U.S. v. Holiday (9th Cir. - May 27, 2021)

Judge Smith makes a variety of unremarkable -- indeed, correct -- legal and factual assertions in this morning's Ninth Circuit opinion.  But there's one claim in particular that struck me as fairly surprising.

Rather than prejudice you with my own sense (or Judge Smith's), I'll set up the issue just by asking a basic question and getting your answer at the outset.

Here's the question:  In your run-of-the-mill police car chase, which of the following attributes normally exist?  (Warning:  I'm definitely making up some of them.  I just want you to pick out which attributes are the ordinary markers of a police chase, as opposed to those that aren't.)

(A) Sirens.

(B) Air surveillance.

(C) Shots fired by the police.

(D) Dogs.

(E) SWAT officers in full gear.

(F) Tactical nuclear weapons.

To assist you:  Clearly, (A)'s an ordinary marker of police chase, whereas (F) is most definitely not.  Pretty much every police chase -- not all of them, to be sure, but most of them -- involve officers with sirens blaring.  Whereas, to my knowledge, very few police chases involve either the possession or use of nukes.

What about (B) through (E)?  Which ones would you say are ordinary markers of a police chase?  Choose.

Different people might say different things, but personally, I'd think that maybe (B) qualifies, but not any of the others.  Maybe most -- or at least a ton -- of police chases involve supporting helicopters or aircraft.  So I'll go ahead and say that "air surveillance" is an ordinary marker.

But (C) (shots fired by police)?  Nope.  The vast majority of police chases don't involve shots fired, IMHO.  Dogs?  Nah.  Not really.  I'm sure that some of them involve K-9 units (just like some of them involve shots fired).  But that's not an ordinary attribute.  SWAT officers?  Nah.  Again, some chases surely call out the SWAT team.  But not most -- or even, I suspect, many -- of them.  That's not an ordinary marker of a police chase.

So, in the end, I say (A) and (B).  You?

Whereas Judge Smith says:  (A), (B), (D) and (E).  Which seems a fair piece aggressive -- and factually inaccurate -- to me.

What follows is the actual line from Judge Smith's opinion. Context: The government showed the jury a videotape from a police chase, ostensibly not to prove that the defendant was a bad guy, but principally to show that he possessed a particular sweatshirt -- a sweatshirt that the video showed he indeed wore during the police case, and that indeed looked awfully similar to one one worn by the robber during the robbery. (Put to one side the fact that the videotape was wholly unnecessary to prove the possession, since the defendant was surely willing to stipulate to that fact, the police officers could surely testify to it anyway, and the government in any event undoubtedly had the sweatshirt itself in its possession to actually show to the jury what defendant was wearing on the day of the chase.) Was showing the jury a video of the police chase unduly prejudicial?  Judge Smith says no, claiming . . . .

"Although the video showed 'a vehicle police chase, SWAT officers in full gear, dogs, air surveillance[,] and sirens,' none of these features is particularly prejudicial, as all are ordinary markers of a police chase."

You already know my take on that front.  Sirens, yes.  But showing the jury that this particular chase involved SWAT officers in full gear and dogs; well, those aren't "ordinary markers of a police chase" under at least my understanding of what police chases usually entail.  And I bet that's even more so for the lay jurors at issue.

Maybe it's not an abuse of discretion or the like to admit the evidence; on that, I can see why someone might come out the way Judge Smith does.  But SWAT officers (in particular) and K-9 dogs as 'ordinary markers of a police chase?" I think not.

White v. Molfetta (Cal. Ct. App. - May 24, 2021)

As one gets older, there's generally an increasing tendency to want to impart wisdom to others.  Maybe it's in part a slight recognition of mortality.  Maybe it's an understanding that age and experience often bring knowledge to the table that's easily overlooked in one's younger days.  Or maybe that's just the nature of being an elder statesperson.

Whatever the cause, it happens.  You want to leave something behind.  You want to share your insights with others.

Of course, this isn't necessarily limited to those with experience.  Plenty of excited youth are more than interested in spreading their wisdom as well.

