Read this opinion and see what you think.
Personally, I have a plethora of different emotions about it. All of which conflict.
On the one hand, I see no need for a 35-year old man (the opinion doesn't mention his age, but that's what he apparently was) to exchange fairly graphic flirty e-mails with a 16-year old. No need at all.
Much less do I see a need for him to do so when he's a firefighter/paramedic who's on duty and who met the girl when she toured the fire station. Just it keep professional. Seriously.
On the other hand, maybe he didn't know she was 16. She was almost 17. Maybe (so he says) she told him she was 18. Plus, as the Court of Appeal explains, even though he knew she was in high school, most people turn 18 their senior year. And, at 18, everything would be totally legal, right?
(Parenthetically, the Court of Appeal says that "Most students
reach the age of majority sometime in their senior year," and I assume that's right, but tried and failed to find any actual proof of that fact. I turned 18 after I graduated, So did my younger brother. So will my eldest son. But my three other kids will turn 18 before. It all depends on birth dates, starting early, etc. I also wonder if there are any demographic or sociological differences: do some groups start earlier/later? Anyway, the point is, I think the Court of Appeal is right, but am not totally sure, and can't prove it one way or another, at least after a brief search.)
Yet, still, the guy met her at work. And sent the e-mails while at work. Seems sleazy.
But he's a firefighter. They do -- and are allowed to do -- tons of personal stuff (pretty much anything) while they're waiting for a call. So why not flirting? Again, if she was over 18, no one would really complain. Much less, as here, fire the guy.
Yet, even if she was 18, or he thought she was 18, she's still in high school. He definitely knew that. And that mere fact alone makes it feel wrong. Something we shouldn't want. Something that we can validly sanction. Maybe not criminally, but we can validly expect more from our public servants than trolling for high school booty while on the job.
But, on the other side, there wasn't an actual policy here, at least at the time, that prohibited this. Doesn't that matter? Unless you tell someone that X is impermissible, surely you shouldn't be able to fire them for it, right?
Except that isn't it obvious that a 35-year old shouldn't be doing this?
Except wouldn't it have been okay if she was, in fact, 18?
These, and other, conflicting thoughts arise.
I'm profoundly attuned to the problem of older adults doing things with younger people that they shouldn't. And I don't think that there's a big social downside to saying that thirty-something men shouldn't be trying to pick up high school students. Eighteen or not.
Though I also understand the other side. Eighteen means they're adults. They can do whatever they want.
But don't we want to be careful here? Sure, some eighteen year olds are sophisticated. (In this area, anyway.) Maybe. And maybe even some people under eighteen can be sophisticated-ish, at least not totally naive, in the sexual arena. Maybe even this particular person. (When you read the entire e-mail exchange at pages 3 through 7 of the opinion, one gets a sense that there may be at least a little bit of mutuality in the flirty interest here; e.g., the girl's last message, which reads "[A]nd how big is your thermometer?
cuz i think i can open my mouth pretty wide to make sure we
get the correct reading..but it may take a few
tries.. and how else can we take my temperature?" She clearly gets and participates in the double entendres generated by the firefighter's role as a paramedic.)
Anyway, I don't know. I'd personally be just fine with -- indeed, almost certainly prefer -- a rule that says that no matter how hold a high school student is (or at least one under, say, 30), they're off limits to flirting, or anything else. Period. At least for someone, say, in their 30s or above; and then we can chat about what to do with 19-, 21-, 25-, and 29-year olds who may want to flirt etc. with an above-18 high school student.
And yet there isn't such a policy. Or at least wasn't one here. Yet.
But, again, presumably lots of things that are total common sense aren't written down.
Anyway, read the opinion. Or at least the first ten pages or so. See what you think.
Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.
Tuesday, May 31, 2016
Morales De Soto v. Lynch (9th Cir. - May 31, 2016)
"The Obama administration may well have changed its discretionary policies and decided not to deport unauthorized aliens who are living a crime-free life. And that policy may indeed apply to you, Ms. Morales De Soto.
But ICE decided to remove you long before this policy came into effect. And if ICE feels, in the exercise of its discretion, not to apply this new policy to you, there's nothing we can -- or will -- do about it. Even if your case remains on appeal."
So holds the Ninth Circuit.
But ICE decided to remove you long before this policy came into effect. And if ICE feels, in the exercise of its discretion, not to apply this new policy to you, there's nothing we can -- or will -- do about it. Even if your case remains on appeal."
So holds the Ninth Circuit.
Friday, May 27, 2016
Williams v. Johnson (9th Cir. - May 27, 2016)
The Ninth Circuit unanimously grants habeas relief because the state court erroneously discharged a juror.
The Supreme Court reverses and remands.
The Ninth Circuit then issues a brief order dismissing the habeas petition pursuant to its view of the Supreme Court's instructions.
The Supreme Court then reverses and remands again.
Today, the Ninth Circuit tries to make the third time the charm. Judge Kozinski write the majority opinion and dismisses the habeas petition. Judge Reinhardt dissents and would grant the petition.
Sometimes the Ninth Circuit must feel a little like a C- student vainly trying to do what its constantly angry third-grade teacher has instructed it to do. Never seeming to do anything right no matter how hard it tries.
Though, if the analogy were to hold, the Ninth Circuit would have already graduated high school by now. The district court docket number begins with an 03-. And the Ninth Circuit caption starts with an 07-.
That's a lot of work without much progress.
The Supreme Court reverses and remands.
The Ninth Circuit then issues a brief order dismissing the habeas petition pursuant to its view of the Supreme Court's instructions.
The Supreme Court then reverses and remands again.
Today, the Ninth Circuit tries to make the third time the charm. Judge Kozinski write the majority opinion and dismisses the habeas petition. Judge Reinhardt dissents and would grant the petition.
Sometimes the Ninth Circuit must feel a little like a C- student vainly trying to do what its constantly angry third-grade teacher has instructed it to do. Never seeming to do anything right no matter how hard it tries.
Though, if the analogy were to hold, the Ninth Circuit would have already graduated high school by now. The district court docket number begins with an 03-. And the Ninth Circuit caption starts with an 07-.
That's a lot of work without much progress.
Thursday, May 26, 2016
People v. Dokins (Cal. Ct. App. - Oct. 30, 2015)
A fifteen-year old gang member shoots and kills a fourteen-month old baby in a "drive-by" shooting in which the defendant was riding a bike.
The baby is dead. The fifteen year old is essentially sentenced to spend the rest of his life in prison, albeit with a (slim) possibility of parole.
There's not even massive evidence that the fifteen-year old did it. He probably did. But in a perfect world, you'd want a lot more than the (notoriously unreliable) eyewitness evidence that was the basic reason for defendant's conviction.
No winners here. None.
The baby is dead. The fifteen year old is essentially sentenced to spend the rest of his life in prison, albeit with a (slim) possibility of parole.
There's not even massive evidence that the fifteen-year old did it. He probably did. But in a perfect world, you'd want a lot more than the (notoriously unreliable) eyewitness evidence that was the basic reason for defendant's conviction.
No winners here. None.
Tuesday, May 24, 2016
Sialoi v. City of San Diego (9th Cir. - May 24, 2016)
I'm not sure why the City of San Diego filed an appeal in this one.
Here's how the Ninth Circuit describes the case: "In October of 2010, officers with the San Diego Police Department responded to a report that two armed black males had been seen in the parking lot of an apartment complex. When they arrived, the officers, armed with assault rifles and eventually numbering over twenty, encountered not two armed black males but a large Samoan family celebrating the birthday of a seven-year-old girl. The officers detained the members of the family (handcuffing the vast majority of them, including numerous adolescents) and then searched each of them for weapons. Finding nothing incriminating, the officers then searched the family’s apartment without a warrant or consent. Again finding nothing incriminating, the officers left without removing a single family member from the scene or filing any charges."
Needless to say, a Section 1983 lawsuit follows.
San Diego moves for qualified immunity on behalf of the defendant officers. The district court denies the motion. On every single point. The City appeals. The Ninth Circuit rejects the appeal. On every single point. Without a single vote to the contrary. (And it's a mix of judicial philosophies: the panel consists of Judges Reinhardt, Paez, and Milan Smith.)
All that the appeal seems to accomplish is to delay the lawsuit and run up legal fees. The City's as well as the plaintiffs'. The latter of which the City will pay as well if the plaintiff prevails.
My tax dollars hard at work.
Here's how the Ninth Circuit describes the case: "In October of 2010, officers with the San Diego Police Department responded to a report that two armed black males had been seen in the parking lot of an apartment complex. When they arrived, the officers, armed with assault rifles and eventually numbering over twenty, encountered not two armed black males but a large Samoan family celebrating the birthday of a seven-year-old girl. The officers detained the members of the family (handcuffing the vast majority of them, including numerous adolescents) and then searched each of them for weapons. Finding nothing incriminating, the officers then searched the family’s apartment without a warrant or consent. Again finding nothing incriminating, the officers left without removing a single family member from the scene or filing any charges."
Needless to say, a Section 1983 lawsuit follows.
