Wednesday, December 30, 2020

People v. Martinez (Cal. Ct. App. - Dec. 30, 2020)

I wonder if the Attorney General's office took this appeal seriously enough.

The defendant, Monica Martinez, is a bail agent who was convicted of violating Section 1814 of the Insurance Code.  That statute -- pursuant to various regulations -- prevents bail licensees from, inter alia, entering into arrangements with people currently incarcerated to refer other individuals (i.e., other people in the jail) to a particular bail agent.

You can see why those rules exist.  You don't want particular bail agents paying off people in jail to refer people to that particular agent.  You'd rather have the marketplace decide; on price, on quality of service, etc.  This might be an especially important concern since people in jail might have limited access to high-quality information about particular bail agents, so you don't want them making their decision simply based upon which bail agents can afford to pay off enough fellow inmates to refer 'em.

Understandably, the defendant insists that these regulations violate her free speech rights (and the free speech rights of other inmates).  To be clear:  Inmates are still allowed to sua sponte tell other inmates that their bail agent was awesome or terrible or whatever.  Bail agents just can't pay 'em to do so; i.e., can't "make arrangements" with them for such referrals.

Does that limit free speech?  Sure.  To a degree.  Is there a sufficiently legitimate state interest for the thing?

The Court of Appeal says:  No.  Holding that the limitation is unconstitutional and violates the First Amendment.

There's a dissent that argues otherwise.  But the majority goes the other way.  It admits that there's a state interest in regulating in-custody bail arrangements.  Which is not surprising, since there's fairly extensive precedent on this point.  As the legislative history surrounding one of the relevant statutory enactments -- and cited by the majority -- accurately reflects:  "Unfortunately, the industry reports that the State Department of Insurance has a difficult time enforcing laws and regulations designed to prevent the unfair and anti-competitive practice of providing compensation to inmates for soliciting the business of detained individuals. The practice of providing compensation to inmates for such activities has, in effect, permitted inmates unlicensed by the department to solicit bail services. Inmates do not know, nor should they be expected to know the laws pertaining to bail bonds services[,] and [they] can intimidate detained individuals into calling a particular agent because of the monetary benefit which creates an unfair and anti-competitive business atmosphere. [¶] The anticompetitive situation [arises] when one bail company compensates inmates to solicit business and detained individuals are not free to call other bail companies. Essentially, bail companies abiding by the department’s regulations lose business while those ignoring existing regulations obtain all the business. In fact, the bail industry reports that situations arise where one bail company has written nearly every bond at a jail.”

Okay, then why is the prohibition at issue unconstitutional?  Because, according to the majority, the Attorney General "failed to demonstrate that section 2076 provides more than 'only ineffective or remote support for the government’s purpose'” under the relevant Central Hudson test.  The Court of Appeal says:  "[I]n this case, the People have made no attempt to show that section 2076 directly and materially advances the state’s substantial interests. . . . Although they articulate substantial state interests, the People merely make the conclusory statements that section 2076 advances those interests and is 'narrowly tailored.' But they utterly fail to tie section 2076 to the direct and material advancement of those interests."

The Court of Appeal thus concludes:  "Since the state has failed to carry its burden, we conclude that section 2076 is invalid as a facially overbroad regulation of speech that does not survive even the intermediate level of review that applies to commercial speech."

One might perceive two alternative (or potentially reinforcing) problems here.  First, maybe the Attorney General's office didn't take the appeal seriously enough to marshall sufficient evidence or argument to justify the statute.  After all, it's just a penny-ante criminal conviction; maybe the AG thought there was no way the Court of Appeal was going to through out such a common-sense statute.  If so, well, that was definitely the wrong call.

Or maybe the majority demanded too much "proof" of what seems a straightforward principle.  In a footnote, the majority opinion faults the dissent for not providing actual "evidence" of the need for the statute, saying:  "The dissent does not point to any empirical data, history, or evidence, even anecdotal, to establish the efficacy of the regulation. Its unsupported reasoning sounds more like less-demanding 'rational basis' review than the heightened scrutiny applicable to commercial speech."  Perhaps.  But I definitely see the contrary viewpoint as well.  Letting bail agents make "arrangements" with inmates to refer clients to 'em clearly, in my view, distorts the marketplace, and punishing such conduct will lead to a marketplace more closely (albeit admittedly still imperfectly) competes on relevant criteria -- price, quality, service, etc.  So maybe the majority's asking for too much.

