Thursday, April 28, 2016

U.S. v. Adebimpe (9th Cir. - April 28, 2016)

Woo-hoo!  The Ninth Circuit has published nothing for nearly a week.  Nothing last Friday.  Nothing on Monday and Tuesday.  A brief order yesterday that simply took a case en banc.  (To Judge Kozinski's likely chagrin.)

It's been slim pickings.

But today, there's finally a published opinion.  And even a dissent!

Only one opinion, mind you.  But one is better than none.  (At least in this context.)

It's a fairly straightforward case.  Perhaps a difficult one, to be sure:  there's even a circuit split on the issue.  But straightforward nonetheless.

Here's Judge Murguia's perspective:

"Patrick Sogbein ran a conspiracy to defraud Medicare by providing power wheelchairs to people who did not need them. Sogbein’s wife, Adebola Adebimpe, participated in the conspiracy by supplying many of the wheelchairs through a medical equipment company that she owned. Sogbein and Adebimpe challenge the district court’s application of a twolevel upward adjustment under section 3B1.3 of the Sentencing Guidelines, after finding the defendants abused a position of trust with respect to Medicare. We hold that medical equipment suppliers can have the requisite 'professional or managerial discretion' for the abuse-of-trust adjustment to apply, if they are responsible for determining the need for the equipment they provide and personally certify the validity of their claims to Medicare."

By contrast, here's Judge Paez's take:

"In my view, DME suppliers do not exercise substantial professional or managerial discretion within Medicare’s reimbursement scheme because Medicare’s rules and regulations confine them to a ministerial role and leave all critical determinations of medical need to the beneficiary’s physician."

Judge Murguia gets Judge Hurwitz's vote, so her take is now the law of the Ninth Circuit.

Some published law.  An innovation.  At least for the Ninth Circuit during the past week.

Wednesday, April 27, 2016

Abuemeira v. Stephens (Cal. Ct. App. - April 27, 2016)

Today's apparently Rich People's Lawsuit Day in the California Court of Appeal.

Defendants and plaintiff are neighbors in a gated community in Bell Canyon.  Here are the things to which everyone agrees:  Defendants are driving a car, plaintiff is driving a motorcycle, all inside the gated community, and the parties get into a tiff.  A big tiff.

The rest of the facts are told from very different perspectives.  Here's the defendants' version:

"[Defendants Stephens and Ekmekdjian] saw Yasser speeding on his motorcycle and followed him to obtain his license-plate number. Yasser stopped the motorcycle and gestured for them to approach. Yasser then 'lunged' at Ekmekdjian who 'shoved' Yasser in response. '[I]n rage,' Yasser called the two men 'faggots' and 'cocksuckers.' Yasser then 'jumped' Stephens, struck him, and demanded that he cease recording the incident. When Ekmekdjian intervened, Yasser struck him too. Eventually, a passerby separated the combatants."  Further, "Stephens and Ekmekdjian characterized the roadside skirmish as 'a hate crime against a homosexual couple.' . . . Stephens and Ekmekdjian displayed the video-recording to family, friends, law enforcement, and news agencies, and created an on-line petition demanding that the California Attorney General investigate the incident."

Oooh.  That sounds bad.

But here's the plaintiff's version.  That sounds bad as well:

"[Plaintiff] stated that he gestured for Stephens and Ekmekdjian to drive past him, but instead, they forced him off the roadway and blocked his passage. When Stephens left his vehicle, he began filming the encounter with his cellular telephone. He'"forced [the] phone into [Yasser's] face,' and stated, 'Say hello to the world.' Stephens and Ekmekdjian yelled and made accusations and then Ekmekdjian shoved Yasser. Stephens later filmed Daria and the two children, despite Yasser's pleas not to do so. Stephens stated: 'I can do whatever the fuck I want. . . .' A physical altercation then ensued. During the fight, Stephens and Ekmekdjian referred to Daria as a 'bitch,' and a 'cunt,' and to Yasser as a 'nigger' and an 'animal.' They also suggested or implied that Yasser was 'a terrorist.' Yasser was thrown to the ground and punched and kicked in the head. Daria and her infant received some bruises and scratches when they attempted to rescue Yasser."


You can also see from these factual recitations why Justice Gilbert drops an amusing, but informative, footnote at the beginning of the opinion that says:  "Unfortunately, this opinion contains an abundance of obscene language. Reader discretion advised; unsuitable for precocious children of reading age."

Ditto for this blog.  (Though too late now.)

One last thing.  I left one part out of the plaintiff's version of events.  Where the ellipsis is in the above quote.  Right after Stephens (allegedly) says "I can do whatever the fuck I want," the last part of that sentence is ". . . I'm a super lawyer -- do something about it."

Yep.  That's right.  Mr. Stephens is an attorney.  A partner at Sedgwick.

Loses this anti-SLAPP appeal, though.  As he did in the trial court.

Boxer v. City of [Redacted] (Cal. Ct. App. - April 26, 2016)

The City plants 31 very pretty redwood trees in a local park.  Some homeowners in the area are not happy, however.  Because when those trees grow, they'll partially block the existing views of the City (and some other pretty things) from those homes.  So the homeowners sue, claiming that their land has been "taken" by the City and demanding just compensation for their diminished views.

Can you guess where the homeowners live?

If you guessed "Beverly Hills" -- even after I omitted the name of the defendant in the caption -- give yourself a pat on the back.  Exactly right.

The plaintiffs in this case live on Spalding Drive in Beverly Hills.  Pretty near Beverly Hills High School  Nice place.  There's a nice two bedroom, two and a half bath home on that street.  Will only set you back around four million.

Tough life.

Sadly, for the homeowners, it got a bit tougher.  The Court of Appeal affirms the dismissal of their lawsuit.

They'll have to settle for a partially obstructed view.

Tuesday, April 26, 2016

People v. McGehee (Cal. Ct. App. - April 26, 2016)

Here's a neat little hypothetical that you might discuss in a class on criminal law.  Except for Mr. McGehee, it's not a hypothetical, but instead, his actual life.

Mr. McGehee stabs something ten times with a kitchen knife, killing it.

(A) If the thing he killed was a deer, then he's not guilty of any crime.  (Assuming that there's no animal cruelty, out-of-season hunting, etc.)

(B) If the thing he killed was a person, but he thought that it was a deer when he killed it, then we all agree he's not guilty of murder.  Maybe he's guilty of some lesser crimes, depending on his precise mental state and reasonableness of his belief that it was a deer.  But not murder.

(C) If the thing he killed was a person, and he knew it was a person, then he's generally guilty of murder.  Maybe he's insane -- that's the second phase of the trial.  But murder at the first phase.

Now for the hard question.  The one raised squarely in this case:

(D)  What if the thing he killed was a person, but he thought it was a demon?

Demon = Deer = Manslaughter?  Or Demon = Person = Murder?

Everyone concedes that his belief that the thing -- in this case, his mother -- was a demon is relevant to the sanity phase.  But what about the first phase?  If you think that a demon is a non-person, so is more like a deer, then his belief that he was killing a demon is relevant to whether he had the intent to kill a person.  Since demons aren't persons.  So it's relevant to the first phase of the trial.

But if you think that demons are more like people than deer, then his belief that it was a demon that he was killing isn't relevant to the first phase, so he's not entitled to an instruction on manslaughter; e.g., a crime that doesn't involve the premeditated killing of a person.

The Court of Appeal holds today that a demon is more like a person than a deer.  So no instruction on manslaughter.

Justice Hoch's opinion never uses the deer analogy.  That's my addition.  But the opinion nonetheless concludes the same way.  Holding:  "[D]efendant argues he was entitled to involuntary manslaughter instructions because substantial evidence supported the view he hallucinated an attack by a demon, and therefore did not intend to kill a human being, but instead intended to kill a demon. This too is quintessentially a claim of insanity. Its rationale is that because of defendant‟s mental illness, he was unable to understand the nature and quality of the criminal act, i.e., he was killing a human being rather than a demon. Such a claim may be made, but must be made during the sanity phase of the trial."

