Wednesday, August 31, 2022

Simmons v. Arnett (9th Cir. - Aug. 31, 2022)

There are a lot of interesting Ninth Circuit opinions this morning. As well as a lot of them generally; the Ninth Circuit published eight separate opinions today, and I'm not nearly finished reading all of them.

I nonetheless thought I'd at least briefly mention this one. In which the Ninth Circuit holds that if you're in the midst of getting the crap beaten out of you by someone else, in a random attack initiated by the other person, and are not fighting back in any way (but merely being pummeled by the other guy)), you can't sue if a state official decides that in order to "break up" the fight, he shoots you three times and fractures your leg.

Because, I mean, what are we supposed to do? Let the fight go on for a while? Clearly, we've got to shoot someone, and if that person happens to be you, because you're the one in the line of sight, well, sucks to be you, doesn't it?

Tuesday, August 30, 2022

24th & Hoffman Investors v. Northfield Ins. Co. (Cal. Ct. App. - Aug. 30, 2022)

To be honest, I was unpersuaded by a majority of the published opinions by the Court of Appeal today. So perhaps I'm just in a particularly bad mood.

But only one of them -- this one -- do I believe should be granted review by the California Supreme Court and summarily reversed.

While I was reading it, I was stunned that there'd be three justices on the Court of Appeal who'd sign on to something like this. I was even more surprised when I saw that the opinion was written by Justice Tucher, who's incredibly smart and (I'd have thought) eminently reasonable.

It's an insurance coverage case, which I understand will make a ton of readers instantly disinterested in the outcome. Notwithstanding that practical reality, it's an incredibly important -- and pernicious -- opinion.

The usual, longstanding rule in insurance law is that if you've got an insurance policy and someone sues you, the insurance company has to defend you in that lawsuit if any of the claims in that action might be covered by the policy, even if other claims in that same suit might not be covered. So if, for example, you are sued for assault and battery, and the insurance policy only covers you for battery, the company has to defend the lawsuit on your behalf. Do they have to pay any judgment ultimately entered against you for assault? No, since that's not covered by the policy. Since since the suit seeks covered damages against you for something covered by the policy (here, assault), they've got to defend the suit and, if you're ultimately found guilty of assault, pay any covered damages.

Makes sense, right? Is definitely the law. Here in California and elsewhere. In short, if you buy a policy that covers you for a claim -- assault, negligent driving, whatever -- and someone sues you raising one of those claims, the insurer has to defend the lawsuit. That's an obligation imposed by both law as well as by the policy language.

Today's opinion, however, says that it's super simple for the insurer to totally circumvent that rule. One that I'm quite confident virtually every insurance company will employ to its heart's content and that will practically negate any actual insurance coverage for policyholders.

The Court of Appeal says that all the insurer has to do is to include -- as in the present case -- a "catch-all" clause that says that if the lawsuit includes any uncovered claims, then all of the claims are categorically uncovered. The Court of Appeal holds that such a provision is enforceable, makes sense, will be upheld, and legitimately negates coverage under the policy.


I get that that's what the policy might in fact say. But in my view, that's 100% unenforceable and against public policy. For the identical reasons the California Supreme Court (amongst others) have repeatedly set forth in previously imposing a duty to defend such "mixed" actions.

As a practical matter, virtually every suit -- and almost certainly any suit under a business insurance policy like the one here -- includes both covered and uncovered claims. Take your own automobile insurance policy, for example. Say you get into an accident and get sued. You'll typically be sued for negligence, of course, and that's a covered claim. But the plaintiff might also plead a variety of claims -- alternative or otherwise -- that aren't covered by the policy. Particularly if they're not 100% sure they'll win the negligence claim. Maybe they'll plead in the alternative that you were drunk, or speeding, and perhaps the policy excludes coverage for specified criminal conduct. Or perhaps they'll also include a claim for punitive damages, which definitely aren't covered under the policy (and legally can't be).

Normally, until today, that wouldn't matter. Your insurer would still have to defend you (and, in all likelihood, settle the lawsuit on your behalf). That's what you bought insurance for, after all.

But after today, all the insurer has to do is to include a "catch-all" clause that says that if there are any excluded claims under the policy (e.g., punitive damages), then all of the claims are hereby excluded from coverage. And, suddenly, boom, you've got zero coverage. You're on your own.

Let me reiterate: virtually every business lawsuit contains a mix of covered and uncovered claims. If the holding today is indeed the law, then there's basically no coverage at all, in stark contrast to what we've always thought were the expectations of an insured. 'Cause you should have read the fifty-page policy (or what have you) with a much finer toothcomb, and gone to law school and then practiced law for ten or twenty years and realized how subsidiary catch-all provisions like the one here actually works. For it means that there's essentially no practical coverage under the policy at all.

I appreciate and understand that if you're a person who believes that markets are perfect and consumers can be screwed if they don't read things close and that there's no such thing as an unenforceable clause in an insurance policy then, yeah, today's opinion makes sense, because that's what the written contract says and so that's what we'll enforce. (Don't get me started, by the way, on the claim in the opinion that the clause here is truly "clear and conspicuous," which it's totally not by any reasonable interpretation of that phrase -- unless you count every clause in an insurance contract as clear and conspicuous based on the fact that there's 100+ different places in the policy where the insurer includes a boilerplate insert in bold that at the top of every page essentially says "READ THIS CAREFULLY THIS TOTALLY MATTERS THIS IS THE IMPORTANT STUFF," 'cause, yeah, every insured definitely reads all 50-odd pages super carefully so long as you include that boilerplate.)

But, honestly, that's not how I would describe the California Court of Appeal in general, or Justice Tucher in particular. Yet today's opinion, in my view, does precisely that. It lets an insurance company totally take away legitimate coverage by inserting a clause that is completely unnecessary and contrary to how insurance policies have been interpreted and applied by California courts for fifty-plus years.

Does an insurance company have to cover uncovered claims? Absolutely not. Do they have to pay damages for them? Nope. Do they even have to defend uncovered claims? I could see an argument that says they don't, as long as those uncovered claims are severable and can be separately defended.

But can an insurance company refuse to cover even covered claims -- entirely -- just because there's a single claim in the underlying lawsuit that's not covered by the policy? Nope. No way. Not in my view, anyway. I'd one thousand percent hold unenforceable any provision in a policy that attempted to do so. Because it's not how insurance does, or should, work, nor is it consistent with reasonable expectations of coverage.

But the Court of Appeal today holds otherwise. So as of today, those provisions definitely work.

Unless the California Supreme Court grants review and reverses.