Or maybe the Attorney General should have provided more than he did. 

Tuesday, December 29, 2020

E.P. v. Superior Court (Cal. Ct. App. - Dec. 28, 2020)

A statute says a juvenile has a right "to be present" at his deliquency hearing.  Does that statute prevent a court (absent a countervailing statute) from ordering -- as many county courthouses have done -- that all delinquency hearings are to be held remotely during the COVID-19 pandemic?

The Court of Appeal says:  Yes.

It's definitely an exercise in plain language.  The statute at issue was passed in 1961.  Justice Robie is surely right that, at that time, the Legislature didn't contemplate remote hearings.  Of course, they also probably didn't anticipate a global pandemic sixty years hence, but there you have it.  The Court of Appeal says that if you want to get rid of that statute, you've got to pass another one that supersedes it -- not just pass superior court rules or executive orders like the one here.

Okay.  I can see that argument.  One might take a different view about what "present" means, or think that the factual realities of the modern era augur in favor of a more expansive interpretation of that word, but I don't find at all implausible the result reached by the Court of Appeal.

But I did want to ask a follow-up question.

Okay, so the statute says that the minor has the right to be "(physically) present" at the hearing.  Does that mean that everyone else has to be there too?

So say the juvenile does indeed have a right to show up in court, and that's where the hearing is.  But the judge, the lawyers, the prosecutor, the court reporter, and everyone else is on video.  Is that okay?  After all, the statutory language definitely only applies to the juvenile being there.  Surely there's no bar to the prosecutor, court reporter, and the like being on video.  And while I can see an argument that if the judge isn't physically there then the "hearing" isn't there, I think the counterargument probably has more strength:  we do plenty of hearings (Ninth Circuit, etc.) with one or more judges on video -- even in pre-COVID times -- and we still think the "hearing" transpires in the courtroom even when the judge isn't there.

So I wonder if one way around this opinion is for the relevant courts to say:  "Sure, go ahead, show up.  You'll be the only one there.  Everyone else will be on video, so enjoy your empty courtroom.  And then go ahead and worry that we'll (potentially sub rosa) take it out on you by viewing you and your counsel harshly for trying to make us personally appear during a panedemic.  Enjoy."

Monday, December 28, 2020

Ashe v. Saul (9th Cir. - Dec. 28, 2020)

Thank goodness for decisions like this one.

You'd think they'd be routine.  A regulation says that when a notice is mailed it's "presumed" to have been received by the recipient.  Which totally makes sense.  So here, according to an electronic entry in the file, the Social Security Administration Appeals Council apparently did mail notice to a particular claimant and her counsel.  Okay so far.

But both the claimant and her counsel swear, under penalty of perjury, that they never received the thing.  Which is eminently possible.  Maybe the electronic entry was wrong.  Maybe the post office lost the mail.  So the Ninth Circuit says -- entirely reasonably -- that these sworn declarations rebut the presumption.  A presumption that's not conclusive or anything; it's just that, a presumption.  Presumptions can be rebutted, and if the multiple sworn declarations here aren't good enough to rebut the presumption of delivery, it's at least difficult (if not impossible) to think of anything that could rebut the presumption.

So great.  Awesome.  Seems exactly right.

Yet, as the opinion mentions, there are all these other cases that hold that declarations like these don't rebut the presumption.  Opinions that are clearly motivated by a need for finality and, probably implicitly, an underlying belief that the declarants are lying (but without a willingness to expressly say so or to require the lower court to so find).

I get the need for finality.  I get the (entirely well-founded) belief that people may lie, and that their lies may be difficult to definitively disprove.

But we deal with things like this all the time.  People sometimes lie.  In criminal cases, in civil cases, in everything.  We deal with that by deciding credibility.  If we think that someone's telling the truth when they say they didn't receive a document that an electronic notification says was sent, then so be it; the presumption of delivery is rebutted.  If we think they're lying -- for example, if it was sent certified mail, or there's a signature, or simply if we don't find their story credible -- then the presumption isn't, and (for good reason) we don't bar people from challenging decisions of which they have no notice.

