Mathews v. Becerra (Cal. Supreme Ct. - Dec. 26, 2019)

Hopefully this advice won't have practical significance for the vast majority of readers here.  Still, there's a lesson here from today's opinion, and it's a meaningful one for those to whom it applies.  So here it is:

Don't tell your therapist that you've ever viewed child pornography.  If you do, they'll be required to report you to the authorities, under penalty of losing their license and/or going to prison if they don't.

Admittedly, in a 4-3 opinion, the California Supreme Court holds that it's possible that this statute might violate the state constitutional right to privacy, at least as applied to those patients who are getting treatment and aren't likely to do it again.  But the dissent thinks otherwise.  And the Court -- weary of being perceived as coddling child molesters -- makes clear that it's just saying that the trial court shouldn't have granted a demurrer, and instead should take evidence about whether the statute indeed constitutionally advances a legitimate state interest as applied to that group of patients.

Nonetheless, as a practical matter, at least while the lawsuit's pending -- which practically means, for years -- unless you want to be turned in to the police, you'll have to be content with simply telling your doctor that you've done "bad things."  That's not going to be very helpful in getting you treated, of course.  But at least you won't go to prison for the rest of your life.

Carter v. Davis (9th Cir. - Dec. 26, 2019)

Reading this will definitely not keep you in holiday spirits.

It's got something for everyone to dislike.  A defendant who rapes and kills multiple people over a three-week crime spree, and for whom it's totally clear why multiple juries sentenced him to death.  Crimes that happen in 1984 yet the resulting legal proceedings take 35 years to reach the Ninth Circuit on habeas, notwithstanding the fact that there are no intermediate appellate reversals or grants of relief:  just your "standard" delay.  And a massive investment of resources that results in (1) two lengthy opinions by the California Supreme Court (in 2005 and 2006); (2) a 146-page opinion by the Central District on habeas, and (3) a 318-page opinion by the Southern District on habeas (in 2013).

And now, in 2019, another lengthy opinion.  Again denying relief.  All this to affirm a penalty that will never be imposed.

It's obvious that everyone's taking the issue seriously.  So that's good.  But still.  Those who support the death penalty will be irate that it's taken 35 years and counting and won't actually be imposed.  Those who oppose the death penalty will be irate that we sentence people to be killed and keep them on death row (with its corresponding limitations) forever.  Those who don't feel strongly either way will be irate that we're pouring so much money down the drain for no reason.

So something for everyone to dislike.

City of Desert Hot Springs v. Valenti (Cal. Ct. App. - Dec. 19, 2019)

I'm a little befuddled by the last line of this opinion.

There's a motel in the City of Desert Hot Springs that's an alleged nuisance, so the City files a suit against its owner to abate the thing.  There are a couple of different defendants (one with a lien, etc.), but all of them get dismissed fairly quickly, which left only the owner of the motel as a defendant.  And as far as I can tell from the docket and the Court of Appeal's opinion, the owner (Irene Valenti) never gets a lawyer, never appears in the lawsuit; basically, does nothing at all.  Which is consistent, I suspect, with letting the dilapidated motel fall into total disrepair.  Just ignore the thing.  Not worth it.

But the City wants to appoint a receiver to repair the motel and then sell it, which requires court approval.  So it files a motion.  Which, again, as far as I can tell, no one at all opposes.

But the trial court says (essentially):  "Hold on.  This falling-down five-room motel in the middle of the desert is a total craphole.  It doesn't make any sense to me to appoint a receiver, pay money to repair and refurbish the thing, and then try to sell it.  This One Star At Best Motel In The Desert would cost more to repair than it'd ever be worth.  Total waste of money.  Give me a supplemental brief, City, on why your proposal makes any sense at all."

So the City submits its supplemental brief trying to argue that its proposal makes economic sense.  And, again, no one files an opposition.  But the trial court's not persuaded.  It refuses to appoint a receiver and dismisses the lawsuit.

The City appeals.  The Court of Appeal concludes that, at this preliminary (appointment of the receiver) stage, the trial judge shouldn't have addressed the merits.  So reverses and remands.

Okay.  I'm fine with that.

But the last line of the opinion says:  "The City shall recover its costs on appeal."

I get that the City's the prevailing party.  And that, normally, the prevailing party is entitled to costs.

But the defendant never showed up.  She didn't argue against the appointment of the receiver below.  She didn't argue against the appointment of the receiver on appeal.  She was, apparently, totally fine with all of the above.  It was the trial court, acting on its own, that refused to appoint the receiver.  I know we're not going to impose costs against the trial judge.  But I really wonder whether it's fair to impose costs against someone for an appeal they had no role in creating.  When you don't oppose a lawsuit, or a motion therein, or the resulting appeal of the trial court's sua sponte denial of such an (unopposed) motion, I would think that the general equitable rule should be that the parties should typically bear their own costs on appeal.

Even if, under the rules, the Court of Appeal is permitted, in its discretion, to do otherwise.

I don't blame the City from wanting to tear the thing down (or make it habitable).  I don't blame the City for filing the motion for a receiver, or for appealing the trial court's refusal to do so.

But I also don't blame Ms. Valenti for the resulting appeal.  At least if I'm reading the docket right, and she didn't oppose the motion either below or on appeal.

All this may be practically irrelevant.  I suspect that Ms. Valenti is not Donald Trump, and that the motel at issue is not Mar-A-Lago, and hence there's not going to be enough money to go around to pay a cost award anyway.

But still.  No reason not to do the right thing initially.

I'd have the parties bear their own costs on the appeal.

Stimpson v. Midland Credit Management (9th Cir. - Dec. 18, 2019)

Maybe the debt collector's letter here was a little bit tricky.  But it wasn't illegally -- or even all that much -- tricky.

Defendant buys up stale debts (for an incredibly tiny fraction of their face value).  Since the debts are so old, it can't sue on 'em.  But it can send letters and make calls and try to persuade the debtor to pay.

So it sends the plaintiff here one of those letters.  Telling him that the benefits of paying are (1) Save $458.24 if you pay by 04-27-2017; (2) Put this debt behind you; (3) No more communication on this account; and (4) Peace of mind.

Now, since the defendant knows full well he can't sue, you might think that sending such a letter is at least a little bit deceptive.  But then there's this (extremely important) disclosure in the letter:

"The law limits how long you can be sued on a debt and how long a debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau."

That pretty much tells the debtor, in my view, most (if not all) that he needs to know.  He's not going to be sued or reported if he doesn't pay the debt.  So the only reason for him to pay is basically if he's had a serious religious conversion or the like and now feels like paying his time-barred debts.

But the plaintiff sues, claiming that by saying that the defendant "will not" sue, it's implicitly saying that the defendant could sue if it wanted.  But the Ninth Circuit rightly finds that argument too cute by half.  Even unsophisticated debtors can understand basic sentences.  The sentence at issue doesn't stand for the proposition that plaintiff claims.  It just says they won't sue, which is right.

(And the fact that states like California require precisely this type of statement on time-barred debts is only further evidence of this fact, in my view.  The case should come out the same way even without the existence of those statutes.  But they nonetheless help prove the point.)

Even though it's not deceptive, the letter is a little bit tricky.  First off, I suspect that the only people who pay in response to these letters are in fact people that (1) are confused by (or don't read) the "we won't sue or report you" disclosure, or (2) just want to stop the harassment (via letter or otherwise) of the debt collector, and don't realize that they're entitled to simply say "Stop talking to me" and have it end.  So it's tricky -- and effective -- in that way. 

And it's potentially tricky in another way.  Since although the debt is time-barred, defendant can't sue on it.  But in at least some states, if the letter effectively persuades the debtor make even a tiny little payment on the debt, the statute of limitations may restart, and allow 'em to sue on the whole thing.  Big money.

It's unclear if that's really what the defendant was trying to do here, or even if it'd work in practice (in this particular state for this particular debt).  But still.  If that's indeed the law, I'd bet good money that there are debt collectors out there adopting that strategy.  And there's little the law can do about that, because as the Ninth Circuit holds here (correctly, I think), that's not "deceptive" because defendant didn't actually say anything that was untrue or misleading.  They're just taking advantage of the law and the lack of knowledge by unsophisticated debtors.

And that, my friends, the law allows.

Loeb v. County of San Diego (Cal. Ct. App. - Dec. 16, 2019)

One of the things I try to do when I read cases is to make sense of them.  By that, I mean I try to understand the internally consistent legal doctrine that underlies the problem and how that doctrine affects the outcome of the case.

You'll notice that I used the words "internally consistent" in that last sentence.  That's important.  To me, anyway.  A big part of what makes "law" reasonable, predictable, and different from a mere expression of internal judicial preference is the ability of a legal principle to make sense:  to be an internally consistent and hence rational explanation of how we elect to predictably order our world.

Which in part explains why law is worth following.  As well as understanding.  If cases were merely decided according to our (often internally inconsistent) instincts about what's right or wrong, we both wouldn't have an externally predictable rule of law -- because particular moral instincts and values are not universally shared -- and we also wouldn't have a need for legal "doctrine" other than "We'll know the right result when we see it."  It's for these reasons that I spend a lot of time and intellectual energy trying to figure out the internally consistent principles that rationally explain how we order our legal world.  Further, if a particular legal doctrine is not internally consistent, or is incompletely so, that's a huge flaw.  It suggests that the way we're deciding cases needs to change.