Which I definitely hope it does.

People v. Cheatham (Cal. Ct. App. - Aug. 29, 2022)

Reading this opinion by Justice Duarte generated two thoughts in my head.

First, I totally understand why the Court of Appeal releases the appellant, Mr. Cheatham. Does Mr. Cheatham have a mental disorder, one that led (for example) to the "not guilty by reason of insanity" finding in his prior criminal trial? Definitely. He hears voices. He does some strange things. It's fairly clear that his mental condition results in him violating the law on occasion, sometimes in bizarre ways; e.g., in court, trying to "escape" in situations in which a more rational person would totally know that the effort ain't gonna work. But as far as anyone can tell -- and this includes all the evidence presented at his civil commitment trial -- he's not actually a danger to anyone (other than, perhaps, himself). And the statute at issue only lets you be locked up beyond what would otherwise be your term of imprisonment if you "represent a substantial danger of physical harm to others." Nothing that Mr. Cheatham has ever done, it appears, has ever actually harmed anyone else, or resulted in such a risk. Hence the Court of Appeal's ruling that says he's entitled to be released.

At the same time, my strong sense is this: Mr. Cheatham will almost certainly get recommitted. Pretty much to a certainty. He's a bipolar schizophrenic, and has a substance abuse disorder. He's imperfect at best in taking his medications. He still hears voices in his head, albeit at a lower level. And even in the hospital, he "at times stood up during group meetings for no apparent reason, asked other committees for money, and, for a brief period, smoked cigarettes through his nose." Things are, I strongly suspect, only going to get worse on that front once he's released and no longer under supervision. He'll get put back in. And I can only hope -- and it's a hope, not a certainty -- that it's not for hurting someone.

But, yep, I get it; the statute requires a particular type of evidence, and there wasn't pretty much any type of relevant evidence admitted at his trial.

Which may perhaps dictate the result, but doesn't alleviate my concern.

Second, the Court of Appeal also holds that Mr. Cheatham is entitled to double jeopardy protections -- not as a matter of constitutional law, but rather as a result of the part of the statute that says that in the relevant proceedings, "the person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings." One of those is the prohibition on double jeopardy. Hence, just like in criminal prosecutions, if the evidence that was submitted against the guy is insufficient, there's not a retrial; there's an acquittal. The guy can't be tried again for the same offense.

You see why the Court of Appeal comes out that way.

That said, I wonder how those principles really apply to prosecutions that, as here, involve "status" charges. The claim is that Mr. Cheatham is a danger to others. Yes, the Court of Appeal holds that the evidence against him at his prior trial was insufficient, so he's entitled to be released. But today's another day. What -- either practically or legally -- stops the prosecution from filing a new complaint that says that as of today he's a danger to others? For basically the exact same reasons as before; only, this time, with a doctor who gives more detail and says the necessary things. 

With a criminal case, you're being charged with a particular offense, and you can't be charged with that offense again. With civil commitment, by contrast, you're being charged basically for being who you are, and the threat that you (allegedly) represent. I get that, presumably, the prosecution would need to introduce some fact that wasn't introduced at the prior (insufficient) trial. But that's not likely all that difficult given that pretty much everything one does counts as "evidence" of what type of person you are, and what your mental condition is, at the time. 

Seems to me like you can just charge the guy again with basically the exact same thing the next day.

Now, maybe the answer is "Well, okay, but it's gotta be a new proceeding, not merely an extension of his prior commitment." Fair enough.

Though that seems just like it's a different spelling of the same word, no?

Monday, August 29, 2022

Hoffman v. Young (Cal. Supreme Ct. - Aug. 29, 2022)

I've previously waxed poetic about how the California Supreme Court is really smart, often unanimous, blah blah blah. Maybe the net result is a relatively "boring" state supreme court, but that's a boredom that I can more than tolerate; indeed, one of which I'm often affirmatively proud.

That said, today, there's a split opinion; 4-3 (-ish), even. All of the justices, mind you, agree on the result, which (in this case) is a remand. But how they get there, and their underlying attitude, is slightly different.

The question is whether the landowner here is liable for a dangerous recreational condition on his property (here, a race track). The applicable rule is that, in essence, the landowner is potentially liable if she invited someone onto her property (e.g., a paying customer, a friend you asked to come over, etc.), but not if the landowner merely "permitted" someone to show up -- e.g., just had a trail or racetrack or whatever and let the local teenagers use the thing whenever they wanted.

In this case, we know that if the landowner had personally invited the victim to race on the racetrack, she'd be potentially liable. But what if, as here, the person who invited the victim was instead her 18-year old son, who lived on the property but asked the friend (another teenager) to come over? Same rule?

The Court of Appeal thought that a kid living in the house who invites a friend over is basically the same as the parent herself, but the California Supreme Court said: "Not so fast." Hence the remand.

But there are two competing visions here. The majority opinion, written by Justice Corrigan, views fairly suspiciously the attempt to impose liability. It applies traditional agency principles and says that kids aren't typically "agents" for their parents so it might well not be the "landowner" who gave the invite, and sends the case back down for a more robust evaluation of the facts. But the concurrence, authored by Justice Kruger, agrees with a remand, but is far more plaintiff-friendly, and clearly suggests that there should be liability -- one way or the other -- in a situation like this one. Justice Kruger's concurrence is multifaceted (and incredibly well-written), so an abbreviated version definitely won't do it justice. But here's the basic sense:

"The parties’ core dispute at all stages of this litigation has been whether Gunner’s personal invitation to Mikayla can be attributed to his property-owning parents on some form of agency-law theory, thereby bringing his invitation within the (d)(3) exception for persons invited to the property 'by the landowner.' . . . [But] [t]o employ the language of agency law in the context of filial relations raises questions to which traditional agency principles can supply no clear answers: What does it mean to say a child is the 'authorized agent' of his parent? When can a child’s invitation to a friend be said to have been made on 'behalf' of a parent, who derives no personal gain from the invitation — aside, that is, from the gain that comes from the social benefits to her child? . . . Rather than asking whether a child or other household member acts as a landowner’s 'authorized agent' when he invites a friend over to play — the sort of question we might ask if this were a corporate merger or a real estate deal rather than an ordinary social visit — the common law background to section 846 suggests we might ask, more simply, whether the child was authorized to invite friends over.

