When I write first drafts of briefs, articles, etc., I almost invariably use italics for particular words or phrases that I want to emphasize. Not many bolds (and no exclamation marks), but italics, yeah. I do that.
But when I get to second and third drafts, I try to take most of them out. Not all of them. But most of them. Because, yes, I felt strongly about 'em at the time, and thought they helped the reader to understand the point (and the emphasis). But usually, they're more distracting than helpful. So at least in academic and advocacy pieces, I try to use emphases somewhat sparingly. On the theory that readers generally don't appreciate them nearly as much as I do.
But maybe I'd do something differently for Justice Gilbert.
There are a lot of italics in this opinion. At lot of words and phrases that get emphases. Pretty much one or two every page.
They don't bother me at all. In fact, I think they help identify his point. I concede that they may make the opinion read a bit more, say, aggressive than a mere neutral explication of legal principles. But that's okay. At least for me.
Maybe Justice Gilbert prefers writing italics to reading them, in which case I should keep to my usual practice.
But I can honestly say that I was struck by how many words and phrases were italicized in this opinion. Not what you usually read.
Thursday, February 27, 2020
Wednesday, February 26, 2020
Wilkin v. Nelson (Cal. Ct. App. - Feb. 26, 2020)
Wife goes to an attorney to get a trust in which to place a piece of her separate marital property, but leaves with a trust that (apparently accidentally) puts all of her property into trust. After her death, her husband seeks to reform the instrument, and the trial court elects to do so, finding clear and convincing evidence that the document didn't reflect the decedent's actual intent. The Court of Appeal affirms.
All good. Right as it should be.
But the thing about the opinion that has me a bit concerned is the paragraph at the bottom of page 9. That portion of the opinion reads:
"The interpretation of a will presents a question of law for our independent review when there is no conflict or question of credibility in the relevant extrinsic evidence. [Cites] To the extent the probate court’s decision rests on its findings of fact, however, those findings are reviewed for substantial evidence. [Cites] The clear and convincing standard, however, “applies only at the trial level. On appeal, it is assumed that the trial court applied the proper standard and the judgment will not be upset if there is substantial evidence to support it.” (Shupe v. Nelson (1967) 254 Cal.App.2d 693, 700; see Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)"
Now, personally, I think that's correct. It's exactly what the cases that Justice Perren cites indeed hold. As well as what Witkin says is the law of California with respect to appellate review. A trial court's factual decision is reviewed on appeal for substantial evidence, which is what the Court of Appeal here does.
But the lingering problem is that not everyone agrees. The California Supreme Court is currently reviewing this precise issue. As that tribunal describes that pending case:
"Conservatorship of O.B., S254938. (B290805; 32 Cal.App.5th 626; Santa Barbara County Superior Court; 17PR00325.) Petition for review after the Court of Appeal affirmed the judgment in a conservatorship proceeding. The court limited review to the following issue: On appellate review in a conservatorship proceeding of a trial court order that must be based on clear and convincing evidence, is the reviewing court simply required to find substantial evidence to support the trial court’s order or must it find substantial evidence from which the trial court could have made the necessary findings based on clear and convincing evidence?"
There's a decent argument that if the California Supreme Court decides that case the other way, then the Court of Appeal's decision here would need to be reversed and remanded. Because if the Court decides that the clear and convincing evidence standard does not, in fact, disappear on appeal, then the Court of Appeal's decision to eliminate it here was wrong, so as presently structured, we'll have to do the whole thing over again on remand.
And I say that because I'm extremely confident that the remand wouldn't matter in the slightest; that the Court of Appeal would come out the exact same way even if it reviewed for clear and convincing evidence on appeal. We'd just waste more time and add yet more attorney's fees to a fairly small will dispute that's already probably sucked up a fair amount of the underlying assets litigating about them.
So given the pendency of Conservatorship of O.B., were I the Court of Appeal, in the interests of justice, I might get ahead of it. And expressly explain that I'd come out the same way even if the California Supreme Court decides to abandon the substantial evidence test and to say that the Court of Appeal has to review for clear and convincing evidence (just like the trial court). That way there will be no need for the parties to seek review, wait to see what the California Supreme Court decides, potentially participate in new proceedings on remand, etc.
No reason not to. It's an extra line that's (1) accurate, and (2) may save the parties as well as the Court of Appeal some time, trouble and effort.
FULL DISCLOSURE - I'm representing the respondent in Conservatorship of O.B. on a pro bono basis, and argue therein for the retention of the standard applied by the Court of Appeal in today's opinion. The content of the Court of Appeal's opinion doesn't affect in the slightest the outcome of Conservatorship of O.B., but no reason not to disclose where my lawyerly sympathies lie here.
All good. Right as it should be.
But the thing about the opinion that has me a bit concerned is the paragraph at the bottom of page 9. That portion of the opinion reads:
"The interpretation of a will presents a question of law for our independent review when there is no conflict or question of credibility in the relevant extrinsic evidence. [Cites] To the extent the probate court’s decision rests on its findings of fact, however, those findings are reviewed for substantial evidence. [Cites] The clear and convincing standard, however, “applies only at the trial level. On appeal, it is assumed that the trial court applied the proper standard and the judgment will not be upset if there is substantial evidence to support it.” (Shupe v. Nelson (1967) 254 Cal.App.2d 693, 700; see Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)"
Now, personally, I think that's correct. It's exactly what the cases that Justice Perren cites indeed hold. As well as what Witkin says is the law of California with respect to appellate review. A trial court's factual decision is reviewed on appeal for substantial evidence, which is what the Court of Appeal here does.
But the lingering problem is that not everyone agrees. The California Supreme Court is currently reviewing this precise issue. As that tribunal describes that pending case:
"Conservatorship of O.B., S254938. (B290805; 32 Cal.App.5th 626; Santa Barbara County Superior Court; 17PR00325.) Petition for review after the Court of Appeal affirmed the judgment in a conservatorship proceeding. The court limited review to the following issue: On appellate review in a conservatorship proceeding of a trial court order that must be based on clear and convincing evidence, is the reviewing court simply required to find substantial evidence to support the trial court’s order or must it find substantial evidence from which the trial court could have made the necessary findings based on clear and convincing evidence?"
There's a decent argument that if the California Supreme Court decides that case the other way, then the Court of Appeal's decision here would need to be reversed and remanded. Because if the Court decides that the clear and convincing evidence standard does not, in fact, disappear on appeal, then the Court of Appeal's decision to eliminate it here was wrong, so as presently structured, we'll have to do the whole thing over again on remand.
And I say that because I'm extremely confident that the remand wouldn't matter in the slightest; that the Court of Appeal would come out the exact same way even if it reviewed for clear and convincing evidence on appeal. We'd just waste more time and add yet more attorney's fees to a fairly small will dispute that's already probably sucked up a fair amount of the underlying assets litigating about them.
So given the pendency of Conservatorship of O.B., were I the Court of Appeal, in the interests of justice, I might get ahead of it. And expressly explain that I'd come out the same way even if the California Supreme Court decides to abandon the substantial evidence test and to say that the Court of Appeal has to review for clear and convincing evidence (just like the trial court). That way there will be no need for the parties to seek review, wait to see what the California Supreme Court decides, potentially participate in new proceedings on remand, etc.
No reason not to. It's an extra line that's (1) accurate, and (2) may save the parties as well as the Court of Appeal some time, trouble and effort.
FULL DISCLOSURE - I'm representing the respondent in Conservatorship of O.B. on a pro bono basis, and argue therein for the retention of the standard applied by the Court of Appeal in today's opinion. The content of the Court of Appeal's opinion doesn't affect in the slightest the outcome of Conservatorship of O.B., but no reason not to disclose where my lawyerly sympathies lie here.
Tuesday, February 25, 2020
In re Brown (Cal. Ct. App. - Feb. 25, 2020)
Read this one while you can. Because it'll soon be in the California Supreme Court and no longer controlling precedent.
The question at issue is whether People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo) is retroactive. Gallardo held that "when determining whether a prior conviction is a serious felony for purposes of increasing a sentence, the trial court is limited to 'those facts that were established by virtue of the conviction itself -- that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.'” In short, you've just got to look at the record of conviction. Nothing else.
The Court of Appeal here held that Gallardo was indeed retroactive, and accordingly granted the defendant's habeas petition. But (1) Justice Menetrez disagreed, and dissented, and (2) back in December, another panel in the Court of Appeal held that Gallardo wasn't retroactive, essentially for the same reasons expressed here by Justice Menetrez. (In re Milton (2019) 42 Cal.App.5th 977, 982)
So there's (1) a split in the panel opinion, (2) and a split in the various Court of Appeal holdings, (3) on an issue that's present in a boatload of cases.
There's exactly a zero chance that the California Supreme Court doesn't grant review. The petition writes itself.
The question at issue is whether People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo) is retroactive. Gallardo held that "when determining whether a prior conviction is a serious felony for purposes of increasing a sentence, the trial court is limited to 'those facts that were established by virtue of the conviction itself -- that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.'” In short, you've just got to look at the record of conviction. Nothing else.
The Court of Appeal here held that Gallardo was indeed retroactive, and accordingly granted the defendant's habeas petition. But (1) Justice Menetrez disagreed, and dissented, and (2) back in December, another panel in the Court of Appeal held that Gallardo wasn't retroactive, essentially for the same reasons expressed here by Justice Menetrez. (In re Milton (2019) 42 Cal.App.5th 977, 982)
So there's (1) a split in the panel opinion, (2) and a split in the various Court of Appeal holdings, (3) on an issue that's present in a boatload of cases.
There's exactly a zero chance that the California Supreme Court doesn't grant review. The petition writes itself.
In re Marriage of Deal (Cal. Ct. App. - Feb. 24, 2020)
No one wants an ex-spouse like this one. Fortunately, he gets declared a vexatious litigant. But he still runs up legal fees and makes things a total hassle for the other side (as well as the judiciary).
Sadly, there's only so much we can do. At least he won't be able to file many future lawsuits. Even though there's little we can do about all the old ones.
Justice Jackson also gives you a little flavor of what this guy's briefs look like. Here's a snippet from his opening brief:
“[D]espite my sincere prayer for relief by
the Court, I am also praying for a higher authority to cause a well
timed avalanche that kills the majority of a certain judges family, or a tree branch that breaks the neck of the young boy in the front yard, or a drunk driver tee bones the right side
door at high speed while the daughter is returning from her
senior prom. Each of these would be, of course, ‘accidents’ and
can cause a great deal of grief, but never cause the misery that
knowledge that the injuries were caused intentionally by a well
connected attorney, [name], his confederates, [names], caused
to me as they harmed my children for their own benefits.”
Yeah. Stuff like that will make the judiciary well-disposed in your favor. Express wishes of physical harm to innocent family members of judges and lawyers on the other side always work well.
I also thought it nice (and appropriate) that Justice Jackson omitted the relevant names of the people to whom Mr. Deal wished harm. Indeed, I wondered whether it wouldn't even be more appropriate to not publish the opinion. Since it's not on a crucial issue of precedent or public concern. And because I'm not so sure I want to give Mr. Deal the publicity (or infamy) that he appears to seek.
Textron, Inc. v. Travelers Casualty & Ins. Co. (Cal. Ct. App. - Feb. 25, 2020)
It's a civil procedure professor's dream. And a law student's nightmare.
Choice of law. Conflict of laws. Collateral and judicial estoppel. All in the context of an insurance coverage dispute:
"This insurance coverage dispute between Appellant Textron Inc. (Textron) and respondent Travelers Casualty and Surety Company (Travelers) raises the issue whether an earlier choice of law ruling in a Rhode Island coverage action between the parties qualifies for collateral and judicial estoppel effect, thus precluding Textron from seeking coverage under California law in the current California coverage action, and leading to the conclusion that Textron’s claim is outside the policy period."
This type of dispute isn't at all why people dream of going to law school and becoming lawyers.
But it successfully repays their loans.