All of these thoughts were highlighted when I read this opinion from earlier today.

The case does not reach a particularly surprising result.  It's an opinion about what's called "trail immunity" in California, which (for policy reasons) makes the owners of recreational "trails" immune from liability even for their allegedly dangerous conditions, on the theory that to do otherwise would discourage people from making property available for recreation.  The case holds that a particular (allegedly uneven) concrete pathway located in the GuajomeRegional Park is indeed a "trail" and hence the County of San Diego (which owns the Park) is immune from liability.  Fair enough.

But underlying that opinion is the core legal question:  What counts as a "trail" for purposes of the statute (and hence immunity)?

Again, we could say that we know it when we see it.  But that's not good enough.  Instead, we want to know what the characteristics are of a trail that create the resulting immunity.  We know that trails under the statute are those that are typically used for recreational pursuits; hiking, riding bikes, etc.  The concrete pathway at issue here connects a roadway and parking lot in the park (which includes handicapped parking spaces) to a restroom in the park.  We know that pathway is used by some people going from the parking lot to the bathroom.  We also know (from pictures) that the pathway is used by some people on bikes, some people on skateboards, some people walking dogs, etc.  Indeed, the facts about how this pathway is used are largely undisputed.

So, under the law, is it a "trail" or not?

There's a substantial fight between the parties to the litigation about whether the trail needs to be "used" for recreational purposes or, instead, "designed" for such purposes.  In the end, the Court of Appeal comes out extraordinarily heavily on the former of these principles.  It holds that as long as a pathway is indeed used for recreational purposes, it doesn't matter at all whether (1) it was designed for such a purpose, or (2) it is even only secondarily used for such purposes.  (See pages 16 and 17 of the opinion, including the conclusion:  "While Loeb asserts the pathway was designed for the sole purpose of providing bathroom access, she stipulated that it was also used for recreational purposes. Thus, under Burgueno (and the cases cited therein), the County is entitled to immunity.") (emphases in original).

Okay.  I get it.  If a pathway is even secondarily used for recreational purposes, there's immunity.  Even if the plaintiff wasn't using it for that purpose, and even if most people use the path for non-recreational purposes.  That's a rule.

And that rule is also an internally consistent one.  Indeed, it's one that's also consistent with the underlying purposes of the statute.  If you really want people to make their property available for recreation, then go ahead and give them immunity whenever a nontrivial number of people use the thing for recreation.  That'll advance your purposes.  Even if it has the ancillary effect of precluding compensation for people injured on that property and also fails to discourage people from repairing dangerous conditions therein.  Perhaps that's a policy choice that you want to make.

Mind you, that leaves open the question:  How much recreational use is sufficient?

To take a concrete example close to home (literally):  I've got a driveway on the front of my property.  Most of the time, it's used by people (including me) to park their cars, or to access my front door, all of which are non-recreational endeavors.  But on exceptionally rare occasions, I've seen people walk their dogs through my driveway and have seen a skateboarder or two ride through the thing (it's a semicircle that abuts the sidewalk and roadway).  Does that mean that if I have a huge pothole in the thing, which I refuse to fix, and a person trips and injures themselves coming to my doorway, I'm entitled to "trail immunity" because it was used for recreation, albeit not here and not primarily?  Under the Court of Appeal's categorical holding, I'd say the answer is "Yes."  Yet I strongly doubt the Court of Appeal (or any other court) would actually come out that way.

Now, maybe you can say that, albeit unexpressed in today's opinion, there's an exception for trivial recreational uses.  Okay.  Seems to me you need to express that point, since it's unclear in the present case whether the recreational uses were indeed trivial or not, and the actual words in today's opinion repeatedly say that all you need to do is to show "use" rather than a particular quantity of use.  So I would still find the holding of the opinion overbroad and potentially troubling.

But let's put that particular problem entirely aside.  And give another concrete example that comes to mind from today's opinion; this time, right outside of (rather than in) my own home.  When you leave my property, you hit (in order) (1) the sidewalk, (2) a two-lane roadway, (3) on the other side of the road, a dirt pathway, and then (4) the ocean.  That's true, by the way, all along my street, which runs for about a mile.  Every day, there are tons of people who use those locations for recreation.  You've got bicyclists, joggers, dog walkers, sunset-viewers, photographers, surfers, etc.  In short, you've got a ton of recreational use.

And that's true on both the sidewalk in front of my house (on my side of the roadway) as well as on the dirt path that's on the other side of the roadway and that parallels the ocean.  Most people on the sidewalk are walking or jogging for recreation, and enjoying the natural beauty of the location.  Ditto for the people on the parallel dirt trail.  If it matters, both the dirt pathway and the concrete sidewalk are also about the same size; a couple of feet wide.  And on both the dirt pathway and on the concrete sidewalk, people occasionally get hurt.  Sometimes seriously.  People have tripped on the sidewalk, have crashed into obstacles, and have fallen off the dirt pathway (which is on the top of a cliff) to the beach below, sometimes to their death.  These injured people could definitely allege that there were purportedly dangerous conditions on the sidewalk and/or dirt pathway that resulted in their injuries.

Is there trail immunity for dangerous conditions located on either of these locations?  Both?  Neither?

If the only question is whether these properties are "used" for recreation, the answer is crystal clear:  Both locations engender trail immunity.  And the fact that one of these "trails" is paved (and the other is not) is definitely irrelevant; today's opinion expressly so holds, and also involved a concrete path to which trail immunity was applied.

Fine.  So both locations are immune.  Good to know that I don't have to worry about any dangerous conditions on the sidewalk subjecting me to liability (even though homeowners are, for good reasons or not, generally liable for defects on the sidewalks fronting their property).  That's at least a doctrine that's consistent, even if potentially unwise.

But wait.  The Court of Appeal also says (on page 18) that you're not entitled to trail immunity if it's a paved path that parallels a street, citing precedent that "paved paths in public parks have . . . been distinguished from sidewalks if they were not located on or adjacent to a street or highway."  Which turns an otherwise internally consistent (if wise or unwise) approach into one that's both uncertain as well as seemingly unprincipled.  That caveat suggests that the sidewalk in front of my house is not, in fact, subject to trail immunity, since it's a "paved path . . . adjacent to a street or highway."  But why not?!  I thought the critical issue was only, as the Court of Appeal expressly held, whether the path was in fact "used" for recreation, as it indisputably is?!  Where does this new made-up exception for concrete sidewalks adjacent to streets come from?  And why doesn't that same exception for concrete pathways adjacent to streets apply equally to (as here) concrete pathways leading to bathrooms?  The Court of Appeal nowhere explains.

Nor does the Court of Appeal explain whether this exception applies only to "concrete" pathways adjacent to streets or, instead, to any pathway adjacent to a street.  Which definitely matters to those people injured or killed on the dirt pathway across my street, as well as many other.  That pathway is unpaved and in a park (Sunset Cliffs Natural Park).  But it's directly adjacent and parallel to a street, just like the concrete sidewalk across the street.  Trail immunity or no?

As I said when I started this post, the point of legal doctrine is to not only accurately reflect norms, but also to predictably advise people of their liability and to consistently (and for articulable reasons) treat similar situations identically.  I can understand a holding that says, for example, that sidewalks that parallel streets aren't subject to trail immunity since they're not typically designed or used for recreation.  But if that's the rule, then that same principle would suggest that the nonsuit in today's case was improperly granted, since the same might be true (under the facts) for the concrete path here, and the relevant inquiry thus not limited to solely whether the path is ever used for recreational purposes.  I could also find a holding to be internally consistent (albeit likely unwise) were it to say that anything adjacent and parallel to a street was categorically unable to avail itself of trail immunity, yet I suspect that most people would think that the dirt trail across the street from my house should be entitled to trail immunity, lest it not be made available to the public for recreational purposes.

In short, I'm not persuaded that the Court of Appeal's focus in today's opinion purely on the "use" of a trail entails an internally consistent (or wise) interpretation.  I'm not sure you can square that holding with precedent that says that sidewalks adjacent to streets aren't immune.  Nor can it likely be squared with what I suspect would be otherwise easy holdings about why I'm not entitled to trail immunity for dangerous conditions in my concrete driveway, or similar "trails" that are only exceptionally rarely used for recreational purposes.

So, again, I get why the Court of Appeal comes out the way it does in this particular case.  But I'm not sure that the doctrine it applies is a consistent or predictable one.  And that matters.  At least to people, like me, who care about such things.

People v. Vivar (Cal. Ct. App. - Dec. 12, 2019)

It's a criminal case involving someone who wishes to withdraw his plea to possession of materials with the intent to manufacture methamphetamine.  The defendant's attorney is . . . Munger Tolles, with Gibson Dunn as amici.

Not counsel you're used to seeing in criminal cases of this type.

Three cheers for pro bono work by big firms.

Even when, as here, it's unsuccessful.

Physicians Committee for Responsible Medicine v. LAUSD (Cal. Ct. App. - Dec. 12, 2019)

I guess you could bring this case purely as a means of publicizing your cause.