A contrary reading of section 846 — one in which only invitations by a landowner or her agent, in the technical, business-oriented sense, suffice for the (d)(3) exception — would generate quite unusual results. The most obvious, and perhaps most troubling, would be that children ordinarily would be without any remedy for injury when friends invite them over to play. We should not lightly attribute that intent to the Legislature, particularly given California’s “strong public policy to protect children of tender years” (People v. Olsen (1984) 36 Cal.3d 638, 646), and particularly when everything we know about the statute suggests it was directed to quite different concerns. . . . The oddities presumably would not stop there. Consider a large multigenerational family occupying property to which just one or two members of the family — say, a daughter and her spouse — formally hold title. The family hosts a backyard social gathering. Two guests — one invited by the daughter and one by a different member of the family — fall onto the same unreasonably dangerous lawn sprinkler while playing a recreational game of soccer, sustaining equally serious injuries. A narrow understanding of what it means for an invitation to be issued 'by the landowner' could grant the daughter’s guest the right to sue for recreational injury, while the other, identically situated guest is left without a remedy — though no obvious reason appears for the difference."

These arguments resonate with me. Very much so. Less, I suspect, with those who sign on to Justice Corrigan's opinion. (Though I'll note that Justice Liu signed on to both opinions, which makes sense at one level but which is also kinda funky on another, since I think the sentiments behind each are fairly disparate.)

I know that what opinion a justice joins depends on a variety of different things, particularly when, as here, the result is the same (a remand) and the doctrinal arguments of each aren't mutually exclusive.

But I personally found myself nodding affirmatively a lot more when I was reading Justice Kruger's opinion than the reluctant "Yeah, okay, I get that, I guess" I was saying to myself when I was reading Justice Corrigan's opinion.

Which is not to say that the latter was wrong.

But I liked the former a lot more, and would definitely have signed on to the thing.

Thursday, August 25, 2022

People v. Ramirez (Cal. Supreme Ct. - Aug. 25, 2022)

There are a ton of wonderful things about being a law professor; far too many to list here. But one of the downsides is the obligation (sorta) to write 80-page law review articles that few people will ever read and that affect the world -- if at all -- only marginally. Sayeth me, anyway.

We see the judicial equivalent of this in today's opinion by Justice Corrigan: a 236-page (!) missive that few people will ever slog through and that affirms the imposition of a death penalty that'll never actually be applied anyway for murders that occurred a quarter century ago.

Someone's gotta do it, perhaps. But, personally, not the preferred way to devote a substantial portion of one's work life.

In re E.L. (Cal. Ct. App. - Aug. 23, 2022)

I understand and appreciate Justice Gilbert's desire to expedite things. He thinks that the four kids at issue should be adopted by Aida ASAP, and that means terminating the parental rights of their biological parents as quickly as possible. So he makes that happen, and does so by admitting on appeal evidence that's not in the record and that wasn't admitted below.

Now, in truth, I've definitely read termination cases with much, much worse facts than those here. And particularly with respect to the father, Justice Gilbert may have a substantially harsher reaction to the guy than I do. The entirety of what we learn about Father is this:

"In January 2015, Father began a two-year term in the Ventura County jail. His mother brought the children on visits every other week. Further incarceration ensued in state prisons in Wasco and Susanville beginning in January 2017. Father was released in August 2020. From January 2017 when Father went to state prison until his release, letters and phone calls were the only contact with his children. Since Father’s release in August 2020, he did not contact Aida R. to see his children. . . . 

Father testified that he is wiser and more mature than the man who went to prison. He earned his GED while in prison and received vocational training in facility maintenance and repair. He learned plumbing, tile, and fixture repair. He uses these skills in his current job as a handyman. While in prison he obtained certificates for attending classes in health education, alternatives to violence, “criminal thinking,” anger management, and substance abuse. He attended weekly meetings of Alcoholics Anonymous and Narcotics Anonymous. Father said he is in compliance with the conditions of parole, including monthly drug testing.

Father said he had not contacted Aida R. to see his children since he was released from prison in August 2020. He said he was advised by his attorney not to and was following that advice. He said he knew that he would have his day in court. Father said the last time he saw his children in person was in January 2017 before he went to prison in Wasco. 

Father said his goal was to have his children placed in his care as soon as possible. He did not have a timeline because he did not know the process. He believed it had been beneficial for the children to stay with Aida R. for the last five years, where they had been thriving."

Okay. I've one thousand percent read about worse fathers than this one. (Now, obviously, I know about better fathers as well.)

But here's Justice Gilbert's reaction to the guy, pretty much in toto:

"Father challenges the conclusion of the HSA report that the parents have no relationship with their children. Father points to biweekly visits with the children while he was in jail and correspondence with the children while he was in prison. Suffice it to say that biweekly visits to jail and correspondence with the children while he was in prison do not constitute the parent and child relationship the children need.

Father points out that our Supreme Court in Ann S. required the trial court to consider exigent circumstances. (Guardianship of Ann S., supra, 45 Cal.4th at p. 1132.) Father claims his incarceration constitutes an exigent circumstance. If so, it is a circumstance of Father’s own making. At one time, Father chose criminality over being a responsible parent. We are quite sure the trial court considered Father’s incarceration in deciding to order the termination of his parental rights. . . .

Father has by his own account made great progress in becoming a responsible member of society. This is commendable. But that progress does not make up for the more than five years he spent away from his children due to his own choices."

A bit harsh, no? It almost sounds like: "If you commit a crime, we're taking your kids away, period, since at that point 'biweekly visits to jail and correspondence with the children while [] in prison do not constitute the parent and child relationship the children need.'"

I mention all this even though, honestly, it's not my central reaction to the opinion; rather, it's merely something that a little bit stood out to me. I really wanted to write because I wonder if Justice Gilbert is right that admitting the evidence he isolates on appeal actually resolves the underlying problem.

This is another one of the plethora of cases where the trial judge messes up by not doing what ICWA and California law requires. The law says that at the first hearing, the trial judge has to ask the parents whether there's any reason to believe that the child is an Indian child. But the judge here clearly didn't do that. So, normally, we'd have to remand the case to make that happen.

But Justice Gilbert says there's no need to do that here, because we can admit some new evidence that's not in the record, and that'll speed things up. Which -- and this is true -- is both permissible doctrinally (at least in some circumstances) as well as -- and I agree with him here -- often in the best interest of the kids, because if their best interests are getting adopted, then we want to make that happen ASAP, and without an unnecessary remand.

So Justice Gilbert admits on appeal a form that Mother signed -- that's not in the record -- in which she checked the box that said that (1) she might be eligible for enrollment in a federally recognized Indian tribe, and filled in "Tonoho O'Odham" in the blank line thereafter, and (2) also the box that said that she may have Indian ancestry (leaving the line for "Name of tribe(s)" blank). Helpfully, Justice Gilbert also attaches that new evidence to the opinion, as well as the letters from the O'Odham Nation that says that the parents and kids aren't members of that tribe.

