice Liu doesn't explain why doing something twice doesn't count, or what "repeatedly" means if it doesn't mean "more than once".

Even beyond Justice Liu's (very good) point, the California Supreme Court's holding seems to me to create an untenable doctrinal inconsistency.  The Court has expressly held that it's reversible error to fail to give a defendant his specified number of peremptory challenges.  So, for example, if the statute says he's entitled to 10, but you only give him 8, that's reversible error.

But if that's the rule, then I don't see why the same result doesn't apply here.  That's basically exactly what transpired.  Defendant was entitled to 10.  But the trial judge's errors meant he only got to use 8 because he had to waste 2.  I don't see why it makes a whit of difference whether the trial judge's error is his inability to properly count to 10 or his inability to dismiss 2 jurors for cause.  The practical effect is exactly the same.  Exactly.  The defendant is forced to leave two jurors on it was entitled to bounce.

How you get to 8 doesn't matter.  At least in any way that makes sense.

What's the only way it matters?  I've got a pretty good sense.  The reality is that trial judges are much more likely to be able to count to 10 than they are able to properly adjudicate challenges for cause.  So why reverse the former but not the latter?  Nothing to do with doctrine or effect.  It's simply that we're willing to do so because there aren't many examples of the former but we're worried there might be way too many instances of the latter.

That's not a normative explanation for the distinction.  But I think it's pretty descriptively accurate.

So trial judges:  If you're sleepy, feel free to take a nap during voir dire.  Put a big thumb on the scale towards denying challenges for cause.  No downside if you get it wrong.

Just remember how to count.  That we care about.

People v. Petrovic (Cal. Ct. App. - March 26, 2014)

"Yeah, apparently, the feds are soft on kiddie porn.  Especially those perverts on the Ninth Circuit.  By contrast, we here in California take these things seriously.  Unknowingly having a temporary cache file in your computer may not count as 'possession' of child pornography in the federal system, but here in California, under state law, we say it does."

So holds Justice Gilbert.

Pielstick v. MidFirst Bank (Cal. Ct. App. - March 26, 2014)

If you're pretty sure that you're going to lose a demurrer to your complaint -- perhaps the tentative is against you? -- and you want to voluntarily dismiss the complaint without prejudice instead, be sure to do so before the hearing starts.  Because once it has started, the "trial" has "commenced" and you no longer have the unfettered opportunity to dismiss.

At which point, if you're right, you'll really lose.  With prejudice.

Jackson v. City and County of San Francisco (9th Cir. - March 25, 2014)

Ah, that nutty, left-wing Ninth Circuit.  We all know what it's about.  Of course it upheld today San Francisco's requirement that firearms be stored with either a trigger lock and/or in a locked container, as well as its ban on the sale of hollow-point bullets.  What else would one expect from a court packed with liberals and demonstrably hostile to the Second Amendment?

That's a consistent refrain.  After this morning's opinion, you'll presumably hear it a lot.

The hard part, however, will be explaining why today's opinion is authored by Judge Ikuta.  Hardly a left-winger.  Even in part.  As well as joined by Judge Milan Smith (as well as Judge Nelson).

That's not a panel that's actively looking to uphold gun regulations.  Far from it.  Plus, there's lots in the opinion that unambiguously takes the Second Amendment incredibly seriously.

Sometimes cases gets decided on, well, the merits.  Here, the Ninth Circuit holds that the regulations satisfy intermediate scrutiny and could advance reasonable state interests in preventing deaths from firearms.  Other municipalities could (and have) concluded otherwise.  But San Francisco has gone the other way.  Something that's permitted by the Second Amendment.

Let the gnashing of teeth begin.

Davis v. Walker (9th Cir. - March 24, 2014)

I occasionally critique opinions as making little doctrinal sense and/or ignoring the practical realities of justice.

Want to see an opinion that exactly the opposite?  Here you go.

Justice Tallman's opinion makes eminent sense.  Both doctrinally and practically.

There's a problem.  Judge Tallman provides a path to solve it.  By contrast, the district court pretended to pretend that the problem simply didn't exist.

I like Judge Tallman's approach better.  Lots, lots better.  Straightforward, equitable, and doctrinally sound.

Well done.

People v. Garcia (Cal. Ct. App. - March 24, 2014)

If you want to get a sense of some of the many absurdities in criminal law, take a look at this opinion.

Not that I'm crying all that much for the defendant, who deserves -- and receives -- a very long prison sentence.  But how we go about making that sentence 74 to life is as strange as some of the conduct that generated that dictate.

I'll not discuss at length why he gets many extra years for putting three different fingers inside the rape victim's vagina before inserting his penis.  You can read more about that in the opinion if you're interested.  Nor, with respect to other counts, does one need to discuss the particular facts of this case.

Instead, I'll summarize the Court of Appeal's central holding with a simple hypothetical:

Imagine that I burglarize a house by entering an open sliding glass door, intending to steal a purse that I view therein.  Then, once I'm in the house, I decide to see if there's any prescription medication I can steal, so I go into a bathroom to check out the medicine cabinet and while I'm there steal a hand towel.  Which for some reason gets me thinking about jewelry, so I go into a bedroom in the house and find and take a necklace.  At which point I start thinking about other pretty things, go into a different bathroom, and steal some makeup.

I burglarized and stole from one house.  But according to the Court of Appeal's ruling, I'm now guilty of four separate counts of burglary.  If I'd have entered the home with a plan of "cleaning the place out," I'd only be guilty of one count.  If I'd have entered the home and all of the items above were in one common room, I'd only be guilty of one count.  But the pure happenstance that (1) I occasionally changed my mind, and (2) the fact that the various items were located in different rooms means that I'm guilty of (and can be punished for) four separate offenses rather than one.  To put it a different way, the guy with the more culpable mental plan who intends to steal everything that's not bolted down is punished less than the guy who enters with a more limited vision of just stealing selected items.

That's what the Legislature intended.  At least according to the Court of Appeal.

As for how the Court of Appeal gets there, I thought that it was interesting that the opinion discusses at some length the reasoning articulated by Justice Benke's dissent in an earlier case.  As I read that portion of the Court of Appeal's opinion, I simultaneously thought (1) that that reasoning had some persuasive merit, but (2) that it was nonetheless a little weird to be quoting from a dissent, which only highlights the fact that the current opinion -- which goes even further than that earlier case -- may perhaps be somewhat "pressing the envelope".

Though I think I understood the opinion's discussion of Justice Benke's dissent a little better once I got to the very end of the opinion.  At which point I noticed that the current opinion was authored by Justice Benke.

Having read literally hundreds of similar burglary cases over time, I'm largely at the point at which I simply throw up my hands.  As presently articulated, this incredibly commonly charged offense is so far from what we commonly understand to be the relevant crime that it's virtually incomprehensible.  Nothing makes any sense at all.  But we seem to have stopped caring at all about that fact long, long ago.  We're instead happy to build fiction upon fiction upon fiction to where we have this giant cairn of a doctrine that looks as fragile and as absurd as any man-made pile of teetering rocks you'll ever see anywhere.

Yet there is stands.  A definite marker for where we are, where we're going, and how we got there.

Add this opinion to the top of the pile.

Ellis v. US Security Associates (Cal. Ct. App. - March 20, 2014)

The Court of Appeal holds that you can't contractually shorten the limitations for FEHA claims (e.g., sexual harassment) to six months.  That's against public policy and invalid.  So it reverses the trial court's dismissal of the lawsuit.

It's a tight little opinion.  Very persuasive.  Maybe a little long on case-by-case distinctions of prior precedent.  But that's not particularly unusual for opinions in the Court of Appeal.  A byproduct of turning bench memos/tentative opinions directly into the final product.  It nonetheless remains a good piece of work.

There's also a nice couple of pages that describe the salacious details.  References to the supervisor "pulling up his pants in front of [plaintiff] to expose the size of his sexual organ" and how both he and his wife (who also worked at the place) tried to convince plaintiff to join 'em in a threeway.  Which is all fine.  If you're into that sort of thing.  But not at work.  While you're there, keep it professional.