I wonder whether Justice Hoch would say the same thing if Mr. McGehee's mental illness made him think he was stabbing a deer.

Regardless:  That's today's holding.

Monday, April 25, 2016

In Re H.R. (Cal. Ct. App. - March 25, 2016)

"In November 2014, the Los Angeles County Department of Children and Family Services (DCFS) removed H.R. and his half sister J.R. from the home of mother, L.R. DCFS acted based on allegations of domestic violence between mother and her companion, Alejandro F., physical abuse of J.R. by mother, domestic violence between Alejandro F. and the children's maternal grandfather, alcohol abuse by mother, and mother's leaving the children home alone for extended periods of time. H.R. was four years old at the time of removal.

Mother declined to give DCFS any information about father when interviewed by DCFS for the detention report, including his name, birth date, address, telephone number, or any other identifying information. She said father had not been involved with H.R. since his birth. She told the social worker 'to find out [about him] without her help.'"

Very cooperative.  Thanks for that.

They end up finding Father in Arkansas.  Just as he's about to be deported to El Salvador.

Thursday, April 21, 2016

Estate of Barton v. ADT Security Svcs. Pension Plan (9th Cir. - April 21, 2016)

Good for you, Judges Owens (who writes today's opinion) and Kozinski.  Good for you.

This is the type of opinion that Judge Ikuta -- who claims that her colleagues have gone "off the rails" -- hates.  By contrast, it's the type of equitable, common sense, and undeniably fair opinion that people like me love.

Competing styles, to be sure.

But I think it's awesome.  Exactly right.  The type of judges I like to see on the bench.

Well done.

People v. Jimenez (Cal. Ct. App. - April 19, 2016)

Justice Robie begins this opinion by saying:  "What people say behind your back is your standing in the community in which you live."  I totally agree.

His next sentence:  "On the other hand, what people do not say about you may also shed light on your reputation in the community and, in turn, your character."  Hmmm.  I'm not entirely sure I completely understand where he's going with this thought, but, yeah, I guess that's somewhat true as well.  For example, if people never really say about you that you're especially generous, then, yeah, it's likely true that you're not all that generous.  Maybe not a miser or anything; if, at the same time, they don't say you're tightfisted, that probably in turn means you're not that either.  So what they don't say about you is indicative of something as well.  I agree with that too.

Justice Robie's next sentence:  "That is the principle behind an optional part of CALCRIM No. 105 -- the standard instruction on witness credibility -- which informs the jury that '[i]f the evidence establishes that a witness’s character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness’s character for truthfulness is good.' (CALCRIM No. 105.)"

I've never really thought about CALCRIM No. 105 before.  But upon reading it now, it seems to me that it's an instruction that's somewhat weird.  If not entirely wrong.

But that's the exact opposite intuition that Justice Robie has.  He's entirely fine with CALCRIM No. 105, but the more I think about it, the more that instruction seems -- at best -- entirely unhelpful, and at worst flatly wrong.

Look, if people around you are constantly talking about how trustworthy you are, then I agree that's a fair piece of evidence that you're incredibly trustworthy.  Conversely, if they're constantly saying what a huge liar you are, then that's what you probably are.

But if they're not talking about either of those two things, to me, that's a fact that strongly suggests that you're neither of these things -- neither incredibly trustworthy nor an incredible liar.  You're just normal.  Middle of the road.  A regular person.  Probably you tell the truth on most things.  But on some things, maybe you think it's okay to fudge things a little bit, or even (on occasion) to advance an outright lie.  Maybe for good reasons, maybe not.  You're a normal, regular person.  In essence, if the community has no reason/need to comment on your truthfulness, that's strong evidence that you're at the default level of truthfulness.  Average.  Your normal person.

Yet CALCRIM No. 105 seems to say something else entirely.  It expressly says that if people don't talk about your character for truthfulness, your character for truthfulness is "good".

"Good"?  Nope.  Not to me.  I'd think that your character for truthfulness is "normal".  Average.  Not "good".  Nothing special either way.

"Good" is not the same as "average".  Not even in the everyone-gets-a-trophy America.  If you tell me that someone has a "good" character for truthfulness, that word -- "good" -- tells me that they have an above-average character for truthfulness.  Above average.  That's what "good" means.  Moreover, at an absolute minimum, the very fact that you're bothering to tell me that their character for truthfulness is good, rather than the default level, is to indicate that there's something different about their character from the default level of truthfulness.  That's CALCRIM No. 105.

Yet the truth in the exact opposite.  If no one talks about their character for truthfulness, that means that character is the default level.  Normal.  Average.  Typical.  Unexceptional.

Neither good nor bad.

The exact opposite of "good" under CALCRIM No. 105.

Now, maybe juries don't pay attention to CALCRIM No. 105 anyway.  I certainly wouldn't.  But that's hardly a defense of the instruction.

I'd just delete the thing.  Apparently lawyers routinely ask witnesses, as the prosecutor did here, whether anyone talks one way or the other about the truthfulness of a particular person, and when the witness responds "No" -- that no one ever really says anything about whether that person is a liar or not -- the judge then instructs the jury under CALCRIM No. 105 that this testimony means that that person's character for truthfulness is good.

That just seems flatly wrong to me.  Silence doesn't mean good.  If I'm going on a blind date, and I ask someone who knows the person "Does anyone ever talk one way or another about her character for physical prowess in sports?" and he responds "No," no one in the universe would think that this response suggests that the date is "good" in sports.  Sure, it may suggests that she's not known to be especially bad at sports.  But it's no evidence at all that she's good at them.

Ditto for truthfulness.

I didn't have a real impression about CALCRIM No. 105 before reading this opinion, in which Justice Robie says that the instruction accurately reflects our intuition.  But I have a definite impression now.

And it's the opposite of Justice Robie's.

I'd delete the thing.  At best, irrelevant.  Most likely, wrong.  And harmful.

Wednesday, April 20, 2016

People v. Reid (Cal. Ct. App. - April 20, 2016)

"Defendant Marc Lynds Reid II challenges his multiple felony convictions arising from his theft of nine metal urns containing the cremated remains of 11 people."

Dude!!  Who steals cremated remains?!  What the hell?!  Why would anyone even do that?!

"[D]efendant entered a semi-open mausoleum building at the Evergreen Funeral Home at Memorial Park in Merced. He broke into nine urn niches located in one of the mausoleum walls by smashing the glass panes enclosing each niche. Defendant then removed nine metal urns, each weighing approximately 25 pounds and collectively containing the cremated remains of 11 people. . . . The urns were later broken down into scrap metal for recycling and the cremated remains of the 11 deceased were discarded."

Recycling?!  Wow.  I'd much prefer you steal manhole covers, thank you very much.  Let's leave human remains alone, please.

For his offense, Mr. Reid gets charged with a plethora of crimes; basically, any statute that might arguably apply.  And gets sentenced to . . . 24 years, 8 months in prison.

That's a lot of time.

In Re Mia Z. (Cal. Ct. App. - April 20, 2016)

"At some point during the day on May 12, 2014, [a three-year old child named] Destiny walked away from Mother’s apartment and ended up about 120 feet away, in a well-trafficked alley fronting a commercial parking lot. While Destiny was standing in the alley, a heavy metal rolling gate at the access to the parking lot fell off its track and landed on Destiny, striking her in the head. Paramedics responded to the scene and transported Destiny to a local hospital, but doctors could not save her. Destiny was pronounced dead in the mid-afternoon. . . .

Destiny’s accident occurred in an alley in front of a commercial parking lot that was 'very far' from Mother’s residence. Further, Detective Martinez reported that video surveillance showed Destiny and two boys in the parking lot for several minutes before the accident. The boys began pushing and pulling on a black metal gate, and, while Destiny was out of the camera’s view, the gate fell over into the alley where she was apparently standing. Beyond the details of the accident with the gate, the detective reported that the alley where Destiny had been playing was a high traffic area through which cars traveled at a high rate of speed. Detective Martinez stated that she was aware of a child neglect report involving the family in mid-September 2013 for leaving children unsupervised. Detective Martinez stated that it was her belief that Mother had a history of leaving her children unsupervised. . . .