Justice Gilbert accordingly holds that there's no need for a remand, because this evidence conclusively establishes that there's no need for an inquiry into ancestry, since there's nothing there.

But hold on.

Doesn't it matter what the mother might say on remand? Sure, she filled out a form at one point that said that she thought that she had Indian ancestry, and might be eligible for enrollment in the O'Odham Nation. But the law says that we're supposed to ask her about this stuff, and then conduct a reasonable inquiry. What if, on remand, she were to say: "Yeah, I filled out the form, and my best guess at the time was that it was the O'Odham Nation. But I'm no expert on Indian tribes. Maybe it was Apache, or Pima, or something else. All I know is that my father always told me he was an Indian, he looked really dark, he said he was from the Four Corners area, and I remember going to a reservation a couple of times when I was a child." Nothing she said on the form is inconsistent with that; indeed, she left blank the part of the form that said which tribe(s) she might have ancestry from. And, yes, at some point in the trial court, she apparently said she didn't have Indian ancestry, but we know she said the exact opposite on the sworn form that Justice Gilbert admits on appeal, so doesn't that suggest that an inquiry might perhaps be appropriate? That maybe, just maybe, the kid does indeed have Indian ancestry?

Look, as a practical matter, you and I both know how this is going to turn out. The kid's not going to have any Indian ancestry, and even if the kid does, we're never going to find out about it. Just like in 99.9% of the other parental termination cases, this is going to be a useless, time-wasting formality that doesn't actually result in anything -- other than (potentially) delaying a valuable adoption that's in the best interests of the child.

But our law's really, really concerned about that other 0.1% of cases. Where, despite all of our best guesses and experience about what practically happens, it turns out the kid does have Indian ancestry, and we're taking the child away from a tribe. Which is why-- and there's a strong historical backdrop here -- we go through this process in every single case. To make sure.

I'm persuaded by Justice Gilbert's motivation. It's a sincere and utterly well-intentioned one. (Even if I'm personally perhaps less categorically harsh about incarcerated parents.) I too want to see these kids put into the best family possible ASAP.

I'm just not persuaded that the evidence that he admits on appeal conclusively establishes, full stop, that a remand for compliance with ICWA would definitively not result in anything different.

Wednesday, August 24, 2022

West Coast University v. Board of Registered Nursing (Cal. Ct. App. - Aug. 24, 2022)

I could definitely have seen this case coming out the other way, but I also think that Justice Mauro's (unanimous) opinion is entirely plausible.

It's just a statutory interpretation case. An accredited nursing school (West Coast University) increased its enrollment over a five-year period from 500 students to 850 students. California regulations state that “an approved nursing program shall not make a substantive change without prior board authorization" and that "[t]hese changes include: (1) Change in location. (2) Change in ownership. (3) Addition of a new campus or location. [or] (4) Significant change in the agreement between an approved nursing program that is not an institution of higher education and the institution of higher education with which it is affiliated.”

Does the nursing school have to get board authorization for its increase in enrollment?

Before I tell you the answer: If you were on the Court of Appeal, what would you decide?

It's a close case, in my view. The issue's not doctrinally complicated, and Justice Mauro rightly frames the issue. The list that follows the regulation isn't exclusive; these are just examples of  types of substantive changes. But when you've got a list, and that list entails a pattern, then things outside that pattern may not count. That canon helps us to interpret statutes. 

So, applying those principles of statutory interpretation, is the increase in enrollment a "substantive change" in the program?

The trial court said it was, and the Court of Appeal agrees. An increase in enrollment might result in various changes or effects, Justice Mauro says. So it's included, which means the Board can regulate it -- and that the school needs to get prior approval.

As I said at the outset, that's an eminently plausible result, though I think the issue's a close one, since the examples set forth in the regulation seem fairly far afield to me to things like increased enrollment. It also bears mention that the nursing program here increased enrollment a  mere 9% a year. That's not nothing, of course. But it's somewhat of a stretch to say that that's a "substantive change," particularly when you contrast it with the examples that are expressly set forth in the regulation.

But the part of Justice Mauro's opinion that resonates with me is when he says (essentially): "Hey, look, we're not saying that this change is something that should get the nursing school's approval revoked, and it might perhaps be that -- on the merits -- denying the school permission to increase enrollment would be an abuse of discretion. We're not deciding that issue one way or another. All we're saying is that an increase in enrollment at this level might be a substantive change. So you gotta submit it for approval. If the Board says yes, no problem; and if they say no, then you can sue if you think that's a crazy result. The question here is merely whether an increase in enrollment might count as a substantive change, and yeah, it might, so get it approved."

I might add, by the way, that my reaction to this case might have been starkly different had the Board adopted a more aggressive approach to enforcement than the one it did. When the Board heard about the increase in enrollment, it told the school: "Hey, you gotta get that stuff approved in advance, and you didn't, and we're only going to reapprove your school if you drop your enrollment back down to 500." At which point the school said: "Whoa, Nelly, that's a huge change; no way we can do that, and the regulations don't allow that anyway." Now, at this point, the Board could have said: "Fine, you're hereby disapproved. Disband the school." Because, yeah, the school didn't get preapproval, nor did it drop back down its enrollment.

And if the Board had done that, I gotta tell you, I'd be miffed. Because it would seem to me harsh and a (potentially) unjustified and untoward result. If all that increasing enrollment did was to make sure that our nation has more nurses, that seems to me a good thing, not a bad thing. And if the Board's only real argument is that increasing enrollment makes clinical opportunities harder to get, since there are more students, well, you know, that's just a necessary prerequisite to eventually having more nurses, so deal with it, okay?

But the Board didn't do that. Instead it said, basically, "okay, well, we disagree, so we're not going to approve your reapproval application, but we're not going to disapprove it either. We're just going to sit on it. So you're not disapproved, so can keep going. But we gotta sort this out eventually. So let's see who'll blink first -- or what the Court of Appeal will decide."

Should the aggressiveness of the Board matter on a pure issue of statutory interpretation? Not really. Does it, I suspect, somewhat color at least my own analysis of the issue. Yeah, I bet it does.

Anyway, close case. If West Coast University is a total crap of a school and really shouldn't have even 500 students, much less 850, then yeah, go ahead and disapprove the thing. (And, to be clear, I have no idea one way or another about the quality of the program at WCU.) But if it's a real school and really trains nurses, then the more the merrier, and deal with the problem of clinical opportunities in a different way. Because more nurses is not, IMHO, too much of a good thing. Those people rock.