But does anyone really and truly think that contemporary courts will find that existing law creates a "clear, mandatory, statutory duty" to get rid of processed meats in school lunches?

No way.  Not now, and not in the near future, I suspect.

Does heavily processed meat contribute to heart disease and the like?  I suspect it does.  Might the world be a better place if our kids didn't chow down on bologna?  Probably.

But these are policy choices.  No way a court's going to do it on its own.  Because current law, for better or worse, does not require such a course of conduct.  As the Court of Appeal rightly holds.

P.S. - It actually might be a neat (albeit illegal and unethical) way to drum up legal work to have some friends create a "public interest" group and have 'em sue your governmental clients with drummed-up public interest litigation like this one.  You get some legal fees, they get to "fight the good fight," and maybe you illegally split some fees with 'em.  So many ways to get rich, as long as you're willing to bend the law a little (or a lot).

Cuviello v. City of Vallejo (9th Cir. - Dec. 10, 2019)

Many lawsuits are unavoidable. A driver rear-ends another driver, or hits a pedestrian. A contract gets breached. A house accidentally burns down. There's more than likely going to be a lawsuit in such circumstances, and apart from trying to resolve the thing beforehand (or settle it expeditiously), there's not much one can do.

And then there are cases like this one.

I totally understand why the City of Vallejo didn't want people to use bullhorns all the time.  It's no fun to have 'em blasting outside your residence, or (as the panel notes) cranking out some jams at a hospital at 2:00 a.m.  People often want quiet, and bullhorns are the opposite of that.

Plus, it's the City of Vallejo.  That's where Six Flags is located.  An amusement park that contains some animal attractions, and hence occasionally attracts protesters.  Including but not limited to protesters who's like to use bullhorns.  I suspect that Six Flags has more than a little bit of influence with the City Council in the small municipality in which it is located and in which it's one of (if not) the largest employers.

So, again, I get why the city wants to regulate bullhorns.

But precisely because these things are used in protests -- and are used as part of (and hence protected by) free speech -- you've got to be careful in such regulation.  Lest you violate the First Amendment and get yourself dragged into a federal lawsuit in which you might well be liable to the other side for its attorney's fees.

And, if you're being careful, the mechanism that you most definitely do not deliberately employ is a permitting scheme.  We generally don't like requiring advance "permits"  for speech.  Because there's a long history of prior restraint jurisprudence that's very much protective of speech.  Do we allow 'em sometimes?  Sure.  But rarely.  And we're pretty darn skeptical of them.

It's not like the City of Vallejo didn't understand all of this.  It got sued by Mr. Cuviello, who alleged that restricting his use of a bullhorn was unconstitutional in a variety of ways.  Which prompted the city to -- smartly -- amend its municipal code in response, thereby mooting a number of the claims that the plaintiff had made in his lawsuit.  Smart.  There's generally no "catalyst" theory of attorney's fees in federal court.  So if you're a city, and you get sued, and there's a problem, go ahead and solve it.  Or at least make it extremely more difficult for the plaintiff to win by putting your best statute forward, unlike the one you initially passed.

When the City of Vallejo amended the statute, it had a ton of options.  But the one it elected retained the basic "permitting" scheme of its initial approach.

And that's the problem.

The city could have done a ton of things that I'm quite confident would have passed constitutional muster.  Most directly, it could have just regulated the core "noise" problem directly; for example, by saying that anyone could use a bullhorn, but wasn't allowed to amplify voices, say, more than 20 decibels (or whatever) over the existing ambient noise level.  That would have more than solved the problem, and would even have accomplished Six Flags' objective in not letting protesters at its park to excessively disturb its patrons.  All without creating the constitutional problems engendered by a statute that contained a permitting scheme and a prior restraint.

But, nope.  That's not what the city did.  Ergo the result of this lawsuit.  Which reverses the trial court's refusal to enter a preliminary injunction against the ordinance.

Sometimes municipalities are smart.  But this time, the City of Vallejo was smart to amend the statute under attack, but not nearly smart enough to do it correctly.

U.S. v. Exxon Mobil Corp. (9th Cir. - Dec. 9, 2019)

Do you know how hard it is to get a federal district court to focus in detail on the legitimacy of your discovery requests?  Incredibly hard.

Do you know how hard it is to get the Ninth Circuit to focus in detail, and resolve, the permissible scope of particular interrogatories and document requests?  Impossible.

Yet here's proof positive that the impossible is sometimes possible.  An appeal that's entirely about whether five particular discovery requests were permissible.

The district court thought they weren't.  The Ninth Circuit disagreed.

One of the rare discovery fights you'll see in the Court of Appeals.

City & County of San Francisco v. USCIS (9th Cir. - Dec. 5, 2019)

It's a hot-button topic.  The Trump administration issued an executive order that bars people who have previously received non-cash public benefits (e.g., SNAP and Section 8) from immigrating.  That doesn't really affect people who seek to come to the U.S. from other countries; those people haven't typically gotten non-cash benefits, since they haven't even been here.  It instead primarily stops people who are in the U.S. (e.g., undocumented aliens) from legalizing their status, even if they're otherwise eligible.

The district court entered a preliminary injunction against the order.  The Ninth Circuit stays that injunction -- thereby letting the executive order go into effect -- in a split opinion.

Not surprisingly, the majority opinion is a long one.  Seventy-three pages long.  When you know something's high-profile, you're typically going to spell out your reasoning at length.

The other thing that's not surprising is how the case comes out.  In the majority are Judges Bybee and Ikuta.  Dissenting on the merits is Judge Owens.  This is exactly as one would have expected once the panel was drawn.

What's a little bit surprising is nonetheless the brevity of Judge Owens' dissent.  As I said, Judge Bybee's majority opinion is super long.  Yet I can quote Judge Owens' dissent in full; it's that short.  He says:  "While I concur with the majority’s jurisdiction analysis, I otherwise respectfully dissent. In light of the: (1) government’s heavy burden due to the standard of review, (2) opaqueness of the legal questions before us, (3) lack of irreparable harm to the government at this early stage, (4) likelihood of substantial injury to the plaintiffs, and (5) equities involved, I would deny the government’s motions to stay and let these cases proceed in the ordinary course. See Nken v. Holder, 556 U.S. 418, 427, 433-34 (2009) (holding that a “stay is an ‘intrusion into the ordinary processes of administration and judicial review,’” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial] discretion” (citation omitted))."  Okay then.  I assume we'll see more once the merits are addressed (rather than merely the stay), but for now, that's all that Judge Owens feels the need to say.

What's only a little bit surprising is that Judge Bybee not only authors the majority opinion, but also a brief concurrence of his own.  As I've often said, Judge Bybee is often smart and insightful, and while I'm not a huge fan of concurring in one's own opinions, I think it sometimes makes sense, particularly in high-profile cases in which you want to make a specific or non-legal point.  So I was interested in Judge Bybee's particular take.  Was I particularly excited that he labeled his concurrence "BYBEE, Circuit Judge, concurring, perplexed and perturbed"?  No.  I was not.  Those types of labels aren't especially compelling to me.  Particularly when you're responding to your own opinion.  You won.  Being "perplexed and perturbed" seems especially unusual in such a setting.  There's no real need, in my mind, to add these adjectives.  They detract rather than add.

But whatever.  Go ahead.  It's just sort of a lame start to the thing.

I was more interested in two particular components of Judge Bybee's very short (five-page) self-concurrence.

Judge Bybee's central point therein is his reminder that things that you think might be political aren't always political.  That sometimes, including here, things are actually based on law, and aren't purely naked ideological preferences.

I thought that entirely appropriate, as well as beneficial.  Of course everyone's going to think that this decision is purely political.  You've got two extremely conservative Ninth Circuit judges, appointed by a Republican president, in the majority in an opinion that reaches a conservative political result on a hot-button topic (immigration), and a lefty judge appointed by a Democratic president dissenting.   It's not a surprise that people might -- indeed, assuredly will -- view this as a politically-based result.  So it makes perfect sense to me for the author of that opinion to confront the elephant in the room head on.  And to do so in a concurring opinion.  Good job.  That's at least an effort at transparency, and one that adds rather than detracts.

And Judge Bybee makes that argument concisely, which is another bonus.  Whether you find that claim persuasive, of course, is another matter.  But I'll leave that for others to decide.  All that I want to mention in that regard is the exceptionally narrow claim that Judge Bybee elects to make.  He goes out of this way to point out that a judge's political and ideological preferences don't uniformly map on to the legal outputs of that same judge.  He says:  "Oh, I am not so naive as to think that a simple declaration of judicial neutrality will quell inquiry into judges’ backgrounds, prior writings, and opinions. The battles over judicial nominations provide ample proof that our generation of lawyers bear a diverse set of assumptions about the nature of law, proper modes of constitutional interpretation, and the role of the judiciary. These are fair debates and they are likely to continue for some time. We can only hope that over time our differences can be resolved by reason and persuasion rather than by politics by other means. But I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes."