The social worker then went to Father’s address where a tenant in his building (who wished to remain anonymous) reported that Mother, Destiny and Mia had moved out about a month earlier. The tenant had known the family for many years. He said there had always been concerns about the parents’ lack of supervision of their children. The tenant explained that on a daily basis the children were observed by various tenants to be on the apartment balcony, in the hallways, on the sidewalk, or in the lobby alone and unsupervised. This typically occurred during daytime hours when Father was at work and Mother was home with Destiny and Mia. The tenant said he had talked to the parents about the lack of supervision on more than one occasion. Mother would say things to the effect that she did not know how the children got out of her eyesight. The social worker learned that the building had several video cameras, and was shown a video taken in September 2013, when Mia and Destiny left the family apartment, went down the stairs, and exited through the lobby out onto the street. The tenant said he had several videos depicting the children wandering around the building unsupervised. When asked why he kept the videos, the tenant answered that he had almost hit Destiny with his car once when she 'darted into the street.' According to the tenant: 'Her parents didn’t know where she was or what had happened. But that was always the case. There were several times where the girls [were] in a situation where something tragic could have happened because their parents did not care.' . . .

An anonymous reporter told DCFS that Destiny and Mia regularly would leave the apartment and go to the balcony, hallways, and the outside of the apartment building, and were often observed running around the building without supervision, diapers, or clothes. According to the reporter, a number of tenants had acted to protect the children when they were outdoors alone, and had confronted Mother about her lack of supervision.

Martin B., the parents’ landlord, told DCFS that he often saw Destiny and Mia wandering around without supervision. He said Mother usually left her door open when the children were playing outside, but 'the supervision was not there.' He also said there were 'many times' when he told Mother that both girls had gone into the apartment of a single male. Martin B. said that many tenants had brought to his attention the fact that the children were not being supervised. When asked how many times he saw that the children were not being supervised, Martin B. replied, 'at least 20 times.' He added that he once found the children on the fire escape stairs, which was extremely dangerous because the family lived on the third floor.

Tony B., who managed the family’s apartment building until 2012, told DCFS he noticed the parents were not adequately supervising the children, which he brought to Mother’s attention two or three times. He often saw Destiny at the top of the third floor staircase while mother was inside cooking with the door open. Tony B. described one incident where Destiny and Mia made it all the way to the emergency exit of the building, which had a large hole to the first floor. He took the children back to Mother’s apartment and explained the risk that the girls could fall into the hole.

During the parents’ further interviews, Mother denied ever placing the children at any risk, and claimed she was providing adequate care. She said that many of the children in the apartment complex played outside and other parents would supervise her children. Father said he and Mother had come to believe that Destiny’s death was her 'destiny,' and added that accidents can 'happen in a breeze and there are accidents that can’t be prevented.'"

Usually, when you've got facts like these, the parents have an underlying drug problem.  But that does not seem to be the case here (or at least there's no evidence of it).  The facts are what they are.  And they are distressing indeed.  Not only for the now-deceased three year old, but for her siblings as well, who are now four and one years old.


Tuesday, April 19, 2016

People v. Lucero (Cal. Ct. App. - April 19, 2016)

From this afternoon's opinion:

"Ahmed Silmi frequently kept cash deposits from his businesses in the trunk of his Mercedes. . . ."

That doesn't seem wise.  Doesn't seem wise at all.

". . . . Approximately thirty minutes later, Lucero, whom Silmi had known for a few weeks, arrived at the barbershop. The three men smoked methamphetamine together. . . ."

I can already tell:  This is not going to end well.

"Silmi had $18,228 in cash and 44 cellular phones in the Mercedes. . . .  Lucero pointed a gun at Silveira and told him to open the trunk of the car. When Silveira attempted to drive away, Lucero shot him several times. . . . Authorities found Silveira in the driver's seat of the vehicle that had crashed into the house. Silveira suffered a total of six gunshot wounds, all to his upper body and head. Silveira died from the gunshots."

Yep.  Did not end well.  For anyone.

Monday, April 18, 2016

People v. Dunley (Cal. Ct. App. - April 18, 2016)

"Appellant displayed a belief that he was God or 'God’s son in the flesh,' and reported hallucinations and hearing voices, which sometimes commanded him to be aggressive."

Whenever I hear of anyone who thinks he's the messiah -- and/or higher up in the organization -- I need to remind myself that it's always possible that he's right.  At the same time, my reaction to such a claim is the same one that I have to solipsism.  Sure, if you start thinking that you might be God, or the only actual person in the universe, it's certainly possible that you're right.  But statistically, doesn't it seem like you're more likely than not wrong?

I mean, there are lots of other (alleged) minds in the world.  What's so special about you?

Other than, of course, that it's you.

Friday, April 15, 2016

DP Pham LLC v. Cheadle (Cal. Ct. App. - April 15, 2016)

You've got some documents from a witness.  You're looking at them.  The documents themselves reveal that they're not privileged and/or that a statutory exception applies to the privilege.  So you use them, since you know for certain that they're not, in fact, privileged.

But the other side keeps screaming at you that these documents are privileged.  And they file a motion.  Both to get back the documents and to disqualify you for using privileged documents.

No big deal, right?  You know they're not privileged.  So you attach the purportedly (but not) privileged documents, which are in your possession anyway, to your opposition, confident that you'll prevail.

Sorry.  The Court of Appeal holds that the trial court isn't permitted to look at the documents to see if they are, in fact, privileged.  Even if they're already in your possession.  Even if the trial court has not ordered their production (which would, indeed, violate the Evidence Code).  And unless you can prove that the documents are privileged without talking about what's in the document, you lose.

Oh, yeah.  And you might be disqualified.

So holds the Court of Appeal.

Thursday, April 14, 2016

Vergara v. California (Cal. Ct. App. - April 14, 2016)

You know something's up when the first five pages of an opinion are devoted to listed the various counsel and -- especially -- amici in a case.  It's a high-profile opinion.

As indeed it is.  The Court of Appeal reverses the trial court's ruling that the system of teacher tenure in California violates the Equal Protection Clause.

No dissent.  Unanimous.

So the status quo remains.  For now, at least, teacher tenure in California is intact.

At least in the judiciary.

In Re Marilyn Scheer (9th Cir. - April 14, 2016)

Judge Owens gets colloquial in today's opinion.  It's definitely one worth reading.  Even wholly apart from the cultural references.

It involves a situation every one of us hopes we'll never encounter personally.  Marilyn Scheer is a California attorney.  She does some home modification work, charges an illegal up-front fee, and then loses a State Bar arbitration proceeding against her filed by a client.  She makes a couple of payments on the award but then stops.  The State Bar gets miffed, involuntarily enrolls her as inactive, and tells her that she can't get her license back until she pays back the client and asks to be reinstated.

A fairly common occurrence.

Sheer responds by filing bankruptcy.  Once she obtains her discharge, she then orders the State Bar to give her license back, saying that restitutionary obligation under the Bar's order was now gone.  The Bar refuses to reinstate her, and Scheer sues the Bar.

Scheer's basic argument is that she's entitled to her license because  11 U.S.C. § 525(a) says you can't revoke or refuse to renew a license solely because an individual has not paid a debt discharged in bankruptcy.  But both the bankruptcy court and the district court say that her obligation to repay the client pursuant to the State Bar's order wasn't dischargeable, since Section 523(a)(7) says that you don't get a discharge if a debt "is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.”

The Ninth Circuit, however, reverses.

Judge Owen's opinion in this regard is exactly right on one point.  If you look solely at the words of the statute, it's hard to see how Scheer's debt falls under Section 523(a)(7).  It doesn't seem like it's a fine payable to a governmental unit -- it's payable to the client -- and it seems like it's compensation for an actual loss; i.e., the illegal fees that the client previously paid to Scheer.  How could anyone go the other way?