Monday, August 22, 2022

In re J.R. (Cal. Ct. App. - Aug. 22, 2022)

The older I get, the more I tend to see the world in shades of gray, rather than black and white.

And, as a reminder, I'm quite old already.

Take the opinion this morning from the Court of Appeal, for example. It's a parental termination case, and the facts of those are almost invariably super depressing. So my initial reaction was to view the parent in this case -- the mother -- as not really the protagonist of the story. There are super little kids at issue in the case; as the first sentence of the opinion lays out, "A.B.’s (mother’s) two young sons, J.R. who is now nearly four years old and B.R. who is now nearly three, were removed from her custody as a oneand-a-half-year-old toddler (J.R.) and a six-month-old infant (B.R.)." Then, reading on, you get more details: "The two young boys were removed from the custody of both of their parents, who are married, by the Humboldt County Department of Health and Human Services (agency) in May 2020, after a string of child abuse and neglect referrals stemming from repeated bouts of domestic violence between the couple, concerns over parental substance abuse and, in mother’s case, mental health concerns. As noted, J.R. was then 19 months old and B.R. was 6 months old. They were placed into foster care together, later joined by a newborn sister who was detained in a separate case (not at issue here) after mother tested positive for drugs at her birth. The juvenile court sustained allegations that the two young boys were at substantial risk of both serious physical and emotional harm due to their exposure to ongoing domestic violence in the home, father’s methamphetamine abuse and mother’s self-reported depression that was contributing to her inability to protect them.

Yeah. You can see why the primary concern here is for the (continuously-increasing-in-number) children and not really the parents.

The kids get placed into foster care, with the goal (not surprisingly) of adoption. Which I suspect would not be especially hard to make happen for children of this age.

But to do that, of course, you've got to terminate the rights of the biological parent. Not surprisingly, the mother doesn't want that, hence the current appeal when the trial court so orders.

Despite the initial impressions one gets at the outset of the opinion, there's other stuff later on that makes things seem more in the world-is-often-gray universe. The mother, for example, now says she's in a residential drug rehabilitation program, which okay, maybe that's going to work, maybe it won't. But what really got me was the description, later on in the opinion, of the facts on which the Court of Appeal relies to uphold the trial court's decision to take away the children (even though the trial court allegedly applied the wrong legal standard). Here's the relevant portion:

"Those 21 pages of visitation records, which we have independently reviewed, reflect that in about half of the visits the children would “sometimes” eagerly interact with mother and in one visit were noted as having been consistently responsive to her direction. But apart from a single time when the little boys were noted to have held hands with mother (once, as she was walking them into the visitation room), there is no record of either child ever hugging or kissing mother, displaying affection in other ways or even laughing during those visits. On the contrary, the logs indicate that they didn’t do any of those things. The logs contain boxes with descriptive behaviors for the visitation monitor to check off as appropriate (as a supplement to the narrative descriptions), and at every single visit the visitation monitor left blank the boxes indicating that the children “showed affection during visit” or “laughed.” There also was no evidence of crying when visits ended (the “cried” box was left unchecked at every visit too). There is no evidence either child ever asked to go home with mother. The box indicating whether the parents were “comforting and supporting” was left unchecked in all but two of the ten visits. Indeed, there is a record of mother hugging her children only once, during one visit when the log notes that she “hugged [J.R.].”

Okay, I get it. I understand why those facts are relevant, and why the Court of Appeal recites them to uphold the wholesale termination of parental rights.

But I nonetheless couldn't help thinking that were someone to take a secret video of me interacting with my own children -- children who are, incidentally, incredibly loved an nourished (IMHO) -- I bet that the notes that someone would take about that video would look markedly similar to the notes here. Do I sometimes hug my children? Yeah, sure. But definitely not always, and assuredly less than one time in twelve. Do the children "hug or kiss" me or "display affection" in similar ways? Uh, sometimes. Yeah. Much less the older ones, obviously. But even the younger ones, not so much, honestly.

It's not like my family is "cold" or unloving; far from it, I believe. And, yes, my children are older than two and four years old. But even at a super young age, it was sort of shocking to me to see the physical demonstration of family affection be so commoditized (to use a term). It just struck me as a kind of check-the-box approach to love and relationships that, I don't know, felt sort of artificial and downright icky.

But, again, I get it. You're creating a record of something intangible; family love. Hard to quantify. Hard to set forth on a piece of paper. So we have these artificial constructs and constraints that are our ways of putting things into little boxes and the like. And there's your appellate (and even trial court) record; written check-the-box notes for how much crying and how much hugging and how many times a kid felt like reaching our and holding a hand.

And that determines whether we take away your child.

Like I said (repeatedly), I get it.

But it still seems sort of icky, no?

Friday, August 19, 2022

Reno v. Davis (9th Cir. - Aug. 19, 2022)

It's a death penalty case in the Ninth Circuit, so those are usually long, but worth reading. This one catches the eye at the outset because the caption lists the case as "Reno v. Davis" -- which isn't all that unusual, except that "Reno" is not just the habeas petitioner's last name, but his only name. As the first footnote explains, petitioner's name was formerly "Harold Ray Memro," but he had it legally changed to "Reno" in 1994. Okay. Reno it is.

The former Mr. Memro murdered three young boys -- including seven-year old Carl -- in sexual settings, and to the surprise of no one, gets sentenced to death. How long does it take the case to progress to this point in the habeas process? A long time, of course. A long time. Reno was convicted and sentenced to death in 1979. Unless my math is wrong, that's 43 years ago. And we're only now resolving Reno's first federal habeas petition.

I was thinking as I read the opinion how unmotivated I would be were I required to write the thing. Yes, he killed three little kids, so there's the "ick" factor, and for some, the desire to slam the guy and make sure that his habeas petition is "rapidly" denied. (The federal petition was filed in 1996, and the Ninth Circuit appeal was filed in 2017. But it only took the panel six months to write the 30-page opinion.)

At the same time, however, it's California, so the guy is not going to, in fact, be executed, regardless of what the Ninth Circuit does. Plus, at this point, he's 77 years old. He's dying in San Quentin one way or the other. Not that long from now. Hard to get super motivated, I think, to spend a ton of your own work life writing up what basically amounts to a hypothetical opinion about whether or not the guy should be executed.

But Judge Callahan does so, and the panel unanimously affirms the denial of his federal habeas petition. So another step completed in this 43-year old legal ship to nowhere.

