Friday, April 28, 2023

Optional Capital v. DAS Corp. (9th Cir. - April 28, 2023)

It wasn't a very good end of the week -- or end of the month -- for appellant's counsel in this case, as they (1) see their appeal get dismissed with a (rare) summary affirmance by the Ninth Circuit, plus (2) receive an order to show cause why they shouldn't be sanctioned for a frivolous appeal. Which, I'll tell you right now, they're almost certainly going to be.

You can't lose much worse than this. Particularly when, as here, all this happens in a published opinion.

There's a lesson here as well. When the Ninth Circuit tells you in a prior appeal that your prior legal maneuvers have already gone "too far," and when the district court subsequently lets you know that your continuing conduct in fighting a prior decision "may be subject to the imposition of sanctions for unreasonably and vexatiously multiplying these proceedings," maybe take that stuff seriously.

Because -- in my experience, anyway -- federal judges rarely bluff.

People v. Bocanegra (Cal. Ct. App. - April 28, 2023)

The underlying facts in this opinion are like a made-for-TV movie. Or a reality show.

"Defendant Alex Andy Bocanegra and Vernon R. were very close friends for decades. However, one Christmas, defendant, who was married, slept with Vernon R.’s girlfriend. The next year, Vernon R., by his account, slept with defendant’s wife, or, by her account, forcefully tried to. In either case, by this point, the friendship between defendant and Vernon R. was “dead.” Rather than allowing this saga to end, on the night of January 12, 2020, defendant drove from his home in San Jose to Vernon R.’s home in Manteca armed with three firearms including an AR-15 style rifle. Defendant broke a front window and fired shots into the house as Vernon R. scrambled through the house and dove out a bedroom window to get away."

That's a fairly disastrous way for a 20-year friendship to end, don't you think?

Tuesday, April 25, 2023

Chicken Ranch Rancheria v. California (9th Cir. - April 25, 2023)

I was blown away by today's Ninth Circuit opinion by Judge Bress.

It is an amazingly well-written opinion. Seriously: Perfect. It's a super-complicated topic; something that's facially just about attorney's fees, but the underlying issues involve the Erie doctrine and complex federal jurisdictional issues that sometimes bedevil even the best of us.

But here's the thing: Judge Bress not only analyzes the issues entirely correctly, but also writes an opinion that's concise and on point and just amazing. Beautiful, even. 

Really, really well done.

The good thing about this one is that it's a straightforward and (relatively) non-political fight, even though it's about whether a particular Indian tribe gets fees from California for not negotiating in good faith about a gambling compact. That helps. Even if you're a moderately political judge, with perhaps strong feelings on one particular side of the left-right spectrum, when it's a case like this one, where everyone's just trying to get the decision right, there's less of an incentive to manipulate doctrine or push things in one direction or another. In many instances, including here, that's where judges can really shine. And this opinion is a great example of that.

Not that judges can't potentially write "political" opinions that are also really well done; maybe even, at times, beautiful ones. It's just that it's less common.

Regardless, this is a fantastic opinion. I'm affirmatively jealous.

Monday, April 24, 2023

Murphy Co. v. Biden (9th Cir. - April 24, 2023)

You could be easily excused if you didn't feel like reading 47 single-spaced pages of fairly dense legal prose about the intersection of the Antiquities Act, passed in 1906, and the Coos Bay Wagon Road Grant Lands Act, passed in 191937, as applied to Proclamation 9564, issued by President Obama in 2017, that expanded the size of the Cascade-Siskkiyou National Monument and hence restricted preexisting timber logging in the newly designated and (to a degree) adjacent areas.

Heck, even the single sentence that I just wrote takes a lot to get through.

But it's pro-logging advocates on one side against anti-logging advocates on another. It's also a split opinion in the Ninth Circuit, with Judge McKeown writing the majority opinion -- coming out in favor of the the pro-Proclamation and anti-logging side -- with Judge Tallman dissenting (on the other side).

But even if you don't read the entire thing, here were my two favorite parts of the respective opinions:

(1) In the dissent, some fancy, highfautin language from Judge Tallman: "Proclamations and executive orders of this reach are often responsive to criticisms by advocates that Congress is too formalistic and inflexible in performing its legislative function as originally envisioned by the Framers in today’s dynamic world. The legislative process can sometimes be slow and frustrating, but the procedural strictures enshrined in our Constitution are unyielding because they exist to maintain our Republic’s status as a government of laws and not of men."