Like I said:  I agree.  But here's the thing.  There's actual precedent about this.  And the precedent is pretty darn bad for Scheer.  There's this case called Kelly v. Robinson.  From a little tribunal called the Supreme Court.  That case is very much like the present one.  Kelly involved a restitution order entered in a criminal case.  There, like here, the money would go to a particular damaged party, and there, like here, the amount of the restitution was based on the actual damages that person suffered.  So if you look solely at the words of Section 523(a)(7), it doesn't look like that exception would apply, and the restitution order in Kelly would be discharged.

But the Supreme Court said otherwise.  It's a restitution order.  Entered at the request of the government.  Hence it's not subject to discharge.  So holds the Supreme Court.

Well now.

Judge Owens has a response.  This is what he says about that decision:  "The Court’s approach in Kelly -- to untether statutory interpretation from the statutory language -- has gone the way of NutraSweet and other relics of the 1980s."

Okay, I love the cultural reference.  Now, I'm not quite sure that the underlying factual predicate is what Judge Owens thinks it is, since NutraSweet actually continues to be used in literally thousands of products to the present day.  But I get what Judge Owens is saying.  The kind of analysis displayed in Kelly is as dead as a product that we know used to exist back but then don't think exists now.

Wholly beyond the whole NutraSweet thing, however, there are two big problems with Judge Owen's attempt to avoid Kelly.  One:  It's the Supreme Court.  Last I checked, the Ninth Circuit didn't have the ability to overrule Supreme Court precedent that it didn't like merely on the grounds that it was "outdated".  The Supreme Court says that Kelly remains good law.  So we've got to follow it.  Warts and all.

Second, yeah, I get it, Kelly displays a type of statutory interpretation that not every member of the current Court gets excited about these days.  But lots of members of the Court are, in fact, on board.  Plus, it's not like Kelly is some 5-4 relic of a bygone era.  It was a 7-2.  Oh, yeah.  And guess who was part of the 7-2?  Justice O'Connor.  Chief Justice Rehnquist.  Even Justice Scalia, for goodness sakes.  If even the absolute King of Textualism joined the opinion, it's darn hard to say that opinion doesn't stand the test of time because it reaches a conclusion that couldn't possibly be squared with textualism.

Seven members of the Court, including all the textualists, agreed that restitution orders aren't dischargeable in bankruptcy.  (The only dissenters were Justices Marshall and Stevens -- hardly justices hell-bent on textualism and two whom Judge Owens wants to strap his contemporary analysis.)  The current order looks, smells, and quacks like a restitution order.  So there's a darn strong argument, in my view, that you've got to follow the relevant Supreme Court precedent.

Even if -- as I do -- you personally don't think the text, standing alone, would compel such a result.  Precedent means something.  Especially Supreme Court precedent.

I get that the Supreme Court's decision in Kelly leads to some uncertainty.  And Judge Owens is surely right when he lists a plethora of post-Kelly cases -- although none of them involve State Bar orders -- to establish his point that "[i]t is fair to say that the 'I know it when I see it approach' of Kelly has led to predictably unpredictable results."

But that you don't like a Supreme Court case, or that it has created unpredictable results, isn't a basis for lower courts to stop following its dictates.  There are lots of Supreme Court cases I don't like and the analysis of which I find confusing, unhelpful, or downright wrong.  But if I'm on a lower court, I've got to follow 'em.  And that also means following them in analogous settings.  It's a dirty job, to be sure.  Filled, at least sometimes, with uncertainty.

But that's still my job.

Sure, the Supreme Court's prior case involved a criminal restitution order, and this one involves what essentially amounts to a State Bar restitution order.  But that prior case also involved someone named Kelly, whereas this one involves someone named Scheer.  What matters is not whether the cases are different in some way.  It's rather whether those differences are material.  If the analytical reasoning of Kelly extends to the present case, then the result should be the same.  Even if you're not persuaded by that reasoning.  That's what it means to follow precedent.

At least in my view.

(Nor, by the way, does it answer the question to say that a subsequent Ninth Circuit case, which post-dated Kelly, "answers the question," since that prior circuit precedent (1) followed Kelly, and (2) found the debt to the State Bar nondischargeable, thereby providing scant support for today's contrary holding on both points.  At the absolute most, that prior circuit precedent is distinguishable from the case at issue today; it certainly doesn't provide affirmative support for it.  Again:  At least to me.)

So, in the end, I'm not sure that saying that application of statutory purpose, context, and history went out the window with NutraSweet really answers the dispositive question here.  I think you've got to do much more work than that.  Work that could have been, but isn't, present here.

People v. Weddington (Cal. Ct. App. - April 13, 2016)

This is why you should lock your doors every time you leave your home.  Every time.

"Sometime after Fernandez had left, Barba noticed a red car parked across the street. The car pulled away, but returned five or ten minutes later. Barba saw the driver, whom she later identified as Bashir, get out of the car and approach Barba’s front door. When Bashir reached the front door she pounded on it loudly for about 30 seconds. Barba became frightened. She gathered her children and went to the master bedroom as the pounding continued. When the pounding stopped, Barba saw Bashir return to the red car, where two male passengers were waiting. The car then drove away.

About 11:00 a.m. that day, as Los Angeles Police Officer John Parker was on patrol near Havenhurst Avenue in Granada Hills, he noticed a red Chrysler Sebring driven by a woman with two male passengers who were slouching down in their seats. Officer Parker followed the vehicle and next saw it stopped in the alley behind Barba’s house. Weddington got out of the car, and as he walked toward the trunk of the Sebring, he looked in Officer Parker’s direction and immediately got back into the car. The Sebring then accelerated quickly away. Officer Parker followed the Sebring as it sped out of the alley—going 30 to 35 miles per hour in a 15-mile per hour zone—and turned right without stopping at the end of the alley or signaling for the turn. Officer Parker tried to get behind the Sebring to conduct a traffic stop, but the Sebring sped onto the 118 Freeway with Officer Parker still in pursuit. Officer Parker accelerated, followed the Sebring onto the freeway, and turned on the patrol vehicle’s lights and siren. The Sebring exited the freeway and came to a stop.

Officer Parker requested backup units and conducted a traffic stop. Weddington and Nunnery were passengers in the car driven by Bashir, who was driving on a suspended license. The Sebring was impounded and searched. The destination on the GPS on Weddington’s cell phone was an address located in the southern part of Los Angeles. In the search, police recovered a crowbar, a window punch, two flathead screwdrivers, one with a bent tip, a Phillips-head screwdriver, a tire repair tool, a pair of two-way radios, one black glove, two empty backpacks, and a pair of white gloves. Another pair of black gloves was recovered from Nunnery’s pocket. Los Angeles Police Officer Benjamin Sadeh described how these items could be used in a burglary and opined that most of these items were common burglary tools.

Midmorning on September 26, 2011, a multi-unit team of the Los Angeles Police Department conducted undercover surveillance of the red Chrysler Sebring starting in the southern part of Los Angeles and continuing north along the 405 Freeway into the San Fernando Valley. Officers in a helicopter tracked the Sebring using a powerful magnifying camera, which enabled them to see people on the ground from an altitude of 6,500 to 8,000 feet. The officers in the helicopter were in contact with numerous officers on the ground in unmarked vehicles who were using the information provided by the airship to follow the Sebring and relay street names and house numbers back to the helicopter.

The helicopter tracked the Sebring as it exited the freeway in Northridge and slowly drove through side streets, occasionally stopping in front of homes. Eventually, the Sebring stopped in front of a house on the 9000 block of Gothic Avenue. After about five minutes, the female driver exited the vehicle, walked to the front door of the house, and knocked on the door for one to two minutes. No one opened the door. The woman returned to the Sebring and drove away.

The Sebring stopped in front of the home of Julianne McCloskey on the 9000 block of Gerald Avenue. Once again, the driver got out of the car, walked up to the front door of the house, knocked, and stood there for about a minute and a half. No one came to the door. The driver then peeked over the side gate of the house before returning to the car. After a few minutes the Sebring pulled away.