Wednesday, August 17, 2022

CV Amalgamated LLC v. City of Chula Vista (Cal. Ct. App. - Aug. 15, 2022)

No one likes to lose. Not clients. Not lawyers.

It happens, of course. Fifty percent of the time, on average. That's the nature of the beast.

Still, it's no fun when it happens to you.

But sometimes, what happens thereafter is even worse. Like here.

The City of Chula Vista rejected the application of CV Amalgamated to open a licensed retail cannabis store, CV Amalgamated sued and lost, and CV Amalgamated then filed an appeal. Which it won.

At that point, the City of Chula Vista -- and its lawyers from Musick, Peeler & Garrett -- filed a petition for rehearing, arguing that the relief granted by the Court of Appeal would improperly result in having to rescore the various permit applications and hence involves indispensable parties; e.g., those who already got permits under the existing scoring scheme.

The Court of Appeal was not psyched for this additional argument. So it amended the published opinion to say the following two things. First, it added a couple of sentences that said: "The appellate record does not contain evidence about the current status of the City’s licensing of storefront cannabis businesses. However, documents in the appellate record show that subsequent to the City’s denial of CVA’s applications, all of the applicants for storefront retail licenses in Council District One that had been selected to participate in Phase Two either dropped out or were disqualified." In other words, it pointed out that, as far as the appellate record goes, no one got a permit, so the argument that rescoring would harm some absent parties wasn't true, as least as far as the existing record indicates.

And then the Court of Appeal added a footnote to this text that says:

"After we originally issued our opinion in this matter, in a belated attempt to present evidence showing the current status of its licensing efforts for storefront cannabis businesses, the City filed a request for judicial notice and a motion to take new evidence on appeal, along with a petition for rehearing. Although it made no attempt to present new evidence during the course of this appeal, the City now asks that we grant rehearing to consider evidence showing that the City has already issued storefront licenses to several cannabis retailers in several Council Districts. The City contends that the new evidence would support its argument that indispensable parties have not been joined in this action and would show that some of the relief sought by CVA will be ineffectual. The City cites Code of Civil Procedure section 909 and California Rule of Court, rule 8.252(b) and (c), which permit a litigant to bring a motion requesting that a reviewing court take new evidence in a non-jury case. As the City acknowledges, such a request will be granted, in the discretion of the reviewing court, only in exceptional circumstances. (Diaz v. Prof. Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1213.) 

Whether or not the City’s request that we consider such evidence might have been meritorious if it was made during the briefing and argument of this appeal (an issue we do not reach), the request is inappropriate at this stage of the proceedings after we already issued our opinion. (Gentis v. Safeguard Business Systems, Inc. (1998) 60 Cal.App.4th 1294, 1308 [“It is well settled that arguments . . . cannot be raised for the first time in a petition for rehearing”]; Smith v. Crocker First Nat. Bank of San Francisco (1957) 152 Cal.App.2d 832, 837 [“Counsel are not permitted to argue their cases in a piecemeal fashion and points not previously argued will not be considered where raised for the first time on petition for rehearing.”].) Based on the City’s description of the relevant timeline, during the briefing and argument of this appeal there was ample time for the City to attempt to submit new evidence, for CVA to present any countervailing evidence, and for the parties to discuss the legal significance of that evidence. According to the City, the first license was issued more than a month before CVA’s November 1, 2021 opening appellate brief was filed; another license was issued before the City filed its respondent’s brief; and the remaining licenses were issued before oral argument. The City’s failure to identify the new evidence during the briefing and argument of this appeal is unexplained and inexcusable. It is also an abuse of the resources of this court for the City to ask us to reexamine this appeal and to consider additional legal issues based on newly submitted evidence that the City could have identified at an earlier stage. We accordingly deny the petition for rehearing, along with the City’s motion to take new evidence and the request for judicial notice. 

In light of the City’s representation that other storefront cannabis licenses have issued, we emphasize that the scope of relief sought by CVA in this appeal does not include a request for an order invalidating any storefront cannabis licenses that the City may have already issued to other parties. Our decision in favor of CVA in this appeal, accordingly, should not be construed as directing that the trial court must issue a writ invalidating any licenses issued to other parties."

You get why the Court of Appeal is miffed about the relevant timeline, and why they weren't told about the new permits until after the opinion issued, right? For that reason, I suspect, the Court of Appeal isn't shy about pretty much torching the City's attorneys and blaming 'em for the resulting mess.

Because, yeah, that's probably something you wanted to get before the judges before the opinion was issued, not after.

Friday, August 12, 2022

People v. Gregor (Cal. Ct. App. - Aug. 12, 2022)

This is all a bit harsh, I think, and surprisingly so.

Andrew Gregor is hanging out online in 2011 or so and having a fun, sexy conversation with someone young. You can already tell where this is going, right?

It's actually an internet sting operation, so Mr. Gregor gets busted for contacting a (fake) minor with the intent to commit a sexual offense. He pleads guilty, completes a sexual integrity program (I didn't know those existed), and gets sentenced to three years of informal probation. That (incredibly light) sentence is fairly indicative of how the judge probably viewed the equities of this particular situation.

Mr. Gregor is an American citizen, so he doesn't have to worry about being deported or anything like that. (He also appears to be a veteran, since a comment in the final footnote suggests that he's trying to get to veteran's court in a different proceeding. Irrelevant here, but perhaps that's part of the underlying equities.) Nonetheless, he wasn't always a citizen; he's originally from Australia, and is naturalized. When he signs his plea deal, he initials a box that says: "“If I am not a citizen of the United States, my plea could result in my being deported from, or excluded from admission to the United States, or denied citizenship." But, to reiterate, he's a citizen, so this doesn't apply to him.

Several years later, he applies to bring his non-citizen wife over to the United States. (It's unclear whether he was married during the whole internet sting thing, but he's definitely married now.) Because, well, he'd like to like in the same country as his spouse, please. But -- and this was the part I didn't know before today -- even if you're a citizen, if you're convicted of various offenses against a minor, while you can't be deported, you are barred from sponsoring anyone to come to the U.S.

Which might well make sense for sponsoring, say, a minor to come here. But I'm not exactly sure why we want to stop people from letting their spouses come here. Do we want the people to instead elect to marry someone who's already inside the U.S. who's not their true love? That's the way to stop future sex offenses? Or is our goal to make 'em go to a different country and live there? Countries that might well have less stringent sex offender statutes, or less supervision (e.g., no sex offender registration rules)?

Nonetheless, that's the law.