The limited nature of that last line seems telling (and somewhat surprising) to me.  Judge Bybee merely says therein that the judges he knows can point to at least one opinion in their career that does not align with their political preference.  ("I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes.") (emphasis added)  Well, yeah.  I'm sure that's true.  But what an incredibly limited claim to make:  that in the hundreds or thousands of opinions one has written or joined, we can point to one that would not reflect a judge's naked political preference.  If that's the best defense one can make to the claim that judges decide cases politically, rather than legally, then that's fairly telling.  Particularly when articulated in a high-profile case that came out exactly on preexisting political lines.

Personally, I'd go further.  I honestly believe that judges routinely issue lots of opinions that are not in accord with their preferred policy objectives.  Not just one or two.  And would be happy to say so.

Do judges issue lots of opinions that are in accord with their preferences?  Of course.  Are those desires or pressures greater, perhaps, in high-profile cases on hot-button topics?  I suspect they are.  So I wouldn't make an overly strong (or absurd) claim that political preferences are meaningless, at least as a descriptive (as opposed to normative) matter.  There are tons of cases in which I think the correct legal result is X even though my ideological desire is Y.  That's what it means to engage in legal analysis rather than merely articulating (or justifying) one's political preference.

So I thought that Judge Bybee's defense in this regard was a little damning with faint praise.

The other thing that I thought was unusually soft was how Judge Bybee ended his concurrence.

After making several salient points about the non-ideological nature of judging etc., Judge Bybee concludes his concurrence with the following paragraph:

"By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress. See U.S. CONST. Art. I, § 8, cl. 4. And, so far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates. We have seen case after case come through our courts, serious and earnest efforts, even as they are controversial, to address the nation’s immigration challenges. Yet we have seen little engagement and no actual legislation from Congress. It matters not to me as a judge whether Congress embraces or disapproves of the administration’s actions, but it is time for a feckless Congress to come to the table and grapple with these issues. Don’t leave the table and expect us to clean up."

I get that point on multiple different levels.  For one thing, when you've written an opinion that will hack off a ton of people and will have them calling it unjustly political, it makes sense to blame someone else.  And who better to blame than a "feckless" Congress, one of the least trusted American institutions?  So as a matter of pure deflection, ending the concurrence that way makes sense.  Plus, Congress really does pass a lot of totally ambiguous (or confusing, or contradictory) statutes and leave it to the judiciary to "clean up the mess."  So, as a general matter, I get that point as well.

But, dude.  In this case, we're dealing with the validity of an executive order.  Something that the President did.  On his own.  That expressly went around Congress.  And that was promulgated only in August 2019, a mere four months ago.

What the heck does a swipe at Congress have to do with the validity of the executive order at issue here?!  If there's a problem with that order, it's a problem that was generated by the President, not Congress.  Full stop.  It's not that Congress left the judiciary with a mess to clean up.  It's that the presidential decision to bypass Congress made a potential mess.  The alleged ire seems to me to be directed at exactly the wrong party.

So when the concurrence says that Congress "left the table" here, it's me that's left "perplexed and perturbed."  What exactly did Judge Bybee want Congress to do here?  Instantly pass legislation that overruled the executive order?  Yeah, that's going to happen.  We have a split Congress, half of which (the Senate) is controlled by the President's party and who's likely in favor of the executive order at issue and the other half (the House) that goes the other way.  What the heck do you want a political institution of that nature to do here?  And let's say they did make it easy for the judiciary; say, both the House and Senate passed a bill that said that non-cash benefits couldn't be counted.  Do you have any doubt whatsoever about whether the President would veto such a bill?  A veto that no way gets overruled by two-thirds.

Whenever people complain about "Congress" not doing something, they constantly ignore the fact that Congress alone can do extraordinarily little, and that a failure to act is often the direct result of presidential obstruction and/or lack of initiative.  It generally takes the approval of Congress and the President to pass a statute.  Blaming the former while ignoring the latter is classically just a way of ignoring the role of the person you like while putting the onus on a diffuse body virtually no one respects.

And, again, we're dealing with an executive order here.  Whatever your views on executive power -- too strong, not strong enough, just about right -- whatever problems exist in the present case arose because the President exercised that power.  He was the one who not only "left the table" and told the judiciary to "clean up," but who excluded Congress from the table in the first place.  For the same reason Judge Bybee shouldn't blame me for any mess arising from a dinner at his house to which I was not invited, so too, in my mind, should Judge Bybee not blame Congress for any mess arising from an executive order that in no way, shape or form was the doing of Congress.

So I get the expression of frustration at Congress.  Both politically and on the merits.  But not here.  And, to me, it makes Judge Bybee's concurrence end with a whimper rather than a bang.  He saves the worst argument for the very end, and one that (in my mind) again detracts rather than adds.  At least as applied here.

People v. Ollo (Cal. Ct. App. - Dec. 5, 2019)

I'll slightly rephrase the question raised by the Court of Appeal in today's opinion.

You've got an 18-year old boyfriend and a 16-year old girlfriend.  The boyfriend says he's scored some coke and wants to know if the girlfriend wants some; she says yes.  She comes over, they have sex, and the girlfriend takes a toot.  Totally unknown to the boyfriend, the "cocaine" he's been sold is actually fentanyl, and she dies.

We know he's guilty of giving a controlled substance to a minor.  Two questions:  (1) Is he also guilty of personally inflicting great bodily injury on the victim?  He (of course) intended the act that led to a death -- even though he clearly didn't intend the death -- but is the victim's voluntary ingestion of the drug a superseding cause?  (2) If the answer to (1) is "yes," what's the appropriate sentence?

The Court of Appeal is split on the answer to (1).  Today's opinion falls on the side of saying that you are indeed criminally responsible for inflicting great bodily injury in this setting, and that it's not a defense that the victim took the drug voluntarily.  And, as for (2), Mr. Ollo -- Treyvon, if that means anything to you -- gets sentenced to twelve years in prison.  For a death that he clearly didn't intend.

Of course, if it's one's own daughter who dies, the desire for vengeance would undoubtedly be strong.  Maybe you'd want the 18-year old to spend a dozen years in prison.  On the legal question, I'm not at all certain the Legislature wanted people convicted of inflicting great bodily injury -- a serious offense -- when the victim engaged in voluntary conduct that led to the death.  Maybe not.  Maybe so.

On a policy level:  You help a friend trespass and they accidentally fall to their death; guilty of this serious offense?  You give a friend with a severe headache one of your prescription Tylenol with codeine pills and she dies; guilty of deliberately inflicting great bodily injury upon her?  You intended the act, after all, and that act is not legal.  Twelve years in prison?  For you or, if it was your child who tried to help with the headache instead of you, your 18-year old daughter?

Maybe.  Maybe everyone's okay with calling these things the infliction of great bodily injury.  But there are very, very serious offenses involving the deliberate infliction of great bodily injury in which the defendant doesn't get 12 years in prison.  I'm just not sure that we're trying to fit a round peg into a square hole when you've got one crime (furnishing drugs to a minor) that squarely fits the offense but we charge a much greater offense that's generally used for deliberate attacks and the like.

Garcia v. Rosenberg (Cal. Ct. App. - Dec. 4, 2019)

Good decision by Justice Hill to publish this opinion today.  And good ending thereto.

I too found disturbing the trial court's unquestioned reliance upon the self-serving declaration of the defendant in this malicious prosecution action hat the lawsuit was dismissed only because a client representative couldn't attend the MSC.  ("The reason or intent of Allstate and Rosenberg behind the dismissal of the subrogation action is a matter uniquely within their knowledge, and apparently the only evidence the trial court considered on that issue was Rosenberg’s declaration stating his intent. The Garcias were not likely to have direct evidence of Rosenberg’s intent, but there were inferences to be drawn from the circumstantial evidence. Rosenberg did not deny that, within a few months after the subrogation action was filed, the Garcias provided him with a document from the Department of Motor Vehicles showing they had sold the Aerostar and filed a release of liability six months before the accident with Allstate’s insured. It was undisputed Rosenberg and Allstate pursued the subrogation action vigorously for seven years, including garnishing the Garcias’ wages, placing a judgment lien on their home, having their drivers’ licenses suspended, and declining to consider the possibility of the Garcias’ innocence in light of the evidence they presented, then suddenly dismissed it shortly before trial. The evidence would support an inference in the Garcias’ favor that Rosenberg’s stated reason was a convenient excuse for a last minute dismissal to avoid a trial he deemed likely to result in a judgment against his client.")  So good to see the Court of Appeal refuse to affirm on that basis.

And even though the case gets affirmed in the end, it's nice that Justice Hill ends the opinion by saying:  "In closing, we note that the Garcias’ plea for justice, made at oral argument, did not fall on deaf ears. We understand and appreciate the obstacles they faced in attempting to defend themselves in the subrogation action and prosecute their malicious prosecution actions."  It's always good to remember that we're dealing with people.  Real people, real problems.  Not merely abstract issues of law.

Even when those legal principles constrain our actions and make the case come out in a way that might not be intrinsically morally pleasing.

People v. Leelu (Cal. Ct. App. - Dec. 3, 2019)

It's a telling sign when the Court of Appeal says that, under the relevant statute, a defendant's mental competence should definitely have been evaluated by two different experts (rather than only one), but that the defendant was so clearly out of it that the error was harmless.  Which is what happens here.