Totally fair.  Totally right.  And unfortunate that all courts can't agree on at least this simple, basic principle

Tuesday, December 22, 2020

Capra v. Capra (Cal. Ct. App. - Dec. 22, 2020)

When I first saw the caption to this case -- Capra v. Capra -- I thought:  "How ironic; it's the holiday season and there's a fight between the Capras in the Court of Appeal.  How funny would it be if it was Frank Capra."  (He was, obviously, the director of the holiday classic It's a Wonderful Life.)

But clearly it's going to be a divorce case between two people who coincidentally have the last name Capra.  If only because Frank Capra's been dead for nearly 30 years; plus, the first names on the caption are "Thomas" and "Lucille."  So just a random coincidence.

But when I start reading the opinion, I realize:  "Wait.  This isn't a divorce case.  It's a family fight about the ownership of a cabin on June Lake."  And then I realize:  It's indeed Frank Capra's cabin.  The Frank Capra.  Justice Hull never mentions that the "Frank Capra" discussed in the opinion was famous, but the dates and other details match.  It's a fight between his children and grandchildren about who owns and gets to use the cabin.  A fight that's absurd in its (1) existence, and (2) length and breadth.  (It's been going on for years and years, with multiple trips to the Court of Appeal, and shows no sign of abating; the latest decision largely addresses jurisdiction and remands the case for litigation on the merits.)

Given that Frank gave the cabin equally to his children, you'd think his grandkids could figure out a way to resolve things amicably (or at least reasonably).  I'm quite confident Frank wanted the cabin to result in family togetherness rather than extended and bitter litigation.

Yet here we are.

You'd think that in the holiday season, and given the providence of the cabin, the parties could resolve their differences.

Apparently not.

Still:  It's a great movie. 

Monday, December 21, 2020

Trenk v. Soheili (Cal. Ct. App. - Dec. 21, 2020)

This is an otherwise routine story about a guy who owes $100,000, signs a promissory note secured by his house, stops paying the monthly installments required by the note, and then has the owner of the note start to foreclose on his house.

With a twist.  The guy's a lawyer.  The $100,000 note was the settlement of a legal malpractice lawsuit filed against him.  And even though he only paid $25,000 of the amount due, he successfully avoided the attempt to enforce the note against his home.  His wife didn't sign the note, and since the home was presumptively community property, it can't be enforced.

Sweet deal for Mr. Malpractice.

The attorney's name is Joseph Trenk, a Southwestern law school graduate who practices in Van Nuys.  Check out his extensive disciplinary history.  Take a gander at the plethora of negative reviews on Yelp.  All that, plus the underlying malpractice judgment, probably means that Mr. Trenk should not be your go-to guy for legal representation.

But, hey, he successfully defends himself from having to pay promises he made to former clients.  So he's got that going for him.

Which is nice.

Friday, December 18, 2020

11 Lagunita LLC v. California Coastal Commission (Cal. Ct. App. - Dec. 18, 2020)

That's a pretty big administrative penalty.  A million dollars.  That's a pretty big spanking for violating various conditions of a coastal development permit.  Or at least that was my first thought.

At the same time, however, the homeowners -- Jeffrey and Tracy Katz of Laguna Beach -- did strip the house down to its studs, completely remodel it, and then label that work a "minor remodel" in an attempt to circumvent the coastal development permit that governed the property.  They then refused to stop work after the Coastal Commission expressly told 'em to do so.  That's fairly bold.

Plus, it's not like Mr. and Mrs. Katz are poor -- and, in the scheme of things, the $1 million penalty is almost a drop in the bucket.  Laguna Beach is a pretty ritzy place, after all.  And this property is literally on the sand on the beach.  Jeff and Tracy not only own the beach house at issue, but also the beach house next door.  And the remodel increased the value of the property from $14 million (!) to $25 million.

Given this background, what's another million or so amongst friends, eh?

Thursday, December 17, 2020

Malek Media Group LLC v. AXQG Corp. (Cal. Ct. App. - Dec. 17, 2020)

What a smackdown.

It's always bad to lose an appeal.  You've wasted time, money and effort.

But it can be worse.  As it is here.  When both the client and the lawyer get sanctioned for a frivolous appeal.

Not for a token $5,000 or something like that, either.  The Court of Appeal imposes a sanction of $46,000 in attorney's fees, payable to the prevailing party.  Plus, for good measure, another $10,000 payable to the clerk of the court.

Oh, yeah.  And the Court of Appeal orders the sanctions reported to the State Bar.

Yet even that's not all.