And in your pants.

Falcon v. Long Beach Genetics (Cal. Ct. App. - March 21, 2014)

Mother wants to know if Father is actually the biological father of Daughter, so gets a DNA test from Defendant.  Defendant tells Mother that Father is not, in fact, the father.

Turns out, that's wrong.  Father's in fact the father.  As subsequent DNA tests definitively confirm.

So Mother (and Daughter) sue Defendant.  You might think that's a pretty decent lawsuit.

Maybe it is.  Though, of course, every lawsuit has its own complexities.

But in this one, one of the complexities is counsel for plaintiff, San Diego attorney Duane Admire.  The Court of Appeal isn't particularly happy with the papers filed in this case.  Here's what it says

"We set out the undisputed material facts as ascertained from the parties' moving and opposing papers and state other facts and draw inferences from them in the light most favorable to plaintiffs. Having said this, we are compelled to note the difficulty we have had identifying the evidence supporting plaintiffs' claimed disputes as to defendants' enumerated material facts pertaining to the section 47(b) privilege. Plaintiffs' opposing separate statements largely contain argumentative assertions in response to each listed fact, unsupported by the cited evidence. . . . To further complicate review, plaintiffs make numerous factual assertions in their briefs without record citation. Accordingly, our review of the facts is also hindered by their failure to provide citations to the record that comply with California Rules of Court, rule 8.204(a)(1)(C). We are entitled to disregard such unsupported factual assertions even on de novo review of a summary judgment."

The Court of Appeal likes good briefs.  They won't always enable you to win.  But they can definitely help you not lose.

Which plaintiffs do here.  Lawsuit dismissed.

Haskell v. Harris (9th Cir. - March 20, 2014)

Most en banc cases are difficult.  That's because a panel's already decided the case a particular way, there's been a successful en banc call, and there's typically a whole lot of disagreement about how the case should be resolved.  That's why it went en banc, after all.

For example, here, the initial panel heard oral argument in July 2010, and eventually issued a split opinion in February 2012.  It went en banc shortly thereafter, in July 2012.  Then, in September 2012, there's a spirited oral argument in the en banc court.  It looks like it'll be interesting.  A (secret) vote is taken, and opinion(s) start to get drafted.  It'll almost undoubtedly be a fight.

But you know what makes things easy?  Two months later, in November 2012, the Supreme Court grants certiorari in a case that's virtually identical to this one, albeit from another circuit.  Thereafter, in June 2013, the Supreme Court comes down with its opinion.  5-4.  Interesting lineup, well argued on both sides, but there's a definite answer.

So put the opinion writing process on hold.  Because the world's now changed.

A couple months later, the Ninth Circuit tells the parties:  Hold tight.  Given the intervening decision, we're going to have to get this thing reargued.  We'll do it sometime in December.  We'll give you a date shortly.

Come December, the second argument happens.  This one's much less spirited.  Sure, there are parties on both sides.  Presenting their positions forcefully.  But it's nonetheless pretty clear which way this one's coming out given the Supreme Court's holding in the intervening case.  Even to the parties.

Sure enough, four months later -- this morning -- the en banc court releases its opinion.  This one's much shorter than the court originally anticipated in 2012.  Four short paragraphs.  Per curiam.  With the assent of 10 of the 11 judges.  Easy.

(Though that doesn't stop Judge Milan Smith from writing a nine-page concurrence, in which he complains about -- and disagrees with -- the last paragraph of the per curiam opinion.  Even easy stuff isn't necessarily easy when you've got to get eleven different judges on board.)

I hope whichever clerk was assigned the original en banc opinion didn't get started early, but instead procrastinated.  Because that'd have been a good strategy.  (Parenthetically, one advanced by my friend and colleague at USD Law, Frank Partnoy, in his recent book Wait: The Art and Science of Delay.)  No wasted energy.  The thing essentially resolves itself.

Sometimes everything comes together nicely.  Or at least easily.  Like here.

In Re Christian I. (Cal. Ct. App. - March 19, 2014)

As you might imagine, it takes a lot for an experienced Juvenile Court Referee in Los Angeles to describe a particular case as "shocking to me, even after all of these years” and “one of the worse cases I have seen, where there’s such sadism . . . and such disregard for a child[]."

A lot.

People v. Ramirez (Cal. Ct. App. - March 19, 2014)

There are legions of cases that make crystal clear that even though the rule of lenity is supposed to be a cardinal principle of statutory interpretation in the criminal context, in practice, it's pretty much meaningless.

Except in this case.

A vice principal at a high school has sexual relations with a 14-year old student.  Oops.  He pleads no context to a plethora of charges, some of which were alleged to have occurred prior to October 1, 2011, some of which were alleged to have occurred thereafter, and some of which may have occurred in either of these categories.

This matters.  Since, depending on the relevant date of his criminal acts, he gets four-for-four custody credits under one set of rules, but only two-for-four under another.

Which adds up to a fair piece of time.  Even in the context of his 15-plus year sentence.

The thing is, the statute sets up one rule for crimes before October 1, 2011, and another for crimes after that date.  And it's crystal clear that it's the date of the actual crimes that matter, not the date of sentencing or any other date.

The statute also doesn't tell you anything about what you do when there are some crimes before that date and some crimes after.  Plus, all the parties agree that there's no "middle ground".  It's either one rule or the other.  You can't "mix and match" and apply one rule to one part of the sentence and another to the rest.

Hmmm.  What to do?

In a very concise opinion, Justice Premo holds that what you do is to rely on the rule of lenity.  It's totally unclear.  So you adopt the interpretation that favors the defendant.  So the guy gets the more favorable good conduct credit regime.

Still stays in prison for a long, long time.  But gets out a bit earlier.  Thanks to a doctrine that's supposed to matter a lot but actually matters very little.

Except here.

Family PAC v. Ferguson (9th Cir. - March 19, 2014)

I'll admit that I was initially of the impression that when the Court of Appeals expressly told the parties that they were to "bear their own costs," that included attorney's fees.  That's how we usually use the term "costs" in the modern era, which occasionally include the right to recover fees.

But Judge Fisher persuades me otherwise.

Costs on appeal are subject to one standard.  Attorney's fees another.  In a "split" appellate opinion, a panel might essentially call it even on the cost front.  But attorney's fees might nonetheless be recoverable since you can often recover them as long as you've prevailed on a significant issue.  Even if you got crushed on others.

So I think we're on the right side of the circuit split here.

Noceti v. Whorton (Cal. Ct. App. - March 18, 2014)

Not that you need any additional incentive to calendar a trial date correctly.  But here's some more.

The Court of Appeal holds that a plaintiff isn't entitled to mandatory relief under the "attorney fault" provisions of CCP 473(b) when her lawyer admits that he calendared the wrong trial date and, as a result, didn't show up for -- and hence lost -- the trial.  Maybe (to reiterate:  maybe) she can seek discretionary relief.  Good luck with that.  But while Section 473(b) permits you to vacate a default, that rule doesn't apply to not showing up at trial.

That's not a default.  We instead call that something else:  Losing.

So calendar those dates correctly.  They're pretty important, after all.

Or, at a minimum, keep those malpractice insurance premiums paid up.

Purcell v. Schweitzer (Cal. Ct. App. - March 17, 2014)

This decision is correct.  Though it unfortunately leaves unanswered what exactly we're supposed to do in situations like this one.

It's a pretty standard problem, and one with which attorneys are more than familiar.  X owes Y some money; here, $85,000 on an unpaid promissory note.  Y sues.  The parties settle for $38,000.  Installment payments.

So we have to deal with the obvious problem.  After all, X didn't pay the installments due on the note.  So what makes us think he actually pay the installments on the settlement?

We solve this problem the usual way we solve it:  The parties stipulate to a judgment of the full amount due ($85,000) if any of the required installments aren't paid.  That'll create the right incentives.