San Diego moves for qualified immunity on behalf of the defendant officers. The district court denies the motion. On every single point. The City appeals. The Ninth Circuit rejects the appeal. On every single point. Without a single vote to the contrary. (And it's a mix of judicial philosophies: the panel consists of Judges Reinhardt, Paez, and Milan Smith.)
All that the appeal seems to accomplish is to delay the lawsuit and run up legal fees. The City's as well as the plaintiffs'. The latter of which the City will pay as well if the plaintiff prevails.
My tax dollars hard at work.
People v. Espino (Cal. Ct. App. - May 24, 2016)
Police conduct a pat-down search of Freddy Espino. They feel something in his pocket. They think it might be crack cocaine.
Turns out it's not crack cocaine. What is it, then?
No, not that.
It's a . . . diamond. Which they discover after handcuffing the dude and pulling the thing out.
Not what the police were expecting, I'm sure.
Unfortunately for Mr. Espino, after the police pulled out the diamond, after "some hesitation," he also gave consent for the police to search his car. There, the police officers discovered something that they're far more used to seeing.
Methamphetamine.
Fortunately for Mr. Espino, however, the Court of Appeal holds that the officers did not have probable cause to keep him under arrest when they requested his consent (post-diamond) to search his vehicle.
Conviction reversed.
Presumably he gets back the diamond too.
Turns out it's not crack cocaine. What is it, then?
No, not that.
It's a . . . diamond. Which they discover after handcuffing the dude and pulling the thing out.
Not what the police were expecting, I'm sure.
Unfortunately for Mr. Espino, after the police pulled out the diamond, after "some hesitation," he also gave consent for the police to search his car. There, the police officers discovered something that they're far more used to seeing.
Methamphetamine.
Fortunately for Mr. Espino, however, the Court of Appeal holds that the officers did not have probable cause to keep him under arrest when they requested his consent (post-diamond) to search his vehicle.
Conviction reversed.
Presumably he gets back the diamond too.
Monday, May 23, 2016
In Re Ivan N. (Cal. Ct. App. - May 20, 2016)
This is, inter alia, why I don't want to do dependency law. As well as why I profoundly respect the people who do:
"When the minor was 17 years old and had been in his adoptive home for three years, his adoptive parents learned from an incident at their home that he had molested their daughter, age 7 (sometimes termed the 'victim'). The minor admitted that he had used his hands and penis to touch her genital area several times over the past year. He was arrested and confined at juvenile hall. . . .
During an interview, the minor apologized and admitted he should not have molested the victim, which he did to get back at his parents. . . . On May 18, 2015 at the dispositional hearing, the minor agreed to the proposed residential placement, but requested a hearing on whether he should be allowed to return to the North San Diego County high school he had previously attended, his "school of origin" within the meaning of Education Code section 48850 et seq. (ch. 5.5, "Education of Pupils in Foster Care and Pupils who are Homeless"). He had friends there and had been passing all of his classes. . . .
At the disposition hearing, the court heard from the minor's parents. His mother (also the victim's mother) was concerned that it would not be appropriate to return the minor to his local high school, since their other children attend a grade school across the street and it would be difficult for them not to see him there."
Oy.
"When the minor was 17 years old and had been in his adoptive home for three years, his adoptive parents learned from an incident at their home that he had molested their daughter, age 7 (sometimes termed the 'victim'). The minor admitted that he had used his hands and penis to touch her genital area several times over the past year. He was arrested and confined at juvenile hall. . . .
During an interview, the minor apologized and admitted he should not have molested the victim, which he did to get back at his parents. . . . On May 18, 2015 at the dispositional hearing, the minor agreed to the proposed residential placement, but requested a hearing on whether he should be allowed to return to the North San Diego County high school he had previously attended, his "school of origin" within the meaning of Education Code section 48850 et seq. (ch. 5.5, "Education of Pupils in Foster Care and Pupils who are Homeless"). He had friends there and had been passing all of his classes. . . .
At the disposition hearing, the court heard from the minor's parents. His mother (also the victim's mother) was concerned that it would not be appropriate to return the minor to his local high school, since their other children attend a grade school across the street and it would be difficult for them not to see him there."
Oy.
Thursday, May 19, 2016
Center for Biological Diversity v. Cadiz (Cal. Ct. App. - May 19, 2016)
From today's opinion:
"It is ordered that the opinion filed herein on May 10, 2016, be modified as follows: On page 2, in the third editorial paragraph, beginning 'Best & Krieger,' delete 'Best & Krieger' and replace it with 'Best Best & Krieger.' This modification does not effect a change in the judgment."
As they say, it's important to get one's name right. Especially to make clear that one's not just the best, but the best best.
"It is ordered that the opinion filed herein on May 10, 2016, be modified as follows: On page 2, in the third editorial paragraph, beginning 'Best & Krieger,' delete 'Best & Krieger' and replace it with 'Best Best & Krieger.' This modification does not effect a change in the judgment."
As they say, it's important to get one's name right. Especially to make clear that one's not just the best, but the best best.
Roe v. Superior Court (Cal. Ct. App. - Dec. 18, 2015)
I teach my first-year law students every year that you're only allowed to conduct a physical or mental examination of a party. That's true in federal court. That's true in California state court. It's true pretty much everywhere they might practice.
I try to make the rule memorable by recognizing that it's a principle that's not without cost. Say you have an eyewitness, and the critical question is whether this eyewitness has good vision or not. The easiest way to figure this out would be to order an exam. You could do that if he was a party, rather than a mere witness. But if he's a witness, no matter how critical the inquiry, no matter how critical the exam, a court can't order one.
We fear that compelled physical or mental exams of mere witnesses are too burdensome, plus there are enforcement and liberty concerns (will we really strap them down if they resist?!) that don't apply to a compelled examination of a party. Seems crazy, in a way, since sometimes a lengthy deposition is far more burdensome than a 15-minute visit to the eye doctor. That's the rule. Know it.
The California Court of Appeal reaffirms that rule here.
The trial court thought it could not only order a mental examination of the minor plaintiff (which it surely could), but could also the parents to submit to interviews with the defense forensic psychiatrist.
Nope. That latter thing you can't do. They're not parties. No physical or mental exams. Period.
The trial court got it wrong. Hopefully my students will get it right on their exams.
And now, you'll get it right every single time.
Only parties. That's the rule.
I try to make the rule memorable by recognizing that it's a principle that's not without cost. Say you have an eyewitness, and the critical question is whether this eyewitness has good vision or not. The easiest way to figure this out would be to order an exam. You could do that if he was a party, rather than a mere witness. But if he's a witness, no matter how critical the inquiry, no matter how critical the exam, a court can't order one.
We fear that compelled physical or mental exams of mere witnesses are too burdensome, plus there are enforcement and liberty concerns (will we really strap them down if they resist?!) that don't apply to a compelled examination of a party. Seems crazy, in a way, since sometimes a lengthy deposition is far more burdensome than a 15-minute visit to the eye doctor. That's the rule. Know it.
The California Court of Appeal reaffirms that rule here.
The trial court thought it could not only order a mental examination of the minor plaintiff (which it surely could), but could also the parents to submit to interviews with the defense forensic psychiatrist.
Nope. That latter thing you can't do. They're not parties. No physical or mental exams. Period.
The trial court got it wrong. Hopefully my students will get it right on their exams.
And now, you'll get it right every single time.
Only parties. That's the rule.
Wednesday, May 18, 2016
U.S. v. Tadios (9th Cir. - May 18, 2016)
Why is this case ostensibly so easy?
Judge McKeown writes a published opinion that disposes of the appeal in four pages. Ms. Todios was a salaried employee who visited her husband while she was supposed to be working, and she was convicted of converting federal funds for (among other things) charging her visits to South Dakota to a federally-funded credit card.
Fair enough. That's a crime. I've got no problem with that.
As for her restitution, clearly, she's got to pay back the money she stole. She said that she was doing a five-day "site visit" in South Dakota, when, really, she only spent two hours at the actual site, and the rest of her time visiting her incarcerated husband. Okay. Money back.
But the government also wants her to grant restitution for the "value" of her salaried time. And that calculated "loss" also increases her sentence under the guidelines.
That'd be totally fine with me too. If she was paid hourly. But she's not. She's paid a salary. That's her argument on appeal. That she was paid an annual salary whether she worked one hour a year or three thousand -- indeed, federal wage and hour law requires precisely that -- so there was no "loss" to the "value" of her missed time.
Judge McKeown's opinion, however, says that this argument "strains credulity". But why?
Don't get me wrong. I understand the impulse. We usually do think that "time is money". And I too wouldn't especially like a system where a government employee could sleep on the job and still collect the entirety of her pay.
But -- and I understand this may come as a shock to someone -- that's the system we have.
Take Judge McKeown's law clerks. They're paid a government salary. They're salaried. Imagine that one of them decides that he's not all that psyched about his job any more. So he comes in one day, does 10 minutes of work on a draft opinion -- let's call it U.S. v. Tadios II -- and then closes his door and sleeps at his desk for the rest of the day. Same the next day. Same all week. When Judge McKeown asks him what he'd done that week, he says he's "busting his hump on Tadios II." But then Judge McKeown notices some drool on his desk, and also that the draft opinion only contains three sentences. At which point the law clerk comes clean.
