Thursday, September 27, 2018

Atwell v. City of Ronert Park (Cal. Ct. App. - Sept. 26, 2018)

The Sierra Club files a writ to stop a Wal-Mart store, and loses.  Nancy Atwell thereafter files a writ to stop the same store, on similar grounds.  Ms. Atwell wasn't a party to the first lawsuit, didn't at any level participate in the first suit, and isn't even a member of the Sierra Club.

Is Ms. Atwell's lawsuit barred by claim preclusion ("res judicata")?  Is she deemed to be in privity with the Sierra Club such that she was "deemed" to be a party to the first lawsuit even though she wasn't?

The Court of Appeal says yes.

That may perhaps -- perhaps -- the right correct normative result.  It may also well be supported by precedent in the California Court of Appeal, which has previously done some similar things.

But I gotta tell you, this is way beyond what the Supreme Court has ever done -- or even come close to doing -- and quite squarely departs from the traditional constraints that the Due Process Clause has been held to place on the extension of state law claim preclusion.

More specifically, I don't see how this result is at all consistent with the Supreme Court's opinion in Taylor v. Sturgell.  If the Court of Appeal is correct in Atwell, then Taylor should have come out the same way, or identical reasons.  But not only didn't it, but the Supreme Court in Taylor rejected the precise arguments that the Court of Appeal finds persuasive in Atwell.

The Supreme Court case, like the California case, involved duplicative "public interest" suits -- in Taylor, a FOIA request, and in Atwell, a writ petition challenging a EIR.  In both cases, someone files the first lawsuit in the public interest (to get the documents published or stop the Wal-Mart), loses, and then someone else files a similar suit.  The Court of Appeal says that the second suit is barred by claim preclusion because the first party was the "virtual representative" of the second party and adequately protected her interests.  But the Supreme Court spent pages expressly rejecting this theory and explaining why it didn't work.  I won't bore you with the details, but suffice it to say that there's absolutely NO WAY the Supreme Court that decided Taylor would find at all plausible either the reasoning or the result of the California Court of Appeal in Atwell.  The cases are not in any way distinguishable.  The result's gotta be the same.  But it's not.

What does the Court of Appeal say about this?  Nothing.  The opinion never mentions the Supreme Court's opinion in Taylor nor attempts to distinguish it.  Which perhaps is understandable, since my quick review of the briefs in the case suggests that none of 'em mention or cite the thing.

But it's nonetheless a freakishly important case.  Pretty much on all fours.  I think you gotta say something about it.  Even if the parties don't.

Now, is the California judiciary required to adopt the exact same res judicata principles as the federal courts?  No.  They can do something different.

With this critical caveat.  The extent to which you can bind a nonparty -- like Ms. Atwell -- is most definitely a federal issue on which federal law controls.  Since the Due Process Clause constrains it.  So California may not have to allow nonparty claim preclusion to the same degree as the federal system (e.g., the mutuality of estoppel rules don't need to be the same).  But California still can't expand nonparty issue preclusion via "virtual representation" (as it does here) in a manner that violates the federal Due Process Clause.  That's a matter of federal law.  And on that point, we know fairly well the Supreme Court's thoughts.  'Cause they told us about 'em at length in Taylor.  A case that squarely rejects pretty much every single doctrinal and policy-based principle on which Atwell relies.

So I think the Court of Appeal needs to take a long, hard look at the Supreme Court's opinion in Taylor here.  This opinion was originally unpublished.  Maybe it should stay that way.  Or, at a minimum, explain why it comes out 180 degrees differently than the opinion of the United States Supreme Court.  An opinion that's unanimous, no less.

No small feat.

Wednesday, September 26, 2018

SEC v. Schooler (9th Cir. - Sept. 26, 2018)

Nothing's certain but death and taxes, right?

Or is it?

Today's a day that reminds us of our eventual mortality.  The first of two opinions from the Ninth Circuit today involved a plaintiff from San Diego whose father (I noticed while researching some ancillary stuff about the opinion) appears to have died during the pendency of the appeal.  Too bad for the plaintiff, who argued the case in the Ninth Circuit himself -- partially successfully, I might add.

The second of these opinions expressly involves mortality.  It's an appeal by the defendant of an SEC judgment entered against him.  But as the Ninth Circuit explains, the defendant "Louis Schooler died during the pendency of the appeal."  As a result, portions of that judgment (e.g., the civil penalty) are getting abated.  (Though the rest of the judgment is affirmed against Mr. Schooler's estate.)  That's the rule about what happens when a defendant in these sorts of suits dies.