So Mr. Gregor files a motion to withdraw his plea, pursuant to a new California statute that says you're allowed to do so (under certain circumstances) if you didn't understand the immigration consequences of what you were doing. Which Mr. Gregor says -- quite credibly -- totally applies to him, because no one told him that, even as a citizen, he'd be prevented from sponsoring a spouse once he took the deal.

But the trial court denies relief, and the Court of Appeal affirms. The statute applies to non-citizens whose immigration consequences were potentially getting deported or not being able to come back to the United States, but not to citizens whose immigration consequences were not being able to sponsor a spouse. Sorry about that.

Justice Duarte appears somewhat sympathetic to Mr. Gregor's plight, and drops a footnote at the end of the opinion that says: "We recognize that defendant’s appeal is part of a broader effort to have his plea vacated, his criminal charges reinstated, and his case referred to and resolved in veteran’s court (see § 1170.9), based in large part on his quest to be released from the requirement that he submit to lifetime sex offender registration (see §§ 288.4, subd. (b); 290, subd. (d)(3)(C)(xii)). We observe that our opinion resolves only a narrow issue of statutory interpretation related to immigration and is not intended to opine on any other issue related to defendant’s plea or his status as a registered sex offender, including the questionable wisdom of imposing a lifetime registration requirement on an offender whose adjudication was resolved by his successful completion of probation pursuant to section 1203.4." But, still, no dice.

The opinion comes out of the Third Appellate District, and Shasta County in particular. So I assumed at the outset that Mr. Gregor was hiding out in rural Northern California while this whole thing plays out.

But since he's on a lifetime sex offender list, I was able to look the guy up. Nope. He's in San Diego. He just got busted up in Shasta, where the sting was (he apparently lived in Arizona at the time). Around 10 miles down the street from me. (Though that "street" is Interstate 8.)

P.S. - Oh, I literally forgot one final thing. Mr. Gregor also asks on appeal that the opinion only use his initials, since (not surprisingly) he doesn't exactly want the whole "attempted sex with a minor" thing hanging out in a potentially published opinion, particularly given his new spouse and all. Denied. The panel says he's a criminal defendant, so the usual rule is we use actual names. No dice there, either.

Thursday, August 11, 2022

People v. Morelos (Cal. Supreme Ct. - Aug. 11, 2022)

The California Supreme Court affirms the conviction and death sentence in this case, in which the defendant represented himself (always unwise) and waived the right to a jury trial (almost always unwise in a capital case). Justice Liu dissents, and believes that the defendant was insufficiently informed about the nature of the right that he was giving up -- the right to a jury trial.

The underlying dispute basically involves how much the judge has to say in order to make sure that the waiver of the right to a jury is "knowing and intelligent" and hence valid. Here, the defendant was surely told -- on multiple occasions -- that he'd be giving up the right to a jury. But he wasn't told, for example, that the jury verdict would have to be unanimous or that he could participate in voir dire. Is that enough? It is for the majority, but not for Justice Liu. At least in a case in which the defendant represents himself.

I wonder if the solution here is to have an official "script" for these sort of things -- something like the Court did with Miranda warnings. We have pattern jury instructions, after all. It might be useful for the courts (or the Judicial Council) to actually spend some time and come up with a neat little "cheat sheet" that trial court judges can use for waivers like this. Sure, trial court judges can come up with their own, and undoubtedly some do. But it'd be nice if the warnings were both uniform and approved by the higher-ups. That way we could all know they're good. (Indeed, they could be even more prophylactic than the bare minimum; why not, after all?)

Monday, August 08, 2022

Alfaro v. Waterhouse Mgmt. Co. (Cal. Ct. App. - Aug. 5, 2022)

Residents of Santa Barbara generally have a reputation for being mellow, easy-going folks. But this opinion suggests that this stereotype isn't necessarily accurate, at least as applied the lawyers out there.

The Court of Appeal affirms the award of attorney's fees against a defendant when its counsel filed a frivolous anti-SLAPP motion. Not only is that the result, but the opinion concludes with a section entitled "A Plea For Calm," the text of which states: "At the trial level and here on appeal, the parties’ “scorched earth” postures exude acrimony: There have already been two appeals from anti-SLAPP rulings. We are hopeful that the law and motion wars will cease. The case should be settled or be tried."

That's a fairly damning indictment of the stereotype, no?

I was sufficiently intrigued by that statement to spend part of my weekend going back and reading the briefs in the underlying litigation. Admittedly, I only had access to the stuff on appeal, and wasn't able to read the trial court materials. But I gotta say, the briefs didn't seem that unusual at all, and certainly not so full of animosity and acrimony that I'd have been itching to tell the attorneys to tone it down a ton.

I'll admit that counsel for appellant sometimes puts things in a manner that's fairly . . . strong. But not in a manner that's unprecedented or beyond what I often read in trial or appellate briefs. The only thing that truly leaped out at me is appellant counsel's penchant for employing bold text, as I've gotta be honest that I've rarely (if ever) seen that much bolding in a non-pro se brief, and counsel might well be advised to stop hitting control-b so much. It's distracting. But acrimony? Nah. A little, sure. But not so much.

And appellee? Her brief seemed totally normal. Not acrimonious at all. Just exactly what you'd expect to see -- particularly when (as here) defending the award of attorney's fees for the filing of a frivolous motion below.

There may, of course, be more going on here than I can read in the appellate briefs. Maybe the trial court submissions were super vitriolic. Maybe the oral argument was especially testy. Maybe the Court of Appeal has had some history with this case (and its counsel) -- there was a prior appeal, after all, on a different issue -- and is tired of the same old routine, albeit at a slightly lower volume here.

But the mellow stereotype of the cool and calm resident of San Barbara applies here, if at all, only to the justices on the panel, who basically ask the lawyers to "turn down the volume" and keep things a bit more calm and quiet, at least on appeal.

Because it's Santa Barbara, after all.

Wednesday, August 03, 2022

Montes v. YMCA (Cal. Ct. App. - Aug. 3, 2022)

You can see from the very outset of today's opinion why the Court of Appeal was eager to make sure that the defendant successfully obtained summary judgment in this case:

"Abel Montes, Jr., fell to his death from the steep, sloped roof of a residential building where he lived. The building was owned by Young Men’s Christian Association of Glendale, California (YMCA or defendant). Mr. Montes had been drinking and had eaten a marijuana brownie earlier, was feeling high, and had been acting erratically before the fall. The parties agree there was an 'open and obvious risk' from the roof sloped at a steep angle and covered with brittle, broken, slippery and unstable Spanish tiles. They also agree there was no need for Mr. Montes to be on the roof. Under these circumstances, defendant owed no duty of care to Mr. Montes, and his parents cannot prevail on their wrongful death claims based on premises liability and negligence. We affirm the trial court’s grant of summary judgment for defendant."