Garden variety.  Done all the time.  Generally works.

Now, in this case, there a wrinkle.  One that makes X's position very, very sympathetic.

Under the settlement agreement, X's payments are due on the first of the month.  They're considered late -- and a breach of the agreement -- on the fifth.  Things go fine for a year or so.  Installments paid on time.  As expected.

But about a year and a half into the installment deal, in October 2011, for the first time, X is late.  His installment payment is due no later than October 5.  But he gets it in on October 11 instead.

Y cashes the check.  But Y also immediately moves for and obtains a stipulated judgment for the amount due under the "full payment" provision.

Mind you, at this point, there's something like $700 of installment payments still due, at which point the settlement will be fully paid.  But that doesn't stop Y from obtaining a stipulated judgment for over $58,000.  Entirely on the ground that the October payment was six days late.

After X makes the final installment payments due in November and December, he moves to vacate the stipulated default judgment, asserting that it's an impermissible penalty.  Of course, the parties had expressly said in the settlement agreement that it wasn't a penalty, and included various legalese to try to support this contention.  But the trial court -- understandably -- wasn't buying it, and vacated the default judgment.  The Court of Appeal agreed.

All of which is right.  You can't jump on a guy being six days late in one of his payments to get a $50,000-plus windfall.  I can't think of a better definition of an unjust penalty, and California law correctly refuses to enforce such a penalty.  Even if the parties have "agreed" it's not one.

All well and good.

But what the Court of Appeal doesn't try to explain -- and it's definitely a tough question -- is where the line is between an impermissible penalty in situations such as this and a permissible one.  What if the guy's not six days late, but sixty?  What if the only reason he even makes that (late) payment is because you've already sought to enter the stipulated judgment?  What if the guy's late not once, but seven times?  Remember that these provisions are often included precisely in situations in which we've had prior experience with the guy not paying his valid monetary obligations.  When can we finally say:  Enough his enough?

At some point, you've got to be able to do that.  Even though, yeah, truth be told, it is a penalty.  Does the amount of the stipulated judgment truly "approximate" our costs in enforcing the judgment, blah blah blah, as the statute requires?  No.  That's not even the point.  The point is instead to encourage the guy to make the payments due.  To put precisely the type of financial pressure on him that the statute facially excludes.

I can see a decent argument that, in situations like this, it's not even really a "penalty".  It's instead merely the removal of an "incentive".  Remember:  X totally owed $85,000, but the settlement agreement let him pay a fraction of this amount ($38,000) as full payment.  But only if he actually paid, and did so on time.  Once he defaulted (again) on his obligations, the incentive arguably legitimately disappeared.  It's not that it would cost Y an additional $50,000 to hire a lawyer, etc. to go after the guy.  We obviously can't prove that.  But why should X be entitled to get the benefits of the agreement -- a large reduction in liability -- and yet still avoid his obligations thereunder?

That's a systemic problem in cases like this one.  Because both under the Court of Appeal's reasoning as well as under the statute, it does seem like we may well be making it very difficult to enforce these types of settlement agreements.  Because it's always (1) going to be hard to draw the line between late and "really" late payments (i.e., between material and immaterial breaches), and (2) even if we can satisfy (1), it's still almost always going to be an impermissible "penalty" since it'll be incredibly hard definitively establish the link between the amount that's due and what we now have to do to enforce the thing.

And that matters.  Because if we can't be sure that we can enforce these provisions, then we won't be willing to settle.  That's bad for the parties.  That's bad for courts as well, who then have to continue to deal with the continued litigation.

It's not that I disagree with the result here.  I definitely don't.  This couldn't be a more obvious example of an impermissible penalty.

But the arguments and analysis in this case nonetheless raise the definitely important question of when these types of stipulated judgment agreements are in fact enforceable.  Before reading this opinion, as a mediator and as an attorney, I'd have felt pretty confident about resolving disputes -- and keeping them resolved -- by including provisions like these.  And have routinely employed them myself.

By contrast, after reading the opinion, I'm not at all sure they're enforceable.  Certainly not easily, anyway.

So ponder this reality the next time you're faced with a similar situation.  Sure, you can sign the relevant agreement.  Whether you're on the debtor's side or on the creditor's.

But what are you really buying or selling?

Tough to tell.

Rosebrock v. Mathis (9th Cir. - March 14, 2014)

Pretty interesting.

There's a federal regulation that prohibits "displaying" anything on VA property.  That (probably) covers everything.  No displays.

Robert Rosebrock put an American flag on the fence that surrounds the VA's property.  The VA was fine with that.  No citations.  We're proud to be American, after all.

But then Rosebrock, upset at various VA policies, occasionally displayed the American flag upside down.

That the VA cared about.  And repeatedly cited him for violating the regulation.

When the flag was top up, no problem.  Top down, prosecution.

That violates the First Amendment.  Content discrimination.

Ultimately the Ninth Circuit holds -- in a split opinion -- that the case is moot because the VA facility sent an e-mail that said it wouldn't do it again.  Despite the fact that this promise doesn't have anything near the status of law, Judge Bybee finds it credible, and holds that the case is moot.  Judge Rawlinson dissents.

I'm not surprised that the VA would be happy with the display of a right-side-up flag and displeased with an upside-down flag.  But I am surprised that it would take 'em eight months to figure out that you can't just cite people when they're engaging in speech you don't like.

But fear not.  It said it won't do it again.

Snibbe v. Superior Court (Cal. Ct. App. - Feb. 27, 2014)

I'm pretty impressed with the dedication and judgment of all of the judicial officers in this case.  Balancing privacy and relevance and burden during discovery is always tricky.  But my strong sense is that what was done here was entirely right.  We want to find out of a doctor is (as alleged) improperly delegating critical pain management decisions to an unqualified subordinate.  He says he's simply dictating orders that the other person writes down, but the plaintiff has reason to disbelieve him.  Looking at other orders he's signed for other surgeries may well indicate whether he's lying.  So both the trial court and the Court of Appeal allow for limited discovery.  With appropriate redaction and protective orders.

Sounds right to me.  A nice balance between the various competing interests at stake.

Well done.

U.S. v. Morales-Isabarras (9th Cir. - March 13, 2014)

Jaun Morales-Isbarras is a resident of Mexico.  He's not entitled to be in the United States.  We catch him and deport him on December 15, 1999.  End of story.  Right?

Wrong.  We catch him again in the United States in 2001.  Deport him back to Mexico on February 24.

He comes back.  We catch him again.  Deport him on September 4, 2001.

He comes back again.  We catch him yet again.  Quickly this time.  Deported again on September 26, 2001.

The guy's not deterred.  He immediately comes back.  Caught and deported yet again on October 2, 2001. Notice that this is less than a week (!) after he was previously deported.  For the fourth time.

Morales-Isbarras returns again.  Caught and deported again.  This time on May 18, 2003.

You know what happens.  He returns.  He's caught again.  This time -- the seventh time being the charm, apparently -- we charge him with illegal reentry.  So in November 2003, he gets to stay in the United States for a spell.  Sentenced to 21 months in federal prison.

Which he serves.  He gets released in May of 2005, and is immediately deported (again) to Mexico.

Do I really have to tell you what happens next?

Of course not.  He comes back.  Is caught in August of 2006.  Indicted yet again for illegal reentry.  Pleads guilty, and is sentenced to 24 months in prison.  Gets released from prison in July 2008, and we deport him again to Mexico.

Guess what?

Yep.  He's caught again in September of 2012.  This time in Arizona.

I'll not go into the procedural morass of the resulting charges.  Suffice it to say that the only substantive charge against him in Arizona is a misdemeanor (!) -- improper reentry -- for which he gets 18 months, and then he's transferred back to California for violation of supervised release (imposed for one of his previous illegal reentry offenses), and he gets another 18 months for that.  So that's another three years total in prison.