Justice Dhanidina also goes out of his way to slam the arguments on appeal.  And not with just your ordinary slams on their merits, either.

Check out, for example, these choice quotes:

"MMG and its counsel are equally culpable for pursuing this frivolous and bigotry-infused appeal. MMG’s counsel had numerous opportunities to dismiss the appeal and to withdraw its baseless claims, but chose not to. Instead, MMG’s counsel persisted in its efforts without any legal or factual support, filing wholly deficient briefs and nonsensical requests for judicial notice, supported by declarations from Malek and his counsel. As stated above, this court is not the forum for MMG or its counsel to rant about conspiracies or their politics. This court has wasted its time and resources considering MMG’s appeal, which has only served as a drain on the judicial system and the taxpayers of this state."

"The Court of Appeal is not an appropriate forum to peddle far-fetched conspiracy theories, laced with sexism and homophobia, disguised as a legitimate appeal."

Los Angeles attorney Jeffrey Konvitz is the recipient of these choice words.  Not his best appeal, I'm sure.

Wednesday, December 16, 2020

Attia v. Google (9th Cir. - Dec. 16, 2020)I

I generally try not to use my professional title ("Professor") outside of academia.  I may have "earned" the appellation -- at least using that term loosely -- but still.  Seems pretentious at times.

I say that appropos the listing of counsel in this Ninth Circuit appeal from earlier today, which includes the following entry:  "Professor G. Robert Blakey Emeritus, Notre Dame Law School, Paradise Valley, Arizona."  I was struck by the inclusion of that listing in part because I was fairly certain that Notre Dame Law School was not located in Paradise Valley, Arizona, and wondered if there was another Notre Dame of which I was not aware.  (After all, London Bridge is in Arizona too.)

Of course, the listing is simply the address of a retired law professor.  Fair enough.  Arizona's the new Florida.

Though they all seem to come to San Diego during the summer.

Anyway, the professor emeritus (and his co-counsel) lose, and Google wins.

Tuesday, December 15, 2020

In re A.G. (Cal. Ct. App. - Dec. 15, 2020)

Justice Currey begins this opinion in an obviously dramatic (and effective) fashion, saying:  "Columbine. Sandy Hook. Virginia Tech. Marjory Stoneman Douglas. These are but a few of a staggering number of American schools where fatal mass shootings have occurred. [These events are] [s]eared into the national consciousness . . . ."

Fair enough.  All that's true.  And given the facts of this case, you can see why he might elect to begin the opinion that way.

Though after reading the whole thing, one could have started the opinion a different way as well.  With something like: 

"Kids are stupid.  Remarkably stupid.  Stunningly, inexplicably, undeniably stupid.  Their frontal lobes aren't yet fully developed.  They lack impulse control.  Their ability to understand and/or evaluate future consequences is, at times, amazing.  Even intellectually 'smart' kids.  Here, a kid posts a Snapchat story that gets posted and potentially viewed by 60 or so random 'friends' with a caption that says 'Everybody go to school tomorrow. I'm taking gum' attached to a picture of a fake gun owned by one of his friends. A short while later, after a couple of people freak out, the kid realizes what he's done and posts a follow-up that says 'Everyone, it wasn’t real. I was xanned out.'  Even though he wasn't, in fact, taking Xanaz; that's just another idiotic thing he said.  After people report this to the police, the kid gets in trouble because everyone's freaking out about another potential Columbine.  The moron kid tries to explain that it's all just fake, stupid, unreal kid stuff that sometimes inexplicably happens, but no one cares at this point because it's a big-ticket item, and the kid gets sentenced to six months of probation in juvenile court on the grounds that his Snapchat story was a 'threat' to one of the teachers at the school (who wasn't actually on his story but who got sent the thing by a different freaked-out kid).  So that's what we have to deal with here."

Am I fine with getting this kid some therapy or education or something like that so he can more fully understand why people went crazy given what he said?  Sure.  For that reason, the fact that the kid gets put on probation for six months doesn't make me inordinately sad or angry or depressed.  Not a massive sentence and, in any event, maybe it'll do him some good.

But I simultaneously have a sense that things like this are sometimes much ado about nothing; or, more accurately, much ado about regular old adolescent stupidity that, sure, we gotta take seriously given the incredibly small probability of a high-consequence event, but which nonetheless (as here) usually just entails an absurd teenager concretely demonstrating the relative absence of myelin in their fat little heads.