The Sebring then parked across the street from a home on the 16000 block of Tupper Street. Again, the driver exited the vehicle and knocked on the front door of the house for about a minute. No one came to the door. The driver looked over the gate on the side of the house before returning to the Sebring. After about five minutes the Sebring drove away.

Police next observed the Sebring stop in front of the home of Kin Fong on the 16000 block of Labrador Street. Fong was not home. The female driver got out of the car and walked up the driveway to the front door of the house. After knocking on the door for a minute or two and receiving no response, she walked to the side gate and looked into the backyard. As she had done after knocking on the doors of the previous homes, the woman went back to the Sebring and sat in the driver’s seat. This time, however, the Sebring did not pull away. After about five minutes, a thin male emerged from the backseat of the Sebring and went through the gate to the backyard. A heavier male then got out of the front passenger seat of the Sebring and joined the thinner man in the backyard. The men opened a window through which they entered the house. After about 10 to 15 minutes, both men exited through the front door carrying small bags and pillowcases which appeared to be weighted down.

A marked police car followed the Sebring when it left the Fong residence. As police attempted to conduct a traffic stop, the Sebring began to pull over to the right and slow down, but suddenly accelerated and sped away. During the ensuing police chase, the Sebring ran several red lights in heavy traffic, and money, coins, jewelry, clothing, and video game cartridges were thrown from all four of the Sebring’s windows. Some of the coins hit the windshield of the closest police car.

The Sebring eventually crashed, and the three occupants of the vehicle ran in different directions. Police took up the chase on foot, and Bashir, Weddington, and Nunnery were apprehended and taken into custody. As Nunnery was being apprehended, he spun around and elbowed the arresting officer in the face, breaking his nose.

In a bifurcated bench trial, the prosecution presented evidence in support of the gang enhancement allegations that Weddington, Nunnery, and Bashir were all members of the Clover subset of the “Seven Trey Gangster Hustler Crip” criminal street gang (STGH), an offshoot of the original Crips gang. They all had numerous STGH tattoos. The prosecution gang expert testified that gang tattoos were earned by “putting in work” for the gang, that is, committing crimes for the gang’s benefit. . . .

According to the prosecution gang expert, the burglary and attempted burglaries represented a signature crime of STGH, known as “floccin’,” in which Crip gang members leave their territory in the southern part of Los Angeles to commit daytime burglaries of residences in the San Fernando Valley suburbs. The term “floccin’” is derived from so-called “knock-knock burglaries,” in which one of the perpetrators knocks on the door of a target residence to determine if anyone is home. The gang expert described a YouTube video he had seen by a STGH gang member known as “Cowboy” which depicted floccin’ as a residential daytime burglary in which jewelry and other small items are taken and the perpetrators flee in a getaway car."

To me, this was outstanding police work.  I wouldn't have thought the LAPD would have engaged in such expansive surveillance just to stop a string of residential burglaries.  But I'm glad it did.

On the law side, I also agree with the Court of Appeal that there were multiple attempted burglaries in this case, including those involving the homes that didn't end up getting broken into.  Justice Rothschild dissents, and says that for the houses the gang passed up on, their actions were only equivocal and "they rejected each house, not because something interfered with the execution of a burglary, but because, after considering each of the houses, they themselves decided to look for another target."  I understand that position.  But disagree.  In my view, they planned on busting into every one of the houses they cased, but in each of the non-burgled houses, there was something that interfered with the execution.  Something didn't look right.  Maybe there was a dog.  Maybe they heard sounds.  Maybe they saw a neighbor.  Whatever.  In each of these cases, I'm not sure what it was that persuaded the robbers to ditch that house and go to a different one.  But I'm confident that it was something.  'Cause they planned on breaking in, and only that something -- whatever it was -- caused them to ditch that burglary for another.

These people were ready.  Their intent to burgle wasn't equivocal.  Every single one of those homes would have been entered if things had looked as the burglars hoped and initially thought.

That's an attempt.  Every single time.

Wednesday, April 13, 2016

Tribble v. Edison Int'l (9th Cir. - April 13, 2016)

Plaintiffs say that their employer violated ERISA by imprudently investing in and retaining certain mutual funds in their retirement plan.  The district court dismissed most of these claims as beyond the relevant statute of limitations, the plaintiffs appealed, and in 2013, the Ninth Circuit affirmed.

But in 2015, the Supreme Court reversed.  The Court unanimously held that the Ninth Circuit erred by failing to recognize that an ERISA trustee has a continuing duty to monitor trust investments and remove imprudent one.  So back to the Ninth Circuit the case goes.

So things are looking good for the plaintiffs, having secured a unanimous victory in the Supreme Court.

Not so fast.

Today, on remand, the Ninth Circuit holds that the plaintiffs waived this "continuing duty" theory by failing to previously raise it.  So case dismissed.  Again.

The Ninth Circuit's decision seems overly parsimonious to me.

Plaintiffs first say that they raised a "continuing violation" theory below, which should be good enough to preserve the issue. The Ninth Circuit disagrees.  But in my view, if these two theories are not the same thing, they're certainly darn close.  Waiver is a matter of discretion.  Having won in the Supreme Court on the exact same theory they're now asserting, it seems a little harsh to me to parse out the briefs below incredibly carefully to try to find a meritorious assertion waived.

Plaintiffs also say that if they didn't raise this theory, that's because the law was against them, and they're under no obligation to raise below arguments that are legally barred.  Judge O'Scannlain's opinion responds that this "change of law" exception to waiver doesn't apply because there was no change in the law.  But that's a tough thing to say since the Ninth Circuit's opinion expressly says that the law was X in 2013, and then the Supreme Court unanimously says in 2015 that the law is not X, and is instead Y.

Plaintiffs have a wide variety of other waiver arguments as well.  But my basic point is this.  The lower courts didn't rely on any waiver argument.  They reached the merits.  The resulting legal issue was then squarely presented to the Supreme Court, which resolved the merits.  I understand that we generally want people to have presented arguments below in order to get the informed judgment of the lower courts.  But here, the Supreme Court was just fine to resolve the issue without any such prior adjudications.  In such circumstances, it doesn't make sense to me to find waiver.  If the Court doesn't need prior assertions of the argument -- and it didn't -- neither should we.  Especially when we're dealing with what we should do after the Court has already decided the issue.  We now know what the law is.  We should apply it.  It serves utterly no purpose to find waiver.  Or at least no real purpose other than finding a way to hose a party that got us reversed, and to find a way to dismiss what we now know may well be a meritorious claim.

Those don't seem like sufficient reasons to me to find waiver.

I understand that the Supreme Court said in the last paragraph of its opinion that it was up to the lower courts to resolve the waiver issue.  But I'd decide that issue with a finding of nonwaiver.

So here's my purported rule.  The Court of Appeal shouldn't retroactively apply the discretionary doctrine of waiver when the Supreme Court has already addressed the substantive issue on the merits.   If the Supreme Court didn't need the lower courts to chime in, neither do we.

Especially at this point,

Tuesday, April 12, 2016

Karpinski v. Smitty's Bar, Inc. (Cal. Ct. App. - April 12, 2016)

I wanted to write about this opinion from the Court of Appeal, if only because it involved Smitty's Bar.  Which sounds like a fake, made-for-television name, but apparently it's a real place.  Awesome.

The opinion also teaches an important lesson.  The Court of Appeal holds that you can't refuse to pay an agreed-upon settlement amount just because -- or even if -- you're worried that the plaintiff may decide not to pay his lienholders.  And you also can't permissibly "solve" this "problem" by making the settlement check payable jointly to the plaintiff and the lienholders.

Or at least you can't do so without a much more specific settlement agreement than the typical one at issue here.  You've instead going to have to work a lot harder to make payment of the liens an express condition precedent to your payment of the settlement funds.

This holding may well result in lienholders not getting their money.  But that's their problem, not yours.  (Or at least not primarily yours, since there's typically an indemnification provision in these types of agreements.  Or, as here, four of 'em.  If that's not good enough for you, you're going to have to work harder on drafting the terms of the settlement before you can make the check out to everyone.)