The Ninth Circuit affirms all of this.  Which means that Morales-Isbarras will hang out in the U.S., in prison, until the middle or so of next year.  At which point he'll again be released and deported to Mexico.

Bets on what happens next?

People v. Montes (Cal. Supreme Ct. - March 13, 2014)

I'm not going to ask anyone to read this 100-page plus opinion.  Because it's (of course) a death penalty case.  With a fairly predictable result.  The Court unanimously agrees the guy dies.

I will instead highlight just two portions of the opinion.  Without substantial comment.  See what you think.

Defendant says he was unfairly singled out for the death penalty because his victim was (1) white, and (2) has brothers and a stepfather who were police officers.  He says that the Riverside DA unconstitutionally sought the death penalty against him (and others) based on those characteristics, thereby depriving him of equal protection.  Here's the law:  It violates the Equal Protection Clause to decide to prosecute based on "an unjustifiable standard such as race, religion or other arbitrary classification."

With respect to the claim of discrimination based upon the race of the victim, defendant introduced a study that showed the 81% of the capital charges brought by the Riverside DA within the relevant period were brought when the victim was white, whereas only 39% of the wilful homicides in the area during this period involved white victims.  Defendant wants discovery from the Riverside DA for more information about the charging details.

To obtain such discovery, you've got to produce "some evidence" tending to show discriminatory intent and effect, and/or to sustain your requested discovery "by plausible justification".

The California Supreme Court holds that defendant's study doesn't satisfy this standard because it's not detailed enough; instead, it's a "bare statistical comparison of the race of homicide victims in Riverside County without consideration of individual case characteristics" that "[s]ignificantly, [] did not indicate what
percentage of the non-White-victim homicides would have been eligible to be charged as capital homicides."  In other words, defendant is not permitted to obtain discovery of individual case characteristics because the existing information available to defendant's experts does not include individual case characteristics.

Think about that for a tiny bit.

With respect to the claim of intentional discrimination based on the fact that the victim's relatives were police officers, here's the entirety of the Court's response:

"Defendant additionally contends he was subject to discriminatory prosecution because the victim was related to members of law enforcement. He points to a taped interview between codefendant Gallegos, police detectives, and the deputy district attorney, in which an interviewer mentioned that the victim’s stepfather was a former police officer and that his brothers were police officers. However, defendant fails to provide authority that this type of victim status constitutes an unjustifiable or arbitrary classification under federal equal protection. We therefore reject defendant’s arguments based on this aspect of the victim’s status."

I get that defendant "fails to provide authority" for the point.  Beyond, of course, citing the relevant standard from the California Supreme Court.  Which merits quotation again:  "It violates the Equal Protection Clause to decide to prosecute based on an unjustifiable standard such as race, religion or other arbitrary classification."

Which means that the California Supreme Court is of the view that it wouldn't be an "arbitrary classification" to seek the death penalty solely against people whose victims were related to police officers.  That'd be fine.  Consistent with the Equal Protection Clause.  There's "no authority" to the contrary.

Think about that one as well.

Remember that this is a unanimous opinion of the California Supreme Court.  Where someone's life is on the line.

So presumably these ideas were well thought out.

People v. Garcia (Cal. Ct. App. - March 12, 2014)

I'm a little confused.

The Court of Appeal held a tiny bit ago that it's "unclear" whether the alternate jurors were actually in the jury room alongside the 12 regular jurors.  I'm not exactly sure what's unclear.  Here are the relevant portions of the transcript (as quoted in the opinion):

"After the bailiff was sworn, the trial court asked him, 'Do you want all of the jurors to go in the deliberation—' The bailiff responded, 'Yeah. All 14.' The trial court said, 'Okay. [¶] All 14 jurors, please go into the jury deliberation room. [¶] The alternates, since you won’t be deliberating, just leave your documents on the seat. [¶] Everybody, take your documents. You will be given the exhibits, the verdict forms, and questions forms.' After the seated and alternate jurors left the courtroom, the trial court stated, 'The record will reflect that all jurors, including the two alternates, have gone into the exhibit [sic] room.' After the jury returned its verdicts, the trial court sent all the jurors, including the alternate jurors, back to the jury deliberation room."

What about that's unclear?  Seems to me pretty darn clear that all 14 were in the same room, right?

The Court of Appeal says "That the alternate jurors were sent back with the seated jurors does not mean that they entered the jury room itself and stayed there."  But where else would they go?!  The trial court expressly said:  "All 14 jurors, please go into the jury deliberation room."  The trial court also said:  "The record will reflect that all jurors, including the two alternates, have gone into the exhibit [sic] room."  Literally:  How much clearer could the record be?

The Court of Appeal also says:  "Moreover, that there was no objection by defense counsel suggests that the alternates were not present."  Hmmm.  Let's see.  Can anyone come up with an idea as to why the defense counsel might not object that doesn't rely on the assumption that the trial court was wrong when it repeatedly said that all 14 jurors were going to the deliberation room?  Something along the lines of the defense attorney not knowing -- as the trial judge and bailiff clearly didn't -- that this was improper?  Or the defense attorney not paying attention?  Or not caring?  The theory that the facts must not be X because X is error and hence the defense attorney surely would have objected to X just seems utterly implausible to me.  Yet that's where the Court of Appeal comes out.

So, honestly, I'm sincerely confused.  Because for the life of me I don't understand what's confusing.

Look, as to whether this constitutes reversible error, on that point, I'm admittedly open.  Seems to me that there's a pretty good "no blood, no foul" argument as long as the alternates didn't participate in the actual deliberations.  Which, here, there's no evidence that they did.

The strongest response to that position, however, is the clear holding of the California Supreme Court.  Or at least a holding that's pretty darn clear to me.  Here's the relevant authority:

"In People v. Britton (1935) 4 Cal.2d 622 (Britton), the California Supreme Court addressed the propriety of an alternate juror’s presence in the jury room during deliberations. The court in Britton approved the opinion in People v. Bruneman, supra, 4 Cal.App.2d 75, a then recent Court of Appeal opinion, and, over the dissent of two justices, adopted as its own the Court of Appeal’s opinion in Britton in pertinent part as follows: “Appellants claim reversible error because when the jury retired to deliberate the court directed that the alternate juror should retire to the juryroom with the jury, and that this was error even though the court instructed such alternate juror that while she might listen to the deliberations of the jury, she should not express any opinion or participate by word or action in those deliberations. [¶] Subsequent to the appeal herein this identical question was decided in People v. Bruneman[, supra,] 4 Cal.App.(2d) 75 [40 Pac.(2d) 891], and we agree with the conclusions therein stated, that the presence of the alternate juror in the juryroom while the jury was deliberating upon its verdict was reversible error.”

Just so we're clear on what the California Supreme Court said.  As its holding.  Here it is again:  "[W]e agree . . . that the presence of the alternate juror in the juryroom while the jury was deliberating upon its verdict was reversible error."  Again, how much clearer could the Court be?

Now, it'd be one thing if the California Court of Appeal was the California Supreme Court.  In which case it could legitimately say:  "Well, that's a stupid rule."  But it's not.  Last time I checked, anyway, only the California Supreme Court could overrule controlling precedent from the California Supreme Court, not the Court of Appeal.

Sure, the rationale of the California Supreme Court's rule was perhaps undercut by a subsequent U.S. Supreme Court holding that the presence of an alternate in the jury room wasn't a "plain error" that violated Federal Rule of Criminal Procedure 24.  But that's a holding about errors under the FRCP not squarely applicable to California.  And, yes, there are subsequent California cases that hold that it's not necessarily reversible error for a defendant to stipulate to allow alternates in the jury room.  But that's not exactly what transpired here either.

The Court of Appeal never comes out and says that "the holding in People v. Britton is no longer good law."  But it seems to me they have to say that in order to reach the conclusion it reaches.  And the fact that it's reluctant to come right out and say "We've hereby decided to ignore a controlling holding of the California Supreme Court" probably says something.