As I read the opinion, perhaps morbidly, I wondered how the defendant died.  Seemed coincidental to die shortly after getting spanked for a huge judgment in an SEC action that found that you operated an illegal investment scheme.  So I wondered if Mr. Schooler might have perhaps committed suicide.  So checked out Mr. Google to find out.

The first thing I read was about Mr. Schooler's sister being disbarred for misdeeds involving the family estate.  That was interesting.  Trouble involving several members of the family, not just the dead one.

Then I investigated further, about Mr. Schooler himself.  And found out that there's a distinct chance that -- unlike what the Ninth Circuit reports -- Mr. Schooler is not in fact dead.

Now, MAYBE he's dead.  He gets spanked with a huge SEC judgment, then he apparently goes on a 3500-mile sailing expedition from California to Tahiti.  Solo.  But never shows up.  Eventually, after some reportedly "curious, if not downright suspicious" events involving radio transmissions in the wrong place and turning off navigation lights, the boat shows up shipwrecked on an atoll in French Polynesia.  With no Schooler on board.  Alive, anyway.  The French Polynesian police who spot the shipwreck think they see a dead body on the thing, but can't immediately get to it.  Then the next day, when they actually go to the boat, the body's gone.

Washed out to sea?  Mr. Schooler?  Maybe.  That's the supposition, anyway.

On that basis, back in the district court, Schooler's attorney "suggests" that Mr. Schooler is dead.  But Judge Curiel at least initially isn't entirely convinced, as this Order amply reflects.  There's no actual body, and maybe there's a local death certificate (in French but "translated by Google"), but we don't know for sure what actually transpired.  I'm not vouching for this at all, but here's one comment from November that reflects one particular view (from this source):  "I was one of his victims and, to date, I don't believe a body has been found.  I'm pretty sure that the scumbag faked his own death and is sipping on a margarita somewhere."

The point is simply this:  Maybe he's in fact dead.  Maybe.  (Maybe the guy's body was eventually found.  Though my brief research hasn't found anything saying so.)

But the reality seems a lot more murky to me than the facially straightforward conclusion in today's opinion that "Louis Schooler died during the pendency of the appeal."  'Cause he definitely might have.  The operative term being "might".

Tuesday, September 25, 2018

Sumner v. Simpson University (Cal. Ct. App. - Sept. 25, 2018)

If you want to learn all about the common law "ministerial exception" that bars various claims made against religious organizations, Justice Blease's opinion today is a great starting point.

This particular case involves the former dean of a theological seminary in northern California who alleges that she was wrongfully fired from her position.  In the end, the Court of Appeal allows her contract claim to go forward, but dismisses her tort claims on the basis of the ministerial exception.

It's interesting to see how the courts treat various "self-contained" entities -- e.g., churches, Indian tribes, etc. -- in civil society.  You've got to balance the need for sovereignty and non-interference with the protection of individual rights and liberties.  Tough to do.

Anyway, super informative opinion.  Worth a read.

Monday, September 24, 2018

People v. Fews (Cal. Ct. App. - Sept. 24, 2018)

The stuff about the Terry stop in the first portion of today's opinion seems right to me.  I'm not sure there was much that I can individually put my finger on to say that it was X or Y that alone made me think that the occupants of the vehicle were likely to be up to no good in some fashion.  Yet like the Court of Appeal (and the trial court), there was nonetheless something that seemed distinctly wrong about a vehicle in the Tenderloin suddenly pulling over when the police pull behind it, with the driver then immediately hopping out of the vehicle and refusing to get back in when the police told him to, all the while smelling of marijuana and having the occupants of the vehicle make repeated furtive movements throughout.

Something just doesn't seem right about that.  So much so that I'm okay with the officers doing a Terry stop-and-frisk for their own protection.  And when that frisk discovers a loaded firearm in the front jacket pocket of the passenger; well, to be honest, I'm just not all that surprised.  Which is why I'd have allowed the stop-and-frisk in the first place.  Officer safety.

Now, the second part of the opinion, by contrast, seems unnecessary and less self-evident.  The Court of Appeals volunteers that even if the stop-and-frisk wasn't okay, a search of the automobile would still have been fine given the existence of marijuana.  I know that there are other opinions that say a similar thing, but I see no reason to reach that point given Part I.  And, as I said, it's a lot closer.  Yes, marijuana is only a "little" legal in California -- there are a lot of limitations, and you can still be busted for various things.  But I think it's a tough question how far the police are able to go when all they have on you is that you're carrying a personal amount of weed, which may well be -- and in the vast majority of case, is (I suspect) -- legal under California law.  At some point, it seems to me that for probable cause purposes, we're likely to view weed the same way we view, say, opiods.  Sure, it's possible that a guy carrying valium is doing something illegal, since it might not be his prescription, he might illegally be dealing, he might illegally be carrying a carload of the stuff, etc.  But if all you know about the guy is that he's got three or four pills, standing alone, I'm not sure that's probable cause of a crime sufficient to permit you to inventory the vehicle, arrest the guy, etc.  So given that eventual (and/or current) reality, I see no need to wax poetic about a topic that even the Court of Appeal admits isn't raised by the present case, in which the stop-and-frisk was just fine.