Now, there's no doubt that Judge McKeown's clerk can be fired for that. (And would be.) So when Judge McKeown's opinion cites federal personnel policies that say that sleeping on the job and not doing work constitutes an offense worthy of termination, I totally agree.
But that doesn't answer the question. Which is whether the clerk could be found guilty of "stealing" government time -- which, under Judge McKeown's view, is equivalent to stealing the government's money. As well as if, so convicted, the law clerk would also have to pay for the value of his time.
That's the dispositive issue. And on those points, I think Judge McKeown's opinion is pretty aggressive. And certainly not self-evident.
Plus, how far does this go? Imagine that the law clerk gets all his work done in four hours, and sleeps the rest, but doesn't tell the judge he was sleeping. Under Judge McKeown's analysis, there was a "loss" to the government that the employee stole. But the law clerk did his job. Where's the "loss" -- even if "time is money" -- if the judge expects Opinion X and gets Opinion X because the clerk can do it in half of the expected time.
Look, I understand that Judge McKeown may be upset. Rightly so. And have full authority to fire the guy. For lying. For being lazy. For whatever.
But getting your work done early and then taking it easy? That's a federal offense?! With a "loss" to the government even though you fully satisfied your employer's expectations? Really?
Such a view also seems inconsistent with actual federal law. Because for the four-hour law clerk, I readily admit that you can fire him. But guess what you can't do? Dock his pay. Because he's an exempt employee. Which means, as a matter of law, whether he works one hour, four hours, ten hours, or ten minutes, he gets the exact same amount of pay. As a matter of law.
Which seems somewhat inconsistent with Judge McKeown's view of a "loss" to the government.
Plus, again, where does Judge McKeown's argument stop? Imagine that a law clerk works ten hours on Todio II one day, but tells the judge that he worked twelve. Is that two hours of an actionable loss to the government?! He lied, after all. That was two more hours of work that he said he did -- that he could have been working on other drafts, or working harder on this one -- and didn't. If it's the lie (on a timesheet or otherwise) that results in the offense, or at least a lie plus time-is-money, then Judge McKeown has to say that's an actionable loss as well. Yet that'd seem shocking to me. Especially since federal law says that the clerk -- just like Ms. Todios -- gets $X salary whether she works one hour, eight hours, or twelve.
I'd have liked Judge McKeown's opinion to explore these problems. But it instead just says that it's fairly self-evident that we've got to count time as money and that, otherwise, government employees could sleep on the job and we could do nothing about. Since we could do something about it -- fire them, as indeed transpired here. But, even if we caught them, the one thing we couldn't do is to dock their pay. Yet the Ninth Circuit nonetheless call it a "loss" subject to restitution and a sentencing enhancement. That facially seems a problem to me.
Plus, is this opinion really consistent with workplace realities? Imagine the clerk writes down that he worked eight hours. But, really, he was checking ESPN and going to the bathroom for 15 minutes in that period. Federal offense?! Restitution for that time?! It's a lie, after all. And time is money.
Finally, I'm not even sure that all of this is even necessary to resolve the present case. Ms. Todios appears to have taken off five days of work and only spent two hours on the site visit. Federal law says that a salaried employee gets fully paid if she works even a single minute in one day. So on the one day (presumably) that Ms. Todios did the site visit, maybe we don't count a "loss" for that day. But the other four days, when she did nothing, she could be docked for those days. That's a loss for which restitution clearly (at least in my view) could be ordered.
And, don't forget, we're not talking about whether Ms. Todios gets off. She used a government card for personal expenses. She's going away. She'll have to pay restitution.
The only question is whether she also has to pay for the "value" of her partial days.
Judge McKeown says that it strains credulity to say that she shouldn't have to.
Of that I'm not so sure.
Judge McKeown writes a published opinion that disposes of the appeal in four pages. Ms. Todios was a salaried employee who visited her husband while she was supposed to be working, and she was convicted of converting federal funds for (among other things) charging her visits to South Dakota to a federally-funded credit card.
Fair enough. That's a crime. I've got no problem with that.
As for her restitution, clearly, she's got to pay back the money she stole. She said that she was doing a five-day "site visit" in South Dakota, when, really, she only spent two hours at the actual site, and the rest of her time visiting her incarcerated husband. Okay. Money back.
But the government also wants her to grant restitution for the "value" of her salaried time. And that calculated "loss" also increases her sentence under the guidelines.
That'd be totally fine with me too. If she was paid hourly. But she's not. She's paid a salary. That's her argument on appeal. That she was paid an annual salary whether she worked one hour a year or three thousand -- indeed, federal wage and hour law requires precisely that -- so there was no "loss" to the "value" of her missed time.
Judge McKeown's opinion, however, says that this argument "strains credulity". But why?
Don't get me wrong. I understand the impulse. We usually do think that "time is money". And I too wouldn't especially like a system where a government employee could sleep on the job and still collect the entirety of her pay.
But -- and I understand this may come as a shock to someone -- that's the system we have.
Take Judge McKeown's law clerks. They're paid a government salary. They're salaried. Imagine that one of them decides that he's not all that psyched about his job any more. So he comes in one day, does 10 minutes of work on a draft opinion -- let's call it U.S. v. Tadios II -- and then closes his door and sleeps at his desk for the rest of the day. Same the next day. Same all week. When Judge McKeown asks him what he'd done that week, he says he's "busting his hump on Tadios II." But then Judge McKeown notices some drool on his desk, and also that the draft opinion only contains three sentences. At which point the law clerk comes clean.
Now, there's no doubt that Judge McKeown's clerk can be fired for that. (And would be.) So when Judge McKeown's opinion cites federal personnel policies that say that sleeping on the job and not doing work constitutes an offense worthy of termination, I totally agree.
But that doesn't answer the question. Which is whether the clerk could be found guilty of "stealing" government time -- which, under Judge McKeown's view, is equivalent to stealing the government's money. As well as if, so convicted, the law clerk would also have to pay for the value of his time.
That's the dispositive issue. And on those points, I think Judge McKeown's opinion is pretty aggressive. And certainly not self-evident.
Plus, how far does this go? Imagine that the law clerk gets all his work done in four hours, and sleeps the rest, but doesn't tell the judge he was sleeping. Under Judge McKeown's analysis, there was a "loss" to the government that the employee stole. But the law clerk did his job. Where's the "loss" -- even if "time is money" -- if the judge expects Opinion X and gets Opinion X because the clerk can do it in half of the expected time.
Look, I understand that Judge McKeown may be upset. Rightly so. And have full authority to fire the guy. For lying. For being lazy. For whatever.
But getting your work done early and then taking it easy? That's a federal offense?! With a "loss" to the government even though you fully satisfied your employer's expectations? Really?
Such a view also seems inconsistent with actual federal law. Because for the four-hour law clerk, I readily admit that you can fire him. But guess what you can't do? Dock his pay. Because he's an exempt employee. Which means, as a matter of law, whether he works one hour, four hours, ten hours, or ten minutes, he gets the exact same amount of pay. As a matter of law.
Which seems somewhat inconsistent with Judge McKeown's view of a "loss" to the government.
Plus, again, where does Judge McKeown's argument stop? Imagine that a law clerk works ten hours on Todio II one day, but tells the judge that he worked twelve. Is that two hours of an actionable loss to the government?! He lied, after all. That was two more hours of work that he said he did -- that he could have been working on other drafts, or working harder on this one -- and didn't. If it's the lie (on a timesheet or otherwise) that results in the offense, or at least a lie plus time-is-money, then Judge McKeown has to say that's an actionable loss as well. Yet that'd seem shocking to me. Especially since federal law says that the clerk -- just like Ms. Todios -- gets $X salary whether she works one hour, eight hours, or twelve.
I'd have liked Judge McKeown's opinion to explore these problems. But it instead just says that it's fairly self-evident that we've got to count time as money and that, otherwise, government employees could sleep on the job and we could do nothing about. Since we could do something about it -- fire them, as indeed transpired here. But, even if we caught them, the one thing we couldn't do is to dock their pay. Yet the Ninth Circuit nonetheless call it a "loss" subject to restitution and a sentencing enhancement. That facially seems a problem to me.
Plus, is this opinion really consistent with workplace realities? Imagine the clerk writes down that he worked eight hours. But, really, he was checking ESPN and going to the bathroom for 15 minutes in that period. Federal offense?! Restitution for that time?! It's a lie, after all. And time is money.
Finally, I'm not even sure that all of this is even necessary to resolve the present case. Ms. Todios appears to have taken off five days of work and only spent two hours on the site visit. Federal law says that a salaried employee gets fully paid if she works even a single minute in one day. So on the one day (presumably) that Ms. Todios did the site visit, maybe we don't count a "loss" for that day. But the other four days, when she did nothing, she could be docked for those days. That's a loss for which restitution clearly (at least in my view) could be ordered.
And, don't forget, we're not talking about whether Ms. Todios gets off. She used a government card for personal expenses. She's going away. She'll have to pay restitution.
The only question is whether she also has to pay for the "value" of her partial days.
Judge McKeown says that it strains credulity to say that she shouldn't have to.