Friday, December 11, 2020

People v. Edgerrin J. (Cal. Ct. App. - Dec. 10, 2020)

I'll add this one thought to the cogent and insightful comments expressed by Justice Dato:

This case doesn't get reversed on Fourth Amendment grounds in the era before police officers started wearing body-worn cameras.  Absent the cameras, the officers' testimony would have been believed and the detention of the minors here approved.  It's only because the officers are wearing cameras -- plus the heightened attention currently displayed towards the racial impact of overpolicing -- that results in both the tone and content of this opinion.

One (much less significant) final thought.  The minor's name here is "Edgerrin J."  We don't know his last name, but his first name (and initials) are somewhat unusual, and I couldn't stop myself from thinking of this guy.

Wednesday, December 09, 2020

Alfaro v. Superior Court (Cal. Ct. App. - Dec. 9, 2020)

 Here's how this afternoon's Court of Appeal opinion begins:

"Petitioner Edenilson Misael Alfaro (Defendant), a defendant in a capital murder case filed in Marin County (the County), sought discovery in connection with his claim that juries in the County were not selected from a fair cross-section of the community. The records he sought included the County’s master list of prospective jurors. Defendant relied on Pantos v. City and County of San Francisco (1984) 151 Cal.App.3d 258 (Pantos), which held a court’s “master list of qualified jurors . . . is a judicial record subject to public inspection and copying.” (Id. at pp. 260–261.) The trial court denied the request, finding that Pantos was no longer good law in light of subsequent statutory developments, and that Defendant failed to make the showing required for discovery related to a fair cross-section challenge. 

We consider subsequent statutory developments and countervailing privacy interests, and conclude Pantos is still good law, at least as to the names and zip codes appearing on master jury lists. Accordingly, we will issue a writ directing the trial court to reverse its order denying Defendant’s request for these records."

The only thing defendant wants is names and zip codes -- things that hardly invade anyone's privacy, and that defendant thinks will show that certain racial groups are radically underrepresented on juries, perhaps due to how the county's juror selection system purges "duplicate" names from the system.

It'd be one thing if the County resisted the subpoena because it was massively expensive or revealed confidential information about particular people.  But that's totally not the case here.  You're instead left with the distinct impression that the County doesn't want the defendant to know how jurors are selected precisely because it's worried that they'll discover that the process does not, in fact, work the way it should.

The whole "sunlight is the best disinfectant" principle seems quite applicable here.

(Though perhaps, in these COVID times, it bears mention that sunlight is not, in fact, the best disinfectant for actual diseases.)

Tuesday, December 08, 2020

Clare v. Clare (9th Cir. - Dec. 8, 2020)

You're used to seeing former spouses on opposite sides of the caption in state court, which deals with a fair number of family law cases.  But it's fairly uncommon in federal court.  So when I saw that this opinion was captioned "Clare v. Clare" -- and was indeed about former spouses suing each other -- it piqued my interest.

The lesson I learned was this:  Don't spy on even your current spouse's email and other electronic data.  Because they may well sue you.

Especially if, as here, your spouse (here, the wife) is a lawyer.

The former spouse appears to be represented on appeal by her law partner in a two-attorney firm.  In a litigation that -- perhaps not surprisingly -- seems especially nasty.

Regardless, even if your spouse isn't an attorney, let their private stuff stay private.  Or else.

Monday, December 07, 2020

Sandoval-Ryan v. Oleander Holdings LLC (Cal. Ct. App. - Dec. 7, 2020)

It's a Monday during the Fall, so that means Monday Night Football.  But since it's 2020, MNF starts today at . . . 2:00 p.m.  Classic.

Meanwhile, you read a fair number of cases where an elderly person dies at a nursing home.  Yet today, we see the same thing, but with a twist.  Today's opinion begins:

"Plaintiff was the conservator and caretaker of her younger brother Sandoval. On September 2, 2014, Sandoval was admitted to Post-Acute, a skilled nursing facility owned and operated by Oleander and Plum Healthcare, for purposes of rehabilitating him from surgery and returning him to a lower level of care. While undergoing care at PostAcute, Sandoval developed multiple serious health complications. Sandoval was transferred to the hospital on November 5, where he was found to have multiple pressure ulcers, infection, distended bowel, and fecal impaction. He died on December 24."

Someone younger than usual.  Someone who dies on Christmas Eve.

Even sadder than usual.