Some times it just makes sense to leave well enough alone.  This seems like one of those times to me.

Wednesday, September 19, 2018

C.J.L.G. v. Sessions (9th Cir. - Sept. 19, 2018)

As I said back in January, the petitioner here is definitely a sympathetic one, and is a "Honduran kid who 'repeatedly spurned the Mara gang's entreaties to join its ranks despite death threats made against him and his family'" but who the United States now intends to sent back to Honduras and this gang.

Even though the panel was (somewhat) sympathetic to his plight, there was no dissent -- everyone agreed that his claims should be rejected.

The Ninth Circuit as a whole perhaps felt the sympathetic -- and legal -- pull a bit more strongly than the members of the panel.  Today, it takes the case en banc.

Cuero v. Kernan (9th Cir. - Sept. 29, 2018)

The Ninth Circuit's published "opinion" today is indeed brief, and states in its entirety:

"In light of Kernan v. Cuero, 138 S. Ct. 4 (2017), we affirm the judgment of the district court. AFFIRMED."

Makes sense.  Though I note that the Supreme Court decided that opinion on November 6, 2017.  Which makes it a bit surprising (though perhaps not unusual) that it took nearly a full year for the Ninth Circuit to write that single sentence.

But no matter.  Case over.

Tuesday, September 18, 2018

Freestream Aircraft v. Aero Law Group (9th Cir. - Sept. 18, 2018)

It's nice when the Ninth Circuit writes an opinion that explains and cleans up an area that's full of sloppy circuit precedent.  Which is exactly what Judge Nguyen does here.  Different Ninth Circuit opinions have done different things to decide whether there's personal jurisdiction when someone commits a tortious act that has an effect in the forum state.  Some cases have directly found personal jurisdiction whereas some have applied the Calder effects test.  Judge Nguyen's careful opinion goes through these cases and explains -- correctly -- that the right test depends on whether the defendant has engaged in the relevant conduct in the forum state.  If so, the usual "purposeful availment" lines of precedent apply.  If not, the Calder effects test applies.  The Ninth Circuit has previously mixed that up, albeit typically in dicta and/or sloppy language.  This opinion helpfully sets things straight.

With two caveats.

First, a totally minor one.  In the second footnote, Judge Nguyen cites the Supreme Court's recent (2014) opinion in Bauman.  Fair enough.  But the case is now four years old.  It's in the United States Reports; e.g., has a "U.S." citation.  No reason to use the old citation in the Supreme Court Reporter (i.e., the S.Ct. cite).

Second, the substantive one.  As I said, I think that Judge Nguyen is correct on the merits and in how she analyzes and rationalizes prior circuit precedent.  But the discussion in section I.C. of the opinion is a bit off.  There, Judge Nguyen discusses at some length the Ninth Circuit's recent (2017) opinion in Morrill -- an opinion that typifies the use of the effects test even when the defendant engaged in conduct inside the forum state.  But Judge Nguyen says that this opinion doesn't really stand for that proposition because the relevant conduct (filing suit) actually transpired outside the forum state, and hence that the effects test was properly employed there.

Fair enough.  Some of the conduct at issue did indeed occur outside the forum state.

But some of it undeniably occurred inside the forum state.  Making the effects test (under Judge Nguyen's own view) inappropriate.

Judge Nguyen responds by asserting that the actionable conduct nonetheless occurred outside the forum state.  But that's not actually true.  Yes, the filing of the original (allegedly wrongful) action occurred elsewhere.  But the complaint in Morrill definitely sought relief for allegedly abusive and wrongful conduct that transpired inside the forum state; e.g., filing an action to enforce a summons for a (purportedly wrongful) deposition of the other side's lawyers inside the forum state.

Judge Nguyen admits that "at first blush" that might seem to be at odds with her interpretation of circuit precedent, but says it's not really, since the allegedly actionable conduct inside the forum state was "required" (Judge Nguyen's emphasis) by the litigation outside the forum state.  But, as a factual matter, that's just not true.  Nothing in the original litigation required the party there to notice and attempt to take the allegedly wrongful depositions of the other side's lawyers.  That was optional, and outside the state.  They did so.  In that state.  So the right test for that should not be the effects test.  Yet that's what the court applied.  Judge Nguyen's purported description of the case isn't, in my mind, accurate, or consistent with her worldview about what the underlying cases "really" hold.