Choice of law. Conflict of laws. Collateral and judicial estoppel. All in the context of an insurance coverage dispute:
"This insurance coverage dispute between Appellant Textron Inc. (Textron) and respondent Travelers Casualty and Surety Company (Travelers) raises the issue whether an earlier choice of law ruling in a Rhode Island coverage action between the parties qualifies for collateral and judicial estoppel effect, thus precluding Textron from seeking coverage under California law in the current California coverage action, and leading to the conclusion that Textron’s claim is outside the policy period."
This type of dispute isn't at all why people dream of going to law school and becoming lawyers.
But it successfully repays their loans.
Monday, February 24, 2020
Ross v. Williams (9th Cir. - Feb. 24, 2020)
You aren't going to get many panels like this on the Ninth Circuit these days.
The outcome falls perfectly on political lines. It's a habeas case, and all the judges appointed by Democratic presidents vote one way whereas all the judges appointed by Republican presidents vote the other way. That isn't all that unusual, though it's not necessarily typical either.
But the panel composition -- and hence the vote -- is the part that's relatively rare.
The Ninth Circuit currently consists of 29 active judges, a slight majority of whom (16) were appointed by Democratic presidents. So in a normal distribution, in an 11-member panel, you'd expect almost exactly 6 Democratic-appointed judges and 5 Republican-appointed judges on your typical en banc panel. (Ignore for the moment the fact that the chief judge is always on the panel and that senior judges who are on the three-judge panel can potentially participate.)
But here, there are 8 Democratic-appointed judges and only 3 Republican-appointed judges. Which in turn results in an 8-3 vote.
Given the current makeup of the Ninth Circuit (again, ignoring chief and senior judge effects), there's only a 13.5 percent probability of there being 3 or fewer Republican appointees on an en banc draw. (Even taking into account that the chief judge is currently a Democratic-appointed judge, the chance of 3 or fewer Republican appointees on the panel is still less than 18.5 percent.) So it's rare to see an en banc panel draw like this one. Pretty darn rare.
And what's even more rare is that there (1) isn't a single Trump appointee on the panel, and that (2) all three of the remaining Bush appointees are on the panel. The chances of that happening are too strange for me to calculate; the probability of drawing all three of the Bush appointees is around three and a half percent, and the chance of doing that plus drawing none of the Trump appointees is pretty much absurdly smaller. As well as getting smaller every day as more Trump appointees come on.
So enjoy today's en banc panel. You're not likely to see something like it any time soon.
Thursday, February 20, 2020
Zehia v. Superior Court (Cal. Ct. App. - Feb. 20, 2020)
This is a great law school hypothetical about the "effects test" and personal jurisdiction. You couldn't make up a better exam question. The answer, by the way, is: "Yes, there is personal jurisdiction here since the defendant is deliberately 'targeting' a California resident."
The only thing that makes it a pain is the facts, which are somewhat unclear on first reading. What I was able to eventually distill is that there's a guy in San Diego (Nicholas Nadhir) who's being set up with a girl in the same city ("S.M.") by the family of each. My sense is that the people at issue are maybe Chaldean, of which there's a fairly substantial community down here. S.M.'s a little nervous about the introduction, and there's a guy in Michigan (Yousef Zehia) who seems like he's not too hot about Nadhir. So there are then some communications between Zahia and S.M. in which the former basically says bad things about Nadhir.
None of which would alone support personal jurisdiction in California, I suspect.
But there are also some anonymous social media contacts with Nadhir (in California) in which the participant seems like he's trying to persuade Nadhir to drop contact with S.M. As well as allegedly fake social media messages, purportedly from Nadhir, which Zahia shows to S.M. as "proof" that Nadhir's a bad guy. Nadhir ends up suing, saying that Zahia is behind all this allegedly fake stuff and is trying to sabotage his reputation and potential relationship with S.M. And there's discovery and the like to try to figure out who really was the perpetrator of these anonymous things, with some evidence suggesting that, yeah, it's Zahia (in Michigan).
So the Court of Appeal says that's enough to create personal jurisdiction.
You'd think that all this wouldn't be big enough to justify a lawsuit. Or a defense. The legal fees for all this have got to far exceed anything that's at all reasonably at stake.
But both sides nonetheless have lawyers. Moreover, it's not just a lawsuit below; today's appeal is the result of a writ petition, which the defendant files and the Court of Appeal considers on the merits (only to eventually deny). So that's very much a nontrivial expense.
All for badmouthing a guy to a girl being set up on a date by her family.
You'd think there would be a way to resolve all this short of expansive (and expensive) litigation.
Guess not.
Wednesday, February 19, 2020
In re Marriage of Grimes and Mou (Cal. Ct. App. - Feb. 19, 2020)
Imagine what a family who lives a middle- to upper-middle class lifestyle looks like. Make sure you account for the fact that we're talking about California, where things are a bit more expensive. To be clear: We're not talking upper class, or top one percent. Just a "middle- to upper-middle class" lifestyle.
How much are they making at work, what car(s) are they driving, etc.?
I ask that because today's divorce appeal is about a couple up in Northern California which says (at page 7 of the opinion) that "the family enjoyed what Grimes described as a middle to upper-middle class lifestyle." And I'm sure that the relevant spouse -- probably, both of them -- thought they lived precisely such a lifestyle.
The underlying facts of this "middle- to upper-middle class lifestyle are that "Grimes was 43 years old and worked as an engineering manager at Google/YouTube. He had been employed at Google/YouTube since November 2006. Grimes earned a base salary of $230,00 per year in 2018, and received Google Stock Units (GSU), the most recent grant of which was worth approximately $200,000 and vested monthly over a four-year period. In addition, Grimes was eligible for a discretionary bonus. From 2011 through 2015, Grimes and Mou had a yearly total gross income of $316,260, $342,294, $447,639, $543,443, and $778,660, respectively."
As for what this money bought: "One child attended private school. The family owned three cars: a Subaru Legacy station wagon purchased new in 2005, a 2002 Lexus purchased around 2008, and a 2012 Porsche 911 purchased in 2013. The family went on vacation regularly during marriage, at a cost of around $5,000 annually. They dined out about once per month, spending about $60 to $70 per meal. At the time of their separation in July 2015, Grimes and Mou were renting a home in Palo Alto. Grimes continued to pay the rent and utilities (a cost of about $5,000 to $5,300 per month) voluntarily for about a year after the separation."
Does your average California "middle- to upper-middle class" family drive a basically new Porche 911 (alongside their two other cars), rent a house at $5,000 per month, have a kid in private school, and earn a minimum of $300,000 a year and up to three quarters of a million dollars a year?
Lots of people think they live (or come from) middle- or upper-middle class backgrounds. This is an example of what that may mean.
How much are they making at work, what car(s) are they driving, etc.?
I ask that because today's divorce appeal is about a couple up in Northern California which says (at page 7 of the opinion) that "the family enjoyed what Grimes described as a middle to upper-middle class lifestyle." And I'm sure that the relevant spouse -- probably, both of them -- thought they lived precisely such a lifestyle.
The underlying facts of this "middle- to upper-middle class lifestyle are that "Grimes was 43 years old and worked as an engineering manager at Google/YouTube. He had been employed at Google/YouTube since November 2006. Grimes earned a base salary of $230,00 per year in 2018, and received Google Stock Units (GSU), the most recent grant of which was worth approximately $200,000 and vested monthly over a four-year period. In addition, Grimes was eligible for a discretionary bonus. From 2011 through 2015, Grimes and Mou had a yearly total gross income of $316,260, $342,294, $447,639, $543,443, and $778,660, respectively."
As for what this money bought: "One child attended private school. The family owned three cars: a Subaru Legacy station wagon purchased new in 2005, a 2002 Lexus purchased around 2008, and a 2012 Porsche 911 purchased in 2013. The family went on vacation regularly during marriage, at a cost of around $5,000 annually. They dined out about once per month, spending about $60 to $70 per meal. At the time of their separation in July 2015, Grimes and Mou were renting a home in Palo Alto. Grimes continued to pay the rent and utilities (a cost of about $5,000 to $5,300 per month) voluntarily for about a year after the separation."
Does your average California "middle- to upper-middle class" family drive a basically new Porche 911 (alongside their two other cars), rent a house at $5,000 per month, have a kid in private school, and earn a minimum of $300,000 a year and up to three quarters of a million dollars a year?
Lots of people think they live (or come from) middle- or upper-middle class backgrounds. This is an example of what that may mean.
Friday, February 14, 2020
Lateef v. City of Madera (Cal. Ct. App. - Feb. 14, 2020)
When is 80 less than 71?
Here.
In the City of Madera, to overturn a recommendation of the Planning Commission, you need a vote of 5/7th of the City Council. That's 71.4 percent.
Why 71 percent? Well, because, in the old days, the City had five council members, and you needed 4 of them to overturn. That's 80 percent. But in 2012, they increased the number of council members to 7. So the closest you can get to 80 percent (with 7) is 71 percent, which gets you to five. So to keep the percentages the same, they said 5/7th. (This is all backed up by clear legislative history.)
So a guy (Junaid Lateef) files an appeal to the City Council, on which there's supposed to be seven members. But one seat is vacant, and one council member has to recuse himself. So that leaves 5. Just like back in the old days.
The vote's taken. Lateef gets 4 votes. Good enough, right? Just like in the old days. 80 percent. Enough to win.
Not according to the trial court. It say that you've got to get 5 of 7. Focusing on the number "5" the trial court says that's not what Lateef got. He got 4. Not 5.
But Lateef says he got 4 of 5. That's 80 percent, which is bigger than 5 of 7 (71.4 percent).
"Sorry, not good enough," the trial court says. Gotta have 5.
And the Court of Appeal affirms. For identical reasons as the trial court.
The part of the ordinance that Justice Snauffer focuses on (beyond the number "5") is the right part, I think. The law reads: "A five-sevenths vote of the whole of the Council shall be required to grant, in whole or in part, any appealed application denied by the Commission.” Sure, the whole background of the thing is the percentage part. Trying to keep it like four-fifths like in the old days.
But there's that phrase: "five-sevenths vote of the whole of the Council." That's the tough part for Mr. Lateef. "The whole" facially appears to mean you've got to have five-sevenths of everyone. And that applies whether they're voting or not. So, sure, you got five-sevenths of the people who voted. But you didn't get five-sevenths of the whole of the Council.
The way Mr. Lateef would read it, it'd mean the same thing as "five-sevenths vote of the Council." The words "the whole of" would be irrelevant. Surplusage. Which is why Justice Snauffer agrees with the trial court and says that Lateef loses.
You can see, textually, why you might come out that way.
But I must say that Mr. Lateef has a darn good argument that I don't think the Court of Appeal comes to grip with. Either persuasively or, truthfully, at all.
Lateef says the same thing that came to my mind when I started reading the case. The ordinance can't possibly mean five-sevenths of the whole, including people who aren't there, without being absurd (or at least being totally irrational). Let's say that three of the seven seats are vacant. Someone's sick, a couple of resignations (like the one actually here), three people recusing themselves (like the one who did so here), whatever. You could imagine a million reasons why you might only have four people on a seven-member council.
Then there'd be a quorum, but no one could ever prevail. Since, under the Court of Appeal's holding, you could never get your five-sevenths, since there aren't five votes. So even if 100% of the City Council agrees with you that the Planning Commission is doing something abjectly stupid, you still lose.
That's an absurdity. And it's a common principle of statutory construction that you don't read statutes in a manner that makes them absurd.
Now, Justice Snauffer responds to that, of course. Saying: "The problem with this approach is that to interpret subsection 10-3.1310(E) as Lateef suggests would require us to rewrite the ordinance in contravention of the city’s expressed intent. We have 'no power to rewrite the [ordinance] so as to make it conform to a presumed intention which is not expressed.' [Cite] For this reason, we cannot rewrite the statute to avoid the other absurd results Lateef claims flow from interpreting the ordinance to require a five-sevenths vote of the seven-member city council."
But, respectfully, that's not a very good answer. You interpret statutes to avoid absurdity. You read the existing words in a way that makes sense. You're not making new words or "rewriting" the text when you do so. That's what judicial interpretation of a statute actually means.