Friday, December 04, 2020

McGee v. S-L Snacks National (9th Cir. - Dec. 4, 2020)

I could see a panel being hostile to this putative class action -- especially a panel that might personally like to snack on Pop Secret popcorn.  Personally, I don't think that the lawsuit has much of a chance of success.

But the panel's seemingly relentless desire to immediately dismiss the suit on constitutional standing grounds strikes me as a bit overly aggressive.

Plaintiff says that Pop Secret contains trans fat and that, as a result, it's physically harmful and worth nothing, so she lost the benefit of her bargain (and was physically injured) when she bought it.  The manufacturer of Pop Secret expressly concedes before oral argument that plaintiff has standing to sue.

But the panel refuses to accept this concession, and dismisses the case for lack of constitutioanl standing.

Judge Tashima's principal argument is that the plaintiff has not "plausibly alleged" that she suffered various harms -- a phrase that he repeats around a dozen times in the opinion.  In particular, Judge Tashima examines at the studies that plaintiff cites and says that they don't "really" establish that eating Pop Secret's trans fat every month or two causes any physical harm.

But, first, I'm not certain that's true.  It might well cause harm.  That seems to me a factual issue, and one that can't be decided on the pleadings -- especially when plaintiff expressly alleges that such a trans-fat intake does indeed cause harm.  That's a factual dispute; and one that seems especially inappropriate to decide at the pleading stage given that the defendant CONCEDES standing on the basis of these alleged harms.

Second, doctrinally, I'm not at all sure that the Twiqbal "plausible allegation" standard actually applies to the factual existence of constitutional standing in any event.  I've always thought of constitutional standing as a factual issue -- one that you decide on the factual merits -- not one of pure pleading.  The "plausibility" standard of Twiqbal surely applies to the factual allegations underlying the causes of action, but I never recall seeing the Supreme Court previously apply it to the existence or nonexistence of constitutional standing.  And I'd think it wouldn't apply; whether the Constitution authorizes federal adjudication relies on the fact of standing, not any particular pleading (pro or con).  Just like the federal court can raise constitutional standing sua sponte -- as, indeed, the panel does here -- and find it (in an appropriate case) lacking notwithstanding the consent of the parties, so too does this issue seem one of actual fact and not sufficient (or allegedly insufficient) pleading.

So get rid of the case if you don't like it; on the merits, on summary judgment, on class certification, or whatever.  But I'm a little bit dubious about the "no constitutional standing because it's implausibly pled because we read your studies to say something different than you claim" point.  That seems perhaps a bit overly strong.

Thursday, December 03, 2020

U.S. v. Lozoya (9th Cir. - Dec. 3, 2020)

It's hard for me to care deeply about this case.

Is it intellectually interesting?  Definitely.  It's about the proper venue for a criminal prosecution for events that transpired during an airplane flight -- miles above any particular state.  The Constitution says that in criminal actions, venue is proper only "in the State where the said Crimes shall have been committed," but that if the crime was “not committed within any State . . . the Trial shall be at such Place or Places as the Congress may by Law have directed.”

So, here, one passenger slapped another during a flight from Minneapolis to Los Angeles.  It's unclear where exactly the plane was when the slap took place.  Federal law says that you're allowed to prosecute these actions in the place where the plane landed; here, in the Central District of California.

Is that consistent with the Constitution?

Obviously, the Framers didn't have any preconception about this issue.  After all, plane flights weren't exactly common in 1787.  But let's just read the words.  Is a slap five miles above a particular state an offense "in" that state?  What about 10 miles?  100 miles?  1000?  If so, then, no, a criminal prosecution in California doesn't work, and it's got to be in whatever (random) state the plane happened to be in at the particular time of the slap.  Otherwise, it's okay to follow the federal statute and prosecute the action in California.

The en banc court decides today, in a 8-3 decision, that a prosecution in California is permitted.

As I said, it's an interesting intellectual issue -- yet another one of those "How do you interpret the Constitution to account for events that indisputably the Framers did not imagine" issues.  So the fight between the majority and the dissent is indeed engaging.

But that's a little bit swamped by the practicalities of the whole thing.

It's a fight about a tiny little slap on an airplane.  A misdemeanor.  An offense for which the defendant, Ms. Lozoya, gets sentenced to a $750 fine.  As the result of a prosecution in her home state, as opposed to being prosecuted in federal court in, say, Utah or Nebraska or wherever else the plane happened to fly.