U.S. v. Parnell (9th Cir. - April 12, 2016)

One of the frustrating things about traditional law review articles in the modern era is that they're incredibly, incrediby long.  They're comprehensive, to be sure.  But unless you've got a couple of hours to spend learning every minute detail of a particular area of law, you're largely relegated to reading the abstract and moving on.

By contrast, Judge Watford displays an uncanny ability today to cut quickly to the chase.  Here's his concurrence.  In full.  It's perfect for a bar review class or pretty much anything else.  It tell you what you need to know and no more:

"I join the court’s opinion in full, although I confess I was initially inclined to affirm the sentence. The notion that robbery is not a 'violent felony,' as that term is defined in the Armed Career Criminal Act (ACCA), strikes me as counterintuitive to say the least. Holding that armed robbery doesn’t qualify as a violent felony seems even more absurd. But, as the court’s opinion persuasively explains, that conclusion is compelled by two oddities of Massachusetts law.

The first is that Massachusetts has abandoned the traditional common-law definition of robbery. To distinguish robbery from larceny, the common law required more than just stealing property from the person of another. To commit robbery, the defendant also had to use violence or intimidation to coerce the victim into parting with his property. [Cite] In Massachusetts, however, a defendant may be convicted of robbery without using violence or intimidation of any sort. [Cite] It’s enough, for example, if the defendant sneaks up behind the victim and snatches a purse from her hand without so much as touching the victim or doing anything to put her in fear beforehand. [Cite]

The second oddity is this: In Massachusetts, armed robbery consists of robbery (as defined above) while in possession of a dangerous weapon. The weapon need not play any role in the offense, as is often required in other States, and the victim need not even be aware of the weapon’s existence. [Cites]. Thus, the same purse-snatcher described above is guilty of armed robbery under Massachusetts law so long as he has a gun concealed on his person—even if the victim never learns of the gun’s presence, and even if the gun plays no role in facilitating the crime. So again, strange as it may seem, in Massachusetts a defendant can be found guilty of armed robbery without using or threatening to use any violence whatsoever.

The conduct encompassed by Massachusetts’ armed robbery statute surely falls within the scope of the ACCA’s so-called residual clause, [Cite] But that clause is no longer valid. [Cite] To qualify now as a violent felony, armed robbery must have as an element the use, attempted use, or threatened use of violent physical force. [Cite] That is not the case under Massachusetts law, so Parnell’s prior armed robbery conviction cannot serve as the basis for an enhanced sentence under the ACCA."

Beautiful.  Simply beautiful.

Monday, April 11, 2016

ALDF v. FDA (9th Cir. - April 11, 2016)

When every member of the panel thinks the case should go en banc, and says so -- as happens this morning -- my guess is that that's eventually going to happen.

Not a certainty.  But the smart money's probably on that side of the bet.

Friday, April 08, 2016

Jones v. Superior Court (Cal. Ct. App. - April 8, 2016)

Here's a neat little case that might be of particular interest to readers in more rural areas.  Even for those readers who live and practice in The Big City, it also raises a statutory interpretation issue in a context that I've never before considered.

The basic scoop is this:  CCP 170.6 describes when and how a litigant may exercise a peremptory challenge against a judge.  The usual rule -- the one with which we're most familiar -- says that you've got 10 days to paper the judge, and the clock runs from the point in which the litigant receives actual notice that the case is assigned to that judge for all purposes.  So once you get actual notice of the assignment, the clock starts ticking.

But there's an exception to that rule in 170.6(a)(2).  If you're in a county that only has one authorized judge, your clock (which now becomes a 30-day clock) starts ticking once you appear, rather than when you get a notice of assignment for all purposes.

When you think about it, that makes sense.  You know you're in, say, the Merced County Superior Court, and we know you know that because you've appeared there.  Merced only has one authorized judge.  Ergo, you definitely know the identity of your judge, and your time to challenge her accordingly starts then.  There's no need for a notice of assignment for all purposes to start the clock.

But here's the thing.  There used to be several counties with only one authorized judge.  But now there aren't any.

So is 170.6(a)(2) irrelevant?

Not according to the trial court here.  Because while there aren't currently any entire counties with only one judge, there are still plenty of branches that only have one assigned judge.  For example, here, the Nevada County Superior Court has more than one authorized judge, but the Truckee branch of that court only has one assigned judge.  So according to the trial court, the "one-judge" rule of 170.6 applies.  You know that you were assigned to the Truckee branch (since you appeared here), you know that branch only has one assigned judge, ergo your clock started ticking upon your appearance before that judge, not upon the later date when you received formal actual notice that the case was assigned to that judge for all purposes.  The People of the State of California agree, and support the trial court's view of the statute on appeal.

But the Court of Appeal disagrees.  The statute talks about courts, not branches.  It talks about authorized judges, not assigned judges.  So it only applies to counties with one judges, not branches.  Statute's clear.

I agree that's what the statute says, and that the Court of Appeal gets it right.

And I say that notwithstanding one of the creative -- but ultimately wrong -- arguments advanced by the California Attorney General.  She says that paragraph (a)(2) would be impermissible "surplusage" if the statute were interpreted the way the Court of Appeal does since there are no longer any one-judge counties.  Which is right, at least in part.  At this point, 170.6(a)(2) is indeed meaningless.

But that doesn't mean it's impermissible.  It's not the interpretation that made the statute meaningless.  That result arose instead from the changes in the outside world.  And that's just fine.

Here's my analogy.  Imagine a statute, passed by Congress in May of 1964 (over the President's veto, no doubt), that says:  "It shall be a felony for President Lyndon Baines Johnson to lift a dog up by its ears."  The statute is never repealed, and stays on the books.  Fast forward to 2016, and -- in a stunning development -- a contested Republican convention nominates a little-known 45-year old California resident named (you guessed it) Lyndon Baines Johnson as its nominee, and Mr. Johnson is elected a the general election.  Right after his inauguration, in his first official act, now-President Johnson lifts up a passing dog by his ears.

President Johnson is promptly prosecuted, and his defense is that the statute only applies (and was only meant to apply) to the President Lyndon Baines Johnson, not any President Lyndon Baines Johnson. The prosecutor responds, correctly, that since "the" President Johnson is dead, that would make the statute surplusage.

That's true.  But it's totally fine.  New President Johnson wins.  Sometimes statutes are made meaningless by intervening events.  Like here.  We need not interpret statutes to avoid such a result.

Still, a neat little argument.  Even if it's wrong.

Thursday, April 07, 2016

O'Brien v. Welty (9th Cir. - April 7, 2016)

Judge Fletcher says something in today's opinion that both matters to me personally as well as, in my view, is spot on.  He says (in a case that squarely raises the issue):

"Professors at work in their personal offices do not generally expect to be confronted without warning by a student asking hostile questions and videotaping. If the uninvited student refuses to cease hostile questioning and refuses to leave a professor’s personal office after being requested to do so, as O’Brien admits occurred here, the professor may reasonably become concerned for his or her safety. O’Brien’s behavior as described in the FAC could be considered 'harassment' or 'intimidation' and threatening under an objective reasonableness standard. It was thus permissible for Fresno State to impose discipline on O’Brien for this conduct under its reasonable and viewpoint-neutral regulation."

Yes.  Definitely.  If you come to my office and start with hostile questions and videotape, and don't leave my office when I ask you to, that's harassing.  (Indeed, regardless of what you say, your conduct is designed to be harassing, not that your subjective motivation is determinative.)

You can't do that to an ex-significant other.  You can't do it to me either.  It constitutes harassment.  (And Judge Fletcher, a former law professor, has pretty good personal knowledge of what is and is not reasonably expected in such a professional setting.  The conduct here crossed the line.)

So Judge Fletcher holds that the discipline imposed on this student was potentially proper, pursuant to a valid regulation.

But he also holds that the student -- a prominent conservative on campus -- had made out at least a "plausible" (at the pleading stage) claim for retaliation.  So reverses the district court's dismissal of his lawsuit on that ground.