Justice Snauffer's critique would negate the whole point -- indeed, even the existence -- of the "avoid absurdity" doctrine. Every time you interpret a statute to avoid absurdity the other side can say that's not permitted since you'd thereby be "rewriting" the statute. Every. Single. Case.
But that's not what you're doing. Particularly not here. Yes, you could interpret "five-sevenths of the whole" to mean the whole council. Everyone, even the people recused, or not present, or not even on the council itself (e.g., vacancies). But you could also interpret "five-sevenths of the whole" to mean the whole council who's there. And if one of those two interpretations is indeed absurd, well, then, that's a pretty darn reason to reject it. Even if you think that, other other things being equal (i.e., no absurdity), that's the textually better reason of the statute.
And Lateef makes a pretty good argument for absurdity. The reason we don't interpret statutes in an absurd way -- even if that's what they appear to say -- is because doing so defeats, rather than adds to, notice and legislative intent. Here, I'm fairly confident that Lateef is right that the point of the 5/7th clause was to (1) make it close to 4 out of 5 (which he got), which was what was required in the old days when the council was only 5 people, and (2) to overrule the Planning Commission when a super-majority of elected officials looking at the thing thought the Commission got it wrong.
Those purposes are accomplished -- i.e., advanced -- when you act according to the wishes of 80 percent (i.e., 4 of the 5) voting members. Whereas those purposes are defeated if you say that in any circumstance in which there are three vacancies, whatever stupid thing the unelected members of the Planning Commission says goes forward even if 100% (i.e., 4 out of 4) of the elected people voting on the City Council disagree with it.
Which is why you interpret statutes to avoid that. In other words, even though you thought that it textually makes more sense (i.e., "was clear") that "five-sevenths of the whole" referred to the whole City Council, since that would be an absurd interpretation that frustrates the whole purpose of what you're trying to do, you realize that the other way of looking at it is better and more faithful to the purposes and intent of the statute. So that's what you do. Advance the will of the voters (and the law), rather than defeat it.
For that reason, I don't think that Justice Snauffer's answer here suffices. You could say the same "Can't rewrite the text" thing in every absurdity case. But that would be to deny the validity of the absurdity rule in toto. So unless you're willing to do that (which Justice Snauffer doesn't do), you've got to give a better answer, in my view. Which Justice Snauffer doesn't.
So that's the normative case against the Court of Appeal's holding today.
But there's also a (related) descriptive one. Justice Snauffer believes that you can't rewrite a statute just because it's absurd. But that totally conflicts with every major precedent that applies that exact doctrine. So, for example, back in 1868, the U.S. Supreme Court was faced with a defendant who had been indicted for obstructing a postal carrier. Which the defendant had definitely done. The text of the statute in that case clearly provided that it was a felony to "knowingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier." And the defendant clearly did that; the mail carrier at issue here was on duty at the time, and the defendant totally and knowingly obstructed him; indeed, placed him in handcuffs.
The rub being (1) that the defendant was the sheriff, and (2) the mail carrier at issue was wanted for murder.
The prosecution said: "I don't care. The text is clear. You can't do that. To do otherwise would be to rewrite the statute, and the judiciary can't do that." The Supreme Court said: "Wrong." You have to interpret statues to avoid absurdity. Yeah, you could read the words of this statute to say that the law precludes the sheriff from doing what he did. But no way. We're not doing that. We're reading the thing differently because reading it your way would be a total crock; no way a sheriff has to wait until a mail carrier is off duty to arrest him for murder. Sorry if you don't like that, but that's what it means to interpret a statute to avoid absurdity.
And the statute in that famous and longstanding Supreme Court case was way clearer than the term "five-seventh of the vote of the whole of the Council" is here.
And I didn't just pick out a random, particularly egregious case. The principle is basically the same in all these "absurdity" cases. Starting from the very first one back in medieval Italy that said that a surgeon "who opened the vein of a person that fell down in the street in a fit" didn't violate the law even though that statute unambigously punished "whoever drew blood in the streets." Yeah, he drew blood on the streets, alright. But those words don't actually mean what you think they mean. Even though you might think they're clear and someone says to you (seemingly persuasively) that the judiciary doesn't have the power to rewrite them.
So, look, you might not think that letting the unelected Planning Commission go forward even when 100% of the nonrecused City Council members disagrees is in fact "absurd." I sort of do, but I could see an opposite argument. So Justice Snauffer wanted to say "It's not absurd at all, it's totally fine," I would respect that, even though I might perhaps disagree with him.
But that'd at least be a response. "You can't rewrite the statute" sort of isn't. It's normatively wrong (unless you disagree with even the existence of the underlying doctrine), and it's descriptively wrong as a matter of precedent as well.
At least to me. And the 1800 words in which I have just attempted to explain why.
Here.
In the City of Madera, to overturn a recommendation of the Planning Commission, you need a vote of 5/7th of the City Council. That's 71.4 percent.
Why 71 percent? Well, because, in the old days, the City had five council members, and you needed 4 of them to overturn. That's 80 percent. But in 2012, they increased the number of council members to 7. So the closest you can get to 80 percent (with 7) is 71 percent, which gets you to five. So to keep the percentages the same, they said 5/7th. (This is all backed up by clear legislative history.)
So a guy (Junaid Lateef) files an appeal to the City Council, on which there's supposed to be seven members. But one seat is vacant, and one council member has to recuse himself. So that leaves 5. Just like back in the old days.
The vote's taken. Lateef gets 4 votes. Good enough, right? Just like in the old days. 80 percent. Enough to win.
Not according to the trial court. It say that you've got to get 5 of 7. Focusing on the number "5" the trial court says that's not what Lateef got. He got 4. Not 5.
But Lateef says he got 4 of 5. That's 80 percent, which is bigger than 5 of 7 (71.4 percent).
"Sorry, not good enough," the trial court says. Gotta have 5.
And the Court of Appeal affirms. For identical reasons as the trial court.
The part of the ordinance that Justice Snauffer focuses on (beyond the number "5") is the right part, I think. The law reads: "A five-sevenths vote of the whole of the Council shall be required to grant, in whole or in part, any appealed application denied by the Commission.” Sure, the whole background of the thing is the percentage part. Trying to keep it like four-fifths like in the old days.
But there's that phrase: "five-sevenths vote of the whole of the Council." That's the tough part for Mr. Lateef. "The whole" facially appears to mean you've got to have five-sevenths of everyone. And that applies whether they're voting or not. So, sure, you got five-sevenths of the people who voted. But you didn't get five-sevenths of the whole of the Council.
The way Mr. Lateef would read it, it'd mean the same thing as "five-sevenths vote of the Council." The words "the whole of" would be irrelevant. Surplusage. Which is why Justice Snauffer agrees with the trial court and says that Lateef loses.
You can see, textually, why you might come out that way.
But I must say that Mr. Lateef has a darn good argument that I don't think the Court of Appeal comes to grip with. Either persuasively or, truthfully, at all.
Lateef says the same thing that came to my mind when I started reading the case. The ordinance can't possibly mean five-sevenths of the whole, including people who aren't there, without being absurd (or at least being totally irrational). Let's say that three of the seven seats are vacant. Someone's sick, a couple of resignations (like the one actually here), three people recusing themselves (like the one who did so here), whatever. You could imagine a million reasons why you might only have four people on a seven-member council.
Then there'd be a quorum, but no one could ever prevail. Since, under the Court of Appeal's holding, you could never get your five-sevenths, since there aren't five votes. So even if 100% of the City Council agrees with you that the Planning Commission is doing something abjectly stupid, you still lose.
That's an absurdity. And it's a common principle of statutory construction that you don't read statutes in a manner that makes them absurd.
Now, Justice Snauffer responds to that, of course. Saying: "The problem with this approach is that to interpret subsection 10-3.1310(E) as Lateef suggests would require us to rewrite the ordinance in contravention of the city’s expressed intent. We have 'no power to rewrite the [ordinance] so as to make it conform to a presumed intention which is not expressed.' [Cite] For this reason, we cannot rewrite the statute to avoid the other absurd results Lateef claims flow from interpreting the ordinance to require a five-sevenths vote of the seven-member city council."
But, respectfully, that's not a very good answer. You interpret statutes to avoid absurdity. You read the existing words in a way that makes sense. You're not making new words or "rewriting" the text when you do so. That's what judicial interpretation of a statute actually means.
Justice Snauffer's critique would negate the whole point -- indeed, even the existence -- of the "avoid absurdity" doctrine. Every time you interpret a statute to avoid absurdity the other side can say that's not permitted since you'd thereby be "rewriting" the statute. Every. Single. Case.
But that's not what you're doing. Particularly not here. Yes, you could interpret "five-sevenths of the whole" to mean the whole council. Everyone, even the people recused, or not present, or not even on the council itself (e.g., vacancies). But you could also interpret "five-sevenths of the whole" to mean the whole council who's there. And if one of those two interpretations is indeed absurd, well, then, that's a pretty darn reason to reject it. Even if you think that, other other things being equal (i.e., no absurdity), that's the textually better reason of the statute.
And Lateef makes a pretty good argument for absurdity. The reason we don't interpret statutes in an absurd way -- even if that's what they appear to say -- is because doing so defeats, rather than adds to, notice and legislative intent. Here, I'm fairly confident that Lateef is right that the point of the 5/7th clause was to (1) make it close to 4 out of 5 (which he got), which was what was required in the old days when the council was only 5 people, and (2) to overrule the Planning Commission when a super-majority of elected officials looking at the thing thought the Commission got it wrong.
Those purposes are accomplished -- i.e., advanced -- when you act according to the wishes of 80 percent (i.e., 4 of the 5) voting members. Whereas those purposes are defeated if you say that in any circumstance in which there are three vacancies, whatever stupid thing the unelected members of the Planning Commission says goes forward even if 100% (i.e., 4 out of 4) of the elected people voting on the City Council disagree with it.
Which is why you interpret statutes to avoid that. In other words, even though you thought that it textually makes more sense (i.e., "was clear") that "five-sevenths of the whole" referred to the whole City Council, since that would be an absurd interpretation that frustrates the whole purpose of what you're trying to do, you realize that the other way of looking at it is better and more faithful to the purposes and intent of the statute. So that's what you do. Advance the will of the voters (and the law), rather than defeat it.
For that reason, I don't think that Justice Snauffer's answer here suffices. You could say the same "Can't rewrite the text" thing in every absurdity case. But that would be to deny the validity of the absurdity rule in toto. So unless you're willing to do that (which Justice Snauffer doesn't do), you've got to give a better answer, in my view. Which Justice Snauffer doesn't.
So that's the normative case against the Court of Appeal's holding today.
But there's also a (related) descriptive one. Justice Snauffer believes that you can't rewrite a statute just because it's absurd. But that totally conflicts with every major precedent that applies that exact doctrine. So, for example, back in 1868, the U.S. Supreme Court was faced with a defendant who had been indicted for obstructing a postal carrier. Which the defendant had definitely done. The text of the statute in that case clearly provided that it was a felony to "knowingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier." And the defendant clearly did that; the mail carrier at issue here was on duty at the time, and the defendant totally and knowingly obstructed him; indeed, placed him in handcuffs.
The rub being (1) that the defendant was the sheriff, and (2) the mail carrier at issue was wanted for murder.
The prosecution said: "I don't care. The text is clear. You can't do that. To do otherwise would be to rewrite the statute, and the judiciary can't do that." The Supreme Court said: "Wrong." You have to interpret statues to avoid absurdity. Yeah, you could read the words of this statute to say that the law precludes the sheriff from doing what he did. But no way. We're not doing that. We're reading the thing differently because reading it your way would be a total crock; no way a sheriff has to wait until a mail carrier is off duty to arrest him for murder. Sorry if you don't like that, but that's what it means to interpret a statute to avoid absurdity.
And the statute in that famous and longstanding Supreme Court case was way clearer than the term "five-seventh of the vote of the whole of the Council" is here.