I say all this after reading this opinion by Justice Bedsworth.  It's doctrinally a case about damages, and affirms the trial court's dismissal of a lawsuit because plaintiff can't prove that he was harmed in a way in which the law allows compensation.  But more generally, Justice Bedsworth wants to use the opinion to remind lawyers to do a good job.  That it matters.  A lot.

You get a sense of the tenor of the piece from its first two paragraphs:

"The practice of law has become complex and difficult. If practiced as it should be – as a profession – it has never been easy. But the demands on counsel’s time and talent have multiplied exponentially of late, and the 21st Century practitioner’s responsibilities far outstrip those we bore 25 years ago.

But recognition of this fact should be an inspiration to excellence rather than an explanation for failure. No matter how stressed and challenged they may be, lawyers must treat clients – all clients – with basic professional courtesy. That seems rudimentary, but it’s often overlooked or neglected. It shouldn’t be."

The client here gets treated relatively poorly, with his criminal defense lawyer not responding at all to several letters.  The Court of Appeal holds that this isn't actionable, but nonetheless, wants to remind everyone to do better next time.  To try their best.

Seems like a reasonable message to me.

On another note, at the end of the opinion, after explaining why the plaintiff can't recover compensation notwithstanding the bad things that happened to him, Justice Bedsworth says:  "So we are left with the proverbial wrong for which there is no remedy."  Which struck me as particularly funny; not ha-ha funny or anything, but ironic.  Since there's an express maxim of statutory jurisprudence -- enacted by the Legislature, no less -- that says the exact opposite.  Civil Code 3523:  "For every wrong there is a remedy."

I get what the Court of Appeal is saying.  "More precisely, we are left with a wrong from which there were no damages – at least no legally cognizable damages."  It's just funny to use words that are the precise antithesis of something written down in the law books.

U.S. v. Lopez (9th Cir. - May 21, 2021)

Add today's opinion to the legion of statutory interpretation cases about whether "and" means "and" or "or".

For the record:  For this statute, the panel says it means "and".  Which, in truth, is usually the right call.

It's an exciting opinion for statutory interpretation fans.  It discusses a ton of the relevant canons -- plain meaning, legislative intent, surplusage, absurdity, rule of lenity, etc. -- and discusses them well.  Indeed, the principal conflict between Judge Murguia's opinion and Judge Smith's concurrence is whether the "and" interpretation makes another statutory provision surplusage; Judge Murguia says it doesn't, whereas Judge Smith says it does, but that it doesn't really matter.  Neat take.

I'll add parenthetically that the conflicting expressions of legislative intent cited in the opinion are a good example of legislative history that pretty much matter zero.  On both sides, the legislators aren't focusing on or even talking about the statutory text at issue.  They're just talking about the "purposes" of the bill in general.  Vague expressions like that don't really help much.  On either side.  (By contrast, when there's specific evidence relevant to the meaning of the actual words at issue, then I personally think that's entitled to some weight -- Scalia etc. be damned.)  (*Not literally.)

San Diegans For Open Government v. Fonseca (Cal. Ct. App. - May 19, 2021)

It's a fact of life that, sometimes, particular trial court judges simply don't personally like particular high-profile attorneys who appear before them.  The flip side is also true, of course; sometimes, judges really respect and enjoy having particular attorneys before them.  Usually, you hope those sorts of things don't affect the results achieved in the litigation -- with some notable exceptions, of course.  But, on the whole, at the trial court level, there are some repeat players, and sometimes, the fact that a particular judge doesn't feel much fondness for the particular attorney at issue might potentially affect, at least slightly, the way the case resolves.

By contrast, you don't see that as much on the appellate side.  There are good and bad lawyers in the Court of Appeal, of course.  As well as particular judges who like or dislike particular practitioners.  But I don't get the sense that the level of interaction -- or strength of feeling -- is particularly high in the Court of Appeal, or at least is less than what you often see in trial courts.  If only because justices on the Court of Appeal simply don't spend as much time with even repeat player advocates as trial court judges do with lawyers at lower levels; e.g., during the course of even a single trial.