Moreover, Judge Kleinfeld made exactly the same points that Judge Nguyen is making here in his dissent in Morrill.  Yet the majority disagreed.  It's not particularly persuasive to say that a case really stands for X when the dissent says that X is the law and the majority says otherwise.

It's not that I'm not sympathetic to what Judge Nguyen is doing here.  I am.  There's a bad case, and it makes bad (or at least doctrinally inaccurate) law, so you want to narrow it.  But you're not allowed to say that the case is simply wrong; for that, you need an en banc panel.

So you distinguish it.  Say it actually is founded on X.  Something that's consistent with what you think is actually the law.

The only problem is that it's not actually true.  And you gotta be honest, I think.  Say:  Yeah, in truth, I have no doubt that the panel thought that Y applies, even on Z facts, but actually, they're wrong.  If that means you gotta go en banc, so be it.  Hopefully your fellow Ninth Circuit judges will agree.

Nor do I think it much matters that the (inaccurate) distinction that Judge Nguyen advances is one that the panel itself might well have also (erroneously) advanced.  There are portions of the opinion in Morrill that say, as Judge Nguyen does, that what the party did in Arizona was "required" by the underlying litigation in Arizona.  But, again, that's not true.  What was legally required in Arizona (i.e., asking for a sister state subpoena) was indeed procedurally required, but only if you wanted to engage in the purportedly tortious conduct at issue -- i.e., to set the optional and tortious depositions of the opposing party's lawyer.  Since the other-state litigation didn't require that tort, that's not a distinction.

And you can't rely on a distinction when you're "rationalizing" circuit precedent when that distinction doesn't in fact make sense.  To take an obvious example:  Let's say the prior panel said "Well, yeah, he did something directly in the forum state, but the effects test applies even in those situations if the defendant's last name begins with 'M'."  When you make sense of competing prior circuit precedent to hold (as Judge Nguyen helpfully does here) that the effects test doesn't apply when the defendant did something directly the forum state, you can't then just say "Yeah, there's one case that holds the other way, but in that case, the defendant's last name began with an M."  If the distinction is wrong or does not make doctrinal sense, you can't use it.  Particularly when, as here, the dissent's making the same doctrinal point that you purport to make -- a point that the majority opinion rejects.

So bravo for Judge Nguyen trying to make sense of a jumble.  The opinion's well-written and for the most part right.

But sometimes there's that sole, super pesky case on the other side.  At which point you gotta deal with it on the merits.  Which sometimes requires that you just forthrightly admit that that opinion was wrongly decided.

Whatever consequences that brings.

Bottani v. City of San Diego (Cal. Ct. App. - Sept. 18, 2018)

Sometimes the best thing that the City can do for you is to declare one of your buildings a public nuisance and order you to tear it down.  Typically, that's something you don't want.  But in this case, it's crystal clear that the owners of the building were just itching for precisely that.  Because that way they could tear down the tiny, historic (formerly beachside) villa -- worth virtually nothing -- and build something much larger in its place, earn millions in profits, and avoid the need for an expensive environmental review.

The owners got their wish.  It was the owners of the building who hired a firm to try to convince the City that their own building was an unsafe nuisance.  The City so held, and told the owners that they could tear this nuisance down.  At which point the owners tore the thing down literally the next day.

The Court of Appeal agrees with the trial court that given these events, the owners don't have to submit to an environmental review.  Just go ahead and build on the (now empty) lot.

And rake in the dough.

It's definitely a nice lot.  Down here in La Jolla.  I bet it's going to be a nice replacement building as well.  Just a lot more modern.  And expensive.

One last thing.  Did I mention that the owner of the building is an attorney?


Monday, September 17, 2018

Taylor v. BNRH (9th Cir. - Sept. 17, 2018)

It makes total sense to certify this question to the Washington Supreme Court.  Federal and state courts are split on whether (and to what extent) obesity is a protected "disorder" under the ADA or  state law equivalents.  Moreover, Washington's state law equivalent is almost always interpreted more broadly than analogous federal or state statutes (reflecting, of course, the left-of-center nature of that particular jurisdiction).  Given these facts, rather than speculate, it makes sense to ask the Washington Supreme Court directly.

For whatever it's worth, on the merits, I think that the EEOC (and Montana Supreme Court) take the right approach.  Deviations in weight that are "normal" shouldn't qualify.  It's not a protected class to be six foot tall and, say, 170 vs. 200.  Not actionable if an employer, say, hires one over the other.