Rivera v. County of Los Angeles (9th Cir. - March 12, 2014)

Thinking of what name to give to your newly born child?  Here's something to think about.  Because if you give them a common name -- one that's common enough so that other parents might also give it to their children on the same day (e.g., "Santiago Rivera" or "William Smith") -- your child may one day find himself in jail for an extended period of time.  Picked up on a warrant that was issued for someone entirely different, but with the same name and date of birth.

And there will be nothing at all he can do about it.

Don't think that giving the kid a weird middle name will solve the problem.  It won't.  The Santiago Rivera here had a different middle name than the guy on the warrant.  Didn't matter.  Same first and last name.  Same date of birth.  That means jail.  At least for the couple of weeks it takes to search the files and see that the prints and picture don't at all match.

Suddenly that "crazy" name your parents gave you doesn't seem so absurd, eh?

Weaver v. Superior Court (Cal. Ct. App. - March 12, 2014)

Seriously?

La Twon Weaver's facing a death penalty case.  He (and his lawyers) think that San Diego might be unconstitutionally initiating capital cases based upon the race of the defendant and/or victim.  So the attorneys seek some documents from the San Diego District Attorney's Office under the California Public Records Act; namely, the court filings in death penalty cases between 1977 and 1993.

To be clear:  The only documents the defendant seeks are publicly filed documents in death penalty cases.

The DA's Office refuses to produce them.  Claiming that production would "violate the privacy rights" of third parties and are exempt from disclosure.

To reiterate:  These are publicly filed documents.

The trial court -- Judge Strauss -- agreed with the District Attorney.  The Court of Appeal did not.

Rest assured, this wasn't the District Attorney's only argument.  She also claimed that it would be "overly burdensome" to produce these files, since it would take someone 40 hours of time (at a cost of $85/hour) -- for a total of $3,400 -- to extract these records and produce them.

To which I'll just say one thing:  How much do you think it cost the D.A.'s Office to write briefs in both in the trial court and in the Court of Appeal trying to not produce those documents?  I'm quite confident it's substantially more than $3,400.  (Expenditures which, I might add, didn't even succeed.)

The Court of Appeal is right.  Whether we unconstitutionally target people for the death penalty is a nontrivial issue.  The DA's Office may perhaps be right that it isn't/wasn't doing anything illegal.  But that's insufficient justification for failing to produce public documents in its possession that will subject this claim to the adversarial process.

Just let 'em have the stuff.  Don't waste our tax dollars fighting the thing.

Dickens v. Ryan (9th Cir. - March 11, 2014)

There was an en banc death penalty decision earlier this year that was a close one.  6-5.  Neat split in the lineup.  Lots of interesting holdings.

On the day the opinion was published, I said that the defendant, Gregory Dickens, would "live[] or die[] depending upon whether the vote's 6-5 or 5-6."

I was wrong.

Because four days later, the guy apparently committed suicide in his cell.

(Which, I might add, is weird.  The guy actually won -- in large part, anyway -- in the Ninth Circuit.  Why that resulted in his decision to take his own life is largely beyond me.)

So that's that.

Though it's actually not.  The Ninth Circuit still has to decide whether to vacate its prior en banc opinion on grounds of mootness.

It decides today that, no, it'll keep the opinion intact.  It had jurisdiction at the time.  It's an investment of resources.  Vacatur is discretionary.  It lets the opinion stand.

Which is the right call.  Despite the fact that Judge Callahan -- alone amongst the 11 members of the en banc panel -- dissents.

U.S. v. Chuun (9th Cir. - March 11, 2014)

Imagine that a hostile nation -- say, Vietnam -- invades and takes over your country.  It then installs a despot to rule it.  Let's make it even worse than that:  let's say the despot with an active hand in deliberate genocide of millions.  The despot subverts democracy, Congress passes resolutions supporting his prosecution in the International Criminal Court for crimes against humanity, etc.  All the usual stuff.

Imagine that you don't like this reality.  Shouldn't be too hard.  You're just a hardworking tax preparer in Long Beach, but you're from this nation, and watching it go to hell in a handbasket is too much.  You and a group of fellow travelers think of yourselves as modern day George Washingtons.  You arm yourselves and start a revolution.  You attack the Defense Ministry and a military barracks.  You hope and expect that the people of your nation will follow your lead and throw off the shackles of oppression, creating a democratic and free nation.

If you succeed in overthrowing this universally despised despot, the freedom loving people of the world -- a group that includes the President of the United States -- will surely embrace you.

By contrast, if you fail, this is what happens.  We convict you in a U.S. courtroom and sentence you to life in prison.

It's a strange, strange world.  Especially when domestic law intersects with international affairs.

P.S. - The nation at issue is Cambodia.  The revolutionary group is the Cambodian Freedom Fighters.

In Re A.C. (Cal. Ct. App. - March 10, 2014)

I like this.  It's not something I've seen before.

Court of Appeal Opinion A, in 2006, holds that it's error for a court to engage in a particular practice (here, setting a "maximum confinement term" for a minor who's returned to his or her parents rather than confined in juvie hall), but nonetheless declines to "strike" this irrelevant declaration from the sentence on the theory that since it's of no legal effect anyway, there's no harm leaving it there.

Since the Court of Appeal has identified this practice as error in a published (and precedential) opinion, you'd think that trial courts would stop doing it.  But they don't.  Lots of 'em keep on "adding" this to the sentence.  Leading to additional appeals.

So in 2008, the Court of Appeal issues Opinion B.  Which reiterates that, yes, setting that irrelevant term is indeed error, but noting that trial courts have nonetheless continued the practice.  So Opinion B decides to strike the term from the sentence.  Hoping that, now, trial courts will get the point, since now they'll partially be "reversed" if they add the term.

But that doesn't entirely work either.  Since now there's a "split" in the Court of Appeal.  The Third District says you don't strike the thing, but the Second District says you do.  Leading to more appeals about whether the thing should be struck.  With the People siding with the Third District and the minors asking the Court of Appeal to follow the Second.

So today, the Third District throws in the towel.  It reiterates that it's still totally error to add a maximum confinement term.  And since that didn't seem to stop the practice, and since the resulting appellate split has simply led to more appeals (and consequent waste of time and resources), it decides to go ahead and start striking  the term as well.  Hoping that this solution will finally "stop the error and quell the debate over its effect."

Let's hope that (finally) works.

I think that's a nice, practical resolution.  There's no need to waste money here.  So I like Justice Duarte's resolution.  As well as the willingness of the Third District to be flexible here.  Even though it thinks that its prior decision was just fine, it appreciates the resulting consequences, which everyone should realize are not optimal.  So it reconsiders its prior ruling.

I like it.  I like it a lot.

People v. Grewal (Cal. Ct. App. - March 7, 2014)

Only now do I understand how internet cafes manage to stay in business.

Apparently it's a pretty widespread practice.  The Court of Appeal describes the scheme.  I'll spot you:  It's pretty creative.

But it's also clearly gambling.  Therefore illegal.  As the Court of Appeal holds.

Peralta v. Dillard (9th Cir. - March 6, 2014)

This is a biggie.

It's essentially a 6-5 en banc decision.  With a lineup that's not at all traditional.

You've got Chief Judge Kozinski writing the majority opinion.  Joined by Judges Silverman, Graber, Tallman, Clifton and Nguyen.  With a couple of (similar) dissents that get the votes of Judges Christen, Rawlinson, (Milan) Smith, Hurwitz and Bybee.

Notice that you've got judges of all political stripes on both sides.  Despite the fact that this is a Section 1983 case.  Pretty unusual.

One other non-merits point.  People sometimes ask me if it really matters that the Chief Judge is always on the en banc court.  Usually it doesn't.  Here it absolutely does.  My guess is that absent that rule, this case probably comes out the other way.

The merits are super interesting.  And difficult.  Which is why you see smart people of all principles on both sides of the equation.