I say all this as backdrop to this opinion, in which -- reading between the lines -- I sense a nontrivial amount of hostility.  From the trial judge against the plaintiff's lawyer, who's a definite repeat player down here in San Diego.  And, similarly, from the judges on the Court of Appeal against that same lawyer and the public interest organization with which he's closely involved and represents on appeal.

I'm not expressing any judgment as to who's right or wrong in the case.  It's about whether a particular organization has standing to file a citizen suit -- an organization that files a fairly substantial number of public interest lawsuits.  The Court of Appeal describes the testimony of the organization's Board member and PMK deponent in fairly stark and negative terms (though accurately).  The panel also employs relatively harsh terminology that you sometimes -- but don't generally -- see in appellate decisions; for example, saying not only once, but twice, that certain evidence was "woefully insufficient" to establish a particular claim.

Read the opinion to see if you agree, but reading between the lines, I just got the keen sense that the justices on the panel thought that the underlying organization and its lawyers were at least a little bit sleazy and were trying to manufacture organizational standing that in reality didn't at all exist.  Hence the language and temperament of the opinion.

Perhaps in an even more deeply felt fashion than even the trial court.

Sansing v. Ryan (9th Cir. - May 17, 2021)

Okay, I get it (I guess):  You love the crack cocaine.  You and your spouse have been on a binge for the past four days.  You're looking to continue the streak.  Maybe -- after four days, anyway -- you're also a little bit hungry.  Or, at a minimum, your four children are (!).

So you call a local church and ask them to deliver a box of free food.  That's a fine decision.

The suboptimal choice, by contrast, is your contemporaneous decision to rob whomever the church sends to deliver the food.  Ditto for your ultimate decisions to rape and kill her in your home, and then to "hide" the body in a shed in your backyard under a piece of old carpeting.

That stuff gets you sentenced to death.  Although Judge Berzon dissents, Judges Watford and Callahan are okay with the conviction and sentence, so that's pretty much it for your federal habeas petition (barring en banc review or the Supreme Court favorably stepping in).

If you were in California, you could probably not worry about actually being executed.  But Arizona's likely to restart executions in a little bit (after a seven-year hiatus).  So there's a real chance that you'll actually get a date with the needle.

Don't do crack cocaine.  Don't kill people.  Two important reminders for those otherwise inclined.

Cheneau v. Barr (9th Cir. - May 13, 2021)

Without particularized knowledge of the Ninth Circuit, you wouldn't necessarily think that today's en banc opinion would come out the way it did.  Indeed, it some ways, the lineup today is the least likely of all of the various plausible results.

It's an immigration case.  Mr. Cheneau is convicted of various crimes (burglary, car theft, etc.), and the government wants to kick him out of the country as a result.  But, not surprisingly, Mr. Cheneau does not want to leave.  He says he's a "derivative citizen" under a particular statute even though his parents were from outside the United States, he wasn't born in the U.S., and he only came here when he was 13, on a nonimmigrant student visa.

You can figure out the typical sympathies in en banc cases like this.  The left-leaning judges appointed by presidents from the Democratic Party (i.e., Clinton and Obama) are likely to lean towards Mr. Cheaneau, whereas the conservative judges appointed by presidents from the Republican Party (i.e., Bush and Trump) are likely to be predisposed against him.

But there's a bit of a wrinkle here.  Circuit precedent is strongly against Mr. Cheaneau; under that law, he clearly loses.  But there's a decent argument that this precedent misreads the relevant statute.  Hence why the case gets taken en banc.

So it depends on the draw, right?  There are 16 Democratic-appointed active judges and 13 Republican-appointed active judges.  Statistically, the draw's likely to be a mix, and the outcome in large part will depend on who gets chosen.

The draw happens.  Six Trump appointees get selected; four Clinton/Obama appointees round out the panel, plus Chief Judge Thomas (Clinton).

So one way you might draw up this result is to say:  "Okay, it's likely to be a 6-5 against the immigrant, with the conservatives voting to deport the guy and the liberals voting to keep him here."

But that's not the way it works out.