Indeed, when you read the additional facts that were set forth later in the opinion, it becomes even more understandable why the panel didn't want to impose liability in settings like this one. Because you can see why someone might think that it was totally Mr. Monte's own fault that he fell off the roof: Since it wasn't just a random encounter on the roof, but basically a New Year's Eve revelry by Mr. Montes that clearly went horribly, horribly wrong:

"Mr. Montes was a 23-year-old resident of defendant’s apartment building in Glendale. He attended a birthday party on New Year’s Eve 2015, where he was seen drinking beer and some champagne. A coworker drove Mr. Montes home from the party, and he arrived in the lobby of the building at about 2:00 a.m. He told the desk clerk, Eric Perrodin, that he had eaten a brownie, was not feeling well, and was “high.” He declined the desk clerk’s offer to call 911 and said he would go to his room.

At about 4:00 a.m., Mr. Montes returned to the lobby and began behaving erratically, getting on his knees to pray, rolling around against the wall, knocking down plants, and falling to the floor, knocking down a window curtain. Then he told Mr. Perrodin that he was going back to his room.

At about 6:00 a.m., Mr. Perrodin looked outside and discovered Mr. Montes lying on the hood of his (Mr. Perrodin’s) car. He was still alive. Mr. Perrodin called 911. At 7:06 a.m., Mr. Montes was pronounced dead."

Yeah. You should not go onto the roof of a building when you're incredibly, incredibly high and rolling on the floor and the like.

That said, I gotta say, I was struck by one critical fact in the opinion. Sure, the roof was slippery and incredibly slanted and didn't have guard rails. Big deal. It's a roof, after all. That doesn't make it (at all) incredibly dangerous to me, or impose a duty.

But the opinion mentions that the stairway in the building went directly to the roof, and -- here's the biggie -- didn't even have a lock on it. So, predictably, people occasionally went up to the roof to party there, and the building owners (essentially) knew full well that they did. Hence the bottles and graffiti and cigarette butts up there, plus the persistent "rumors" that "stuff" went on up there.

I mean, come on. Put a lock on the darn door at least, no? It's a roof, after all. Otherwise -- shocker, I know -- someone might well fall off the roof. (As Mr. Montes indeed did.)

I get it: one could easily come to the conclusion that it's the guy's own fault for going up to the roof, a place that he presumably knew he wasn't supposed to be and that was obviously dangerous.

But the Court of Appeal says that there's categorically no duty whatsoever for a landowner in this setting. Even though I think everyone with common sense would say: "Uh, dude, you really gotta put a lock on that door to the roof, no?)

Apparently not.

Monday, August 01, 2022

County of Butte v. Dep't of Water Resources (Cal. Supreme Court - Aug. 1, 2022)

I return from a (well-earned) vacation in Hawaii with my family to read this opinion from the California Supreme Court. It's about the scope of federal preemption of the California Environmental Quality Act, which -- while important -- is not something that would normally thrill me enough to discuss at length.

But I wanted to talk about the opinion, if only tangentially, because reading it generated a larger idea in my mind that might perhaps have some traction. (Though, perhaps, not.)

What's somewhat unusual about this opinion is that there's a dissent -- the opinion is written by Justice Liu, and the partial concurrence and dissent is written by Chief Justice Cantil-Sakauye (joined by Justice Corrigan).  That by itself is somewhat unusual; and the fact that it's unusual is itself unusual, or at least not typical. We're all used to the United States Supreme Court and its fractured political composition, which in turn generates lots of dissents -- and often somewhat vitriolic ones, at that. The California Supreme Court isn't like that. Lots of its opinions are unanimous. And when, as here, there's a dissent, what you see in today's opinion is what you generally see; a totally nice, polite, incredibly restrained and respectful written difference of opinion.

Which is nice, honestly.

But the thought I had was less about this dynamic -- one of which most court-watchers are generally cognizant -- than about how this might affect retirement rates. Because while I haven't had occasion to mention it, here's what's somewhat surprised me over the past decade or so: We've had what seems to me a lot of California Supreme Court justices voluntarily leave the bench. Most, if not all, of whom were in perfectly good health and could have continued to serve for some time.

You don't see that, by contrast, in the contemporary United States Supreme Court.

This has been an issue on my mind for some time, but it was generated again (obviously) by Chief Justice Cantil-Sakauye's announcement last week that she was leaving next year. She's only 62 years old, and has plenty of gas left in the tank. Last year, Justice Cuellar similarly retired at the spry age of 49. The year before that, Justice Chin retired. And before that, we had retirements by Justices Werdegar, Baxter, Kennard, Moreno and George -- all within the past decade or so, and all of whom (I believe) remain alive and kicking to this very day.

Try to get a similar list of United States Supreme Court justices who've left, particularly in the current political era. Good luck with that.

What occurred to me today is that I wonder if there's a linkage between these two realities. I wonder if justices are more likely to retire while young and in good health when, as today, there's perceptually not much politically at stake. When most (or many) of the decisions are unanimous anyway. When most of the justices -- and their likely replacements -- are of similar political dispositions. When the appointing authority, as in California, is likely to be from the same political party for most of the relevant period of time.

It's not that being a California Supreme Court justice is a crappy job. It's not. At all. So in some ways, even if your vote isn't totally critical, say, to avoid a disastrous 5-4 (or 4-3) result, why not go ahead and stick around. Indeed, arguably, the job's an even better one when you like your colleagues, they tend to see things the same way as you do, no one's a huge jerk, and you're not burdened with having to write dozens of passion-filled dissents every single year.

So why not hang in there?

I think the answer, however, is that to get there -- to become a justice on the California Supreme Court in the first place -- you've essentially got to be an A-type personality in the first place. You wouldn't be on the Court to begin with if you didn't like challenges. High impact, high important stuff. Making a big difference.

There's less of that, I suspect, when -- in most cases -- you're simply the seventh vote in a unanimous opinion; an opinion that would likely have come out the exact same way without you.

That's my theory, anyway. Were I more ambitious, I might do an in-depth empirical study of overall dissent rates and closely-contested decisions as correlated with differential retirement rates in state supreme courts. It might be super interesting.

But it's the summer. I'm just back from vacation. I'm going to instead take the easier route, at least for now. I'll just posit my intuition that the one thing probably has something to do with the other. Since, at a minimum, it makes sense. (At least to me.)

So a partial dissent by the soon-to-be-retired Chief Justice Cantil-Sakauye. Enjoy 'em while you can.