Of that I'm not so sure.
Tuesday, May 17, 2016
In Re Conservatorship of Bower (Cal. Ct. App. - May 16, 2016)
You read about all sorts of depressing things when you look at the Ninth Circuit and California Court of Appeal opinions. Murders. Rapes. Child abuse. Lots of nasty, nasty stuff. Stuff that ends of making you alternately happy to be where you are and yet saddened by the human condition.
This opinion is a different type of non-uplifting story. It's not a criminal case, which is where most of the ugly stuff appears. But it still tells a tale that's part of the There-But-For-The-Grace-Of-God-type of opinions:
Sometime around 2007, when David would have been about 51 years old (and Lynn about 47), David was diagnosed with frontotemporal dementia, otherwise called FTD. Frontotemporal dementia is a term that describes a group of mental disorders affecting both an individual’s memory and personality. Often the afflicted person will begin to act out of character. In David’s case, his dementia appears to have precipitated a craving for alcohol and a hostility toward his family (his wife Lynn and their three young adult children). . . .
The record does show David’s condition has been more specifically classified as “semantic” dementia, which impairs parts of the brain affecting language. While David appears to have lost the ability to articulate words, or read or write, there is some indication in the record he can communicate his thoughts and feelings through gestures, like a thumbs up sign for yes or crossing his arms over his chest for no. Whether or not his thoughts and feelings are themselves the product of his dementia appears to be an open question.
Beginning in 2007, Lynn began to manage the couple’s real property empire alone. During this period, David began more and more to perceive his wife Lynn and his children as his enemies. He wasn’t exactly banished, like Rochester’s wife in Jane Eyre, to an attic, but – apparently, at Lynn’s direction – he did begin living in a cottage in back of the family home.
Perhaps because of this estrangement from his family, in June 2009, David signed a power of attorney form giving his sister Andrea control over all his financial matters. A little more than a year later, in September 2010, Andrea caused David to file a petition for dissolution of his marriage to Lynn. But the proceeding went nowhere. In March 2011, at Lynn’s behest, the family law court dismissed the dissolution action, finding that David lacked the “necessary mental capacity to form or express his independent resolve, free of any undue influence, to legally dissolve his long term marriage based on irreconcilable differences.” The family law judge continued: “The evidence is overwhelming that David lacks the requisite mental capacity to maintain these proceedings and any evidence to the contrary is characterized as de minimis, if any at all.”
As if to confirm the family court’s characterization of David’s lack of capacity, the day after the family law judge dismissed the dissolution action there was an incident in the family home that prompted his temporary hospitalization under section 5150 of the Civil Code. A gun was visible on a counter and David made “shooting motions” toward Lynn and his daughter Rachel. The incident prompted Lynn to call the police, who took David to the “psych ward” at UCI Medical Center. (David’s inability to speak would have, if anything, made the gesture more objectively frightening since it could have conveyed more than just ineffable antipathy.)
David was soon transferred, at Lynn’s direction, from the UCI center to a facility called Silverado. Andrea, however, objected to Silverado, and took David from Silverado to her own home in Escondido. There he developed a habit of breaking into neighbors’ houses to take beer from their refrigerators."
Not good.
This opinion is a different type of non-uplifting story. It's not a criminal case, which is where most of the ugly stuff appears. But it still tells a tale that's part of the There-But-For-The-Grace-Of-God-type of opinions:
Sometime around 2007, when David would have been about 51 years old (and Lynn about 47), David was diagnosed with frontotemporal dementia, otherwise called FTD. Frontotemporal dementia is a term that describes a group of mental disorders affecting both an individual’s memory and personality. Often the afflicted person will begin to act out of character. In David’s case, his dementia appears to have precipitated a craving for alcohol and a hostility toward his family (his wife Lynn and their three young adult children). . . .
The record does show David’s condition has been more specifically classified as “semantic” dementia, which impairs parts of the brain affecting language. While David appears to have lost the ability to articulate words, or read or write, there is some indication in the record he can communicate his thoughts and feelings through gestures, like a thumbs up sign for yes or crossing his arms over his chest for no. Whether or not his thoughts and feelings are themselves the product of his dementia appears to be an open question.
Beginning in 2007, Lynn began to manage the couple’s real property empire alone. During this period, David began more and more to perceive his wife Lynn and his children as his enemies. He wasn’t exactly banished, like Rochester’s wife in Jane Eyre, to an attic, but – apparently, at Lynn’s direction – he did begin living in a cottage in back of the family home.
Perhaps because of this estrangement from his family, in June 2009, David signed a power of attorney form giving his sister Andrea control over all his financial matters. A little more than a year later, in September 2010, Andrea caused David to file a petition for dissolution of his marriage to Lynn. But the proceeding went nowhere. In March 2011, at Lynn’s behest, the family law court dismissed the dissolution action, finding that David lacked the “necessary mental capacity to form or express his independent resolve, free of any undue influence, to legally dissolve his long term marriage based on irreconcilable differences.” The family law judge continued: “The evidence is overwhelming that David lacks the requisite mental capacity to maintain these proceedings and any evidence to the contrary is characterized as de minimis, if any at all.”
As if to confirm the family court’s characterization of David’s lack of capacity, the day after the family law judge dismissed the dissolution action there was an incident in the family home that prompted his temporary hospitalization under section 5150 of the Civil Code. A gun was visible on a counter and David made “shooting motions” toward Lynn and his daughter Rachel. The incident prompted Lynn to call the police, who took David to the “psych ward” at UCI Medical Center. (David’s inability to speak would have, if anything, made the gesture more objectively frightening since it could have conveyed more than just ineffable antipathy.)
David was soon transferred, at Lynn’s direction, from the UCI center to a facility called Silverado. Andrea, however, objected to Silverado, and took David from Silverado to her own home in Escondido. There he developed a habit of breaking into neighbors’ houses to take beer from their refrigerators."
Not good.
Monday, May 16, 2016
People v. Herrera (Cal. Ct. App. - May 16, 2016)
Whoa. See what you think about this one.
The popular media might describe the case in a plethora of different ways. Maybe they'd call it a "gay rage" case. Maybe they'd be more accurate and call it a "PTSD" case. Maybe, in a perfect world, we would all concisely (and accurately) describe the opinion as revolving around the degree to which "expert testimony explaining how [a defendant's] past history of trauma was likely to affect his mental state at the time of the offense." (Or, to put it a slightly different way -- and in support of a different conclusion -- whether "a mental health expert may [] give testimony that the defendant did or did not form the mental state required for the crime charged.")
Either way, it's an interesting case. With interesting facts. And a split between the majority and the dissent.
See which of these two opinions you find more persuasive. The answer's by no means clear-cut. And in the meantime, there are some scintillating -- though depressing -- facts to keep you interested in the outcome.
The popular media might describe the case in a plethora of different ways. Maybe they'd call it a "gay rage" case. Maybe they'd be more accurate and call it a "PTSD" case. Maybe, in a perfect world, we would all concisely (and accurately) describe the opinion as revolving around the degree to which "expert testimony explaining how [a defendant's] past history of trauma was likely to affect his mental state at the time of the offense." (Or, to put it a slightly different way -- and in support of a different conclusion -- whether "a mental health expert may [] give testimony that the defendant did or did not form the mental state required for the crime charged.")
Either way, it's an interesting case. With interesting facts. And a split between the majority and the dissent.
See which of these two opinions you find more persuasive. The answer's by no means clear-cut. And in the meantime, there are some scintillating -- though depressing -- facts to keep you interested in the outcome.
Friday, May 13, 2016
Lopez v. Sony Electronics (Cal. Ct. App. - May 13, 2016)
Justice Grimes writes an opinion today that's crystal clear as to its holding. The introduction to the opinion is as informative as it is concise:
"We are asked to resolve whether an action alleging personal injuries caused by prenatal exposure to toxic substances is governed by the statute of limitations set forth in Code of Civil Procedure section 340.41 (applicable to tort actions for birth and prebirth injuries), or the statute of limitations set forth in section 340.8 (applicable to tort actions for exposure to hazardous materials and toxic substances).
Plaintiff and appellant Dominique Lopez, at age 12, by and through her mother and guardian ad litem Cheryl Lopez, brought an action against defendant and respondent Sony Electronics, Inc. (Sony) alleging that her prenatal exposure to toxic substances caused her to suffer birth defects and permanent injuries. Sony successfully argued in the trial court that plaintiff’s action was time-barred under section 340.4, which expressly provides that actions for prenatal injuries are not tolled during the plaintiff’s minority. Plaintiff appeals from the entry of summary judgment in favor of Sony, contending the correct statute of limitations applicable to her claims is section 340.8, under which her action would be timely.
We conclude section 340.4 governs plaintiff’s claims and that her action is time-barred."
You can't get much clearer than that.
Justice Rubin dissents. Given that it's a split opinion, and involves whether a child who was born with "fusion of her cervical vertebrae, facial asymmetry, dysplastic nails, diverticulum of the bladder, and a misshapen kidney" can sue her alleged tortfeasor, you'd think that there would be at least a non-zero chance that the California Supreme Court would grant review.