Which is perhaps foreshadowed by the original panel opinion.  A unanimous per curiam opinion in which Judges Bennett and Miller -- both Trump appointees -- are on the panel.  The panel held that they were indeed bound by circuit precedent to hold against the immigrant.  But everyone on the panel also joined a concurrence that said that this circuit rule was wrong as applied to the facts of the present case.

So if you've got even two conservative Trump appointees (joined by a judge sitting by designation) arguing in favor of the immigrant, then another way one might well predict the result of the en banc court is to say:  "Well, apparently, this one's easy, and everyone of all political stripes will agree."  (Or at least most everyone.)  Maybe it'll be an 11-0?

You might even think such a result more likely when the en banc panel decides they don't even need oral argument to decide the case.

But, yet again, as it turns out, such a prediction would also be wrong.

Instead, two unlikely things happen.  First, of the six Trump appointees drawn for the panel, two of the six are Judges . . . Bennett and Miller.  The two judges who were on the original panel.  The odds are very, very strongly against that.  But it happens.  Then, the four remaining Trump appointees who are drawn are . . . the final four Trump appointees to the Ninth Circuit (Judges Bress, Hunsaker, Bumatay, and VanDyke).  Again:  Statistically, not very likely at all.

So, in the end, you get a 7-4 decision in favor of Mr. Cheaneau.  The five Democratic appointees join the two Trump appointees who were on the original panel to form a majority, and the last four Trump appointees dissent.

Pretty neat.  Not the draw (or outcome) one would have necessarily written up at the outset.

One lesson that might potentially be derived from this result in the occasional difference between the early Trump appointees -- Judges Bennett and Miller were two of the first three Trump appointees to the Ninth Circuit -- and the end-stage Trump appointees.  Personally, I don't want to make too much of this, but still, it's worth considering.

The other potentially partially explanatory factor at work here is how relatively little the case matters in the broader statutory immigration scheme.  As the majority opinion explains in its final footnote:

"We recognize that this case involves a statute that has been repealed and will not affect many cases. As the Government observed, “litigation regarding § 1432(a)(5) is not widespread, and will continue to diminish with the passage of time.” We also recognize that, not only is litigation concerning this issue “not widespread,” but that this case involves relatively unique circumstances. It is striking how many events had to align at particular times and in a particular order for Cheneau to qualify as a derivative citizen under § 1432(a)(5): He lawfully entered the United States at age thirteen, intending to remain permanently in the country. His mother naturalized while he was under eighteen. He objectively and officially manifested his intent to reside permanently in the United States by filing an adjustment of status application before he turned eighteen. And all of this occurred before the statute was repealed in 2000. Nonetheless, it is important for resolution of this case, and the relatively few cases involving similar circumstances, for us to apply the proper statutory analysis and to apply a correction to the relevant portion of Romero-Ruiz."

It's perhaps easier for conservative judges to find in favor of particular immigrants in cases involving idiosyncratic and not-often-replicated fact patterns involving repealed statutes than in cases that have broader application to immigrants as a whole.

Regardless:  Neat little lineup, and neat -- and perhaps somewhat unexpected -- result.

 

In re Marriage of Kelpe (Cal. Ct. App. - May 11, 2021)

One of the things about reading marital dissolution cases is that they sometimes provide a glimpse into the personal and/or professional lives of the litigants.  Sometimes that's enlightening.  Sometimes that's a bit depressing.

In today's opinion, it's a little of both.  The spouses here were married in 1997 and separated in 2010.  So they had 13 years together.  Husband was a senior manager with Ernst & Young throughout the marriage.  Not a bad job.

On the upside for Husband, he becomes a partner at E & Y.  As a double-plus upside, he joined the E & Y partnership on January 1, 2012 -- less than two years after getting separated.  Which means that all his partnership money is his separate property.  Including the nearly $1 million lump sum retirement payment that's at issue in this case.

Lesson:  If you're going to get divorced, do it right before you start making the big bucks.

So total good luck for the Husband, right?

Sort of.

He becomes a partner in 2012.  Then look at what happens right after that:  "Respondent suffered a heart attack in 2014. In October 2015, Ernst & Young requested that he withdraw as a partner, and he resigned from the firm effective December 2015."