And I didn't just pick out a random, particularly egregious case. The principle is basically the same in all these "absurdity" cases. Starting from the very first one back in medieval Italy that said that a surgeon "who opened the vein of a person that fell down in the street in a fit" didn't violate the law even though that statute unambigously punished "whoever drew blood in the streets." Yeah, he drew blood on the streets, alright. But those words don't actually mean what you think they mean. Even though you might think they're clear and someone says to you (seemingly persuasively) that the judiciary doesn't have the power to rewrite them.
So, look, you might not think that letting the unelected Planning Commission go forward even when 100% of the nonrecused City Council members disagrees is in fact "absurd." I sort of do, but I could see an opposite argument. So Justice Snauffer wanted to say "It's not absurd at all, it's totally fine," I would respect that, even though I might perhaps disagree with him.
But that'd at least be a response. "You can't rewrite the statute" sort of isn't. It's normatively wrong (unless you disagree with even the existence of the underlying doctrine), and it's descriptively wrong as a matter of precedent as well.
At least to me. And the 1800 words in which I have just attempted to explain why.
Torres v. Design Group Facility Solutions (Cal. Ct. App. - Feb 13, 2020)
I had a serious case of deja vu when I read this opinion, thinking: "Wait. I've already read this opinion before. But the caption doesn't say it's being amended or just published. What's the deal?"
But it turns out: I hadn't read the opinion before. It's totally new. I was just confused between this opinion and a different recent opinion by the Court of Appeal (which the California Supreme Court is currently reviewing) because they both involve a construction guy who fell through a skylight on a building on which he was working.
The lesson being: Don't go on the roof of a building with a skylight. Those things don't hold your weight.
But it turns out: I hadn't read the opinion before. It's totally new. I was just confused between this opinion and a different recent opinion by the Court of Appeal (which the California Supreme Court is currently reviewing) because they both involve a construction guy who fell through a skylight on a building on which he was working.
The lesson being: Don't go on the roof of a building with a skylight. Those things don't hold your weight.
Thursday, February 13, 2020
In re Marriage of Deluca (Cal. Ct. App. - Feb. 13, 2020)
Rarely do you learn about your neighbors by reading published judicial opinions. But I learned a bit today.
The opinion at issue is a run-of-the-mill appeal about community property in a divorce. Fact-specific for the most part. The former spouses had been married for 15 years, and had two kids and various properties. I noticed that the case was out of San Diego, and recognized the general location of some of the properties (Encinitas, etc.).
But it wasn't until I saw this line that I became keenly interested: "Rosalinda 'had been living rent free for approximately the last three years,' and George had been 'living in a 2 million dollar plus residence in Point Loma.'"
Hey! Point Loma! That's pretty much where I live!
Mind you, he's over the hill, on the bay side. By the Yacht Club. Nice location, to be sure. And, yes, the house is indeed worth a couple of million or so.
I don't know the parties personally. But still. Neighbors. To a degree.
The opinion at issue is a run-of-the-mill appeal about community property in a divorce. Fact-specific for the most part. The former spouses had been married for 15 years, and had two kids and various properties. I noticed that the case was out of San Diego, and recognized the general location of some of the properties (Encinitas, etc.).
But it wasn't until I saw this line that I became keenly interested: "Rosalinda 'had been living rent free for approximately the last three years,' and George had been 'living in a 2 million dollar plus residence in Point Loma.'"
Hey! Point Loma! That's pretty much where I live!
Mind you, he's over the hill, on the bay side. By the Yacht Club. Nice location, to be sure. And, yes, the house is indeed worth a couple of million or so.
I don't know the parties personally. But still. Neighbors. To a degree.
Wednesday, February 12, 2020
Parents for Privacy v. Barr (9th Cir. - Feb. 12, 2020)
Judge Tashima spells out fairly accurately, I think, both the facts of this case as well as what's at stake on both sides:
"In September 2015, a student at Dallas High School who had been born and who remained biologically female publicly identified as a boy, and he asked school officials to allow him to use the boys’ bathroom and locker room. Defendant-Appellee Dallas School District No. 2 (the “District”) responded by creating and implementing a “Student Safety Plan” for the transgender boy (“Student A”) and any other transgender student who might make a similar request in the future, in order to ensure that transgender persons like Student A could safely participate in school activities.
The Plan acknowledged Student A as a “transgender male” and permitted him to use the boys’ locker room and bathroom facilities with his peers at Dallas High School.3 The Plan also provided that, while Student A had not indicated “which bathroom he feels comfortable using,” Student A could “use any of the bathrooms in the building to which he identifies sexually.” In addition, to ensure Student A’s safety, the Student Safety Plan provided that all staff would receive training and instruction regarding Title IX, that teachers would teach about anti-bullying and harassment, that the Physical Education (“PE”) teacher would be first to enter and last to leave the locker room, and that Student A’s locker would be in direct line of sight of the PE teacher in the coach’s office. The Student Safety Plan also listed several “Safe Adults” with whom Student A could share any concerns.
Student A began using the boys’ locker room and changing clothes “while male students were present.” This caused several cisgender boys “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress,” because they had to change clothes for their PE class and attend to their needs while someone who had been assigned the opposite sex at birth was present.4 Although privacy stalls were available in the bathrooms, these were insufficient to alleviate the cisgender boys’ fear of exposing themselves to Student A, because the stalls had gaps through which “partially unclothed bodies” could “inadvertently” be seen. And an available single-user bathroom was often inconvenient or was considered inferior because it lacked a shower. As a consequence of their fear of exposure to Student A, some cisgender boys began using the restroom as little as possible while at school, and others risked tardiness by using distant restrooms during passing periods in order to try to find a restroom in which Student A was unlikely to be present.
When parents and other students in the Dallas community became aware of the Student Safety Plan, many opposed it publicly at successive school board meetings, in an effort to dissuade the District from implementing the policy. Some parents in the District are concerned and anxious about the prospect of their children using locker rooms or bathrooms together with a student who was assigned the opposite biological sex at birth. The Student Safety Plan also interferes with some parents’ preferred moral and/or religious teaching of their children concerning modesty and nudity. In addition, several cisgender girls suffered from stress and anxiety as a result of their fear that a transgender girl student who remains biologically male would be allowed to use the girls’ locker room and bathroom. Girls had the option of changing in the nurse’s office, but it was on the other side of the school."
Yep. We're dealing with kids, and nudity, and discomfort. On both sides. In the world and culture in which we currently persist, there's no easy or totally perfect solution. Sure, you can imagine a world and culture in which this isn't a problem. But we're not there. Yet, certainly.
Just as his statement of facts seems fair, balanced and accurate, so too is the Ninth Circuit's holding. Concisely stated in the opening paragraphs of Judge Tashima's opinion:
"This case concerns whether an Oregon public school district may allow transgender students to use school bathrooms, locker rooms, and showers that match their gender identity rather than the biological sex they were assigned at birth. Plaintiffs oppose the school district’s policy, asserting that it violates Title IX, as well as the constitutional rights—including the right to privacy, the parental right to direct the education and upbringing of one’s children, and the right to freely exercise one’s religion—of students and of parents of students in the school district. Defendants and many amici highlight the importance of the policy for creating a safe, non-discriminatory school environment for transgender students that avoids the detrimental physical and mental health effects that have been shown to result from transgender students’ exclusion from privacy facilities that match their gender identities.
It is clear that this case touches on deeply personal issues about which many have strong feelings and beliefs. Moreover, adolescence and the bodily and mental changes it brings can be difficult for students, making bodily exposure to other students in locker rooms a potential source of anxiety—and this is particularly true for transgender students who experience gender dysphoria. School districts face the difficult task of navigating varying student (and parent) beliefs and interests in order to foster a safe and productive learning environment, free from discrimination, that accommodates the needs of all students. At the outset, we note that it is not our role to pass judgment on the school district’s policy or on how the school district can best fulfill its duty as a public educational institution. We are asked only to resolve whether the school district’s policy violates Title IX or Plaintiffs’ constitutional rights.
In a thorough and well-reasoned opinion, the district court dismissed the federal causes of action against the school district for failure to state a claim upon which relief can be granted. Parents for Privacy v. Dallas Sch. Dist. No. 2, 326 F. Supp. 3d 1075 (D. Or. 2018). We agree with the district court and hold that there is no Fourteenth Amendment fundamental privacy right to avoid all risk of intimate exposure to or by a transgender person who was assigned the opposite biological sex at birth. We also hold that a policy that treats all students equally does not discriminate based on sex in violation of Title IX, and that the normal use of privacy facilities does not constitute actionable sexual harassment under Title IX just because a person is transgender. We hold further that the Fourteenth Amendment does not provide a fundamental parental right to determine the bathroom policies of the public schools to which parents may send their children, either independent of the parental right to direct the upbringing and education of their children or encompassed by it. Finally, we hold that the school district’s policy is rationally related to a legitimate state purpose, and does not infringe Plaintiffs’ First Amendment free exercise rights because it does not target religious conduct. Accordingly, we affirm the district court’s dismissal with prejudice of the action."
With respect to those that disagree (and I know there are many), the world's a better place with school policies like this one. As well as with holdings like the one here.
They're consistent with the better parts of our world and who we are (or might eventually be).
"In September 2015, a student at Dallas High School who had been born and who remained biologically female publicly identified as a boy, and he asked school officials to allow him to use the boys’ bathroom and locker room. Defendant-Appellee Dallas School District No. 2 (the “District”) responded by creating and implementing a “Student Safety Plan” for the transgender boy (“Student A”) and any other transgender student who might make a similar request in the future, in order to ensure that transgender persons like Student A could safely participate in school activities.
The Plan acknowledged Student A as a “transgender male” and permitted him to use the boys’ locker room and bathroom facilities with his peers at Dallas High School.3 The Plan also provided that, while Student A had not indicated “which bathroom he feels comfortable using,” Student A could “use any of the bathrooms in the building to which he identifies sexually.” In addition, to ensure Student A’s safety, the Student Safety Plan provided that all staff would receive training and instruction regarding Title IX, that teachers would teach about anti-bullying and harassment, that the Physical Education (“PE”) teacher would be first to enter and last to leave the locker room, and that Student A’s locker would be in direct line of sight of the PE teacher in the coach’s office. The Student Safety Plan also listed several “Safe Adults” with whom Student A could share any concerns.
Student A began using the boys’ locker room and changing clothes “while male students were present.” This caused several cisgender boys “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress,” because they had to change clothes for their PE class and attend to their needs while someone who had been assigned the opposite sex at birth was present.4 Although privacy stalls were available in the bathrooms, these were insufficient to alleviate the cisgender boys’ fear of exposing themselves to Student A, because the stalls had gaps through which “partially unclothed bodies” could “inadvertently” be seen. And an available single-user bathroom was often inconvenient or was considered inferior because it lacked a shower. As a consequence of their fear of exposure to Student A, some cisgender boys began using the restroom as little as possible while at school, and others risked tardiness by using distant restrooms during passing periods in order to try to find a restroom in which Student A was unlikely to be present.
When parents and other students in the Dallas community became aware of the Student Safety Plan, many opposed it publicly at successive school board meetings, in an effort to dissuade the District from implementing the policy. Some parents in the District are concerned and anxious about the prospect of their children using locker rooms or bathrooms together with a student who was assigned the opposite biological sex at birth. The Student Safety Plan also interferes with some parents’ preferred moral and/or religious teaching of their children concerning modesty and nudity. In addition, several cisgender girls suffered from stress and anxiety as a result of their fear that a transgender girl student who remains biologically male would be allowed to use the girls’ locker room and bathroom. Girls had the option of changing in the nurse’s office, but it was on the other side of the school."
Yep. We're dealing with kids, and nudity, and discomfort. On both sides. In the world and culture in which we currently persist, there's no easy or totally perfect solution. Sure, you can imagine a world and culture in which this isn't a problem. But we're not there. Yet, certainly.