The basic question is this:  Can a state official avoid damages for violating someone's constitutional rights by claiming that the state "made him do it" by not providing him enough money?

You can see why that issue matters.  In a ton of cases.  Here, it's a prison case.  Plaintiff, Cion Peralta, gets terrible dental care in prison.  So bad -- so absurdly, grossly bad, with accompanying pain and infection -- that it amounts to deliberate indifference to his constitutional right to be free of cruel and unusual punishment.  In the procedural context of this case, we assume that's right.

Peralta sues the various prison dentists and dental officials for damages.  The prison dentists basically defend the lawsuit by saying that even if the dental care was terrible (as it likely was), it wasn't their fault, because the state was supposed to provide a dentist for every thousand inmates, but only actually provided a dentist for every couple of thousand inmates.  So they essentially had to do a crappy job.

Is that a defense?

The majority says "Yes".  The dissenters say "No."

Both sides do a very good job articulating reasons for their position.  Judge Kozinski has a couple of main points, but his most persuasive one (in my view) is the central claim that it's not the individual doctor's fault that Peralta's rights were violated, but instead the state's fault for not providing enough money for enough dentists.  And since you can't sue the state (for money, anyway), Peralta's out of luck.  That's just the nature of sovereign immunity.  The state might be liable, but you can't get money out of it, and whereas you can sue the individual, they're not at fault.  End of story.

Judge Kozinski doesn't put it precisely this way, but his analogy is essentially to triage.  Imagine there's a war and the state doesn't have enough doctors (or, as here, dentists).  The doctors and dentists aren't personally responsible for the situation.  They have to do the best they can with the limited resources they're provided.  So some people die -- or have their teeth rot out -- and other people live.  C'est la vie.  That's the world.  It's not the doctor's (or dentist's) fault.  The situation was not of their making.

The dissent, by contrast, powerfully focuses on the consequences of such a rule.  Noting that the underfunding here was clearly the state's making.  If you don't allow the dentists to be sued, what incentive does the state have to give enough dentists; e.g., to comply with the Eighth Amendment?  None.  The state can just underfund the prisons and be confident that even if incarcerated people are somehow able to sue, they'll lose anyway.  Thanks, Ninth Circuit.  That's a terrible rule.  It basically encourages the state to violate the Constitution, and leaves horribly damaged people without any remedy whatsover.

All of which, in my view, is entirely true.

But the majority has a response.  Sure, you can't sue for damages, but (they say) you can still sue for injunctive relief.  So that'll allegedly solve the problem.

I'm not at all persuaded.  The dissent rightfully identifies the decade-long litigation over medical treatment in California prisons as an example of why injunctive relief doesn't work, and I think that's right.  To that I might add that the Court's incredibly strict standards for standing and the like will also almost invariably get in the way of actually prevailing in claims of this nature.  Even if one overlooks the fact that the ability to sue for injunctive relief is small solace to a guy who's already lost his teeth as a result of the prison's deliberate indifference to his medical needs.

But notwithstanding the failure (in my eyes, anyway) of that argument, there's a reason the majority gets a majority.  Lots of this problem is simply the problem of sovereign immunity.  Yeah, this may incentivize states to violate rights, since they're not liable for damages.  But so does immunity itself.  That's the nature of the beast.  It's a balance we made long ago, so there you have it.  The majority even says that to do otherwise -- to do what the dissent would do -- would be to "backdoor" violate sovereign immunity.  But even taken more weakly, the majority's claim is simply:  "Don't blame us.  Blame the Eleventh Amendment."

Not surprisingly, the dissent takes a different approach.  One that has a lot of merit.  They say that the state's indemnifying these prison officials, as well as creating the underlying problem, and since both of these acts are entirely voluntary (as indeed they are), the state can hardly be heard to complain.  It's not that we're ignoring the Eleventh Amendment, and we're not in fact imposing damages against the state (and the Supreme Court has expressly drawn this distinction between suing states versus officers).  It's instead that we're recognizing the Eighth Amendment.  Prisoners have rights.  They're entitled to them.  When they're violated, they get damages.  State officers were responsible.  They failed.  End of story.

As I said, both sides have darn good points.  As well as entirely legitimate perspectives.

Though the more I thought about the case -- and I've essentially thought about it all day -- the more I think that I'd join the dissent and preclude the defense.

Here's the hypothetical that I'd pose to Chief Judge Kozinski:

Imagine a slightly different sort of state-sponsored fiscal constraint.  The state doesn't have enough (or doesn't feel like spending) money for dental care for prisoners, so instead of buying any dental tools, it simply provides prison dentists with a hammer.  That's it.  No pain medication, no special tools, none of the usual technology.  No pliers, even.  So if prison dentists want to take out a tooth, they've not go choice but to use a hammer.  Ditto for cavities.  The only dental care that prisoners get is whatever can be done with a hammer.  The result being -- as one might imagine -- an incredible amount of pain to an incredible number of people.

Could the dentist defend the resulting lawsuit -- say, when he treated a cavity by slamming a guy's face with a hammer -- by saying "But that's all I could do given the resources with which I was provided by the state?"  Surely not, right?  The dentist's undoubtedly correct that the state constrained his actions in the same way that "regular" lack of funds do.  But I find it implausible we'd say that the dentist is not liable.  The dentist chose to work under these conditions.  The dentist chose to swing the hammer.  In the same way the dentist here chose to give inadequate dental care.  When that's your choice, you can be found liable.  Even if you had precious few alternatives available.  You always had one:  Quit.  Let someone else take on the obligation (and potential liability).  If you elect not to do that, and to swing the hammer, it's no defense to say that you had no other tools.  Your bad for picking up the hammer.

So that's one way of looking at this.  A way that I think might indicate the correct result.

One can go even deeper, of course.  Law and economics scholars, for example, would presumably be pretty fine with imposing liability here.  Regardless of whether the state indemnified its officials (and I think the dissent wrongfully focuses on the existence of indemnification as a predicate for its claims).  If we impose liability on the dentists, one of two things will happen.  First, maybe they'll refuse to work under the unconstitutional resource conditions because they don't want to be sued.  We're fine with that, right?  A private, free market response to the problem.  No one needs to sue for injunctive relief, but instead the invisible hand solves the problem and the market forces the government to do what's compelled by the Constitution.  Alternately, dentists agree to incur liability, but raise prices (i.e., their demanded salary) accordingly.  No problem there either.  Rights still potentially get violated -- albeit with potential injunctive relief (if available) -- but those adversely impacted get compensated.  Plus maybe the state realizes it's cheaper to satisfy the Constitution rather than pay inflated salaries to its dentists.  Fine with that as well.

So I think imposing liability has a pretty strong justification.  Not only for deterrence-oriented reasons like the ones identified by the dissents, but for additional reasons as well.

I'll add one final point that's also not addressed by either the majority or the dissenting opinions.  One that relates to the nature of the underlying obligation.

Judge Kozinski essentially says that it's not the doctor's fault that the state gives them insufficient funds and too many patients.  But I wonder how plausible that is given our alternative perspective in a variety of analogous fields.  For example, imagine that a public defenders says "Yeah, I was incompetent and didn't do virtually anything on behalf of the defendant.  But I was overworked and had a lot of clients."  Surely that's not a defense to a Sixth Amendment (or even malpractice) claim, right?  Ditto for private attorneys.  Imagine that a private lawyer says:  "Yeah, I sucked in that case and lost, but that's because I didn't have enough money to prosecute it properly."  Well, that's still his fault, isn't it?  Even if there's someone else -- the judge, the state, the client, or whomever -- didn't give the attorney the money.  The attorney still committed malpractice.  It was his job to do it right.  If he didn't have the resources to do the job properly, that's no defense.  Shouldn't have taken the job.