But once you're an outlier, that may well constitute a disability.  Something easily satisfied here.  The plaintiff "weighed 256 pounds at a height of 5-feet, 6-inches, yielding a Body Mass Index (BMI) of 41.3. A BMI over 40 is considered “severely” or “morbidly” obese."  And the railroad made everyone with a BMI over 40 pay for various tests (which the plaintiff here couldn't afford).  That activates the statutory protection, in my view.  Or should.

I recognize that other courts think that it matters whether the obesity has a physical or physiological cause.  Not me.  Drawing that line seems too tough. Whether you're 256 because you really like to eat (and/or not exercise) or because you "need" to eat (or "can't" exercise) doesn't matter to me.  The fact is you're 256, and that makes it tough for you (at 5'6") for do a variety of life events -- and subjects you to a certain reaction by a segment of the population.  That's what matters to me.  Not whether we can effectively "isolate" a particular "cause" of why you weigh what you do.

But we'll see what the Washington courts say.  I suspect they may take a view similar to mine, but who knows.

Friday, September 14, 2018

People v. Cruz-Lopez (Cal. Ct. App. - Sept. 14, 2018)

In a post earlier this week, I waxed poetic about the term "scrap," which was discussed in an opinion by the Ninth Circuit on Tuesday and is a derogatory term for members of the Sureño gang that is often employed by members of the rival Norteño gang.  As I said, I'm eminently familiar with that insult, since it's been used in approximately 250 opinions in the California Court of Appeal alone.

Coincidentally enough, today's opinion mentions that the perpetrator called the victim "Chapete.”  That's a term that I haven't heard before.  And guess what?  It turns out that, according to Justice Dondero, that term "is derogatory term Sureños label members of the Norteños."

Now I know both!

I was surprised that I hadn't heard that term before.  If only because the Sureños and Norteños are fighting all the time and result in a plethora of published opinions here in California.

So I looked it up.  The term "Chapete" has indeed been used (and discussed) by the Court of Appeal before.  But only a half-dozen times.  And only in unpublished opinions.

Hence undoubtedly why I didn't recall seeing it before.

Fortunately for us, today, the Court of Appeal publishes this opinion.  The first one ever to use the published term "Chapete".  Right on the heels of our prior discussion of "scrap".

What a wonderfully informative week.

P.S. - I also did look up where the phrase "Chapete" comes from.  It's of Spanish origin.  I'll leave it at that.

In re Sims (Cal. Ct. App. - Sept. 14, 2018)

There are lots of opinions that arise out of convictions for murder.  There aren't many opinions that arise out of convictions against an attorney for murder.

This is one of the latter.

It's indeed a sad tale.  I'll recount just some of the facts:

"Defendant and petitioner Karen Sims, a former attorney with serious mental illness of longstanding, was convicted of murdering her husband Henry Sims in 2006 and was sentenced to prison for a term of 50 years to life. . . .

Defendant has a history of mental illness that includes at least one prior hospitalization lasting two years and had manifested itself in violent knife assaults against her husband and her daughter while the family lived in Colorado. After being released from an extended psychiatric hospitalization in Colorado, the family moved to California where defendant practiced immigration law.

In 2005, when defendant’s daughter was home from medical school for the summer, defendant was behaving combatively and secretively, refusing to take her medication. She was suspicious of conspiracies, convinced that she was God’s daughter fighting demons, or the daughter of an alien fighting some sort of intergalactic war on earth. She accused her husband of adultery, occult practices, and devil worship. Defendant also accused her husband of carrying on with prostitutes and drugging her at night. She also behaved erratically with her office staff and clients, and sometimes missed court appearances.

Things came to a head in September 2005, when there was an incident at Lake Evans in Riverside. After the incident, defendant and her husband drove to Blythe, where defendant shot her husband several times, killing him. . . .

Defendant made bizarre statements during the hearing on her request to represent herself and during trial. [Footnote: "The record is replete with bizarre statements by defendant. The fact we limit the number of her delusional statements here is not intended as a comment on the significance or relevance of other statements."] In her opening statement, she talked about the Greek word for devil, the biblical story of Jezebel, and described her 25 years of marriage as “very colorful” and “a lot of joy.” She denied killing her husband, asserted that he was alive when the coroner’s photographs were taken, and proposed he was beaten and murdered by someone else while defendant was in custody."

A sad tale indeed.

Thursday, September 13, 2018

In re G.C. (Cal. Ct. App. - Sept. 13, 2018)

Everyone's pretty darn blunt in this one.

When asked why she stole the car, the juvenile forthrightly said she did so "so she can sell their parts so she can purchase drugs and food.”  Points for honesty, that's for sure.