But then there's the final sentence of Justice Grime's introduction: "In so holding, we depart from our colleagues in the Sixth District who concluded that section 340.8 supplants the limitations period of section 340.4 for claims based on prenatal injuries caused by exposure to hazardous materials or toxic substances. (See Nguyen v. Western Digital Corporation (2014) 229 Cal.App.4th 1522 (Nguyen).)"
Given that fact, the chance that the Supreme Court will review the case goes up. Way up. Indeed, in my view, to approximately 100 percent.
As it should. Whether, and when, a child should be able to sue for birth defects shouldn't depend on what panel s/he happens to draw on appeal.
The California Supreme Court should review this case.
"We are asked to resolve whether an action alleging personal injuries caused by prenatal exposure to toxic substances is governed by the statute of limitations set forth in Code of Civil Procedure section 340.41 (applicable to tort actions for birth and prebirth injuries), or the statute of limitations set forth in section 340.8 (applicable to tort actions for exposure to hazardous materials and toxic substances).
Plaintiff and appellant Dominique Lopez, at age 12, by and through her mother and guardian ad litem Cheryl Lopez, brought an action against defendant and respondent Sony Electronics, Inc. (Sony) alleging that her prenatal exposure to toxic substances caused her to suffer birth defects and permanent injuries. Sony successfully argued in the trial court that plaintiff’s action was time-barred under section 340.4, which expressly provides that actions for prenatal injuries are not tolled during the plaintiff’s minority. Plaintiff appeals from the entry of summary judgment in favor of Sony, contending the correct statute of limitations applicable to her claims is section 340.8, under which her action would be timely.
We conclude section 340.4 governs plaintiff’s claims and that her action is time-barred."
You can't get much clearer than that.
Justice Rubin dissents. Given that it's a split opinion, and involves whether a child who was born with "fusion of her cervical vertebrae, facial asymmetry, dysplastic nails, diverticulum of the bladder, and a misshapen kidney" can sue her alleged tortfeasor, you'd think that there would be at least a non-zero chance that the California Supreme Court would grant review.
But then there's the final sentence of Justice Grime's introduction: "In so holding, we depart from our colleagues in the Sixth District who concluded that section 340.8 supplants the limitations period of section 340.4 for claims based on prenatal injuries caused by exposure to hazardous materials or toxic substances. (See Nguyen v. Western Digital Corporation (2014) 229 Cal.App.4th 1522 (Nguyen).)"
Given that fact, the chance that the Supreme Court will review the case goes up. Way up. Indeed, in my view, to approximately 100 percent.
As it should. Whether, and when, a child should be able to sue for birth defects shouldn't depend on what panel s/he happens to draw on appeal.
The California Supreme Court should review this case.
Thursday, May 12, 2016
In Re Rafael C. (Cal. Ct. App. - April 21, 2016)
The Court of Appeal could have been satisfied with just saying that the petition for rehearing has been denied. Instead, it says:
The petition for rehearing is denied. The petition “restates arguments that were raised and considered on appeal.” [Cite] In addition, the petition seeks to raise arguments not included in appellant’s briefs. [Cite] The court notes the petition improperly cites unpublished case law. [Cite]"
Insult to injury.
The petition for rehearing is denied. The petition “restates arguments that were raised and considered on appeal.” [Cite] In addition, the petition seeks to raise arguments not included in appellant’s briefs. [Cite] The court notes the petition improperly cites unpublished case law. [Cite]"
Insult to injury.
Wednesday, May 11, 2016
Stetson v. Grissom (9th Cir. - May 11, 2016)
The Ninth Circuit today assigns the case to a different judge on remand, in part because the case has been before the Ninth Circuit three times already, and each time, the district court has been reversed on appeal at least in part.
Can you guess the district court judge?
You're right. Judge Real.
Can you guess the district court judge?
You're right. Judge Real.
Tuesday, May 10, 2016
Center for Biological Diversity v. Cadiz (Cal. Ct. App. - May 10, 2016)
How do you save water in the Mojave Desert? Answer: You pump more of it from the ground and send it to thirsty consumers in Los Angeles and other Southern California cities.
At least according to the Court of Appeal, which affirms the dismissal of various lawsuits to "[a] proposed project to pump fresh groundwater from an underground aquifer located below real property owned by Cadiz, Inc. (Cadiz), in the Mojave Desert (the Project) . . . . [in order to] prevent waste of the water in the aquifer, and to ultimately transport the water to customers in Los Angeles, Orange, Riverside, San Bernardino, and Ventura Counties."
I understand the theory. But the concept that you've got to pump more water in order to save it couldn't help but remind me of a bygone, related idea: That we similarly "had to destroy the village in order to save it."
At least according to the Court of Appeal, which affirms the dismissal of various lawsuits to "[a] proposed project to pump fresh groundwater from an underground aquifer located below real property owned by Cadiz, Inc. (Cadiz), in the Mojave Desert (the Project) . . . . [in order to] prevent waste of the water in the aquifer, and to ultimately transport the water to customers in Los Angeles, Orange, Riverside, San Bernardino, and Ventura Counties."
I understand the theory. But the concept that you've got to pump more water in order to save it couldn't help but remind me of a bygone, related idea: That we similarly "had to destroy the village in order to save it."
Monday, May 09, 2016
People v. Wade (Cal. Supreme Ct. - May 9, 2016)
Last year, I said: "The California Supreme Court should grant review of this opinion. I'm not saying that because I believe Justice Kriegler's decision to be necessarily wrong and/or pernicious. It's just that it's in irreconcilable conflict with an earlier Court of Appeal decision, and the resulting split is jurisprudentially untenable."
The California Supreme Court was apparently of the same view. It indeed granted review. And today, it resolved the conflict.
Unanimously, even. "Is a person wearing a backpack that contains a loaded revolver carrying a loaded firearm on the person? We conclude the answer is yes."
That answer made me smile, for admittedly idiosyncratic reasons. It Reaffirmed the one legal story that my father told me -- time and time again -- as I was growing up (and to which I referred last year). He would always say that, in Virginia, it counts as having a firearm "on your person" when it's in a backpack (or in a pocket) due to an old case that held that a firearm was "on your person" when it was in your saddlebag. He always got a chuckle about the use of that precedent.
Backpacks: The modern day saddlebag.
(Which I guess makes us the horse.)
The California Supreme Court was apparently of the same view. It indeed granted review. And today, it resolved the conflict.
Unanimously, even. "Is a person wearing a backpack that contains a loaded revolver carrying a loaded firearm on the person? We conclude the answer is yes."
That answer made me smile, for admittedly idiosyncratic reasons. It Reaffirmed the one legal story that my father told me -- time and time again -- as I was growing up (and to which I referred last year). He would always say that, in Virginia, it counts as having a firearm "on your person" when it's in a backpack (or in a pocket) due to an old case that held that a firearm was "on your person" when it was in your saddlebag. He always got a chuckle about the use of that precedent.
Backpacks: The modern day saddlebag.
(Which I guess makes us the horse.)
People v. Landau (Cal. Ct. App. - April 20, 2016)
There's a lot in this lengthy opinion about Confrontation Clause issues, the SVP statute, and a wide variety of other interesting things. A reader could learn a lot from it. Wholly beyond the issue of whether the elderly Mr. Landau, who's a pedophile, should now be released because his age and other circumstances (including his prostate surgery) means he's currently unlikely to reoffend.
(To give you a sense of Mr. Landau's age, the factual recitation in the opinion begins by saying "Sid S. (Sid) met appellant in 1969, when Sid was eight years old and went to a Boys’ Club basketball game where appellant was the score keeper. Shortly thereafter, appellant . . . took Sid to a drive-in theater to see “101 Dalmatians.”)
I'll only specifically mention a couple of very brief, non-doctrinal, factual statements that I found of particular interest:
(1) "[Dr. Park] Dietz said pedophilia is a lifelong condition and its onset usually occurs when the individual (usually a male) is eight to 12 years old." Wow. I didn't know it started that early.
(2) "Dr. Park Dietz, a forensic psychiatrist, was retained by the district attorney and was paid approximately $90,000 at the rate of $600 an hour." Wow. That's a lot of money.
(To give you a sense of Mr. Landau's age, the factual recitation in the opinion begins by saying "Sid S. (Sid) met appellant in 1969, when Sid was eight years old and went to a Boys’ Club basketball game where appellant was the score keeper. Shortly thereafter, appellant . . . took Sid to a drive-in theater to see “101 Dalmatians.”)
I'll only specifically mention a couple of very brief, non-doctrinal, factual statements that I found of particular interest:
(1) "[Dr. Park] Dietz said pedophilia is a lifelong condition and its onset usually occurs when the individual (usually a male) is eight to 12 years old." Wow. I didn't know it started that early.
(2) "Dr. Park Dietz, a forensic psychiatrist, was retained by the district attorney and was paid approximately $90,000 at the rate of $600 an hour." Wow. That's a lot of money.
Friday, May 06, 2016
Rishor v. Furguson (9th Cir. - May 6, 2016)
I often like reading the specific Faretta admonitions that district courts give to criminal defendants who ask to represent themselves at trial. They're typically spot on, and really do try to convince the defendant that it's an incredibly bad idea to ditch an attorney.