I'm quite confident that's the view we have of lawyers.  Doctors too.  Imagine a prison doctor leaves a patient open on the table and orders the janitor to resect a bowel and close the guy up on the ground the doctor is really busy because there's not enough doctors and the prison doesn't pay for nurses.  Surely that's still the doctor being "deliberately indifferent" to the medical needs of the patient, right.  I cannot fathom the doctor would be able to say that he was just doing the job that he was able to do within the constraints the state provided, and hence that the patient who dies because the janitor botches the job has utterly no relief.  And yet under the Ninth Circuit's rule, it seems that's precisely the result.

Maybe what's important here is an understanding of the nature of the job.  Professionals -- doctors, lawyers, dentists, etc. -- have a duty to take care of those entrusted to them and to do what we would call a "minimally competent" job.  That duty's not delegable.  That duty's not obviated by the fact that the job they've undertaken is difficult.  In the same way a lawyer has to do a competent job even when her clients unexpectedly stops paying her bills, and just as an E.R. doctor has to perform competently even when the patient can't pay, once they voluntarily undertake a role, I think it's not unreasonable to say that a prison dentist has to satisfy a constitutional minimum.  And that, just as when the doctor or attorney fails, if the dentist fails, he has to pay.  Regardless of the situation.

There may well be exceptions.  Wars.  Prison riots.  Emergencies when the doctor or dentist had every reason to believe that what they were doing was more than sufficient but where, suddenly, and without opportunity to depart, the professional was stuck in a situation that wasn't his own doing.

But none of those special situations exist here.  The state deliberately underfunded.  The dentist took on the responsibility to provide medical care despite his knowledge of this fact and the reality that it meant he couldn't do a minimally competent job.  He's entitled to make that choice.  But if he does, he has to pay.

That result not only has practical benefits.  But it seems to me doctrinally consistent with our holdings in closely analogous contexts as well.

So the draw makes a difference in this one.  And, ultimately, I think results in the wrong result.

In a case that's incredibly important.

People v. Sasser (Cal. Ct. App. - Feb. 11, 2014)

There's certainly a lot at stake in this appeal.  In particular, 37 years in prison.  Because after a remand by the Court of Appeal for resentencing, the trial court imposed a sentence that was 37 years longer than the defendant had initially received.  Defendant says that's impermissibly vindictive, so files yet another appeal.

You'd think that's important, right?  Thirty seven years is presumptively a big deal.

Until you realize that the guy was originally sentenced to 458 years to life in prison.  So his current appeal says that he shouldn't have gotten anything more than that on remand, rather than the 495 years that he in fact received.

With that context in mind, can you think of a more practically meaningless appeal?  458 versus 495 years in prison.  You say tom-ay-to.  I say tom-ah-to.  Let's call the whole thing off.  'Cause you're spending the rest of your life in prison, dude.  Regardless of whether you "win" your appeal.

Which -- just to add insult to injury -- you don't.

Thank goodness we spent money on lawyers, judges, etc.  Because I definitely care whether the guy's corpse gets let out of prison in the middle of the twenty-sixth century or whether he instead gets let out in 2599.

People v. Fox (Cal. Ct. App. - March 5, 2014)

Attorneys who represent a party on appeal sometimes make multiple and/or alternative arguments.  At times, those arguments include claims that may not be entirely persuasive.

Which is perfectly fine.  Attorneys are advocates.  They're not neutral arbiters of the validity of their claims.  Sure, the attorney has to make sure that an argument isn't frivolous.  The attorney's also got to be concerned about preserving credibility.  But if one argument is 20% likely to be true, and another's 70% likely to be true, it's entirely reasonable for the lawyer to make both contentions.

What's right for lawyers, however, isn't right for judges.

Judges make decisions.  They don't take positions.  Their job is to decide what's right.  Not simply to marshal all the possible arguments in favor of the conclusion they reach.

I'm not sure that anyone would seriously dispute what I've just said.  But I nonetheless thought it bore reiterating after I read this opinion.

It's not that I disagree with where Justice Aaron comes out.  I think she's probably right that James Fox would have wanted to represent himself -- a switch he pulled in the middle of trial -- regardless of what the trial court said.  For whatever reason, he was very excited to personally cross-examine the victim of his assault, his former girlfriend, as well as the other witnesses.  The trial court repeatedly told him that this was almost assuredly a bad idea, but he wouldn't hear it.  He wanted to present his own defense.  Whether he was facing one year or five years in prison wouldn't, I don't think, have mattered in the slightest.  So if there was error here, it was probably harmless.

All that I could agree with.

But there's nonetheless no dispute that the trial judge told Fox something that was definitely wrong during the colloquy about whether he should represent himself.  The trial judge confirmed to Fox that the charges against him wouldn't result in a strike.  As Justice Aaron recognizes, that was wrong.  They do.  For sure.

Telling a defendant the wrong thing about what sentence he faces is potentially a pretty serious thing.  As numerous courts have held, it might well invalidate a defendant's waiver of the right to counsel, as such a waiver would no longer be knowing and voluntary.  For example, a defendant might well desire to "take his shot" at defending himself if his maximum exposure is only a couple of months in prison.  But maybe he'd make a far different decision if he realized that he was looking at, say, 25 to life.  That reality might well color -- dramatically -- his decision.

Now, again, I don't think that situation likely exists here.  As Justice Aaron notes, what was at issue with the potential strike was merely a collateral consequence of the conviction.  Something that might well affect a future sentence, but didn't dramatically change this one.  Defendant knew he was facing up to five years in prison, and decided to go ahead alone.  So as to this point -- which is all that Justice Aaron needs to say to affirm the conviction -- I'm okay with things.

But Justice Aaron isn't content with just saying that.  She also adopts the alternative arguments that the state makes as well.

In particular, she says (on page 13) that "the trial court did not expressly advise Fox that count 1 was not a strike offense."  Seriously?  Here's the transcript, the relevant portion of which comes right at the end of the colloquy:

"[Fox]: I'm asking for a clarification— 

 

The Court: Okay. 

 

[Fox] —of what the law says. I've been charged with [section] 245[,subdivision] (a)(1). 

 

The court: Okay. 

 

[Fox]: It was explained to me as a naked [section] 245[, subdivision] (a)(1) because— 

 

The court: Which means it can't be used as a strike. 

 

[Fox]: And they're not alleging a deadly weapon. 

 

The court: Correct."

But it could be used as a strike.  And the complaint against him did allege the use of a deadly weapon.  It's crystal clear to me that the trial court was simply wrong.  It said exactly what the defendant says the trial court said, and for the Court of Appeal to argue otherwise seems just flatly wrong.

Justice Aaron follows up this (in my view) erroneous interpretation of the transcript by adding the argument that "the trial court's misstatements upon which Fox bases his claim were clearly made in response to misinformation provided by Fox as to the nature of the charges against him."  With all due respect:  As if that matters.  We hardly expect pro per litigants to get the law absolutely right.  And we do expect trial judges to get it right.  A trial judge's error isn't okay just because it was said in response to an erroneous conclusion of law by a guy deciding whether to try to defend himself.

Ditto for Justice Aaron's discussion of the trial judge's misstatement about the deadly weapon part; i.e., "Fox: They're not alleging a deadly weapon.  The Court: Correct."  Justice Aaron says that error by the trial court doesn't really matter because "Fox was arraigned on the information [the charged use of a deadly weapon]. It is also undisputed that Fox attended the preliminary hearing at which the trial court ordered that Fox be held to answer on the charged offense of assault with a deadly weapon, and that defense counsel confirmed at the Faretta hearing that Fox had been provided with a copy of the preliminary hearing transcript."  In other words, yeah, the Court expressly confirmed that there was no deadly weapon charge, but this guy who was thinking about defending himself should have known that the person wearing the black robes was totally wrong because he should have read and interpreted the complaint and transcript for himself -- things that would have made the right answer totally clear.  A clarity, mind you, that escaped the legally educated, appointed-by-the-Governor trial judge.  Nope, it's the defendant's fault.  No way any reasonable person could possibly have relied upon the trial judge's express confirmation of what an obviously confused defendant thought he confronted, right?