You can see why, though.  Ms. Leelu was charged with trespassing, and then later charged with stalking.  She wanted to represent herself.  (Always a bad sign.)  She tells the trial court:

“I know my rights. I can have jury trial representing myself. [¶] . . . [¶] All psychiatry. And they arrest me so many times in the past couple years, but now I want to be candidate of U.S. senator. We need to change to make a difference, as Donald Trump said.”

Well, now.  All right, then.  Not the most relevant commentary in the world, but at least I know what you're saying.

But it gets worse.

When the trial court expresses doubts about Ms. Leelu's competence, she responds:  "I will let all 32 million people know this judge use police to harass me and my husband and always do things, keeping asking money from me, no jury trial at all. And the police chief right to hire and --.”

Okay.  That's not exactly helping you there, Ms. Leelu.  Pretty much exactly the opposite.

The doctor who subsequently evaluates her gets to spend more time with her.  And gets more of the same.  Plus. 

"Dr. Cohen opined Leelu “is not rational or coherent in conversation, she cannot express herself such that others can understand her meaning, and she misperceives, or cannot comprehend what others are saying to her. She is confused and misinformed about her legal case, and gets facts intertwined with her delusions.” For example, Leelu “insists that her attorney is ‘The Senior Minister of the Interior,’ from Canada, and he would be defending her except he lost his Canadian driver’s license, and must return home to get a replacement.” Dr. Cohen observed Leelu “spoke in a rapid, pressured manner. . . . Much of her speech was repetitious, involving favored paranoid themes of individuals, government and religious organizations planning to harm her, the police harassing her, and her ability to discern ‘hidden’ meanings and messages that escaped the notice of everyone else. She was almost never able to speak in a manner that was rational, coherent, or logical. For example, when asked how she remembers things that may be important to her in the future, she replied, ‘I have a diamond ring with an iPad inside it.’”

And now you see why the Court of Appeal holds that the failure to appoint a second expert was harmless.  'Cause we sort of know how that second one would have come out.

Though I'd have loved to check out that alleged "diamond ring with an iPad inside it."  Sounds cool.

People v. Beck & Cruz (Cal. Supreme Ct. - Dec. 2, 2019)

Imagine that someone asked you to write a book.  An entire book.  How easy would that be?

Now imagine that the person told you that nothing you said in the book would matter.  Plus, as a bonus, you'd be discussing events that occurred 30 years ago, and that currently concern very few people.  How excited would you be to take on such a task?

I ask this after spending quite a bit of time -- trust me, quite a bit -- reading this opinion from earlier today. Which spans 185 pages.  Which affirms the convictions and sentences for a 1990 murder in which several people were sentenced to death but in which the probability of these defendants actually being executed is essentially nil.

Do you want to do a good job on the opinion?  I'm sure you do.  There are lives at least allegedly at stake, and these are serious crimes.  Nonetheless, I suspect that as you're writing the opinion and hit pages 100 or 120, you start to just want it done and over with.  If only because, as a practical matter, none of this will make much of a difference in the end.  The defendants will die in prison, a natural death, either way.

But read the entire thing if you'd like.  It's a unanimous opinion, and a horrible crime to be sure.

From 1990.  In which the defendant's fate is already set.

People v. Lopez (Cal. Supreme Ct. - Nov. 25, 2019)

Justice Kruger writes a pretty good introduction to this opinion, which overrules precedent and explains why.  She writes:

"Acting on an anonymous tip about a motorist’s erratic driving, a police officer approached defendant Maria Elena Lopez after she parked and exited her car. When the officer asked if she had a driver’s license, she said she did not. Police then detained her for unlicensed driving and, without asking her name, searched the car for Lopez’s personal identification. They found methamphetamine in a purse sitting on the front passenger’s seat.

The trial court held the search was invalid under Arizona v. Gant (2009) 556 U.S. 332 (Gant), which narrowed the scope of permissible warrantless vehicle searches incident to a driver’s arrest. The Court of Appeal reversed. It held that the search was authorized under this court’s pre-Gant decision in In re Arturo D. (2002) 27 Cal.4th 60 (Arturo D.), which allowed police to conduct warrantless vehicle searches for personal identification documents at traffic stops when the driver failed to provide a license or other personal identification upon request.

We granted review to consider the application and continuing validity of the Arturo D. rule in light of subsequent legal developments. At the time Arturo D. was decided, no other state or federal court had recognized an exception to the Fourth Amendment’s warrant requirement for suspicionless traffic-stop vehicle searches. The same holds true today; California remains the only state to have recognized such an exception. Considering the issue in light of more recent decisions from both the United States Supreme Court and our sister states, we now conclude that the desire to obtain a driver’s identification following a traffic stop does not constitute an independent, categorical exception to the Fourth Amendment’s warrant requirement. To the extent Arturo D. held otherwise, we conclude that rule should no longer be followed. We reverse the judgment of the Court of Appeal and remand for further proceedings."

Not surprisingly, the decision is not unanimous.  It's instead a 4-3.  The dissent is authored by Justice Chin, which isn't surprising, since he was in the majority in Arturo D.  Alongside Justice Chin in the dissent are Chief Justice Cantil-Sakauye and Justice Corrigan; again, about what you'd expect.

But it's a new California Supreme Court.  It's not just that Gant came along in 2009; a case that itself departed from precedent.  It's also that the composition of the California Supreme Court is different -- more left-leaning -- than it was 17 years ago.  Which in part explains this opinion.

Though not entirely.  This is how the dissent ended in Arturo D. back in 2002.  Bear with me, as it's a little long:

"Who among us can ever forget the horrendous events of September 11, 2001, when our nation suffered the most destructive terrorist assault in our history? As this opinion is being written, our nation is undergoing a painful recovery from the devastating physical and psychological effects of that day. One part of this recovery process has been an effort to devise and implement more effective methods of law enforcement to protect the security of our citizens and our institutions. Another and equally important part of this process must be a rediscovery of and rededication to the principles upon which our nation was founded and which have made it a true beacon of liberty throughout the world.

One principle, so basic to our personal liberty, is the prohibition that the Fourth Amendment to the United States Constitution places on unreasonable searches and seizures. In determining whether a search is "unreasonable," a court must adhere to the decisions of the United States Supreme Court articulating the meaning of that word in a similar case. Virtually identical to the two cases here is the high court's unanimous decision in Knowles v. Iowa. [Cite] There, the court held that when a police officer has stopped a motorist for a routine traffic violation, and the officer has not arrested the motorist, the officer may not rummage through the vehicle.

Today's majority decision does nothing to enhance our security and does much to erode our Fourth Amendment rights. Under California law, an officer making a routine stop for a traffic violation may arrest a motorist who fails to produce proof of identity and, within the limitations of the Fourth Amendment, may search the vehicle incident to the arrest. Given this ability, there is no justification for the warrantless, nonconsensual search of a car's interior when the officer has made no arrest and the officer lacks probable cause to believe that the car contains contraband. In announcing a blanket rule authorizing such searches, the majority disregards the high court's decision in Knowles and chips away at one of the fundamental freedoms guaranteed by our federal Constitution."

Sure, that dissent was written by Justice Kennard.  But it was also joined by Justice Brown.  So it's not completely a left-right issue.  There's definite room for concern on both sides of the aisle.

People v. Wilson (Cal. Ct. App. - Nov. 20, 2019)

I'm usually pretty confident that what I say is right.  At least in my own mind.  (Others, obviously, may disagree.)  But when I'm not confident, I'm happy to say so.

So when I read this opinion, I definitely had a thought.  A thought that I think is right.  But I'm not a hundred percent sure.  Hence the caveat.

But if I am right, the Court of Appeal gets this one wrong.

Here's the deal:

The defendant in a criminal case makes a request to represent himself.  The trial court denies it on the ground that the request was equivocal (e.g., uncertain/conditional).  Defendant appeals.

On review, the Court of Appeal concludes that the trial court was wrong, holding that the request was squarely unequivocal.  So reversal, right?

Wrong.  Because the Court of Appeal thereafter holds that the request was nonetheless untimely, so the trial court properly denied the request -- albeit on the wrong basis.

Okay, we know that the Court of Appeal reviews judgments, not decisions, and thus may affirm on alternative grounds.  That part's clear.  So if, for example, the untimeliness of the request precluded the trial court (jurisdictionally or otherwise) from granting it, it makes total sense to affirm on the alternative timeliness ground.

But, here, the Court of Appeal recognizes (correctly) two different things, both of which to me seem to preclude a decision to affirm on these alternative grounds.

First, the Court of Appeal flatly says that the request here "was not timely," but its support for that proposition is merely citations that the Court of Appeal describes as holding that "a Faretta motion made on the day of trial may be found to be untimely (People v. Frierson (1991) 53 Cal.3d 730, 740, 742), as may one made four days before trial is to begin (People v. Scott (2001) 91 Cal.App.4th 1197, 1205)." (emphasis added).  "May" does not mean "Is".  "May" implies discretion.  As, I imagine, do the holdings referred to by the Court of Appeal.  So, yes, the trial court perhaps could have found the motion untimely.  But it didn't.  Nor, I strongly suspect, was it required to so find.  To put it another way, the trial court could have found the motion timely, even though it was made only a day before the trial.  That's for the trial court to decide.