I get it.  Judge Fletcher identifies a lot of facts that suggest that plaintiff was not a popular figure on campus, and, taken one way, one might perhaps view those facts as indicating that the reason that the plaintiff might have been charged with harassment was because of his political views.  Judge Fletcher makes a pretty decent case in this regard.

But I want to add one thing to what Judge Fletcher says.  And it somewhat cuts back, I think, on his conclusion, as well as being definitely worth mention.

I'm sure that the faculty members at issue here didn't like the plaintiff, in part -- perhaps in large part -- because of his political views.  The guy was clearly an aggressive, in your face dude in all aspects of the underlying political scrum on campus, and that surely rubbed some people the wrong way.

But the fact that the faculty members didn't like the guy doesn't necessarily mean that they engaged in retaliation because of these particular political views.  In my view, there's some extremely meaningful overlap in cases like this between the political views -- or the strength with which they're held and/or displayed -- and the entirely legitimate reasons why the conduct of a particular person may cross the line and lead to a person reasonably feeling threatened.

Let me get at this point with an easy example.  If an average, run-of-the mill student of mine comes into my office and starts aggressively questioning me, and turning on a camera, and won't leave, it's definitely a pain in the butt.  I'm not going to like it.  I'm going to think the guy's way overboard.  In pretty much every single case.

But if it's just an average guy, it's quite possible that I won't feel threatened by this particular event.  I won't think it's necessarily a big deal, or -- even if it is -- maybe not a big enough deal to refer the guy to be disciplined.  I might think that I've just gotten the student abnormally worked up, and that he'll eventually calm down, and that I can defuse the situation.

But if the guy is instead a guy with incredibly strongly held political beliefs (on either side, I might add), and if it's a guy who's known throughout the campus someone who seems to feel these beliefs so deeply that he regularly "goes off the deep end" -- i.e., behaves aggressively and/or outside of the normal constraints that usually bind people in these types of disputes -- I gotta tell you, I'm going to have a lot more fear when that guy's in my office.  I'm going to likely figure that the normal, one-off student with no history of deeply-felt aggression is going to mellow out.  But for the other guy I may well have a lot greater fear that this thing may end up with him pulling out a gun and killing me.  Not "because" of his political beliefs.  But because of the strength of them, how he elects to display them (outside of social norms), and how they appear to historically dominate his conduct.  That's the guy I'm worried about.  That's the guy who's conduct is more likely to constitute harassment, in my book, as well the the guy I'm more likely to (legitimately) refer for discipline.

That's not, in my view, retaliation.  I'm not doing it because of his political beliefs.  I'm doing it because I'm scared.  Just like you -- or any other observer -- would be in similar circumstances.

To me, the availability of that alternative explanation cuts back somewhat on the plausibility of the evidence that might otherwise be viewed as proof that this guy was selected for discipline because he was right-of-center.  Yeah, he was right of center, and yeah, people (including the defendants) did not like that.  But he was disciplined because -- in colloquial terms -- he was a nut; moreover, a nut who engaged in conduct that constituted harassment and that someone could reasonably fear.

Now, I concede, there may be a fine line between illegitimate retaliation based on the political beliefs of a student and legitimate responses based in part in the way those beliefs have been expressed (that may in turn legitimately engender fear when the student, as here, crosses the line into harassment).  I nonetheless still think it's a meaningful one.  So I'd have mentioned it in the opinion.  If only because it may well be relevant at the summary judgment stage, and also because this legitimate explanation for the evidence identified by plaintiff may also be relevant at the "plausibility" (pleading) stage as well.

I'll shorthand all of this with the following:

Don't come into my office unannounced, start verbally attacking me with a videotape, and refuse to leave when I ask.  And especially don't do so if you're a nutjob (and especially if I know you're a nutjob).

Because that's definitely not okay.

In Re Jorge G. (Cal. Ct. App. - April 6, 2016)

This is a really good opinion by Justice O'Leary.

Spot on.

Wednesday, April 06, 2016

Hawkins v. SunTrust Bank (Cal. Ct. App. - April 6, 2016)

Wait.  Hold on.  This opinion is obviously wrong.  Isn't it?

I say that with trepidation.  Because when I read the first paragraph, I said to myself:  "Right on!"

Here's how Justice Yegan starts the opinion:

"Rather than giving full faith and credit to a South Carolina foreclosure judgment, appellant contends that we should give it no faith and no credit. This would require riding roughshod over Article IV, §1 of the United States Constitution, section 1913, subdivision (a) of the California Code of Civil Procedure, and time honored principles of res judicata and collateral estoppel.  There is no principled reason to do so."

Hear, hear.

The facts also seem totally straightforward.  SunTrust sues Flordeliza Hawkins in South Carolina in 2010 to foreclose upon her house, Ms. Hawkins defaults, the house gets sold, story over.  But fast forward to 2014, and Ms. Hawkins sues in California for wrongful foreclosure.  The trial court dismisses at the pleading stage on grounds of issue and claim preclusion (res judicata).  The Court of Appeal affirms.

Seems all good, right?

But Ms. Hawkins says she was never, in fact, served with the South Carolina action.  Which means there's no personal jurisdiction.  Which in turn I'm pretty sure means that the South Carolina judgment isn't entitled to full faith and credit.  Some case called Pennoyer or something.  Vague memory from law school.

Justice Yegan has an answer for that, of course.  'Cause I'm quite sure he paid attention that first day of civil procedure.  He says that the South Carolina court determined that there was, in fact, proper service, and hence personal jurisdiction.  It says so right on the South Carolina judgment.

But here's the thing:  That was a default judgment.  Ms. Hawkin's didn't appear.  Yeah, SunTrust filed a proof of service.  But Ms. Hawkins didn't contest it.  Maybe SunTrust was mistaken.  Maybe it lied.

A core requirement for issue preclusion -- which the Court of Appeal applies here -- is that the issue be in fact litigated and resolved.  Default judgments don't count.  Beyond a shadow of a doubt.  (I'll put to one side the fact that Ms. Hawkins eventually files a belated appeal in South Carolina that ultimately gets dismissed on procedural grounds, because that doesn't matter:  we're still talking about giving preclusive effect to a default judgment, which isn't allowed.  Plus the Court of Appeal doesn't even rely on the appeal for it's ruling; it's relying on the default judgment itself.)

Now, the Court of Appeal has an answer.  One that on first glance may make a fair amount of sense.  Justice Yegan says:  "Appellant could have brought a motion to set aside the judgment . . .  . She fails to explain why a motion to vacate the judgment was not filed in South Carolina before moving to California and filing suit here."

Okay, I get the efficiency involved in preferring a motion to vacate in South Carolina over filing a separate action in California.  But here's the thing:  You're not required to do that.  You're allowed to attack a judgment without personal jurisdiction collaterally.  For various policy reasons that I need not identify at length since it's so clearly the actual law.  If there's no personal jurisdiction -- e.g., no proper service -- we might "want" the challenging party to go to the rendering court, but they're not required to do so, since the Full Faith and Credit Clause doesn't apply to judgments without personal jurisdiction.  That whole Pennoyer thing again.  (Plus it would violate the Due Process Clause, as that opinion held, to grant full faith and credit.)

So geeze.

For what it's worth, wholly beyond the relevant law, there are good reasons why we don't, in fact, give preclusive effect to sister state judgments rendered without personal jurisdiction.  Assume for a moment that SunTrust lied in its affidavit, and Ms. Hawkins was never properly served.  She moved from South Carolina to California.  Her home's already been repossessed.  The underlying foreclosure action is sort of moot at this point, since the home is gone.  If she's right that SunTrust lied, however, that entity should still be liable for wrongful foreclosure.  And since both Ms. Hawkins and SunTrust are in California, it may well make sense to do that litigation here, rather than to first go back to South Carolina to reopen a foreclosure litigation about a house that was long-ago already foreclosed.