Similarly, Justice Mihara doesn't mince words when he says that he's dismissing the appeal because he thinks it's time-barred, notwithstanding an opinion from the Fourth Appellate District that holds to the contrary.  It only takes him three (double-spaced) pages to say, in unvarnished language, that he thinks that the Fourth District's decision was a total crock.  (Repeatedly saying, for example, that the authorities on which the Fourth District relied have "nothing to do" with the alleged issue at hand.)

Pretty forthright as well, I think.

Justice Greenwood dissents.  She doesn't think that the Fourth District's opinion is a crock at all; instead, she believes it articulates the right rule.

The majority and dissenting opinions are short ones.  And not the most earth-shatteringly important dispositions in the universe.

Nonetheless, given that there's now an express conflict below as to the jurisdictional timeliness bar at issue, it seems to me that the California Supreme Court should grant review in this one and clear up the conflict.  Pretty easy to decide one way or the other.  And that way we'll have one clear rule that practitioners (and the Court of Appeal) can follow.

Wednesday, September 12, 2018

DNC v. Reagan (9th Cir. - Sept. 12, 2018)

You can read today's 125-page, single-spaced opinion by the Ninth Circuit -- as I did -- in its entirety to get a keen sense of the jurisprudential differences between Judge Ikuta (who authors the majority opinion) and Chief Judge Thomas (who authors the dissent).  Both jurists are bright and express what are undeniably coherent views.  But you're almost certainly going to like one approach over the other, depending on your personal jurisprudential (and perhaps political) tastes.

There are nonetheless two parts of Judge Thomas' dissent that strike me as undeniably true.  First, that the right to vote is an incredibly important one; indeed, the foundation of all other rights.  So the judiciary should be at its most vigilant in protecting that right.  (John Hart Ely makes some darn good points in this regard.)

Second, as Judge Thomas artfully puts it, "voting should be easy in America."  That seems to me to be unquestionably right.  To a degree, voting is fairly easy.  But it's also undeniably true that it's not as easy as it could be.  And that there are people (and people-populated institutions) who, for political and other reasons, deliberately want to make it harder.  Because we all know full well that the harder you make it, that tends to change the results (e.g., that it depresses the votes of minorities and other groups that tend to vote more for the Democratic as opposed to the Republican party).

So there are substantial incentives in at least one part of the electoral sphere to make it harder, not easier.  Even though, under a Rawlsian veil of ignorance, we'd all agree to make it easy.

Hence the tension for the judiciary.  The judiciary is limited by law.  We can't do something merely because we think it's a good idea.  Or strike down everything that's a bad idea.  That's not our job.

Yet when you've got a political system and state-sponsored electoral regime that deliberately tries to suppress (e.g., not count) votes of its citizens, what are you supposed to do?

So, to take just one part of the present case, you've got a state (Arizona) that does something (1) that has a huge effect compared to other states (the chart on page 78 of the opinion is indeed striking), and (2) that seems normatively like something we'd all agree we shouldn't do (at least if we didn't know which political party it benefits).  In this modern, computer-verified era, who the hell cares at which particular precinct you physically cast your ballot?  If you're validly registered and qualified to vote, why in the world would we care whether you exercise this right at the polling place that's one block to the right of your house as opposed to the polling place one block to the left?  The state has a list of all registered voters.  If you're on it, your vote should count.  If not, then not.  End of story.

To take but one example:  My designated polling place is (typically) two blocks from my house, in a church.  But that same church has two polling places; one immediately next to the other, one on the right door of the church, one on the left.  They've got different numbers, and I've got to make sure I go to the one with the correct number.

But who cares?  Say I accidentally walked into the wrong one and cast a ballot.  As long as the state can tell -- as it easily can -- that I'm in fact a properly registered voter, why would it refuse to count my vote just because I walked in the wrong door or accidentally transposed numbers?  Any neutral person would say:  "Yeah, that's a mistake, but we know he's entitled to vote, so let's let him.  It's an important right."  The only reason we don't (e.g., Arizona doesn't) is because we know full well how that will affect the votes on the merits.  And we're even (mostly) honest about that.  Political Party X wants to not count those votes because they're likely not for X, whereas Political Party Y deeply cares about counting them because they're likely for Y.  But we should all want to count them.  Because it's a critical part of democracy to get the input of our citizenry and count their votes.  It's a testament to where we are as a country that we nonetheless have serious fights about whether we should actually bother to count these votes, or instead look for an excuse -- and that's what it is, folks:  an excuse -- not to count them.