If something's subject to the discretion of the trial court, and the trial court doesn't exercise that discretion (e.g., because it erroneously fails to do so because it bounces the motion on a different, erroneous, basis), isn't the proper remedy to reverse and remand for the exercise of that discretion?  Not to simply affirm because the trial court could -- but didn't, and was not required to -- exercise its discretion in a particular way?  I would think that's the necessary, and valuable, structure of appellate review.  Otherwise you're depriving the trial court (as well as the parties) of its discretion.  As well as getting it wrong.  Since, for example, the trial court here might well have been thinking:  "I will deny the motion because it's equivocal, but had it been unequivocal, I'd have found it totally timely and would have granted it, holding (correctly) that a day before trial is enough time."  Something that a straightforward decision to affirm (like here) precludes.

The second problem is related to the first, though I think it's independent as well.  The Court of Appeal notes that even had the request been untimely (and, as noted above, a trial court may have perhaps properly concluded otherwise), even "an untimely Faretta request requires consideration of the quality of counsel’s representation, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion" -- things that (again) the trial court does, in the exercise of its discretion, not the Court of Appeal.  The Court of Appeal decides, again, that the trial court could have evaluated these factors to support the denial of the Faretta request, and (persuasively) explains why.  But I have no doubt that the trial court could also have evaluated these same factors and (properly and persuasively) come to the conclusion that they support the grant of the untimely Faretta request instead.

That's what we mean by -- and is often the case with -- "discretion".  One can go either way.

And if the trial court can go either way, then it's for the trial court to decide which way to go.  Not for the Court of Appeal to decide to take that option away -- to obviate this discretion -- by affirming on a basis that the trial court may well have rejected.

So, yeah, we review judgments, not reasons.  But I think we routinely reverse and remand for the exercise of the trial court's discretion, especially when (as here) the trial court never exercised that discretion because it erroneously decided the case on other grounds.  Seems to me that we should obviously (and correctly) do that here as well, rather than -- as the Court of Appeal does -- simply affirm the decision below.

Now, ultimately, do I think the trial court will come out the same way as the Court of Appeal?  Absolutely.  I have little doubt that the trial court, upon remand, would say "Yeah, I didn't like the request, and had I thought it unequivocal, I would have denied it as untimely anyway."  At which point the ultimate result would be the same.

But being confident -- based on human psychology and intuition -- about a result is one thing, and actually having it be done legally is another.  There's a chance (albeit not a big one) that the trial court would honestly and forthrightly say upon a remand, "You know, had it been unequivocal, in the exercise of my discretion, I'd have granted it."  And if that's the case, then I think we all agree the guy should get a new trial.

So I'm on board for occasionally affirming on alternative grounds.  It sometimes expedites things.

But not when, as here, the trial court's discretion on those alternative, unaddressed grounds can go either way.

And I think that's the right result not only normatively, but even under existing precedent.

Patterson v. Padilla (Cal. Supreme Ct. - Nov. 21, 2019)

I don't think it's very surprising that the California Supreme Court struck down today the challenged provisions of the Presidential Tax Transparency and Accountability Act (Elec. Code, § 6880 et seq.), which prohibit the Secretary of State from printing on a primary election ballot the name of a candidate for President of the United States who has not filed with the Secretary of State the candidate’s federal income tax returns for the five most recent taxable years.  The language of the California Constitution in that regard (article II, section 5(c)) are nontrivially to the contrary.  So you've got a unanimous decision today that largely reads as one would expect.  Nor is it surprising that the opinion's author is Chief Justice Cantil-Sakauye.  That too is as it should be.

But it is interesting to see Judge Cuellar's concurrence.  He's the only person who writes separately.  And he does so to highlight why, in his view, it makes eminent sense to have presidential candidates reveal their tax returns -- and for the electorate to require as much.  All of this notwithstanding the holding in which he joins.

All good stuff.

People v. Lopez (Cal. Ct. App. - Nov. 20, 2019)

A guy is a heroin user, and to support his habit, a relatively low-level seller of the stuff.  He's high on heroin himself when he gets caught with 35.9 grams of the stuff -- around 0.08 of a pound.  That stuff is contained in 24 separate bindles.  He's also got some money on him: three $20 bills, three $10 bills, and 11 $1 bills.  That'll give you a sense of what type of heroin dealer he is.

He's sentenced to 17 years, 8 months in prison.

Clearly, people should not sell (or use) heroin.  Of that I have little doubt.

Though I wonder what history will say about locking people up for nearly twenty years for this type of stuff.  Or even, after the Court of Appeal's partial reversal, a decade-plus.  There's some solace, to be sure, that one (potentially) gets time off for good behavior, at least on the state side.  But there's an underlying problem here.  One for which we're not even approaching a solution.

So we use potentially lengthy periods of incarceration.  Someone less lengthy than we imposed in the recent past.  But still lengthy.  Without, I suspect, much of a resulting dint in the underlying trade.  As a plethora of heroin users are going to sell the stuff, if necessary, to pay for their habit.  As sure as the sun rises in the morning and sets in the evening.  Regardless of the length of their potential imprisonment.

And there are always others to take their place after any particular user/dealer is put on ice.

The nature of the trade.

Vega-Anguiano v. Barr (9th Cir. - Nov. 19, 2019)

I'm on the sixth page of the Ninth Circuit's only published opinion today, reading along with dense text.  Yet I'm not even past the official "Summary" yet.  The actual opinion hasn't even started.

It's a super tiny caption.  But the "Summary" is incredibly long.

In part, that's a result of there being (1) a majority opinion, (2) a concurrence, and (3) a dissent.  You want to summarize all of these.  I get it.

But still.  The actual (three) opinions are less than 20 pages.  total.  A "summary" that takes up 5 pages could probably be a bit more concise.

Silbaugh v. Chao (9th Cir. - Nov. 14, 2019)

Now here's a neat little case.  Especially if you're (like me) a professor who teaches civil procedure.

It's a relation back case under Rule 15; in particular, against the United States.  You get relation back (for statute of limitations purposes) against the government under Rule 15(c) under if you've made a mistake in naming the correct party -- e.g., here, you named your supervisor as the defendant instead of the formal head of the relevant executive agency (here, the Secretary of Transportation) -- but then later correct that mistake and the U.S. knew within 90 days that you made that mistake because you delivered "process" on the Attorney General or relevant U.S. agency.

The question in this case is:  What does the Rule mean by "process?"

Truthfully, it's got a totally straightforward meaning.  By "process" we mean the summons and complaint.  The documents that you use to commence a lawsuit.

Which is precisely what the plaintiff here did.  She served a copy of the summons and complaint on both the U.S. Attorney as well as on the Attorney General.  End of story, right?

Not quite.

Because the copy of the summons here was not signed by the court clerk.  Which it normally has to be in order to constitute proper service; e.g., to require the defendant to respond to the complaint under penalty of default.

So does an unsigned copy of the summons (plus the complaint) count as "process?"

Under the normal service of process rules, the answer would clearly be "no."  It doesn't count as "process" -- or, more accurately, it doesn't count as valid process.  It wouldn't be sufficient to permit the court to exercise jurisdiction or to award a default judgment.

Which is why, intuitively, you might think that "process" is defined in the rule as a summons that's signed by the clerk plus a complete copy of the complaint.  And, if the rule was defined that way, the U.S. would be right, and there'd be no relation back here.

But you'll look at the FRCP in vain for such a definition.  It just uses the word process.  Repeatedly, to be sure.  But it doesn't define it.

Which leaves it open for Judge Watford to hold as he does here.  The U.S. was indeed served with "process," he says, because it definitely received a summons and the complaint.  Which means that the purpose of Rule 15 was satisfied; it knew full well that it had been served, albeit that a mistake had been made in the formal naming of the defendant.  Hence there's relation back.  Since Rule 15(c) does not say there has to be service of "valid" process to get relation back, the point of relation back is to ensure notice (which there was), and we strongly prefer adjudications on the merits rather than hypertechnical procedural dismissals.  So held.

All of which seems right to me.

I'll add one other point in this regard that Judge Watford's opinion doesn't mention.  Not only do I not see a formal definition of process as including a signed summons, but there are other provisions in the FRCP that suggest that the rules are fully capable of requiring process to be "valid" when they so require.  For example, in Rule B (governing attachment), paragraph (2)(a) says that a court may not order garnishment or attachment unless "the complaint, summons, and process of attachment or garnishment have been served on the defendant in a manner authorized by Rule 4."  So if process wasn't served in this manner (e.g., the summons wasn't signed), it'd be invalid, because the rule says so.  Yet Rule 15(c) doesn't do the same thing.

In any event, I think that Judge Watford rightly interprets the rule here to be consistent with its obvious (and salutary) purpose.  We give relation back when there was notice.  Here, there was notice.  Yes, we're a bit nit-picky when the United States is concerned, and, yes, the United States has promulgated rules that are very much in favor of . . . surprise, surprise . . . the United States.  But the rule here just says process, and that means and summons and complaint, and that's indeed what the U.S. got.  That it wasn't signed isn't part of the rule.  Even though that's what you might ordinarily think "process" means as applied to other rules with slightly different purposes.