Just as his statement of facts seems fair, balanced and accurate, so too is the Ninth Circuit's holding. Concisely stated in the opening paragraphs of Judge Tashima's opinion:
"This case concerns whether an Oregon public school district may allow transgender students to use school bathrooms, locker rooms, and showers that match their gender identity rather than the biological sex they were assigned at birth. Plaintiffs oppose the school district’s policy, asserting that it violates Title IX, as well as the constitutional rights—including the right to privacy, the parental right to direct the education and upbringing of one’s children, and the right to freely exercise one’s religion—of students and of parents of students in the school district. Defendants and many amici highlight the importance of the policy for creating a safe, non-discriminatory school environment for transgender students that avoids the detrimental physical and mental health effects that have been shown to result from transgender students’ exclusion from privacy facilities that match their gender identities.
It is clear that this case touches on deeply personal issues about which many have strong feelings and beliefs. Moreover, adolescence and the bodily and mental changes it brings can be difficult for students, making bodily exposure to other students in locker rooms a potential source of anxiety—and this is particularly true for transgender students who experience gender dysphoria. School districts face the difficult task of navigating varying student (and parent) beliefs and interests in order to foster a safe and productive learning environment, free from discrimination, that accommodates the needs of all students. At the outset, we note that it is not our role to pass judgment on the school district’s policy or on how the school district can best fulfill its duty as a public educational institution. We are asked only to resolve whether the school district’s policy violates Title IX or Plaintiffs’ constitutional rights.
In a thorough and well-reasoned opinion, the district court dismissed the federal causes of action against the school district for failure to state a claim upon which relief can be granted. Parents for Privacy v. Dallas Sch. Dist. No. 2, 326 F. Supp. 3d 1075 (D. Or. 2018). We agree with the district court and hold that there is no Fourteenth Amendment fundamental privacy right to avoid all risk of intimate exposure to or by a transgender person who was assigned the opposite biological sex at birth. We also hold that a policy that treats all students equally does not discriminate based on sex in violation of Title IX, and that the normal use of privacy facilities does not constitute actionable sexual harassment under Title IX just because a person is transgender. We hold further that the Fourteenth Amendment does not provide a fundamental parental right to determine the bathroom policies of the public schools to which parents may send their children, either independent of the parental right to direct the upbringing and education of their children or encompassed by it. Finally, we hold that the school district’s policy is rationally related to a legitimate state purpose, and does not infringe Plaintiffs’ First Amendment free exercise rights because it does not target religious conduct. Accordingly, we affirm the district court’s dismissal with prejudice of the action."
With respect to those that disagree (and I know there are many), the world's a better place with school policies like this one. As well as with holdings like the one here.
They're consistent with the better parts of our world and who we are (or might eventually be).
Tuesday, February 11, 2020
George v. Shams-Shirazi (Cal. Ct. App. - Feb. 11, 2020)
There's only one published opinion by the Court of Appeal today. But it's worth talking about, if only briefly.
The question is how long one has to move for attorney's fees incurred after a final judgment. There's no doubt that, normally, the statute says that you've got 60 days after the judgment to ask for the fees that you incurred leading up to that judgment. But what about fees incurred thereafter?
In this family law case, there's a final judgment that award the mother sole physical and legal custody of the child. Some time thereafter, the father filed a request to set aside that order, and later, a second request seeking the same relief. Both were denied.
Then, around six months after the second denial, the mother sought attorney's fees as sanctions. Which the trial court granted. Father appeals, saying that the motion for fees wasn't timely because it wasn't filed within 60 days of the denial of the underlying motion -- which all parties agree was an appealable order.
But the Court of Appeal disagrees. Justice Sanchez holds that the statutory 60 day rule only applies to fees arising before a judgment. Here, they arose after. So the statute doesn't apply.
But father's no idiot. He says that the motion for reconsideration was itself a judgment, which is why it was appealable. Which in turn means that the sanction request at issue was for fees leading up to that selfsame judgment, so the 60 day rule applies.
The Court of Appeal is not persuaded. It may be an appealable order, Justice Sanchez says, but it's not the judgment. The judgment was the order granting custody. Whereas the denial of the motion to reconsider was an order. So the fees were incurred post-judgment, so the statutory 60 day period still doesn't apply.
Okay. You can see the reasoning here. It's not indisputably rock solid, but it's definitely tenable, and it probably accords with our common understanding of what a "judgment" entails.
But as I neared the of the opinion, the question that was lingering in my mind throughout still persisted: So what statutory period does apply? I've already read 80 percent or so of the opinion, and while Justice Sanchez has told me why the text of the 60-day period doesn't apply, I was somewhat surprised that I had yet to hear "By contrast, the statutory time to appeal in this type of dispute is more properly governed by Rule . . . ." Typically, you compare and contrast: Rule X doesn't apply, whereas the text of Rule Y seems straightforward and governs.
At the end of the opinion, Justice Sanchez tells us what period does apply. But I must admit, I was underwhelmed by the answer.
The Court of Appeal says that the relevant statutory timeline for requesting fees in this type of case is . . . nothing. No rule. No statutory deadline at all.
Which seems bizarre. So the Legislature bothered to set a relatively short (60 day) deadline for your typical attorney fee request, but if you're seeking postjudgment fees (as parties often do), there's no deadline -- much less a short one -- at all?
Justice Sanchez says: Yep.
The Court of Appeals responds only that just because there's no statutory deadline doesn't mean that you can wait forever, since your request for fees might potentially be barred by laches. But because that common law doctrine requires a showing of prejudice, and there's no such showing here, the sanctions request here was okay.
Like I previously said, that seems weird to me.
I get the argument that the regular statutory deadline doesn't apply. But if that's the only deadline we have, and if (as I believe is the case) it's either that deadline or nothing, and if there is a tolerable argument that the statute applies (which I also believe is the case), it seems pretty out on a limb to say that there's no deadline at all except for a common law laches limitation. First, it seems unlikely to me that the Legislature would have intended this; when they set a short deadline for most things, I doubt they wanted other things to have literally no deadline at all apart from one incorporated from the common law. Second, I doubt that laches is actually up to the task of preventing stale fee motions, as it'll be virtually impossible to show prejudice in most cases, and laches in any event does not provide a bright-line timing rule that both encourages motions by a set limit as well as grants the defendant definite repose after a certain time period -- all of which are definite purposes of a statutory timeliness period.
So I'd have been just fine with the opinion if it said that Rule 3.1702(b) didn't apply if a different Rule did. But given the absence of the latter, I wonder if it really makes sense to hold the former. Or even makes the world a better place.
Not that I'm upset that the father here gets sanctioned. He may well deserve it.
But the rule that the case creates may not make sense.
The question is how long one has to move for attorney's fees incurred after a final judgment. There's no doubt that, normally, the statute says that you've got 60 days after the judgment to ask for the fees that you incurred leading up to that judgment. But what about fees incurred thereafter?
In this family law case, there's a final judgment that award the mother sole physical and legal custody of the child. Some time thereafter, the father filed a request to set aside that order, and later, a second request seeking the same relief. Both were denied.
Then, around six months after the second denial, the mother sought attorney's fees as sanctions. Which the trial court granted. Father appeals, saying that the motion for fees wasn't timely because it wasn't filed within 60 days of the denial of the underlying motion -- which all parties agree was an appealable order.
But the Court of Appeal disagrees. Justice Sanchez holds that the statutory 60 day rule only applies to fees arising before a judgment. Here, they arose after. So the statute doesn't apply.
But father's no idiot. He says that the motion for reconsideration was itself a judgment, which is why it was appealable. Which in turn means that the sanction request at issue was for fees leading up to that selfsame judgment, so the 60 day rule applies.
The Court of Appeal is not persuaded. It may be an appealable order, Justice Sanchez says, but it's not the judgment. The judgment was the order granting custody. Whereas the denial of the motion to reconsider was an order. So the fees were incurred post-judgment, so the statutory 60 day period still doesn't apply.
Okay. You can see the reasoning here. It's not indisputably rock solid, but it's definitely tenable, and it probably accords with our common understanding of what a "judgment" entails.
But as I neared the of the opinion, the question that was lingering in my mind throughout still persisted: So what statutory period does apply? I've already read 80 percent or so of the opinion, and while Justice Sanchez has told me why the text of the 60-day period doesn't apply, I was somewhat surprised that I had yet to hear "By contrast, the statutory time to appeal in this type of dispute is more properly governed by Rule . . . ." Typically, you compare and contrast: Rule X doesn't apply, whereas the text of Rule Y seems straightforward and governs.
At the end of the opinion, Justice Sanchez tells us what period does apply. But I must admit, I was underwhelmed by the answer.
The Court of Appeal says that the relevant statutory timeline for requesting fees in this type of case is . . . nothing. No rule. No statutory deadline at all.
Which seems bizarre. So the Legislature bothered to set a relatively short (60 day) deadline for your typical attorney fee request, but if you're seeking postjudgment fees (as parties often do), there's no deadline -- much less a short one -- at all?
Justice Sanchez says: Yep.
The Court of Appeals responds only that just because there's no statutory deadline doesn't mean that you can wait forever, since your request for fees might potentially be barred by laches. But because that common law doctrine requires a showing of prejudice, and there's no such showing here, the sanctions request here was okay.
Like I previously said, that seems weird to me.
I get the argument that the regular statutory deadline doesn't apply. But if that's the only deadline we have, and if (as I believe is the case) it's either that deadline or nothing, and if there is a tolerable argument that the statute applies (which I also believe is the case), it seems pretty out on a limb to say that there's no deadline at all except for a common law laches limitation. First, it seems unlikely to me that the Legislature would have intended this; when they set a short deadline for most things, I doubt they wanted other things to have literally no deadline at all apart from one incorporated from the common law. Second, I doubt that laches is actually up to the task of preventing stale fee motions, as it'll be virtually impossible to show prejudice in most cases, and laches in any event does not provide a bright-line timing rule that both encourages motions by a set limit as well as grants the defendant definite repose after a certain time period -- all of which are definite purposes of a statutory timeliness period.
So I'd have been just fine with the opinion if it said that Rule 3.1702(b) didn't apply if a different Rule did. But given the absence of the latter, I wonder if it really makes sense to hold the former. Or even makes the world a better place.
Not that I'm upset that the father here gets sanctioned. He may well deserve it.
But the rule that the case creates may not make sense.
Monday, February 10, 2020
Fowler v. City of Lafayette (Cal. Ct. App. - Feb. 10, 2020)
Sure, I've got a 5 bedroom, 6 bath place in Lafayette (in the Bay Area) on a couple of acres. With a tennis court, of course. But how can I entertain properly if I don't have a "tennis cabana" next to the thing? A thousand-plus square foot cabana, to be precise.
But my stinking neighbors don't want it. So they oppose my zoning application with the City, which gets some traction. So I have my attorney -- with the totally hip name David Bowie -- threaten the City repeatedly with litigation if they deny my application. And, in the end, the City caves, and goes ahead and approves the project on a 4-1 vote.
But my stinking neighbors don't relent. They file a Brown Act claim that says that the City didn't reveal the litigation threat in the open meeting even though this was required. Which the Court of Appeal ultimately agrees with. But holds that there's no remedy since there's no concrete showing of prejudice; i.e., that the City would have done anything differently in an open meeting. (Which is also probably true in virtually every other Brown Act case.)
Such is the life of Michael and Diane Archer. (I won't mention what of which Bay Area company Mike Archer is the CEO.)
First world problems, for sure.
Anyway, fear not. The tennis cabana is safe.
But my stinking neighbors don't want it. So they oppose my zoning application with the City, which gets some traction. So I have my attorney -- with the totally hip name David Bowie -- threaten the City repeatedly with litigation if they deny my application. And, in the end, the City caves, and goes ahead and approves the project on a 4-1 vote.
But my stinking neighbors don't relent. They file a Brown Act claim that says that the City didn't reveal the litigation threat in the open meeting even though this was required. Which the Court of Appeal ultimately agrees with. But holds that there's no remedy since there's no concrete showing of prejudice; i.e., that the City would have done anything differently in an open meeting. (Which is also probably true in virtually every other Brown Act case.)
Such is the life of Michael and Diane Archer. (I won't mention what of which Bay Area company Mike Archer is the CEO.)
First world problems, for sure.
Anyway, fear not. The tennis cabana is safe.