Are there legitimate reasons why one should prefer that people vote in their designated precincts?  Sure there are.  We don't want some precincts overwhelmed (with others empty), it's marginally easier to have a smaller list of registered voters than a larger list, etc.  But these are reasons at the margin.  If we actually cared about voting -- the most critical of our rights -- those reasons would indisputably give way when nonetheless presented with a vote that we knew full well was made by a qualified voter who wanted it counted.  That we don't -- that we instead go to great lengths (like Arizona does here) to make sure that we don't count those votes -- speaks volumes.

None of this is necessarily dispositive of where you come out in the fight between Judges Ikuta and Thomas.  As I said, one may have competing views about the role of the judiciary in the enforcement of these rights.  That's a larger jurisprudential debate.

But I think it nonetheless bears mention that we're in a world in which certain people deliberately want to make the exercise of critical constitutional liberties more difficult.  End voting at an earlier time.  Decrease the number of polling places.  Make lines longer.  Don't count votes mistakenly made at the wrong voting booth.

I can promise you that wouldn't make sense if you didn't know which way those practices tended to distort what's supposed to be a reflection of the will of the voters.  It's unfortunate that this reality is what's driving things here.  And that we (mostly) aren't even embarrassed about it.

Anyway, great (albeit lengthy) opinions on both sides.  Worth a read on the off chance you've got two hours to get through 'em.

Tuesday, September 11, 2018

Martinez v. Cate (9th Cir. - Sept. 11, 2018)

When you read legions of cases in the Ninth Circuit and California Court of Appeal, you tend to learn some street lingo, since portions of the transcript below are sometimes reproduced in the opinion.

For example, this opinion refers to someone allegedly saying that he "shot this fool, shot this scrap."  I've seen that before.  "Scrap" is a derogatory name (usually used by the Norteño gang) for someone in their rival gang, the Sureño.  So the speaker is saying that he shot a rival Sureño gang member.  Got it.

(Judge Tashima confirms my preexisting knowledge when he drops a footnote that says "'Scrap' may be a derogatory term for Sureño members."  But I must say that I thought that it was definitely a derogatory term.  Full stop.  So I bothered to look it up.  And reviewed some of the -- get this -- over 250 published opinions in California state and federal court which mention that, yeah, it's definitely a derogatory term.  So no surprise that I knew what it meant.  The judiciary's said it a ton of times.)

By contrast, there was another phrase in today's opinion that was new to me.  One person allegedly says:  "I’ll peel your guys’ cap back."  Now, I know that "cap" usually means "shoot".  But in this context, that doesn't work.  You're "peeling" the "cap" back.  Not "capping" a guy.  It's a noun here, not a verb.  So I couldn't necessarily figure out from first principles what it meant.

Though my default rule in all these settings is that whatever lingo means, it translates into "I'm going to shoot you."  As is indeed the case here.  Though I think it specifically means to shoot someone in the head.  I assume the reference is something akin to "scalping" someone with a knife, only this time with a bullet -- having the bullet "peel" the victim's "cap" (scalp) off.  Just a different way of making a particular threat.

Not nearly as common as the other phrase.  But now a part of my lingo.  "Gonna peel your cap."

Though I suspect I'll have few opportunities to use this newly acquired knowledge in my particular line of work.

Monday, September 10, 2018

Ioane v. Noll (9th Cir. - Sept. 10, 2018)

The Internal Revenue Service can do many things to you.  But the Ninth Circuit holds today that one thing it can't do -- or at least couldn't constitutionally do here -- is to watch you pee.  Even during a search warrant of your home.  Gotta let you squeeze the lemon on your own.

Good to know.

Brady v. Bayer Corp. (Cal. Ct. App. - Sept. 7, 2018)

Here's another wonderful opinion by Justice Bedsworth.

On the merits, he's very clear that he's going out on a limb.  He knows that two federal cases have dismissed the exact claims at issue here at the pleading stage.  But he thinks those cases are wrong.

And his opinion does an exceptionally fine job of explaining why.

I'll forthrightly concede that I'm a member of this putative class, which involves Bayer's "One-A-Day" gummy vitamins.  Notice that the very name says "One-A-Day".  But you've got to read the exceptionally small fine print to learn that "one-a-day" actually means "you gotta take two".

Hence the lawsuit.  Hence the Court of Appeal's reversal of the trial court's dismissal of the suit.

While we're in the habit of forthright admissions, let me make another.  I take two.  'Cause I read the thing and know you're supposed to.  Plus, what's the harm?  It's not like I'm taking 100 a day.  I figure I can use the extra vitamins anyway.  And I can probably afford the "double dose" -- even on a mere professor's salary -- anyway, on the off chance I'm actually taking more.