So, yeah, Husband becomes a partner, and gets all the money, but what it took to eventually get there takes its toll, and he's only a partner for a couple of years before his debilitating heart attack and resulting forced departure.

Sometimes bad comes with the good.

People v. Nunes (Cal. Ct. App. - May 6, 2021)

Doesn't it seem like Justice Grover is clearly and unambiguously right here?

I agree that it was reasonable for the fire department captain to respond to the defendant's residence.  After all, someone had called in a report that there was a "whole structure fire" at the house.  Given that report, I'm glad the fire department showed up.

Now, when he gets there, the fire captain sees no fire and no smoke.  But okay.  It's still worth checking out.  Especially since some neighbors say that they had previously seen a plume of smoke coming from the back yard.

For that reason, it also seems okay to me for the fire captain to go ahead into the backyard.  Yes, there's no visible fire or anything.  But the captain says there's an "odor of smoke" around the "entire backyard" -- albeit not coming from anyplace in particular.  All of the above probably counts as exigent circumstances.  We want to make sure there's not a fire.

The fire captain's decision to open the closed shed is a closer call.  There's no obvious fire or smoke coming from the shed.  No one says the smoke smell seemed like it was coming from the shed.  To the degree there's anything that hints at where the smoke smell is coming from, the shed's not the culprit:  the captain sees some test tubes and chemistry equipment on the ground of the backyard, and a homemade toy rocket that looks burned.  All the in backyard; nothing in the shed.

But okay.  Let's assume, if only for purposes of argument, that it counts as "exigent circumstances" to enter the shed without a warrant.  Just to check it out.

When he enters the shed, the captain again doesn't see any smoke, any fire, or anything else that seems to explain the smoke or fire.  It's just a shed.

There's a metal cabinet in the shed.  Again:  No smoke or fire or anything in the cabinet, or anywhere in the shed.  Was there any reason why the fire captain might suspect anything untoward about the metal cabinet?  Nope.  Nothing.  The captain testifies:  “Q: Was there anything about the shed in particular, the cabinet in particular that made you feel that you needed to check that area? [¶] A: Not in particular.”

Nonetheless, without getting a warrant, the fire captain opens the cabinet, and finds some incriminating chemicals.  This ultimately leads to the defendant getting arrested.

Did exigent circumstances justify opening the cabinet?

Justice Grover says they didn't.  And that seems exactly right to me.

Justice Elia disagrees, and dissents.  But Justice Grover has the much, much better of the argument.  The claim that there might have been something potentially "smoldering" in the cabinet is belied by both the evidence and the fire captain's own testimony.  You can't just go through whatever you feel like -- without a warrant -- just because you're investigating a potential fire.  Yeah, the fire captain opened the cabinet for a reason.  But not because he had any indication that there was a fire or something dangerous there.  Not even reasonable suspicion.  Much less the type of probable cause or exigent circumstances to justify a warrantless search of a residence.

This one seems easy to me.  Notwithstanding the split panel. 

Krake v. City of Santa Barbara (Cal. Ct. App. - May 4, 2021)

Well this is interesting.

You typically think that you only need a Coastal Development Permit and the like to remodel or build a new house on the coast.  But the Court of Appeal holds that cities also need a CDP -- or an amendment to their certified Local Coastal Program -- to ban short-term vacation rentals.

Not what an uninformed observer might have thought was the law.  Yet there you have it.

People v. Nieves (Cal. Supreme Ct. - May 3, 2021)

I understand that death penalty opinions by the California Supreme Court are often lengthy.  Super lengthy.  Lives are at stake, so a certain degree of comprehensiveness is appropriate.  For that reason, the fact that today's opinion contains over 140 page of text (!) doesn't freak me out.  I'll read the whole thing.  It takes me a ton of time, but okay, I get it.