Edmo v. Corizon, Inc. (9th Cir. - Feb. 10, 2020)
You get to read two different approaches by the conservative judges on the Ninth Circuit to the refusal to rehear this case en banc.
The first is from Judge O'Scannlain, joined by eight other judges. His approach:
"With its decision today, our court becomes the first federal court of appeals to mandate that a State pay for and provide sex-reassignment surgery to a prisoner under the Eighth Amendment. The three-judge panel’s conclusion— that any alternative course of treatment would be “cruel and unusual punishment”—is as unjustified as it is unprecedented. To reach such a conclusion, the court creates a circuit split, substitutes the medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, redefines the familiar “deliberate indifference” standard, and, in the end, constitutionally enshrines precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice."
Then there's 30 more pages, including sentences that end with exclamation points. Definitely one type of take.
Then there's Judge Bumatay's approach. Joined by six other judges, many of whom are the same ones who joined Judge O'Scannlain. (Judge Bumatay also joined Judge O'Scannlain as well.) He begins by saying:
"Like the panel and the district court, I hold great sympathy for Adree Edmo’s medical situation. And as with all citizens, her constitutional rights deserve the utmost respect and vigilant protection. As the district court rightly stated, 'The Rule of Law, which is the bedrock of our legal system, promises that all individuals will be afforded the full protection of our legal system and the rights guaranteed by our Constitution. This is so whether the individual seeking that protection is black, white, male, female, gay, straight, or, as in this case, transgender.' Adree Edmo is a transgender woman suffering from gender dysphoria—a serious medical condition. While incarcerated in Idaho’s correctional facilities, she asked that her gender dysphoria be treated with sex-reassignment surgery (“SRS”). After consultation with a prison doctor, her request was denied. She then sued under the Eighth Amendment.
I respect Edmo’s wishes and hope she is afforded the best treatment possible. But whether SRS is the optimal treatment for Edmo’s gender dysphoria is not before us. As judges, our role is not to take sides in matters of conflicting medical care. Rather, our duty is to faithfully interpret the Constitution.
That duty commands that we apply the Eighth Amendment, not our sympathies."
There's a lot of overlap, of course. But the emphasis is slightly different.
The first is from Judge O'Scannlain, joined by eight other judges. His approach:
"With its decision today, our court becomes the first federal court of appeals to mandate that a State pay for and provide sex-reassignment surgery to a prisoner under the Eighth Amendment. The three-judge panel’s conclusion— that any alternative course of treatment would be “cruel and unusual punishment”—is as unjustified as it is unprecedented. To reach such a conclusion, the court creates a circuit split, substitutes the medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, redefines the familiar “deliberate indifference” standard, and, in the end, constitutionally enshrines precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice."
Then there's 30 more pages, including sentences that end with exclamation points. Definitely one type of take.
Then there's Judge Bumatay's approach. Joined by six other judges, many of whom are the same ones who joined Judge O'Scannlain. (Judge Bumatay also joined Judge O'Scannlain as well.) He begins by saying:
"Like the panel and the district court, I hold great sympathy for Adree Edmo’s medical situation. And as with all citizens, her constitutional rights deserve the utmost respect and vigilant protection. As the district court rightly stated, 'The Rule of Law, which is the bedrock of our legal system, promises that all individuals will be afforded the full protection of our legal system and the rights guaranteed by our Constitution. This is so whether the individual seeking that protection is black, white, male, female, gay, straight, or, as in this case, transgender.' Adree Edmo is a transgender woman suffering from gender dysphoria—a serious medical condition. While incarcerated in Idaho’s correctional facilities, she asked that her gender dysphoria be treated with sex-reassignment surgery (“SRS”). After consultation with a prison doctor, her request was denied. She then sued under the Eighth Amendment.
I respect Edmo’s wishes and hope she is afforded the best treatment possible. But whether SRS is the optimal treatment for Edmo’s gender dysphoria is not before us. As judges, our role is not to take sides in matters of conflicting medical care. Rather, our duty is to faithfully interpret the Constitution.
That duty commands that we apply the Eighth Amendment, not our sympathies."
There's a lot of overlap, of course. But the emphasis is slightly different.
Friday, February 07, 2020
People v. Cerda (Cal. Ct. App. - Feb. 7, 2020)
I talked about this topic earlier this week. So I had it in mind when I read the second footnote of the only published opinion from the Court of Appeal today.
That footnote reads:
"To protect the personal privacy interests of the victims, other than Gerardo Salazar who was killed, we will refer to each by first name and last initial. (Cal. Rules of Court, Rule 8.90, subd. (b)(4).)."
That strikes me as exactly the right balance (as well as the correct interpretation of the rule). For the living, there's little need for crime victims to be mentioned in a published opinion. Not that I think it's bad (at all) to be a crime victim, or to be remembered in Google as such. But I'm confident that some people would prefer to just put the whole thing behind them, forever, so to accommodate their interests, since we can't tell who'd prefer to be forgotten and who's just fine with their names in press, we use initials.
Whereas for the dead, there's good reason to remember them. By name. We are in large part what we leave behind. So for murder victims, the least we can do is to have a permanent memory of their existence in the California Appellate Reporter when we discuss the circumstances of their demise.
That footnote reads:
"To protect the personal privacy interests of the victims, other than Gerardo Salazar who was killed, we will refer to each by first name and last initial. (Cal. Rules of Court, Rule 8.90, subd. (b)(4).)."
That strikes me as exactly the right balance (as well as the correct interpretation of the rule). For the living, there's little need for crime victims to be mentioned in a published opinion. Not that I think it's bad (at all) to be a crime victim, or to be remembered in Google as such. But I'm confident that some people would prefer to just put the whole thing behind them, forever, so to accommodate their interests, since we can't tell who'd prefer to be forgotten and who's just fine with their names in press, we use initials.
Whereas for the dead, there's good reason to remember them. By name. We are in large part what we leave behind. So for murder victims, the least we can do is to have a permanent memory of their existence in the California Appellate Reporter when we discuss the circumstances of their demise.
Thursday, February 06, 2020
Sheaeffer v. Califia Farms (Cal. Ct. App. - Feb. 6, 2020)
It's not particularly surprising that the Court of Appeal (and trial court) come out the way they do in this case. Plaintiff buys s bottle of tangerine juice that prominently displays on its label: "No Sugar Added." Which is true. As well as not surprising, since no one adds sugar to their tangerine juice.
Plaintiff files a putative class action suit that says that the label is deceptive, since it implies that other juices (i.e., the competition) adds sugar. The trial court dismisses the suit, and the Court of Appeal affirms. The label is literally true. And creating liability for true statements that might imply a claim about competing products would, according to Justice Hoffstadt, be too broad. As he puts it:
"Assume that a new airline runs an ad with a tagline, 'No Hijackers Allowed.' Is a reasonable consumer likely to infer that other airlines do allow hijackers and that the new airline is consequently the safer choice? We think the answer to this question is 'no.'"
Hence no liability or cause of action.
You can see why it comes out this way.
Though it brought a smile to my face, because I couldn't help thinking in response of one particular (great) episode of Mad Men. Don Draper meets with a bunch of Lucky Strike (tobacco) executives who are upset that they can no longer advertise the (untrue) health claims regarding their cigarettes. And, at the same time, the public -- this is the 60's -- is starting to become fully aware of the serious adverse health consequences of smoking.
So how are the executives supposed to advertise their products and disabuse the public of the sense that smoking is bad for you?
Near the end of a very stress-filled meeting, Don has a revelation, and comes up with the following (awesome) idea:
"Don: This is the greatest advertising opportunity since the invention of cereal. We have six identical companies making six identical products. We can say anything we want.
[Looking at the executives] How do you make your cigarettes?
[Junior Executive]: I don't know.
[Senior Executive]: Shame on you. We breed insect-repellent tobacco seeds, plant 'em in the North Carolina sunshine, grow it, cut it, cure it, toast it . . . .
Don [interrupting]: There you go. There you go.
[Don writes on blackboard: "Lucky Strike. It's Toasted."]
[Junior Executive]: But everybody else's tobacco is toasted.
Don: No. Everybody else's tobacco is poisonous. Lucky Strike's is toasted."
Beautiful.
The original (extended) scene is here. Masterfully done.
It took over half a century. But we now have a formal published opinion:
It's not deceptive to say that your cancer- and heart attack-causing product is "toasted" when it is.
Plaintiff files a putative class action suit that says that the label is deceptive, since it implies that other juices (i.e., the competition) adds sugar. The trial court dismisses the suit, and the Court of Appeal affirms. The label is literally true. And creating liability for true statements that might imply a claim about competing products would, according to Justice Hoffstadt, be too broad. As he puts it:
"Assume that a new airline runs an ad with a tagline, 'No Hijackers Allowed.' Is a reasonable consumer likely to infer that other airlines do allow hijackers and that the new airline is consequently the safer choice? We think the answer to this question is 'no.'"
Hence no liability or cause of action.
You can see why it comes out this way.
Though it brought a smile to my face, because I couldn't help thinking in response of one particular (great) episode of Mad Men. Don Draper meets with a bunch of Lucky Strike (tobacco) executives who are upset that they can no longer advertise the (untrue) health claims regarding their cigarettes. And, at the same time, the public -- this is the 60's -- is starting to become fully aware of the serious adverse health consequences of smoking.
So how are the executives supposed to advertise their products and disabuse the public of the sense that smoking is bad for you?
Near the end of a very stress-filled meeting, Don has a revelation, and comes up with the following (awesome) idea:
"Don: This is the greatest advertising opportunity since the invention of cereal. We have six identical companies making six identical products. We can say anything we want.
[Looking at the executives] How do you make your cigarettes?
[Junior Executive]: I don't know.
[Senior Executive]: Shame on you. We breed insect-repellent tobacco seeds, plant 'em in the North Carolina sunshine, grow it, cut it, cure it, toast it . . . .
Don [interrupting]: There you go. There you go.
[Don writes on blackboard: "Lucky Strike. It's Toasted."]
[Junior Executive]: But everybody else's tobacco is toasted.
Don: No. Everybody else's tobacco is poisonous. Lucky Strike's is toasted."
Beautiful.
The original (extended) scene is here. Masterfully done.
It took over half a century. But we now have a formal published opinion:
It's not deceptive to say that your cancer- and heart attack-causing product is "toasted" when it is.
Aldea Dos Vientos v. CalAtlantic Group (Cal. Ct. App. - Feb. 6, 2020)
There are already a half-dozen published opinions from the California Court of Appeal today, and the day's only half over. Fortunately, the Ninth Circuit published nothing today, so it's just the state court today that keeps us busy.
Plus, as a bonus, the first opinion of the day starts with a joke. Or at least what passes for a joke in the lofty circles in which we travel. Justice Gilbert begins the opinion by saying:
"It is reputed that condominium projects have three phases—planning, building, and the lawsuit."
Love it.
It's a nice little holding as well. Which Justice Gilbert concisely explains as follows:
"A condominium association sued the developer alleging construction defects. The association’s governing documents require arbitration of such disputes and a vote of at least 51 percent of the association’s membership prior to beginning arbitration. The association began arbitration without obtaining a vote of its members. Later, the members overwhelmingly voted to pursue the arbitration. The arbitrator dismissed the arbitration for lack of a membership vote prior to its commencement. The trial court confirmed the award and entered judgment for the developer. We reverse. We disagree with Branches Neighborhood Corp. v. CalAtlantic Group, Inc. (2018) 26 Cal.App.5th 743 which holds otherwise."
It's a good set of facts for the Court of Appeal's holding. In the ultimate vote of the homeowners, 99 percent agreed to go forward with the arbitration. Given that overwhelming support, it does seem a bit hypertechnical to say the vote's no good because it didn't predate the commencement.
Regardless, I think the California Supreme Court should grant review in this one. It's not just that there's (1) an express split in the Court of Appeal, (2) regarding an issue that's likely to come up in numerous other cases. Those interests are often sufficient by themselves to justify review.