It just seems to me that there was a really easy way to deal with this case.  A way that did not assert uncredible arguments about the record or why it was crazy for a defendant to actually listen to what the judge expressly said.  A way that Justice Aaron eventually takes, but only after also adopting these far-less-credible interpretations that, yeah, support the eventual outcome, but nonetheless (1) aren't very plausible, and (2) erode the credibility of the opinion.  At least to an outside observer like me.

The great thing about most appellate judges -- definitely including Justice Aaron -- is that they're more than smart enough to generally distinguish between good arguments and bad ones.  It's for that reason that I hate to see the latter thrown into otherwise good opinions.  Particularly when, as here, they're entirely unnecessary.

It makes opinions look like they're trying to reach a particular result -- like they're more like advocacy pieces -- than a neutral assessment of the right result.  Which is too bad.

In Re Conservatorship of John D. (Cal. Ct. App. - March 4, 2014)

Sorry, John.  You are, in fact, mentally disabled.  Which is why we can force a conservator on you.

One more bad thing.  You're also not with the CIA.  Sorry about that.

P.S. - These two facts are related.

Wechsler v. Superior Court (Cal. Ct. App. - March 4, 2014)

When can a judge officiate at your wedding and still preside over your client's case?  Pretty often.

So holds three judges.

The part of the opinion I with which I most agree is when Justice Haller says that "many attorneys select a judge to preside over a wedding because the judge has a close personal relationship with the individual or with the family."  Though I might delete the word "close".  Proving that there's a sufficient relationship to raise doubts about partiality, by contrast, is practically pretty difficult to establish.  What are you going to do when the attorney and judge submit declarations that admit that they know each other professionally and socially, and often talk and mingle in the same crowd, but aren't really "close"?  Hard to disprove.  Yet you can see why you'd be bummed if you were the litigant and had a judge who you knew hung out with the lawyer for the other side.

Not that I generally distrust judges.  At all.  But I'd still be worried.

The bad news for judges is that Justice Haller implicitly holds that even though the Penal Code allows judges to accept gratuities for performing weddings on weekends or holidays, it looks like that will usually result in disqualification.  Ditto for attending the reception.

So it'll have to be a quickie.  Maybe grab some cake on the way out the door.

Wells Fargo v. ABD Ins. & Fin. Svcs. (9th Cir. - Mar. 3, 2014)

I'm not at all confident that a panel's allowed to do this.  Regardless, I'm absolutely confident it shouldn't be permitted.

Back in December, the panel issued an unremarkable (unpublished) memorandum disposition in a trademark injunction case.  It was a very short disposition that -- as is typical of these things -- merely summarized the facts for the parties and incredibly briefly told them why the Ninth Circuit was reversing the district court.

The losing party then petitioned for rehearing en banc.  Good luck with that.  The chances of an unpublished, cursory interlocutory ruling going en banc are astronomical.  After all, it's not even precedent.

Predictably, not one of the Ninth Circuit judges calls for en banc review.  So that's the end of that.  The only thing the panel does in light of the petition is to very slightly revise two of the paragraphs of its short opinion (as well as notify the parties that the case is over).  It does that around a month ago.  End of story.

Except it's not.  A third party law firm -- Stoel Rives -- then asks the Ninth Circuit to publish the opinion.  A request that's proper and (presumably) well-motivated.  Stoel Rives likely has client that'll be helped by the opinion, and unless it's published, it's not precedent.  So in comes the request.

If the Ninth Circuit wants to publish the opinion, that's its call.  I have no problem with that.  And, today, the panel does precisely that.  Redesignating the disposition as a published opinion by Judge Gould.

But the panel doesn't stop there.  The panel not only recalls the mandate -- which has already issued at this point -- but also changes the opinion (yet again).  After all, if someone's actually going to read the thing, you might as well make it look good (and be right).

I could live with all of that.  But here's the part I don't think is permissible:  At the end of the order that recalls the mandate, amends the opinion, and orders the thing published, the panel says:  "No petitions for rehearing and/or rehearing en banc will be entertained."

I don't think a panel can do that.  Or at least definitely shouldn't be.

I get that minor changes to an opinion don't justify a new round of petitions for rehearing en banc.  But the decision to amend an opinion and publish it doesn't constitute a minor change.  It's a major one.  At least from the perspective of potential en banc review.  Many judges are willing to tolerate an erroneous opinion by one of their colleagues if it's unpublished.  Again:  It's not precedent, so the only one harmed by the thing is the losing party.  By contrast, once an opinion is published, it matters far more broadly.  Now there's a real chance for en banc review.  At least if the thing's in fact important.

Let me give an (admittedly extreme) example.  Imagine that I write a two-sentence memorandum disposition in an otherwise unremarkable habeas case that says "We affirm the decision of the district court. We agree that the evidence supports the state court's factual findings."  The losing party petitions for en banc review of this unpublished disposition, but you know full well what happens to that request.  Thereafter, I decide to (1) amend the opinion, and (2) publish it.  Adding the following to the opinion:  "Defendant says that we should not give the state court's factual findings any deference, and we agree, because we hold that AEDPA is unconstitutional, and federal courts must therefore independently evaluate state court factual findings on habeas.  But here, we hold that the evidence does in fact support the state court's factual findings.  So we affirm."  Then concluding the publication order and amendment the same was Judge Gould does:  "No petitions for rehearing and/or rehearing en banc will be entertained."

You get why that shouldn't be allowed, right?  Regardless of my intent, and even if the amendment was (in my view) absolutely innocuous, a panel shouldn't be able to immunize its opinion from en banc review -- as either a doctrinal or a practical matter -- by initially designating the thing as an unpublished, nonprecedential disposition and thereafter publishing it.

To be clear:  I don't think that this is Judge Gould's intent in the present case.  Or anyone else's on the panel, for that matter.  Moreover, I have a profoundly strong sense that the present case wouldn't get a single vote for en banc review even after it's published.

But you don't do something procedurally wrong just because it doesn't matter.  Because it might well matter in a future case.  You've got to follow the right rules precisely because they're rules.  What's good in one case should be good for another.

So I think the panel should delete the last line of this Order.  And/or that the rest of the Ninth Circuit should care that it's there.

Because even if the merits of the opinion are correct -- and I have no reason to believe that they're not -- that last line isn't.

People v. Jackson (Cal. Supreme Ct. - March 3, 2014)

One of the downsides to selling drugs to gang members in the area is that they occasionally shoot both you and your wife in the face while robbing your home.  That you survive is little solace given that your wife does not.  Equally of little solace is that your assailant is sentenced to death in a decision affirmed by the California Supreme Court.

Normally I'd add to that last part the word "unanimous".  But this one isn't.  Justice Liu instead dissents.  In an opinion that's worth a read notwithstanding its length (49 pages).  He critiques not only the result in this case, but also the application of harmless error by the California Supreme Court in a wide variety of cases.  As well as the attitude of the Court towards these cases.

Many justices on the California Supreme Court have "learned a lesson" from the Rose Bird recall and have adopted a correlative attitude when dealing with death penalty cases.  We're starting to see that Justice Liu may not be one of them.

In my opinion, that's a good thing.  And this was a pretty decent case in which to articulate this vision, one in which the defendant was forced to wear a 50,000 volt stun belt during trial for little to no reason.  (The most powerful part of Justice Liu's dissent is when he quotes from the manufacturer's brochure:  “One of the great advantages, the company says, is its capacity to humiliate the wearer. ‘After all, if you were wearing a contraption around your waist that by the mere push of a button in someone else’s hand could make you defecate or urinate yourself,’ the brochure asks, ‘what would that do to you from the psychological standpoint?’ And if the shock ever has to be administered? ‘One word —,’ brags the brochure, ‘DEVASTATION!'")

It may well be that we don't have that many more years in which the California Supreme Court has to automatically review every death penalty case.  In the meantime, time will tell whether we get more dissents like these.  I'm hoping that the answer is "yes".

If only to keep these things lively.