I also understand and appreciate that opinions like this one often read like lengthy bench memoranda.  The whole structure of today's opinion -- going through each point individually, reciting defendant's argument, then reciting the prosecution's argument, then analyzing these arguments and coming up with an answer, then going to the next point and doing the exact same thing -- is something you see time and time again in cases like this.  Whereas, thankfully, in a "normal" opinion you get a lot more synthesis of these analytical parts.  Which in turn makes them (1) much more concise, and (2) much less of a deadly boring read.

But, again, I get it.  It's a super long opinion.  It's not like the justices themselves are writing the first draft.  And they've got lots of other cases to think about.  So, yes, the structure is undeniably plodding, and a burden.  But okay.  We'll deal. 

What miffs me a tiny bit, however, is when opinions like that also keep the reader guessing, and make 'em plod through the whole 140 pages to get the bottom line.  To be sure, Chief Justice Cantil-Sakauye tells us in the first page that the Court unanimously affirms the conviction but reverses the death sentence.  But to even get a glimpse as to why you have to read, and read, and read, and read, and then finally at about page 80 (!) you stumble across your first hint as to maybe what the problem was.

The opinion is super, super long.  It can afford one more paragraph at the beginning.  Something like:  "The trial judge made a plethora of errors that we conclude deprived defendant of a fundamentally fair penalty proceeding, including improper exclusion of a defense expert, exclusion of relevant PET scan evidence at the penalty phase, exclusion of relevant evidence about the defendant's character and good qualities, imposition of improper discovery sanctions on the defense, and repeatedly and improperly inserted himself into the trial by impermissibly demeaning counsel for the defendant in front of the jury and interjecting one-sided and nonneutral questioning of defendant's witnesses."  That one sentence -- or something like it -- would at least give a hint as to what to look for.  Sure, omitting it perhaps leaves the reader in suspense, which in different contexts might perhaps be exciting.  But in the context of an 140+ page death penalty opinion, I'm most assuredly not in favor.

That's my comment on style.  As for substance, I've only got one doctrinal point about the whole thing.  Defendant gets sentenced to death for burning her house down and thereby killing four of her young children (her fifth child was also in the building but escaped the fire).  A fairly horrible crime.  Now, the Defendant was also in the house, and intended to die alongside her kids.  You might think that in the pantheon of horrible things she's done, the fact that at least she was trying to contemporaneously kill herself as well might be one of her "better" (for lack of a superior word) decisions.  Or at least a factor in mitigation.

But here, it actually gets her sentenced to death.

On page 75, the Court notes that, normally, committing arson as a way of killing someone doesn't make you death eligible; you've got to have something "else" in aggravation.  Some other felonious purpose for setting the fire other than killing the individuals therein.

So what other felonious purpose does the Court find here?  The bottom of page 76 gives you the Court's answer:

Suicide.

So if she'd have just set the fire to kill the kids, barring anything else, she'd get life in prison.  But because she also wanted to kill herself in the fire, she's sentenced to death.

Weird, eh?  You wouldn't think the law would -- or should -- work that way.

Perhaps she would have been death eligible on other grounds.  But to hold that she's eligible for the death penalty because she tried to kill herself just seems totally bizarre to me.

That, anyway, is the little nugget out of the middle of an opinion that took me a couple of hours to read.

Oh, one more thing.  The Chief Justice does a great job of explaining in exhaustive detail just how the trial court erred in its incredibly one-sided participation in the case.  It's a fairly stunning set of facts.  If you have an hour or so, definitely check it out.  It starts at about page 80.  The trial court definitely did things that he shouldn't have, and did not display (at all) the sort of neutrality that one hopes for -- and legitimately expects -- in any trial, and certainly in the death penalty case.  Instead, you see an angry, sarcastic, and just downright mean judge who's not displaying the type of temperament at all that you want from the bench.

But the opinion doesn't mention the name of the trial judge.  So I looked it up.  (It's also in the bottom of the caption, at the very end of the opinion, alongside the counsel, "original proceeding" notations, etc.)

The trial judge in this case was L.A. Superior Court Judge L. Jeffrey Wiatt.  Who killed himself in 2005 after being visited by the police about allegations that he had molested a child.  Five years after handing out the death sentence in this case.

Not relevant at all, of course.  Nor mentioned in the opinion.  But interesting nonetheless.