But here, not only do these two factors exist, but (as the Court of Appeal notes), the case that today's opinion disagrees with involved nearly identical fact as the one here as well as involved the same developer and arbitrator. Which just concretely demonstrates that, unless the split is resolved, the outcome of future cases will be decided by the whim of appellate panel assignment.
So while it may not be the most interesting case in the universe, it's one that needs a definitive answer. And one that the California Supreme Court can probably give without too much trouble. It's a discrete issue and a relatively important one for the relevant industry.
So go ahead and take it up.
(Even though that means the joke will no longer be binding precedent.)
Plus, as a bonus, the first opinion of the day starts with a joke. Or at least what passes for a joke in the lofty circles in which we travel. Justice Gilbert begins the opinion by saying:
"It is reputed that condominium projects have three phases—planning, building, and the lawsuit."
Love it.
It's a nice little holding as well. Which Justice Gilbert concisely explains as follows:
"A condominium association sued the developer alleging construction defects. The association’s governing documents require arbitration of such disputes and a vote of at least 51 percent of the association’s membership prior to beginning arbitration. The association began arbitration without obtaining a vote of its members. Later, the members overwhelmingly voted to pursue the arbitration. The arbitrator dismissed the arbitration for lack of a membership vote prior to its commencement. The trial court confirmed the award and entered judgment for the developer. We reverse. We disagree with Branches Neighborhood Corp. v. CalAtlantic Group, Inc. (2018) 26 Cal.App.5th 743 which holds otherwise."
It's a good set of facts for the Court of Appeal's holding. In the ultimate vote of the homeowners, 99 percent agreed to go forward with the arbitration. Given that overwhelming support, it does seem a bit hypertechnical to say the vote's no good because it didn't predate the commencement.
Regardless, I think the California Supreme Court should grant review in this one. It's not just that there's (1) an express split in the Court of Appeal, (2) regarding an issue that's likely to come up in numerous other cases. Those interests are often sufficient by themselves to justify review.
But here, not only do these two factors exist, but (as the Court of Appeal notes), the case that today's opinion disagrees with involved nearly identical fact as the one here as well as involved the same developer and arbitrator. Which just concretely demonstrates that, unless the split is resolved, the outcome of future cases will be decided by the whim of appellate panel assignment.
So while it may not be the most interesting case in the universe, it's one that needs a definitive answer. And one that the California Supreme Court can probably give without too much trouble. It's a discrete issue and a relatively important one for the relevant industry.
So go ahead and take it up.
(Even though that means the joke will no longer be binding precedent.)
Wednesday, February 05, 2020
People v. Wear (Cal. Ct. App. - Feb. 4, 2020)
It's obvious that the Court of Appeal is taking this murder conviction really seriously. Justice Humes authors an opinion that includes a deep dive into the evidence. Really deep. Notwithstanding how overworked the Court of Appeal is and how easy it is to just rely on deferential standards of review, it's great to see an appellate court so obviously understand that someone's life is at stake (i.e., here, 80 years in prison) and making sure that the evidence sufficiently supports the conviction.
There's lots -- lots -- in here that I agree with. And Justice Humes does a masterful job of showing why the key piece of evidence of premeditation (a text message) is, in context, far different than the manner in which it was used at trial.
Though even though I'm profoundly impressed by Justice Humes' analysis, I nonetheless wanted to push back on that central point a tiny bit.
My strong sense is that there was indeed no premeditation and that this was merely a robbery or gun sale gone bad. Wear (the defendant) and his friend (Lowell) wanted to steal a gun from a guy they didn't like that much anyway, so set up a meeting to buy the gun. That's why, in the middle of the whole thing, Wear texted his girlfriend, who had sent him several texts without response: "I'm hitting a lick; stop." (I cleaned up the spelling and punctuation.) "Hitting a lick" is slang for getting a nice payday -- typically by robbing someone or the like. So that strongly supports, in my mind, that Wear and his friends weren't just going to buy the gun, but were in fact planning on ripping the seller off.
Thank goodness we know slang.
The text that purportedly shows premeditation, by contrast, isn't nearly as clear. Justice Humes does a great job (on pages 20 to 21 of the opinion) of showing the background of that text in the context of the ongoing "text-fighting" between Wear and his girlfriend. What the prosecution seized upon was one of those texts, in which Wear says (and I quote it in full): "I gnna have thatvbigga in hedward killed tay is aready stalkin,him,waiting,til I saybsnoke en."
First off: Prosecutions would be much easier if perpetrators actually learned to text (and spell) properly. What a pain to have to decipher this all.
But this text probably means something like "I'm going to have that guy in Heyward killed" and that "Taylor is already stalking him, waiting, until I say to kill (smoke) him." Which, as Justice Humes points out, is absurd, at least if interpreted (as the prosecution claimed) as a comment about plans to kill the victim. Taylor (a woman) was a friend of that guy, and was in no way, shape or form actually stalking the guy -- much less planning to kill him. Nor was that anything like what actually went down, in which the victim was shot during a gun deal.
Rather, Justice Humes seems right to me when he says that the "guy in Heyward" to whom Wear was referring was probably an ex-boyfriend of his girlfriend. Particularly since the whole context of this text exchange was about how the girlfriend had alleged been flirting with someone on Facebook, Wear had seen these exchanges, the girlfriend had blocked Wear on Facebook and Wear demanded to be reinstated, etc. In context, it seems crazy -- or, as Justice Humes puts it, "borders on the absurd" -- to suggest that in the middle of a fight with his girlfriend about her alleged flirtations on Facebook and his status therein, Wear suddenly decided made a random (and totally untrue) statement about his intentions to kill an unrelated person (the victim) with help from Taylor O. Completely crazy.
That assessment makes a lot of sense to me. With one substantial caveat.
That something seems crazy to us outsiders may not necessarily indicate that it didn't happen. At least in this context.
It bears mention that Wear is a huge heroin- and pill-head. As were most of the participants in this botched gun sale/drug deal/whatever it was. So, for example, while the text messages sent to Wear by his girlfriend during their "text fight" are rational and make total sense, those sent by Wear most definitely do not.
Check out, for example, Wear's first text message. His girlfriend texts him something that makes sense, saying: "I’ll start acting right as long as you do to cause the shit you do back to me is ten times worse and hurts me so much it makes me want to stop loving you and that’s hard cause i got so much love for you. Your my everything thing." To which Wear responds:
"I dont have fCd vikn abtnddbcdibt"
What?! That makes zero sense.
And do you know why it makes zero sense. Because the guy is totally high. So either his thoughts are unformed or his texting fingers aren't working very well or, most likely, both. A thought that not only occurs to me -- an outsider reading the text messages in retrospect -- but that did not escape his girlfriend either, who (accurately) responded to this nonsensical message by saying: "Wait wat? James did you take more pills?"
So then there's one more somewhat fuzzy text message by Wear and then, immediately thereafter, the disputed text saying "I gnna have thatvbigga in hedward killed tay is aready stalkin,him,waiting,til I saybsnoke en."
The point is this: Yes, it'd be remarkably random for Wear to interject in a text fight about flirting with people over Facebook that he intended to kill some random guy not involved at all in the whole Facebook dispute. But, at the same, time, Wear was, I suspect, totally and completely out of it. And guys totally and completely out of it sometime say things that are random and totally and completely out of it. That are not responsive at all to the underlying context of the conversation. But that, when viewed in the light most favorable to the prosecution, may nonetheless provide some support for their theory.
So I think that Justice Humes might have wanted to keep that in mind when saying that it'd be totally "absurd" for the conversation to refer to the victim rather than to some ex-boyfriend or the like. Yes, given the context, it'd be absurd. But perhaps not so absurd given the deteriorated mental state of the person making the comment.
Now, in the end, I still think that Justice Humes is right. Though I come to that conclusion not only for the reasons Justice Humes says (context) but also for another reason that isn't mentioned in the opinion but which seems like it might be relevant.
The disputed text message at issue says "I gnna have thatvbigga in hedward killed tay is aready stalkin,him,waiting,til I saybsnoke en." Justice Humes talks about how it doesn't make any sense that "Tey" (Taylor) would be stalking the victim, so it probably doesn't refer to him, and, again, that may well be right.
But the first part of that text message also perhaps provides a hint to the person to whom Wear intends to refer. That first part says: "I gnna have thatvbigga in hedward killed." Now, "gnna" is surely "gonna," and I strongly suspect that "thatvbigga in hedward" is a fat-fingered reference to the race of the relevant person. Since "vbigga" is, on the keyboard, very close to a different word -- the keys "vb" being right next to the "n". So I suspect that Wear meant to type that he was going to kill a "n***a" in Heyward. Which may provide a clue to the race of the individual to whom Wear intended to refer. Particularly since, in context, Wear was talking about the individual(s) with whom the girlfriend was allegedly flirting. A context highlighted by the very next text message from Wear after the disputed one, in which he says: "YOU ARE GETTING ALL THE NIHGAS OFF YOUR FB OR I SWEAR ILL,THROW URBSHIT OUT." I suspect that "NIHGAS" refers to the same word as before, and that Wear was indicating that he wanted them deleted from her Facebook ("FB") page, including but not limited to the one whom "Tay" was allegedly stalking and who he was going to have killed. A context that perhaps the girlfriend also understood, since she responded: "Then you doin the same wit females" followed by "And you are not ever talk to that fat bitch again james."
And, as far as I can tell, the victim in this case -- Ryan Rossknecht -- was not African-American.
Given the context of the other text messages, then, I think that the chances that Wear was randomly spouting off a reference to intending to kill Rossknecht is extraordinarily unlikely. And that to find such a reference beyond a reasonable doubt would be even more unfounded.
So, in the end, not only is this a thoughtful and exhaustive opinion, but I think it likely to come out the right way. I am confident that Wear did indeed kill Rossknecht. But it's clear that Wear did so only immediately after Rossknecht shot and killed the friend (Lowell) that Wear brought along to do the gun deal/ripoff, after a struggle for the weapon in the car. Was it during a robbery? Probably. Was that the plan at the outset? Almost certainly not. Much less beyond a reasonable doubt.
Wear and Lowell probably just planned on taking a gun from Rossknecht (rather than paying for it), and thought they'd just grab it -- they didn't bring a weapon themselves. They met in a public place, Rossknecht somehow figured out the plan, and shot and killed Lowell with the relevant gun (which Rossknecht himself brought to the transaction), and then seeing his friend shot and killed, Wear took the gun from Rossknecht and killed him with it. That's a crime, to be sure. But not necessarily the one for which at least of some of the jury thought that Wear was guilty beyond a reasonable doubt.
My read, anyway. Given the context, and in light of all the applicable evidentiary, appellate, and legal rules.
There's lots -- lots -- in here that I agree with. And Justice Humes does a masterful job of showing why the key piece of evidence of premeditation (a text message) is, in context, far different than the manner in which it was used at trial.
Though even though I'm profoundly impressed by Justice Humes' analysis, I nonetheless wanted to push back on that central point a tiny bit.
My strong sense is that there was indeed no premeditation and that this was merely a robbery or gun sale gone bad. Wear (the defendant) and his friend (Lowell) wanted to steal a gun from a guy they didn't like that much anyway, so set up a meeting to buy the gun. That's why, in the middle of the whole thing, Wear texted his girlfriend, who had sent him several texts without response: "I'm hitting a lick; stop." (I cleaned up the spelling and punctuation.) "Hitting a lick" is slang for getting a nice payday -- typically by robbing someone or the like. So that strongly supports, in my mind, that Wear and his friends weren't just going to buy the gun, but were in fact planning on ripping the seller off.
Thank goodness we know slang.
The text that purportedly shows premeditation, by contrast, isn't nearly as clear. Justice Humes does a great job (on pages 20 to 21 of the opinion) of showing the background of that text in the context of the ongoing "text-fighting" between Wear and his girlfriend. What the prosecution seized upon was one of those texts, in which Wear says (and I quote it in full): "I gnna have thatvbigga in hedward killed tay is aready stalkin,him,waiting,til I saybsnoke en."
First off: Prosecutions would be much easier if perpetrators actually learned to text (and spell) properly. What a pain to have to decipher this all.