Fair enough.

Altera Corp. v. CIR (9th Cir. - Nov. 12, 2019)

Today's an unusual day indeed.

The Ninth Circuit publishes this today.  It's a dissent from the refusal to take a case en banc.  Nothing totally unusual about that, right?

Except it's a tax case.  Not the usual subject of an en banc call.  And not even a tax case that affects a huge number of "regular" people:  It's about a Ninth Circuit opinion last year that upheld a Tax Court ruling that related entities must share the cost of their employee stock compensation.  Yet that opinion sees a huge volume of amici and a spirited dissent for the refusal to hear the case en banc.  Not your usual degree of attention to a tax opinion.

The opinion is unusual is one other way as well:  the huge number of recusals.  How many?  Not one.  Not two.  Not three.

Ten different Ninth Circuit judges recuse themselves from the en banc call:  Judges McKeown, Wardlaw, Bybee, Bea, Watford, Owens, Friedland, Miller, Collins, and Lee.

So it's an opinion that may affect at least a nontrivial number of people in a particular socioeconomic group.  Including but not limited to Ninth Circuit judges.

People v. Chubbuck (Cal. Ct. App. - Nov. 12, 2019)

Defendant was convicted of unlawfully taking a motor vehicle, but it's not your usual stolen car case. Indeed, I'm not even sure what the defendant was trying to do.  He breaks into a storage yard at 4 a.m. and then starts driving -- inside the storage yard -- a vehicle that's typically used to move storage containers, and does so for 15 minutes or so.  The owner of the storage yard and the police then arrive and arrest him.

What was he trying to do?  Steal a storage container?  If so, he was remarkably bad at it, and didn't even seem to try.  Just joyride in the storage facility?  Weird.  And hardly worth the seven years in prison he received.

So not your usual stolen vehicle case.

And not your usual name, either.  The defendant's first name is "Jhyy."  Last name:  Chubbuck.  The opinion even contains a footnote (the first one) about the defendant's name, which was apparently erroneously entered on the abstract of judgment.  Definitely a unique first name, and one I have not seen before.

Board of Trustees v. Chambers (9th Cir. - Nov. 7, 2019)

The Ninth Circuit has only published a couple of opinions in all of November, but the opinion today is a memorable one, if only for its brevity.  The split panel opinion (a year ago) was 64 single-spaced pages, and waxed poetically about whether the voluntary cessation doctrine of mootness applied to cases in which the government lost a lawsuit, repealed the relevant statute, and refused to promise that it wouldn't reenact the thing.

But you'll be hard-pressed to find a shorter en banc opinion than the one issued today, which resolves the dispute (1) unanimously, and (2) in well under a dozen pages.  (Indeed, a full half of the opinion consists entirety of the caption and list of lawyers and amici.)  The en banc court says, basically, that other circuits have found that mootness applies in situations like these, so we're going to join them. Notwithstanding the contrary view of the majority in the panel decision we're reversing.

So short.  And (relatively) speedy.  Though I'll note that it still took the en banc court nearly five months two write its five-and-a-half pages of text.

People v. Martin (Cal. Ct. App. - Nov. 5, 2019)

There's nothing published by the Ninth Circuit or the California appellate courts today.  So I took a brief look at this opinion.  If only because the defendant's name (like mine) was "Martin."

And it's a somewhat weird one.  At least for a relatively unsophisticated reader like myself.  The defendant is a 22-year old who stole a car in Florida, drove it to California, and then led police on a high-speed chase before ditching the vehicle and being caught.  He's got a bit of a criminal history in Florida, but it seems like he's not totally irredeemable.  And does some fairly strange things when he's caught by the police.  (For example, from the opinion:  "Another officer subsequently located defendant walking on Needles Highway, waving his arms as cars passed by, as if he was trying to flag one down. As the officer approached him, defendant lay down on the ground. The officer pulled his patrol car over and got out. Defendant yelled to him, 'Please place me in handcuffs before your partners get here.' He was breathing heavily and asked if he could sit in the patrol car."  Not exactly how most police chases end.)

But okay.  He's convicted of felony evading the police, and it's time for him to be sentenced.  The court thinks that the chase wasn't all that long (two minutes), and Mr. Martin's criminal history isn't all that egregious, so it says that it's going to sentence Mr. Martin to probation.  But the court also says it's a little bit concerned for Mr. Martin's welfare since he doesn't have any family or friends in California (having just gotten here in his stolen car), so orders a recess for Mr. Martin to talk with his counsel to figure out what the most beneficial probation arrangements would be.  Maybe transfer the case (or probation) to Florida?  Something like that.

Here's the part I don't totally understand.  After the recess, Mr. Martin and his counsel come back, and they say that Mr. Martin would just rather be sentenced to prison than receive probation.  The trial court says (essentially), "Really?"  But, yeah, that's what Mr. Martin wants.  To the trial court sentences him to the low end of the imprisonment range.  Which is still 16 months in prison.

Why would someone want to be incarcerated rather than go on probation?  Seems like a no-brainer that the former is worse than the latter.  Strange, eh?

Though I can think of two possible explanations for Mr. Martin's choice.

First, he might think that he'll violate probation anyway.  In which case, yeah, get it over with.

Second, he might think (perhaps combined with the prior explanation) that given his time already served, the ultimate prison sentence won't matter much anyway.  The opinion mentions as an aside that Martin got credit for 256 days of prior jail time.  With a sentence of 16 months, with time off for good behavior, maybe those 256 days of credits means he's not looking at much additional time in actual prison anyway.  Better that, one might perhaps think, than an extended period of probation.

So an interesting choice.  By an interesting guy, Mr. Martin.

U.S. v. Norris (9th Cir. - Nov. 4, 2019)

This seems right to me.  As well as pretty darn good police work.

Someone's sharing child pornography.  The police look up the IP address and discover that it's coming from a router in Apartment 242, and the police obtain a search warrant for that address.

Except that when they execute the warrant, they discover that there's not child porn on the computer there.  So where's the child porn coming from?  They download the access data from the router in that apartment and discover that someone else's computer has been access this router -- notwithstanding the fact that the router is password-protected.  Surprise!

Which is a pretty good move by the child pornographer at issue.  You're worried that the police might figure out it's you if you use peer-to-peer sharing over your own internet connection.  So you use the connection of someone else.  Someone innocent to cover your tracks.

So the police are stymied, but not for long.  They subsequently start using an open-source software program that's aptly named "Moocherhunter" to find out who's been using the router in Apartment 242.  They use a directional antenna and find out that the signal of the computer that's accessing the router in Apartment 242 is much stronger when it's pointed at . . . Apartment 243.

So the police then obtain a search warrant for Apartment 243.  And, lo and behold, they find two computers there that have indeed accessed the router in Apartment 242 and that contain kiddie porn.

Hence the arrest and conviction.

The defendant appeals, saying that the "search" using the Moocherhunter software violated the Fourth Amendment.  But the Ninth Circuit disagrees.  Which seems right.  If you're pumping out electronic transmissions from your computer to pimp your neighbor's password-protected internet connection without his consent, it's not impermissible for the police (or anyone else) to investigate where those transmissions are coming from.  You shouldn't be grabbing their internet in the first place, and your transmissions are in any event public and it's okay for someone else (including but not limited to the police) to point software in your direction to figure out where those transmissions are coming from.

Makes sense to me.  As well as to Judge Rawlinson and the rest of the panel.

AAAJ-LA v. Padilla (Cal. Ct. App. - Nov. 4, 2019)

There's a fight about the degree to which Section 14201 of the Elections Code requires the California Secretary of State to post facsimile ballot materials in languages other than English.  The Court of Appeal resolves that fight.  A resolution in which both sides in a little bit.

What was most interesting to me was to see the list of what languages we're fighting about; in particular, what languages have "minority language groups" that constitute three percent or more of a precinct's population.

Some of the candidates are obvious:  Spanish, Chinese, Mandarin, Korean, Vietnamese, etc.  Some are much less so.

Which of the following language(s) do you think do not have a precinct in California in which three percent or more of the population primarily speaks the relevant language:

(A) Tagalog;
(B)  Formosan;
(C)  Ilocano;
(D)  Khmer.

Answer:  We've got precincts for all of these.  To be honest, I had never even heard of (C), and had to look it up.  More proof that you can learn something new every day.

O'Grady v. Merchant Exchange Productions (Cal. Ct. App. - Oct. 31, 2019)

If you're a company and you add a mandatory "service charge" to the bill, does that constitute a "gratuity" (i.e., tip) that has to be shared only with the relevant service people?

The Court of Appeal says:  "Maybe."

When I first thought about it, that answer didn't seem particularly compelling.  But the more I thought about it, the more it seems to me that the Court of Appeal's answer is correct.

I could imagine lots of "service charges" that fairly clearly aren't gratuities (at least to me).  Even if they're invoked in the traditional food and beverage industries.  For example, say a business added a $3.00 "service charge" for room service, and had a separate category on the bill for a tip.  To me, that charge is fairly clearly not a gratuity.