The trial court here did that in spades. Here's what the judge said:
"THE COURT: [I]n my 30 years of being on both sides of the courtroom as a defense counsel, prosecutor and now 12 years as a judge in a criminal case I have never seen anybody who has ever represented themselves competently; do you understand that?
THE DEFENDANT: Yes, I do.
THE COURT: If you represent yourself incompetently you’re stuck with you and you suffer the consequences. The consequences if convicted, the State informs me, is a sentence of life without possibility of parole.
THE DEFENDANT: Yes, sir. I fully understand that.
THE COURT: And that as a practical matter if you represent yourself—and this is just me talking up here.
THE DEFENDANT: Okay.
THE COURT: As a practical matter the court might as well sign an order sending you to prison without possibility of parole right now because you’re going to screw your case up; do you understand that?"
Well now. Tell us what you really think, Your Honor.
Despite those warnings, the defendant represented himself. And, predictably . . . .
Was acquitted.
Wait. What?!
Okay, so he wasn't totally acquitted. The jury acquitted him on the two charged counts of second degree assault (counts 2 and 3), convicted him on the charge of unlawful possession of a firearm (count 4), and impliedly acquitted him on the greater charge of first degree assault (count 1) by convicting him of the lesser-included offense of second degree assault. As a result of these wins, the trial court did not, in fact, "sign an order sending you to prison without possibility of parole right now," but instead sentenced him to 115 months in prison.
No small sentence, to be sure. But nothing near LWOP.
Rarely do you see good things come to a person who represents himself. And, perhaps, an actual attorney could have done even better.
Still. Something unusual. In that the defendant's decision to represent himself here was not an unmitigated disaster.
The trial court here did that in spades. Here's what the judge said:
"THE COURT: [I]n my 30 years of being on both sides of the courtroom as a defense counsel, prosecutor and now 12 years as a judge in a criminal case I have never seen anybody who has ever represented themselves competently; do you understand that?
THE DEFENDANT: Yes, I do.
THE COURT: If you represent yourself incompetently you’re stuck with you and you suffer the consequences. The consequences if convicted, the State informs me, is a sentence of life without possibility of parole.
THE DEFENDANT: Yes, sir. I fully understand that.
THE COURT: And that as a practical matter if you represent yourself—and this is just me talking up here.
THE DEFENDANT: Okay.
THE COURT: As a practical matter the court might as well sign an order sending you to prison without possibility of parole right now because you’re going to screw your case up; do you understand that?"
Well now. Tell us what you really think, Your Honor.
Despite those warnings, the defendant represented himself. And, predictably . . . .
Was acquitted.
Wait. What?!
Okay, so he wasn't totally acquitted. The jury acquitted him on the two charged counts of second degree assault (counts 2 and 3), convicted him on the charge of unlawful possession of a firearm (count 4), and impliedly acquitted him on the greater charge of first degree assault (count 1) by convicting him of the lesser-included offense of second degree assault. As a result of these wins, the trial court did not, in fact, "sign an order sending you to prison without possibility of parole right now," but instead sentenced him to 115 months in prison.
No small sentence, to be sure. But nothing near LWOP.
Rarely do you see good things come to a person who represents himself. And, perhaps, an actual attorney could have done even better.
Still. Something unusual. In that the defendant's decision to represent himself here was not an unmitigated disaster.
U.S. v. Lee (9th Cir. - May 6, 2016)
Judge Ikuta has a message for her colleagues on the Ninth Circuit. She writes, in dissent:
"The Ninth Circuit has a knack for disregarding the Supreme Court. Sometimes it simply ignores the Supreme Court. See Harrington v. Richter, 562 U.S. 86, 92 (2011) (“[J]udicial disregard [for the Supreme Court’s habeas jurisprudence] is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review.”). Other times it reads the decisions of the Supreme Court in such a peculiar manner that no “fair-minded jurist” could agree. See Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013) (“No fairminded jurist could think that [the Supreme Court case at issue] clearly establishes that the enforcement of the Nevada rule in this case is inconsistent with the Constitution.”). Occasionally it even thinks it is the Supreme Court. See Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (scolding the Ninth Circuit for granting habeas relief based on its own precedent, where AEDPA requires that a state court decision violate clearly established federal law as established by the Supreme Court, “not by the courts of appeals”). But this is the first time I’ve seen the Ninth Circuit decide a criminal defendant’s direct appeal based on law that the Supreme Court has just overruled without even considering whether the new rule applies."
"The Ninth Circuit has a knack for disregarding the Supreme Court. Sometimes it simply ignores the Supreme Court. See Harrington v. Richter, 562 U.S. 86, 92 (2011) (“[J]udicial disregard [for the Supreme Court’s habeas jurisprudence] is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review.”). Other times it reads the decisions of the Supreme Court in such a peculiar manner that no “fair-minded jurist” could agree. See Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013) (“No fairminded jurist could think that [the Supreme Court case at issue] clearly establishes that the enforcement of the Nevada rule in this case is inconsistent with the Constitution.”). Occasionally it even thinks it is the Supreme Court. See Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (scolding the Ninth Circuit for granting habeas relief based on its own precedent, where AEDPA requires that a state court decision violate clearly established federal law as established by the Supreme Court, “not by the courts of appeals”). But this is the first time I’ve seen the Ninth Circuit decide a criminal defendant’s direct appeal based on law that the Supreme Court has just overruled without even considering whether the new rule applies."
Thursday, May 05, 2016
People v. Mohamed (Cal. Ct. App. - May 3, 2016)
From this opinion:
"In 2010, appellant was a board certified gynecologist who practiced cosmetic surgery out of his Encino office. Appellant relied on 'cutting edge' technology in his practice and used a medical instrument called a “VASER” liposuction machine in his liposuction procedures. The VASER liposuction performed by appellant involves a three-step process: first, a solution of saline, epinephrine (a blood vessel constrictor), and lidocaine (a local anesthetic) is injected or “infiltrated” under the skin; next, a titanium probe is inserted under the skin to deliver ultrasound energy through the VASER amplifier to loosen the fat cells; and finally, the injected solution along with the loosened fat cells are sucked out, or 'aspirated' from the body, resulting in a liquid aspirate consisting of infiltrated solution, blood, and fat."
Okay. That doesn't sound so bad. Personally, I'm not down for it. But I get that other people might be.
"Appellant performed his liposuction procedures in a room in his medical office, which was not an accredited surgical center. The office lacked an electrocardiogram (EKG) machine, pulse oximeter, backup oxygen, a backup power supply, and a 'crash cart,' and had only a limited supply of drugs to reverse the effects of narcotics. Appellant did not employ any certified advanced cardiac life support personnel, nor did he have an anesthesiologist or a nurse anesthetist to handle sedation during his surgeries. On occasion, appellant’s office assistant, Judy Evans, assisted him in his procedures. Hired in 2001, Evans did everything in the office from performing general office work to assisting in appellant’s surgeries and procedures. Evans received lip and facial injections from appellant at cost. She had attended one year of nursing school about 40 years earlier, but was not licensed as a nurse. As of 2011 she had not taken a CPR class in eight years."
Oh. That doesn't sound good. I have a sense this isn't going to turn out so well. A sense that's only highlighted by the fact that this case is entitled People v. Mohamed.
"Zackie Handy went to see appellant in May 2010 about a treatment to reduce the wrinkles on her face. She was 77 years old. Appellant convinced her to undergo liposuction to remove fat from her abdomen, back, under her arms, and her legs, claiming the treatment was 'tax deductible' and would reduce the risk of heart attack and Alzheimer’s, lower her cholesterol 'by a lot,' and add 20 years to her life. He assured her she would have 'no downtime.' Appellant also told Handy she would be part of a 'Harvard study' and would receive a substantial discount. Handy agreed to the liposuction procedure on her abdomen, and paid appellant with a $55,000 cashier’s check from her equity line. She subsequently gave appellant two more postdated checks totaling $45,000."
Wait. Elective surgery for $100,000 on a 77-year old?! Based on these (alleged) representations?!
That's not sounding very good either. At all.
"When Handy arrived for the procedure on her abdomen, she told 'Nurse Judy' she had taken baby aspirin that day. Evans said that would be fine and gave Handy four Vicodin pills (a combination of acetaminophen and the opioid hydrocodone) and 1.5 milligrams of Xanax (an anti-anxiety drug) to take orally. Handy told appellant not to do anything to her face. Handy fell asleep during the procedure and woke to find her face blotchy and lumpy from fillers appellant had injected into her lip, chin, eyelids, and eyebrows. Appellant told her that he had been forced to stop the liposuction because of excessive bleeding due to the aspirin and had worked on her face instead. . . . During a follow-up appointment, Handy complained about the appearance and pain from the lumps on her face. Appellant gave her a 'free' Botox injection, which she did not want. As a result of the injection, Handy could not close one eye, and she continued to experience pain and headaches from the fillers. Handy canceled further appointments with appellant, stopped payment on the two postdated checks she had given him, and reported him to the California Medical Board."
That's not good. But it's not even this case.