But this text probably means something like "I'm going to have that guy in Heyward killed" and that "Taylor is already stalking him, waiting, until I say to kill (smoke) him." Which, as Justice Humes points out, is absurd, at least if interpreted (as the prosecution claimed) as a comment about plans to kill the victim. Taylor (a woman) was a friend of that guy, and was in no way, shape or form actually stalking the guy -- much less planning to kill him. Nor was that anything like what actually went down, in which the victim was shot during a gun deal.
Rather, Justice Humes seems right to me when he says that the "guy in Heyward" to whom Wear was referring was probably an ex-boyfriend of his girlfriend. Particularly since the whole context of this text exchange was about how the girlfriend had alleged been flirting with someone on Facebook, Wear had seen these exchanges, the girlfriend had blocked Wear on Facebook and Wear demanded to be reinstated, etc. In context, it seems crazy -- or, as Justice Humes puts it, "borders on the absurd" -- to suggest that in the middle of a fight with his girlfriend about her alleged flirtations on Facebook and his status therein, Wear suddenly decided made a random (and totally untrue) statement about his intentions to kill an unrelated person (the victim) with help from Taylor O. Completely crazy.
That assessment makes a lot of sense to me. With one substantial caveat.
That something seems crazy to us outsiders may not necessarily indicate that it didn't happen. At least in this context.
It bears mention that Wear is a huge heroin- and pill-head. As were most of the participants in this botched gun sale/drug deal/whatever it was. So, for example, while the text messages sent to Wear by his girlfriend during their "text fight" are rational and make total sense, those sent by Wear most definitely do not.
Check out, for example, Wear's first text message. His girlfriend texts him something that makes sense, saying: "I’ll start acting right as long as you do to cause the shit you do back to me is ten times worse and hurts me so much it makes me want to stop loving you and that’s hard cause i got so much love for you. Your my everything thing." To which Wear responds:
"I dont have fCd vikn abtnddbcdibt"
What?! That makes zero sense.
And do you know why it makes zero sense. Because the guy is totally high. So either his thoughts are unformed or his texting fingers aren't working very well or, most likely, both. A thought that not only occurs to me -- an outsider reading the text messages in retrospect -- but that did not escape his girlfriend either, who (accurately) responded to this nonsensical message by saying: "Wait wat? James did you take more pills?"
So then there's one more somewhat fuzzy text message by Wear and then, immediately thereafter, the disputed text saying "I gnna have thatvbigga in hedward killed tay is aready stalkin,him,waiting,til I saybsnoke en."
The point is this: Yes, it'd be remarkably random for Wear to interject in a text fight about flirting with people over Facebook that he intended to kill some random guy not involved at all in the whole Facebook dispute. But, at the same, time, Wear was, I suspect, totally and completely out of it. And guys totally and completely out of it sometime say things that are random and totally and completely out of it. That are not responsive at all to the underlying context of the conversation. But that, when viewed in the light most favorable to the prosecution, may nonetheless provide some support for their theory.
So I think that Justice Humes might have wanted to keep that in mind when saying that it'd be totally "absurd" for the conversation to refer to the victim rather than to some ex-boyfriend or the like. Yes, given the context, it'd be absurd. But perhaps not so absurd given the deteriorated mental state of the person making the comment.
Now, in the end, I still think that Justice Humes is right. Though I come to that conclusion not only for the reasons Justice Humes says (context) but also for another reason that isn't mentioned in the opinion but which seems like it might be relevant.
The disputed text message at issue says "I gnna have thatvbigga in hedward killed tay is aready stalkin,him,waiting,til I saybsnoke en." Justice Humes talks about how it doesn't make any sense that "Tey" (Taylor) would be stalking the victim, so it probably doesn't refer to him, and, again, that may well be right.
But the first part of that text message also perhaps provides a hint to the person to whom Wear intends to refer. That first part says: "I gnna have thatvbigga in hedward killed." Now, "gnna" is surely "gonna," and I strongly suspect that "thatvbigga in hedward" is a fat-fingered reference to the race of the relevant person. Since "vbigga" is, on the keyboard, very close to a different word -- the keys "vb" being right next to the "n". So I suspect that Wear meant to type that he was going to kill a "n***a" in Heyward. Which may provide a clue to the race of the individual to whom Wear intended to refer. Particularly since, in context, Wear was talking about the individual(s) with whom the girlfriend was allegedly flirting. A context highlighted by the very next text message from Wear after the disputed one, in which he says: "YOU ARE GETTING ALL THE NIHGAS OFF YOUR FB OR I SWEAR ILL,THROW URBSHIT OUT." I suspect that "NIHGAS" refers to the same word as before, and that Wear was indicating that he wanted them deleted from her Facebook ("FB") page, including but not limited to the one whom "Tay" was allegedly stalking and who he was going to have killed. A context that perhaps the girlfriend also understood, since she responded: "Then you doin the same wit females" followed by "And you are not ever talk to that fat bitch again james."
And, as far as I can tell, the victim in this case -- Ryan Rossknecht -- was not African-American.
Given the context of the other text messages, then, I think that the chances that Wear was randomly spouting off a reference to intending to kill Rossknecht is extraordinarily unlikely. And that to find such a reference beyond a reasonable doubt would be even more unfounded.
So, in the end, not only is this a thoughtful and exhaustive opinion, but I think it likely to come out the right way. I am confident that Wear did indeed kill Rossknecht. But it's clear that Wear did so only immediately after Rossknecht shot and killed the friend (Lowell) that Wear brought along to do the gun deal/ripoff, after a struggle for the weapon in the car. Was it during a robbery? Probably. Was that the plan at the outset? Almost certainly not. Much less beyond a reasonable doubt.
Wear and Lowell probably just planned on taking a gun from Rossknecht (rather than paying for it), and thought they'd just grab it -- they didn't bring a weapon themselves. They met in a public place, Rossknecht somehow figured out the plan, and shot and killed Lowell with the relevant gun (which Rossknecht himself brought to the transaction), and then seeing his friend shot and killed, Wear took the gun from Rossknecht and killed him with it. That's a crime, to be sure. But not necessarily the one for which at least of some of the jury thought that Wear was guilty beyond a reasonable doubt.
My read, anyway. Given the context, and in light of all the applicable evidentiary, appellate, and legal rules.
Tuesday, February 04, 2020
People v. Flores (Cal. Ct. App. - Feb. 4, 2020)
This is an otherwise unexceptional affirmance. Except for one thing.
Fallon Flores was charged with murder but pleaded guilty to involuntary manslaughter, and after the passage of Senate Bill 1437, thinks she might be able to be resentenced under its provisions. But the Court of Appeal holds otherwise. Fair enough.
When Justice McConnell recites the (brief) facts of the case, however, she describes the crime as follows:
"In 2013, Flores and five codefendants were each charged by information with one count of the murder of victim John Doe [Cite] while they were engaged in the commission or attempted commission of a robbery [Cite] and a kidnapping . . . and acted for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members."
That's not especially unusual. Robbed and kidnapped someone for the benefit of a gang.
But what's the deal with the "John Doe?" It's not a sex crime case, or other situation in which we're typically hesitant to identify the victim. You don't typically see that in cases like this, and the Court of Appeal doesn't explain anywhere why we're using a Doe.
It's especially unusual because we've expressly named the victim in other Court of Appeal decisions in this very same crime. Remember that the Court of Appeal mentioned that Flores "and five codefendants" were charged with the crime. Well, other defendants appealed their convictions as well. And in those opinions, the Court of Appeal not only expressly mentions Fallon Flores' name, and not only expressly mention the name of the victim (Fernando Renteria), but also give a fair piece of detail about that victim (calling him "a small-time drug user and distributor in the Moreno Valley area of Riverside County").
It wouldn't bother me if we called every crime victim a Doe (though I think that using their actual names somewhat personalizes the crime and makes it feel more real). Or if we only called them Doe in particular types of cases.
It just seemed unusual to me to see a Doe in this type of case. Maybe a new trend.
POSTSCRIPT - An informed reader referred me to the Fourth Edition of the California Style Manual, which I looked up, and says (at Section 5.9, at page 179-80): "The Supreme Court has issued the following policy statement to all appellate courts: 'To prevent the publication of damaging disclosures concerning living victims of sex crimes and minors innocently involved in appellate court proceedings it is requested that the names of these persons be omitted from all appellate court opinions whenever their best interests would be served by anonymity. Anonymity, however, is inappropriate for homicide victims, who are to be identified whenever possible.'" Or, as the reader aptly put it: "The ironclad rule forever was that murder victims must be named in court opinions, if for no other reason than to give them dignity." Seems right to me.
Fallon Flores was charged with murder but pleaded guilty to involuntary manslaughter, and after the passage of Senate Bill 1437, thinks she might be able to be resentenced under its provisions. But the Court of Appeal holds otherwise. Fair enough.
When Justice McConnell recites the (brief) facts of the case, however, she describes the crime as follows:
"In 2013, Flores and five codefendants were each charged by information with one count of the murder of victim John Doe [Cite] while they were engaged in the commission or attempted commission of a robbery [Cite] and a kidnapping . . . and acted for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members."
That's not especially unusual. Robbed and kidnapped someone for the benefit of a gang.
But what's the deal with the "John Doe?" It's not a sex crime case, or other situation in which we're typically hesitant to identify the victim. You don't typically see that in cases like this, and the Court of Appeal doesn't explain anywhere why we're using a Doe.
It's especially unusual because we've expressly named the victim in other Court of Appeal decisions in this very same crime. Remember that the Court of Appeal mentioned that Flores "and five codefendants" were charged with the crime. Well, other defendants appealed their convictions as well. And in those opinions, the Court of Appeal not only expressly mentions Fallon Flores' name, and not only expressly mention the name of the victim (Fernando Renteria), but also give a fair piece of detail about that victim (calling him "a small-time drug user and distributor in the Moreno Valley area of Riverside County").
It wouldn't bother me if we called every crime victim a Doe (though I think that using their actual names somewhat personalizes the crime and makes it feel more real). Or if we only called them Doe in particular types of cases.
It just seemed unusual to me to see a Doe in this type of case. Maybe a new trend.
POSTSCRIPT - An informed reader referred me to the Fourth Edition of the California Style Manual, which I looked up, and says (at Section 5.9, at page 179-80): "The Supreme Court has issued the following policy statement to all appellate courts: 'To prevent the publication of damaging disclosures concerning living victims of sex crimes and minors innocently involved in appellate court proceedings it is requested that the names of these persons be omitted from all appellate court opinions whenever their best interests would be served by anonymity. Anonymity, however, is inappropriate for homicide victims, who are to be identified whenever possible.'" Or, as the reader aptly put it: "The ironclad rule forever was that murder victims must be named in court opinions, if for no other reason than to give them dignity." Seems right to me.
U.S. v. George (9th Cir. - Feb. 4, 2020)
You've got to wade through ten pages of prose to get there. But it's worth it, if only to get to the money line of Judge Miller's opinion. Which reads:
"George emphasizes that he targeted victims who had fallen behind on their mortgage payments, and he asserts that he did not cause them financial hardship because they were going to lose their homes anyway, even if he had not defrauded them. 'I stole only from those who were already poor' is not often advanced as an argument in mitigation, and we find it unpersuasive."
Classic.
"George emphasizes that he targeted victims who had fallen behind on their mortgage payments, and he asserts that he did not cause them financial hardship because they were going to lose their homes anyway, even if he had not defrauded them. 'I stole only from those who were already poor' is not often advanced as an argument in mitigation, and we find it unpersuasive."
Classic.
Monday, February 03, 2020
People v. Frederickson (Cal. Supreme Ct. - Feb. 3, 2020)
Defendant wants to represent himself in a death penalty case. We let him. Defendant wants to plead guilty. We don't let him.
Regardless, the California Supreme Court unanimously affirms the death penalty imposed here. In a case with facts (and a defendant) that's far from typical.
Read all about it.
Regardless, the California Supreme Court unanimously affirms the death penalty imposed here. In a case with facts (and a defendant) that's far from typical.
Read all about it.
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