By contrast, imagine that the hotel adds an 18% "service charge" on to room service bills, and does not include a line for tips.  Well, to me, I'd almost certainly think that's going to the server.  That's a gratuity to me.

I can imagine a million different types of variations.  Here, it's a 21% service charge imposed by a banquet facility.  Well, it's close to 15 and 18 percent, which is the typical "tip" amount.  But it's not exact.  And it's on banquet stuff, which is not a totally mainstream tipping area.  So I could see someone going either way.

Which is what the Court of Appeal is basically saying.  It depends on the fact.  There's no categorical rule.  Sometimes "service charges" are tips.  Sometimes they're not.  Depends on a ton of things.

Not a bright-line rule, so it'll have some transaction costs and uncertainty.  But still the right rule.

Hodges v. County of Placer (Cal. Ct. App. - Oct. 29, 2019)

I get it, Court of Appeal.  I really do.  You're saying that just because the County put the money that belonged to the plaintiff into a "trust" account doesn't mean that there was actually a "trust" (e.g., fiduciary) relationship between the parties.  Just like -- as you say -- "a panda is not a true bear."

But doesn't the partial injustice of the present case nonetheless bother you?  At least just a little?

The plaintiff owes some property taxes on his residential property, and (for whatever reason) doesn't pay them.  Fair enough.  The County of Placer will -- and does -- conduct a tax sale, and sell the thing out from under you.  That's the way we enforce your obligation to pay taxes.  Doesn't bother me in the slightest.

But the value of the property is way greater than the value of the taxes.  Which, again, doesn't bother me.  But it does mean that there's a ton of excess money.  The County sells the property for $530,000.  The overdue taxes, including all penalties etc., consists of less than a tenth of that:  approximately $37,000.  Then the County inexplicably keeps another $45,300 that, as the Court of Appeal explains, "went to other charges and expenses which the County did not explain."

And, in the end, after keeping the money for nearly two full years, the County gives the plaintiff the balance of what it thinks it owes him:  $437,096.16.  But doesn't pay a penny of interest on the nearly half a million dollars of plaintiff's money that the County has held on his behalf for the 18+ months in the meantime.  (Parenthetically, the Court of Appeal doesn't mention this, but on the other side, if you are even a single day late in paying your property taxes, the County instantly charges you interest of 10% on the entire balance.  Sounds fair and equitable, right?)

The County held that half million dollars for a ton of time.  It got value for that.  It earned interest, didn't have to float bonds, etc.  It demonstrably got a benefit.  And, reciprocally, the plaintiff incurred financial harm in not getting that money earlier.  Time value of money and all.  A fairly important (and basic) concept.

Why shouldn't the County be forced to pay at least a little bit of interest?  Why, during the time it kept this money, wasn't the County at least a little bit in a fiduciary relationship with the plaintiff?

It's bad enough to take over $45,000 of the plaintiff's money for "charges and expenses which the County did not explain."  It adds insult (and injury) to injury to pile on by not paying even a single penny of interest on the nearly half million dollars of someone else's money you've kept (to your demonstrable benefit) for nearly two years.

Yes, sometimes a "trust" account isn't really indicative of having a "trust"-like relationship with another party.  But sometimes that "trust" account, alongside the facts and equities of the underlying relationship, does impose at least some obligation of trust and fidelity.  Or at least should.

And not paying even a single dollar of interest here would, to me, seem to qualify as an inequitable and unjust result.  For which we could -- but the Court of Appeal does not -- provide a remedy.

My take, anyway.  FWIW.

Denham v. City of Richmond (Cal. Ct. App. - Oct. 25, 2019)

This makes sense to me.  Times two.

The general plan of a City allows future residential development of various hillside locations.  But the residents of that City decide that this would be unattractive.  So they propose and adopt an initiative that (generally speaking) stops residential development in this area, and leaves it agricultural and (in essence) attractive.

So far so good.  The people have that right.  (Assuming it's not a taking, etc.)

Here's the problem:

The initiative's a messy one.  It's not perfectly written.  As one might expect with citizen-initiated proposals, which don't go through the same type of substantive legal review as measures adopted by the City pursuant to its usual (byzantine) planning process.

So while the initiative is clear in a the overwhelming majority of its respects, it accidentally failed to amend various other provisions of the City's general plan in which the hillsides at issue were listed as amendable to residential development.  It just forgot about (or overlooked) these.

Which in turn means that, after the adoption of the initiative, the City's laws were internally inconsistent.  One big chunk of them (added by the initiative) said you can't build houses on the hillside.  But a residual chunk of them -- which predate the initiative, but were unamended by it -- say that you can build houses on the hillside.

So what to do?

The trial court says that the internal inconsistency means that the initiative is void, so it falls.  But the Court of Appeal disagrees.  There's not much precedent precisely on point, since these sorts of things (thankfully) don't happen all the time.  But in a creative and, I think, common sense opinion, Justice Tucher writes an opinion that remands and that directs the City to resolve the inconsistency.  One way or the other.

But how can you do that?  After all, the initiative was adopted by the people.  The municipality can't amend it.  So how can the City even attempt to do what the Court of Appeal has ordered it to do -- or at least do so short of simply capitulating to the initiative and repealing the inconsistent preexisting provisions of the general plan?

Good point.  But the Court of Appeal has an answer.  It says that, if it chooses, the City might elect to submit another proposed initiative to its residents that resolves the existing inconsistency.  And if the residents vote in favor, boom, problem resolved.

Which is true.  Mind you, that sort of gives the opponents of the initiative "two bites at the apple" in opposing the restriction on hillside development; first, when the initiative was initially proposed (and ultimately adopted), and second, when this new City-sponsored initiative comes out.  So that's a little unfair.  But, truthfully, that's the fault of the people who wrote the initiative.  Write a better one next time that doesn't forget to amend other inconsistent parts of the City's plan and you won't have such a problem.  One, essentially, of your own creation.

What the Court of Appeal leaves unstated, of course, is what happens if the City proposes such a "rectifying" initiative and it fails to pass.  But the answer is nonetheless fairly clear.  At that point, the City will pretty much be compelled to repeal the inconsistent provisions of the City's pre-initiative(s) plan.  Essentially letting the initiative prevail over the inconsistency.

Which makes sense.  The people voted.  Sure, the authors of the thing screwed up a bit.  But the intent of the thing was clear.  Unless the people decide something different (by adopting a new initiative), their obvious desire to prevent hillside development should prevail.  And the City should get rid of the inconsistent provisions of its existing Code.

A sensible and equitable result.  Regardless, IMHO, of whether you're for or against the residential development of hillsides.  There's a mode of rational legal analysis that's independent of results.  And it's properly and acutely displayed here.  I suspect the Court of Appeal would have done the exact same thing if the initiative would have inconsistently opened up (rather than closed) the hillside to residential development.

And entirely properly so.

State of California v. Little Sisters of the Poor (9th Cir. - Oct. 22, 2019)

No published opinions from either the Ninth Circuit or the California appellate courts (thus far) today.  So I'll go ahead and mention another case from yesterday.  This one.

You know it's a big ticket appeal when the caption page and list of counsel and amici spans the first thirteen (single-spaced) pages of the opinion.  And big ticket it is.  As the opening paragraph of the majority opinion accurately states the issue:

"The Affordable Care Act (ACA) and the regulations implementing it require group health plans to cover contraceptive care without cost sharing. Federal agencies issued final rules exempting employers with religious and moral objections from this requirement. The district court issued a preliminary injunction barring the enforcement of the rules in several states. We have jurisdiction under 28 U.S.C. § 1292, and we affirm."

Perhaps that's not a surprising result.  Particularly -- according to some -- from the "liberal" Ninth Circuit.

But, in that regard, let me point out that the author of the majority opinion is . . . Judge Wallace.  A jurist who's about as far from a "snowflake liberal" as you can get.

So a long opinion upholding part of the ACA and striking down an attempt to roll it back.  A high-profile opinion with a ton of interest.

People v. R.C. (Cal. Ct. App. - Oct. 22, 2019)

Justice Yegan begins this opinion by saying:

"An attempt to commit armed robbery is extremely dangerous. Appellant is lucky he was not shot to death by the store clerk who resisted his attempt to commit this offense. He would not have been the first attempted robbery culprit to meet this fate."

I'll add that such would have been a particularly tragic result because the appellant (1) is a 14-year old child; (2) who attempted to rob a 7-11 with a BB gun.  Fortunately, all that happened was that appellant was arrested and placed on probation.

It's also a neat little appeal because it's one that's basically based on a law review article:  Northrop & Rosen's piece entitled “Kids Will be Kids: Time for a ‘Reasonable Child’ Standard for the Proof of Objective Mens Rea Elements.” (69 Me. L.Rev. 109 (2017)).  Appellant's counsel takes that academic argument and turns it into a concrete legal one.

But the Court of Appeal says that you can lead an appellate tribunal to water, but you can't make it drink.  The law review article says:  “Based on the goals of the juvenile system, significant advances in adolescent development research and recent Supreme Court holdings on juvenile culpability, we argue here that the juvenile code should be amended to explicitly refer to a reasonable child standard for any mens rea element that relies on a reasonable person as the measure for criminal culpability.” The Court of Appeal responds:  "No, thanks."

So there you have it.