She argues that those are the only places a prosecution's allowed.  But it's undeniably more convenient to her for the prosecution to take place here.  She'd have a legitimate complaint, in my view, were the offense instead tried in one of these far-flung, temporally random places.

Moreover, as a reminder, it's petty little a misdemeanor.  For which she's simply sentenced to a $750 fine.  For that, she gets a public defender and (1) goes to trial, (2) files an appeal, and (3) has the case taken en banc.  We're wasting way over $750 on this thing.  All for a crime that she did, in fact, totally commit.

So there's part of me that just says:  Take your lumps.  Pay the fine.  Stop whining and wasting the time and money of everyone else just because you can't control yourself on a plane.

Yes, yes, of course, everyone's entitled to a robust defense.  Totally true.  And, again, it's an interesting issue, and one that might well be important for other -- more serious -- offenses; e.g., people who may sexually assault other passengers on a plane.

But it's nonetheless hard for me to get too worked up for Ms. Lozoya.  It's a $750 misdemeanor for a slap she should never have done.  My brain is indeed interested in the doctrinal complexity of her case, but perhaps unsurprisingly, my heart is nonetheless not all that into it.

Wednesday, December 02, 2020

U.S. v. Collazo (9th Cir. - Dec. 2, 2020)

Losing the lottery results in these five people getting their federal convictions affirmed.

It's a criminal case that gets taken en banc and that results in a starkly partisan split.  The Clinton and Obama appointees go one way and the Bush and Trump appointees go the other.

It's a 16-13 split in favor of the Democratic appointees right now amongst the active judges in the Ninth Circuit (with no vacancies), so it's more likely than not (around 55%) that a random draw of judges would result in an 11-person panel with a Democratic majority.  (It's actually slightly higher than that since Chief Judge Thomas is on every en banc panel.)

But these five defendants are on the losing side of the lottery.  They get six Republican appointees -- including all three remaining Bush appointees -- and only five Democratic appointees. 

And hence lose in a 6-5 opinion written by Judge Ikuta.

Sometimes being on the wrong side of the lottery only makes you down $2.  Sometimes the stakes are quite a bit higher.

Tuesday, December 01, 2020

Wright v. Beck (9th Cir. - Dec. 1, 2020)

We're heading into the end of an era.  One that began, coincidentally enough, shortly after I was born -- and that, my friends, was a long time ago.

Yet, today, we see what may perhaps be the final straw in a process that's been routine for over a half-century now in American appellate jurisprudence.  So it's a watershed moment; as a result, I think it merits both mention and reflection.  It's something we've seen for a long, long time, but now, is something that we may perhaps never witness again.

I speak, of course, of the Ninth Circuit's reversal of a decision by Judge Manuel Real.

It happens today.  As it has happened so, so many times since Judge Real was appointed to the bench by President Johnson.  Particularly as Judge Real got older, watching the Ninth Circuit reverse his decisions became routine.  Virtually a sport.

It's not that Judge Real was simply out of step with contemporary politics.  He was instead reversed by appellate judges of all stripes and political persuasions.

Today's decision is perhaps emblematic.  In this case, the LAPD seizes a ton of guns from someone; the owner applies to have them returned to him; written LAPD policy provides that seized guns should be returned to the owner "unless there is articulable probable cause to disbelieve a sworn declaration from the claimant/owner" that he owns them; the owner provides precisely such a sworn declaration; the LAPD then spends years allegedly "reviewing" the declaration and other proof of ownership submitted by the owner; and then, while negotiations over returning the guns are continuing, the LAPD secretly applies ex parte (without notice to the owner) for an order destroying the guns, obtains it, and melts 'em down.

The owner files a Section 1983 suit, claiming -- entirely correctly -- that the Due Process Clause doesn't allow that.  Judge Real grants summary judgment to the defendants.  The Ninth Circuit reverses.

We're not likely to see many more of these types of cases at this point, since Judge Real died, at the age of 93, in June of last year.  So while there may perhaps still be some of his decisions working their way through the Ninth Circuit, there's probably not many.

The final words of Judge Paez's opinion, expressed in a footnote, are perhaps a fitting conclusion to the history of Judge Real's interactions with the Ninth Circuit:  "In light of Judge Real’s passing, we need not address Wright’s request to reassign the case on remand."

True that.