"On August 17, 2010, Sharon Carpenter consulted with appellant about having 'whole body' liposuction. She was 61 years old. Appellant told her that he performed a unique form of liposuction, and she would receive a discount by being part of a 'Harvard study.' Carpenter was eager to have the procedure and agreed to pay appellant’s $100,000 fee. . . .
Appellant started Carpenter’s liposuction procedure assisted by Evans at 1:10 p.m. by placing 12 skin ports on Carpenter’s body. At 2:30 p.m. appellant began infiltration of approximately 5,000 cc’s of a normal saline solution containing 1 percent lidocaine and one part per million epinephrine. Carpenter received another milligram of Xanax at 2:35 p.m., and appellant started using the VASER at 3:35 p.m. Appellant gave Carpenter oral doses of Percocet (a combination of acetaminophen and the opioid oxycodone) at 4:45 p.m. and again at 7:00 p.m. Carpenter received an injection of Zofran (an anti-nausea medication) at 2:45 p.m. and another after she vomited, about nine hours into the procedure. The fentanyl patch was removed at 10:00 p.m. . . .
At approximately 11:30 p.m. Carpenter refused to take any more fluids, and appeared dehydrated. Appellant twice called Encino Hospital across the street seeking to borrow or purchase IV tubing, normal saline bags, and an 18-gauge cannula. According to the nursing supervisor who spoke with him, his voice sounded urgent. The hospital refused to give appellant any medical supplies.
After calling the hospital, appellant resumed the liposuction. Carpenter became sleepy and appellant assured her the procedure would only be 15 minutes longer. But appellant continued the liposuction for another 30 to 40 minutes, reaching a total of 5,000 cc’s of extracted aspirate. At 12:17 a.m.—11 hours into the procedure—appellant noticed that Carpenter’s breathing was shallow, and she was unresponsive. He also noticed her lips were slightly cyanotic (blue), which meant that she was not getting sufficient oxygen. As appellant began rescue efforts, Evans called 911. At 12:25 a.m. appellant lost Carpenter’s pulse, and appellant and Evans moved her to the floor to perform CPR.
Paramedics arrived at the building at 12:22 a.m., but the door was locked, delaying their entry. When they reached appellant’s medical office on the seventh floor, they found appellant performing CPR, and blood was everywhere. Carpenter had no pulse and was not breathing; the paramedics took over CPR, started epinephrine, and gave her atropine, to no effect. Twenty minutes later Carpenter was pronounced dead. . . .
Dr. Raffi Djabourian, the Senior Deputy Medical Examiner for the Los Angeles County Coroner, conducted an autopsy of Sharon Carpenter on August 23, 2010. Based on toxicology tests on blood and tissue samples, he concluded that the cause of death was opioid toxicity from the lidocaine, fentanyl and oxycodone she had received."
That's involuntary manslaughter. And it gives you a fair piece of time in prison.
Not to mention a poor reputation in the community.
"In 2010, appellant was a board certified gynecologist who practiced cosmetic surgery out of his Encino office. Appellant relied on 'cutting edge' technology in his practice and used a medical instrument called a “VASER” liposuction machine in his liposuction procedures. The VASER liposuction performed by appellant involves a three-step process: first, a solution of saline, epinephrine (a blood vessel constrictor), and lidocaine (a local anesthetic) is injected or “infiltrated” under the skin; next, a titanium probe is inserted under the skin to deliver ultrasound energy through the VASER amplifier to loosen the fat cells; and finally, the injected solution along with the loosened fat cells are sucked out, or 'aspirated' from the body, resulting in a liquid aspirate consisting of infiltrated solution, blood, and fat."
Okay. That doesn't sound so bad. Personally, I'm not down for it. But I get that other people might be.
"Appellant performed his liposuction procedures in a room in his medical office, which was not an accredited surgical center. The office lacked an electrocardiogram (EKG) machine, pulse oximeter, backup oxygen, a backup power supply, and a 'crash cart,' and had only a limited supply of drugs to reverse the effects of narcotics. Appellant did not employ any certified advanced cardiac life support personnel, nor did he have an anesthesiologist or a nurse anesthetist to handle sedation during his surgeries. On occasion, appellant’s office assistant, Judy Evans, assisted him in his procedures. Hired in 2001, Evans did everything in the office from performing general office work to assisting in appellant’s surgeries and procedures. Evans received lip and facial injections from appellant at cost. She had attended one year of nursing school about 40 years earlier, but was not licensed as a nurse. As of 2011 she had not taken a CPR class in eight years."
Oh. That doesn't sound good. I have a sense this isn't going to turn out so well. A sense that's only highlighted by the fact that this case is entitled People v. Mohamed.
"Zackie Handy went to see appellant in May 2010 about a treatment to reduce the wrinkles on her face. She was 77 years old. Appellant convinced her to undergo liposuction to remove fat from her abdomen, back, under her arms, and her legs, claiming the treatment was 'tax deductible' and would reduce the risk of heart attack and Alzheimer’s, lower her cholesterol 'by a lot,' and add 20 years to her life. He assured her she would have 'no downtime.' Appellant also told Handy she would be part of a 'Harvard study' and would receive a substantial discount. Handy agreed to the liposuction procedure on her abdomen, and paid appellant with a $55,000 cashier’s check from her equity line. She subsequently gave appellant two more postdated checks totaling $45,000."
Wait. Elective surgery for $100,000 on a 77-year old?! Based on these (alleged) representations?!
That's not sounding very good either. At all.
"When Handy arrived for the procedure on her abdomen, she told 'Nurse Judy' she had taken baby aspirin that day. Evans said that would be fine and gave Handy four Vicodin pills (a combination of acetaminophen and the opioid hydrocodone) and 1.5 milligrams of Xanax (an anti-anxiety drug) to take orally. Handy told appellant not to do anything to her face. Handy fell asleep during the procedure and woke to find her face blotchy and lumpy from fillers appellant had injected into her lip, chin, eyelids, and eyebrows. Appellant told her that he had been forced to stop the liposuction because of excessive bleeding due to the aspirin and had worked on her face instead. . . . During a follow-up appointment, Handy complained about the appearance and pain from the lumps on her face. Appellant gave her a 'free' Botox injection, which she did not want. As a result of the injection, Handy could not close one eye, and she continued to experience pain and headaches from the fillers. Handy canceled further appointments with appellant, stopped payment on the two postdated checks she had given him, and reported him to the California Medical Board."
That's not good. But it's not even this case.
"On August 17, 2010, Sharon Carpenter consulted with appellant about having 'whole body' liposuction. She was 61 years old. Appellant told her that he performed a unique form of liposuction, and she would receive a discount by being part of a 'Harvard study.' Carpenter was eager to have the procedure and agreed to pay appellant’s $100,000 fee. . . .
Appellant started Carpenter’s liposuction procedure assisted by Evans at 1:10 p.m. by placing 12 skin ports on Carpenter’s body. At 2:30 p.m. appellant began infiltration of approximately 5,000 cc’s of a normal saline solution containing 1 percent lidocaine and one part per million epinephrine. Carpenter received another milligram of Xanax at 2:35 p.m., and appellant started using the VASER at 3:35 p.m. Appellant gave Carpenter oral doses of Percocet (a combination of acetaminophen and the opioid oxycodone) at 4:45 p.m. and again at 7:00 p.m. Carpenter received an injection of Zofran (an anti-nausea medication) at 2:45 p.m. and another after she vomited, about nine hours into the procedure. The fentanyl patch was removed at 10:00 p.m. . . .
At approximately 11:30 p.m. Carpenter refused to take any more fluids, and appeared dehydrated. Appellant twice called Encino Hospital across the street seeking to borrow or purchase IV tubing, normal saline bags, and an 18-gauge cannula. According to the nursing supervisor who spoke with him, his voice sounded urgent. The hospital refused to give appellant any medical supplies.
After calling the hospital, appellant resumed the liposuction. Carpenter became sleepy and appellant assured her the procedure would only be 15 minutes longer. But appellant continued the liposuction for another 30 to 40 minutes, reaching a total of 5,000 cc’s of extracted aspirate. At 12:17 a.m.—11 hours into the procedure—appellant noticed that Carpenter’s breathing was shallow, and she was unresponsive. He also noticed her lips were slightly cyanotic (blue), which meant that she was not getting sufficient oxygen. As appellant began rescue efforts, Evans called 911. At 12:25 a.m. appellant lost Carpenter’s pulse, and appellant and Evans moved her to the floor to perform CPR.
Paramedics arrived at the building at 12:22 a.m., but the door was locked, delaying their entry. When they reached appellant’s medical office on the seventh floor, they found appellant performing CPR, and blood was everywhere. Carpenter had no pulse and was not breathing; the paramedics took over CPR, started epinephrine, and gave her atropine, to no effect. Twenty minutes later Carpenter was pronounced dead. . . .
Dr. Raffi Djabourian, the Senior Deputy Medical Examiner for the Los Angeles County Coroner, conducted an autopsy of Sharon Carpenter on August 23, 2010. Based on toxicology tests on blood and tissue samples, he concluded that the cause of death was opioid toxicity from the lidocaine, fentanyl and oxycodone she had received."