But Justice Bedsworth nonetheless seems right to me.  That some people might be like me doesn't necessarily mean that others don't rely on the label and, indeed, take on a day.  At the pleading stage, to be sure, I find it eminently plausible that some people are indeed confused by (and/or rely on) the prominent name and label "One-A-Day".

Now, given that different people may react differently, I do wonder whether Justice Bedsworth's opinion might serve to revive the case only to eventually kill it.  Because if he's right that people are different, then maybe this case can't be a class action.  I'm confident that Bayer's lawyers are going to use this reasoning at length in opposition to a motion to certify.  And if it isn't a class action, it's not anything at all; no one's going to sue individually over the $10 (or whatever) they lost on these things.

But, admittedly, that's for another day.  And on my end, I'm loathe to let companies get away with false advertising that effectively deceives a segment of the public merely because other members of the public smartly read the fine print.  But that might just be me.  People have strong views pro and con in this regard about class actions.

In any event, for now, the case survives.  And stands for the proposition that you can't call something one a day when you actually gotta double it up.

Thursday, September 06, 2018

Dent v. NFL (9th Cir. - Sept. 6, 2018)

Football fans (and there are many of them) will recognize the names on this caption.  Lead plaintiff Richard Dent is a famous football player who was a defensive end for the Chicago Bears, and was legendary (as well as feared on the field) in his time.  And the NFL is the National Football League.  Also somewhat well-known.

Mr. Dent is one of several named plaintiffs in a putative class action alleging that the National Football League "distributed controlled substances and prescription drugs to its players in violation of both state and federal laws, and that the manner in which these drugs were administered left the players with permanent injuries and chronic medical conditions."  If you know anything at all about the old-school NFL, you know that drug use -- particularly painkillers -- was indeed rampant.  So on the merits, there's some real problems for the NFL there.

But legally, the case is a very difficult one (IMHO) for the plaintiffs.  The NFL prevails in the district court on a motion to dismiss, with Judge Alsup of the Northern District finding the claims preempted by federal labor law (since there was a CBA that covered the players during this period).  But today, the Ninth Circuit reverses.  No preemption.  Plus a lot of language in the opinion that the plaintiffs in the case will find helpful on the merits.

The players are nonetheless a long way from victory here.  There are statute of limitations issues.  There are numerous issues on the merits.  Even the panel hints there may be problems with another motion to dismiss, or with a motion for a more definite statement, or at the summary judgment stage.  And, on my part, I'll add that I'm highly doubtful that this is going to actually get certified as a class, if only because the individual issues seem to me to predominate.

But for now, the lawsuit survives, and goes forward.

Wednesday, September 05, 2018

Powell v. Tagami (Cal. Ct. App. - Sept. 5, 2018)

Today brings us a rare amendment-to-an-amendment.  Because the original amendment contained a mistake.


Important to get it right.  Even when it's as minor as saying (as here) that you meant to delete the third sentence, not the second sentence.

Let's hope this finally puts the matter to rest.  An amendment to an amendment to an amendment is par for the course in a legislature, but for the judiciary, is a place we rarely want to go.

Tuesday, September 04, 2018

Bridgepoint Construction Svcs v. Newton (Cal. Ct. App. - Sept. 4, 2018)

The month of September begins with a bang.  With holding that's perhaps even more significant than the Court of Appeal recognizes.

Justice Gilbert's opinion says:

"An attorney represents more than one client, all of whom seek damages from a pool of money controlled by another party. In addition to multiple other reasons why the attorney here should be disqualified, when more than one client is seeking funds from the same source, the conflict is self-evident. There might not be enough money to satisfy each client's claim.

This is an appeal from an order disqualifying an attorney for a conflict of interest. We affirm."

There are lots of situations in which multiple plaintiffs seek money from the same source.  And since few defendants have infinite resources, the resulting conflict -- which the Court of Appeal's opinion expressly calls an "actual" conflict, not merely a "potential one" -- will arise in a plethora of cases.  With the resulting disqualification motions for anyone who understands the strategic value of such motions and is armed with today's opinion.

Plus, to be clear, this isn't a case involving a particular res (e.g., a $2 million insurance policy).  The conflict exists merely because the clients are seeking money from the same defendant.  The opinion makes this crystal clear:  "What Klein ignores is that Bridgepoint, Salter and Ram are all seeking the same damages from the same $2 million pool. The conflict is obvious. Every dollar that Ram obtains from the pool is a dollar that is not available to Bridgepoint or Salter."  That idential "pool" of money exists whenever multiple plaintiffs are suing the same non-billionaire defendant.

So use today's opinion.  And understand that people may well use it against you as well.

Super important.  If only because its categorical holding is (1) incredibly broad, and (2) incredibly practically significant.  For lawyers and clients alike.