It doesn't matter that South Carolina said in the default judgment that it had jurisdiction.  It wasn't actually litigated.  (And what else was the court going to say given that it was undisputed since the other side didn't show up -- which, of course, it wouldn't have if the affidavit was a lie.)  This not only makes sense, but it's also the law:  in the words of the California Supreme Court in Hammell, you can still collaterally attack a sister state judgment consistent with the Full Faith and Credit Clause even if such jurisdictional recitals exist.  Which, again, makes sense.

So I'm pretty strongly convinced that this opinion is just flat out wrong.

Now, look, I get maybe why the Court of Appeal issues its opinion.  It does seem like SunTrust did in fact properly serve the South Carolina lawsuit, since surely the woman knew she was being evicted from her home.  Moreover, I read the plaintiff's opening brief in the Court of Appeal.  Let's just say:  The word "brief" accurately describes this submission.  It doesn't even cite Durfee, the leading Supreme Court case on this issue, or Marshall, the Supreme Court's latest word on the issue, or many of the other United States Supreme Court cases that make crystal clear that the Full Faith and Credit Clause does not apply to default judgments rendered without personal jurisdiction.  (And that also answer Justice Yegan's question as to why a plaintiff isn't required to go back to South Carolina and can instead litigate here.)  My hope is that if the Court of Appeal had been informed of all those cases at the time, and had a chance to look at them, it'd have come out the right way.  (And, maybe, upon hearing of them, might now reconsider, since the appellant did, in fact, make the right arguments, just not nearly as persuasively as she might have.)

Ms. Hawkins may well still lose.  But she shouldn't lose on the pleadings.  There is a disputed issue about whether she was properly served.  That issue gets to be resolved here.  You don't give full faith and credit to a default judgment in a sister state that recites that there's personal jurisdiction there.  If, in fact, there wasn't jurisdiction, there's no preclusion of any type.  End of story.

And a published opinion saying otherwise shouldn't be left standing.

Oklevueha Native American Church v. Lynch (9th Cir. - April 6, 2016)

The Ninth Circuit doesn't think much of the new "church" in Hawaii that really, really likes to smoke marijuana.  But instead of resolving whether the church is bona fide, it simply holds today that there's no valid exemption from federal anti-drug laws under the Religious Freedom Restoration Act because the church's doctrine doesn't "require" its members to smoke marijuana, which the church admits is only a substitute for its preferred theological drug, peyote.  So the Ninth Circuit holds there's no "substantial burden" on the plaintiff's exercise of religion since no one's being "coerced" to act in contravention of their religious beliefs.

I'm not sure that this same analysis would necessarily fly if the federal government decided to, say, ban the Eucharist, which I guess isn't technically mandatory either (except maybe during Easter).  I nonetheless get where the Ninth Circuit's coming from.  The church seems bogus; it didn't seem to cross its i's and t's when it threw together its doctrine, so we'll spank it on narrow grounds instead of doing the hard thing like holding that a particular religion is fake.  I get it.

Just recognize that doesn't solve the problem.  All the next person has to do, following the Ninth Circuit's blueprint, is to start a new religion that mandates an occasional Wake-And-Bake in order to commune with God.  Maybe cut-and-paste the canons of the Catholic Church and do a global find-and-replace changing "Eucharist" to "Pot Brownie".  Then see whether the Ninth Circuit can wheedle around things.

But I guess that's Round Two.

Tuesday, April 05, 2016

Diocese of San Joaquin v. Gunner (Cal. Ct. App. - April 5, 2016)

Some days, the Ninth Circuit and the California Court of Appeal give me very little to think about.  Or at least very little that might be interesting to others.  Some days the courts don't publish much.  Some days the opinions are about relatively routine things.  Or the court's analysis seems spot on.  Or both.  On such days, I occasionally find myself with not a lot to say.  There's usually something that is of interest, but it's not hard to focus on the particular case, say a bit about it, and move on.

This is not one of those days.

The problem today is that there are several keenly interesting cases.  Really interesting ones.  And the topics they raise are big.  Or at least are really substantial to me.  (Or in my little head.)

Which also means that they deserve a lot of attention.  A lot.

Which is awesome.  Except for one thing:  I have a job.  A "real" job.  (And, yes, I put that in quotes, because I'm admittedly a law professor.)  Which means that I have other things to do.  Including some things that I have to do.

Now, thank the Lord, the reality is that even those days are usually not crushingly burdensome.  This may come as a shock, I know, but it turns out that being a law professor is not as stressful as being, say, an associate or partner in a major law firm.  For that reason, if a neat little case comes along that requires me (and I should probably put "requires" in quotes as well) to devote two hours to thinking about the case and expressing my thoughts, that's something that -- again, blessedly -- I can do.

Except on days like today.

Which miffs me, because I'm sitting here thinking about all these various published opinions that were issued today, and they're fascinating.  They're worth talking about at length.

But while I can multitask and think about 'em while I doing other things, thinking ain't writing.  So I'm left with plenty of ability to ponder but no time -- at least right now -- to express those thoughts.

Which stinks.

Now, I know you may be thinking:  Dude, you just spent ten paragraphs telling me why you have no time to write.  STOP BITCHING AND JUST WRITE.

And you'd be right.  Of course.  The only caveat is that it's a lot easier to write sentences that purely vent than it is to write (what I hope would be) sophisticated legal analysis of a published opinion that was written with lengthy pondering by incredibly sophisticated people who were confirmed by the Senate (plus their incredibly bright clerks).

Particularly when every mistake or legal error that you might make, plus people who disagree with you on the merits, may give rise to substantial umbrage.

So, anyway, in the end, maybe this is just (a) a vent, and (b) a long winded way of saying:  Stay tuned.  I think there are some great cases out there from today.  Which I'll chat about at length when I next have a couple hours.  (The fact that my wife just flew out of town, leaving me with four hungry children and a crop in the field, doesn't help in this regard.  Though it does increase my appreciation for her!)

In the meantime, I can say the following:  If you're ever thinking about dissolving a church, perhaps due to theological differences, just recognize that it's a mess.  Particularly when the property of the church has to be divided between the various factions.

As today's opinion amply demonstrates.

POSTSCRIPT - I had always thought that Kenny Rogers tellingly told the story purely from the perspective of the husband; that you never were told why Lucille left her husband, and that there was perhaps a good (or at least understandable) reason why the wife had left.  Boredom, poverty, perhaps domestic violence, etc.  Classic old-school country music perspective.  But upon actually going back and listening to the song, I discovered -- maybe for the first time, maybe I just forgot (or never paid attention -- the song's actually from the perspective of a guy in a bar who witnesses the underlying exchange between the spouses.  So you actually do get at least a tiny bit of insight into the whole marital dynamic, not just the guy's perspective.  Who'd have thunk?

Monday, April 04, 2016

Kirchmeyer v. Phillips (Cal. Ct. App.- March 28, 2016)

If you're a shrink who's nailing one of your patients, make sure that you keep your paramour happy.

Because it's incredibly hard to prove that you're engaging in misconduct if s/he doesn't help.

Friday, April 01, 2016

U.S. v. Alexander (9th Cir. - April 1, 2016)

Portions of today's opinion may sound like an April Fool's joke, but aren't:

"Almost immediately upon entering the United States, Alexander filed a motion to dismiss his indictment, claiming that the delay between the indictment and his arrest violated his constitutional right to a speedy trial. The district court held a hearing on the issue during which the U.S. and Canadian officials responsible for Alexander’s case testified that the process of extraditing a defendant from Canada can be a frustrating one. . . .

In this case, it took the U.S. prosecutor 9.6 months to submit a draft of the extradition request to OIA. It then took OIA four months to complete its initial review and return the draft to the prosecutor. Four months later, the request was provided to the Canadian authorities. Canada did not approve the request, however, and instead repeatedly returned it to the United States with demands for corrections or additional information. On each occasion, the United States prosecutor revised the request per Canada’s specifications, only to have Canada identify other reasons to return it. This process continued for over three years. According to the testimony at the hearing, this extensive back-and-forth between the United States and Canada was 'very typical.'"

Those darn Canadians.  If they don't shape up, they may find themselves invaded.  Again.