That's involuntary manslaughter. And it gives you a fair piece of time in prison.
Not to mention a poor reputation in the community.
Wednesday, May 04, 2016
Collins & Teng v. USCIS (9th Cir. - May 4, 2016)
Yu-Ling Teng is a naturalized U.S. citizen. When she first came to the United States in 1965, on a student visa, she had a Taiwanese passport that listed her date of birth as 1939. She says that's right. So, way back then, she got a social security card, consistent with her passport, and all things moved along smoothly.
Fast forward to 1974. She now applies for a green card, and -- for whatever reason -- submits a declaration from her aunt that says that she was born in 1944. So that's the date the (then-) INS used for her green card, and thereafter, in 2001, when Ms. Teng becomes a citizen, on her naturalization certificate.
The problem is that the date of birth on Ms. Teng's social security card does not match her date of birth on her naturalization certificate. Why's that a big deal? Because in 2004, California refuses to issue her a driver's license, saying that the dates on her two documents don't match.
Ms. Teng tries to fix things with the DMV, but no dice. She tries valiantly to fix things with the INS, but they say they're powerless. She tries to change her date with social security, but they too say they can't help her. She goes to her local assemblywoman, who tells her to file suit in federal court, but the district court says that it also can do nothing. And, today, the Ninth Circuit affirms.
Regardless of the facts, and regardless of the reality that Ms. Teng -- a U.S. citizen -- should be able to have consistent documents (and drive), no one is willing (or able) to help her.
That's a failure.
By contrast, on the same day, in a different case, the Ninth Circuit grants relief to Olufemi Collins.
Mr. Collins was born in Nigeria. When he came to the U.S. on a student visa, in 1973, he had a Nigerian passport, and it listed his date of birth as 1952. So that's the date he used with the INS, and the one in its records.
Mr. Collins says that, in 1991, he discovered his true date of birth in a family bible. But he didn't do anything for a couple of decades.
But then, in 2011, Mr. Collins asks the INS to change his birth date of 1952 to his "true" birth date of 1948. Why? Because Mr. Collins wants social security benefits.
The (now-) USCIS says it's powerless to help him. Just as it said to Ms. Teng. So Mr. Collins files suit. Just as Ms. Teng did. The district court denied relief, just as the same district court judge did with Ms. Teng.
I understand the distinction that the panel (Judges Kleinfeld, McKeown, and Ikuta) draws between the two cases. Judge McKeown says that one certificate was issued by a court prior to 1991, whereas the other was issued by the Attorney General after the Immigration Act of 1990. That, the Ninth Circuit holds, makes a jurisdictional difference.
Jurisdictional, perhaps. Equitable, no.
There's absolutely no reason that Mr. Collins should get relief but not Ms. Teng. It ain't right.
Something should change. The law. Its application. Something.
Tuesday, May 03, 2016
Hearn Pacific Corp. v. Second Generation Roofing Inc. (Cal. Ct. App. - May 2, 2016)
The Court of Appeal's published opinion does not mention the appellate attorney's name. (For which that lawyer is undoubtedly incredibly thankful.) Moreover, the list of counsel on appeal includes three different lawyers for the respondent; though the docket contains only one of them, Oakland attorney Jeffery Alan Chadic.
Here's a snippet of what Justice Stewart's opinion says about counsel for the respondent. Suffice it to say: the Court of Appeal was not pleased:
"For [Respondent] Hearn to turn around now and argue the opposite -- that 'Hearn remained the only party asserting its claims' and that section 368.5 does not apply -- without so much as even a nod to what it said in its pleadings, is baffling. There are limits to appellate advocacy, chief among them a duty of candor to the court. (Rules Prof. Conduct, rule 5-200.) It may be Hearn has some explanation for its change of tune, but the explanation is not to be found in the 32 pages of briefing Hearn has filed on appeal, nor did it surface in any way at oral argument. Responsible (not to mention, effective) appellate advocacy requires confronting serious potential obstacles, not burying one’s head in the sand to them, be they potentially controlling adverse authorities or problematic portions of the record. As has been said by the federal circuit that is home to Chicago’s Lincoln Park Zoo: 'The ostrich is a noble animal, but not a proper model for an appellate advocate.' (GonzalezServin v. Ford Motor Co. (7th Cir. 2011) 662 F.3d 931, 934 [Posner, J.].)"
There's lots more in the opinion as well. The last real shot the Court of Appeal gets in on counsel for respondent is fairly typical of what you see throughout the thing; e.g., "For the first time on appeal, Hearn also contends in scattershot fashion the 'purported' assignment was invalid on a number of grounds. The position borders on frivolous, and also rests in large part on repeated violations of the rules of appellate briefing." Yikes.
Sometimes you lose. Sometimes you lose really, really big.
And the Court of Appeal doesn't even bother to hide -- indeed, goes out of its way to express -- its displeasure with you.
Here's a snippet of what Justice Stewart's opinion says about counsel for the respondent. Suffice it to say: the Court of Appeal was not pleased:
"For [Respondent] Hearn to turn around now and argue the opposite -- that 'Hearn remained the only party asserting its claims' and that section 368.5 does not apply -- without so much as even a nod to what it said in its pleadings, is baffling. There are limits to appellate advocacy, chief among them a duty of candor to the court. (Rules Prof. Conduct, rule 5-200.) It may be Hearn has some explanation for its change of tune, but the explanation is not to be found in the 32 pages of briefing Hearn has filed on appeal, nor did it surface in any way at oral argument. Responsible (not to mention, effective) appellate advocacy requires confronting serious potential obstacles, not burying one’s head in the sand to them, be they potentially controlling adverse authorities or problematic portions of the record. As has been said by the federal circuit that is home to Chicago’s Lincoln Park Zoo: 'The ostrich is a noble animal, but not a proper model for an appellate advocate.' (GonzalezServin v. Ford Motor Co. (7th Cir. 2011) 662 F.3d 931, 934 [Posner, J.].)"
There's lots more in the opinion as well. The last real shot the Court of Appeal gets in on counsel for respondent is fairly typical of what you see throughout the thing; e.g., "For the first time on appeal, Hearn also contends in scattershot fashion the 'purported' assignment was invalid on a number of grounds. The position borders on frivolous, and also rests in large part on repeated violations of the rules of appellate briefing." Yikes.
Sometimes you lose. Sometimes you lose really, really big.
And the Court of Appeal doesn't even bother to hide -- indeed, goes out of its way to express -- its displeasure with you.
Sanford v. Rasnick (Cal. Ct. App. - April 25, 2016)
Here's a practical suggestion from the Court of Appeal.
No. Make that a command.
When you make a CCP 998 settlement offer, you can (obviously) include a specific dollar figure that you'll accept (or pay), but you can't include the condition that the party execute "a written settlement agreement and general release."
The Court of Appeal holds that such a condition makes the offer too indefinite. We don't know what exactly would be in the (unspecified) settlement agreement. And we don't to resolve fights about what is "normally" in such an agreement or what is atypical.
So if you make such an offer, and the other side rejects it, you're not entitled to your costs. Even if you do better at trial than your 998 offer.
So leave that stuff out.
No. Make that a command.
When you make a CCP 998 settlement offer, you can (obviously) include a specific dollar figure that you'll accept (or pay), but you can't include the condition that the party execute "a written settlement agreement and general release."
The Court of Appeal holds that such a condition makes the offer too indefinite. We don't know what exactly would be in the (unspecified) settlement agreement. And we don't to resolve fights about what is "normally" in such an agreement or what is atypical.
So if you make such an offer, and the other side rejects it, you're not entitled to your costs. Even if you do better at trial than your 998 offer.
So leave that stuff out.
Monday, May 02, 2016
Osborne v. Todd Farm Service (Cal. Ct. App. - May 2, 2016)
One of the downsides of having the trial attorney serve as the attorney on appeal is that the trial attorney may not have a neutral perspective about the case. There are definitely upsides, to be sure; efficiency, superior knowledge of the record, etc. But downsides abound as well.
Especially when, as here, the appeal concerns whether the lawsuit was properly dismissed based on the misconduct of trial counsel.
Appellant's counsel is Glen Murphy, and the trial court repeatedly admonished counsel for plaintiff -- "Mr. Murphy" -- not to mention certain matters governed by a motion in limine. When Mr. Murphy nonetheless repeatedly did so, the trial court dismissed the lawsuit. With prejudice.
The Court of Appeal affirms.
The old aphorism is that an attorney who represents himself has a fool for a client. One might on occasion perhaps say analogous things about counsel on appeal.
Sometimes a neutral, outside perspective is worth it.
Especially when, as here, the appeal concerns whether the lawsuit was properly dismissed based on the misconduct of trial counsel.
Appellant's counsel is Glen Murphy, and the trial court repeatedly admonished counsel for plaintiff -- "Mr. Murphy" -- not to mention certain matters governed by a motion in limine. When Mr. Murphy nonetheless repeatedly did so, the trial court dismissed the lawsuit. With prejudice.
The Court of Appeal affirms.
The old aphorism is that an attorney who represents himself has a fool for a client. One might on occasion perhaps say analogous things about counsel on appeal.
Sometimes a neutral, outside perspective is worth it.