(2) In the majority opinion, the sly little joke from Judge McKeown: "Admittedly, the validity of the Proclamation—an Antiquities Act order that implicates the O&C Act—presents a statutory thicket. But, ultimately, Murphy’s claim of irreconcilability misses the forest for the trees." 

Ho ho ho. I get it.

Friday, April 21, 2023

People v. Wilson (Cal. Ct. App. - April 21, 2023)

This is a darn good opinion by Judge Langhorne (sitting by designation from Napa County). Well done.

Kimiko Wilson gets convicted of murder and sentenced to life in prison. He might have been the actual shooter, or, perhaps, a different guy named Rauls might have been the shooter and Wilson merely guilty as a major participant aider and abettor; the prosecution argued both theories at trial. What we know is that the jury (1) found Wilson guilty of murder, and (2) was hung -- and hence didn't reach a verdict -- on the personal use enhancement. Which pretty much by definition means that everyone on the jury thought that Wilson was guilty, but some of 'em thought he was the actual shooter and some of 'em didn't. But that didn't matter given aider and abettor liability at the time.

Fast forward to the present day. Now it does matter. Because people who (in situations like this) are not the actual shooter can file a petition to be potentially resentenced.

So Mr. Wilson files precisely such a petition. But the trial court says, sorry, you were the actual shooter, beyond a reasonable doubt, so you're not eligible for relief.

At which point Mr. Wilson's lawyer says: "Hold on. Clearly the jury didn't think that, because they were hung on the personal use enhancement. You can't find something true beyond a reasonable doubt that conflicts with what the jury found. Precedent."

But Judge Langhorne is right. It'd be one thing if the jury found the personal use enhancement not true. A judge in a subsequent resentencing petition couldn't disagree and conclude otherwise. But that's not what the jury here found. It instead found nothing. It was hung. Some thought one way, some another.

That's not issue preclusion. A term that Judge Langhorne doesn't apply, but is essentially the relevant doctrine. When the jury doesn't decide something, then there's no binding finding, so the court can decide on its own.

Which is precisely what the trial judge did here. She reviewed the evidence and concluded, beyond a reasonable doubt, that Mr. Wilson was the actual shooter. End of story. As long as that finding has some substantial evidence behind it -- and it clearly does -- no reversal on appeal. No resentencing.

Totally right.

What struck me most about the case, however, was that, here, the trial judge on the resentencing petition was the original judge at Mr. Wilson's trial. Which, of course, makes sense. She was already at the trial and heard all the witnesses testify, and probably has a super good recollection of the thing. She's in a great position to decide whether Mr. Wilson was, in fact, the actual shooter. And her findings about credibility and the like are, quite rightly, given tons of deference on appeal.

That's great when the original trial judge is still around. But what do you do when the original judge has retired, or died, or otherwise unavailable? That's a toughie. Because, at that point, its not enough for the judge to merely review the trial transcript and the like. Sure, that'll set for the various evidence as well as the competing positions of the parties, and sometimes that'll perhaps be enough; e.g., if everyone at the trial agreed on what happened and the only issue was one of, say, mistaken identity.

But in cases like this one, that wasn't the fight. There was some testimony at trial that Wilson was the shooter, and contrary testimony that Rauls was the shooter. Simply reading the transcript doesn't enable a judge to decide who's telling the truth, or which side is right. For that, you'll need live evidence and live witnesses. Some of whom, in the interim, may have died, become unavailable, forgotten stuff, etc.

What do you do then? The alternatives there are a trial on the papers (totally lame) or a trial based upon the tiny smidgeon of live evidence still available (also totally lame).

In short, how are we supposed to get accurate findings when the original trial judge isn't available, or (God forbid) has largely forgotten the whole thing?

Seems tough.

Not at issue here, of course. Happily, here, the trial judge is still alive.

Still. Other cases: Not so easy. At all.

Wednesday, April 19, 2023

Air 7 LLC v. County of Ventura (Cal. Ct. App. - April 19, 2023)

Some opinions seem totally right to me. Other opinions seem demonstrably wrong. And other opinions, to paraphrase C+C Music Factory (and to horribly date me), "make you go hmmmm. . . ."

Today's opinion from the Court of Appeal is one of those last types.

Here are the underlying facts. Peter Koral lives in California, and he's rich. Super rich. Like, literally, G5 rich. (For yet another pop culture reference -- this time from the somewhat-modern here -- here's a classic G5 scene from Tropic Thunder.) He's got a Gulfstream G-550 that he bases in Camarillo, California.

But like most of us, Mr. Koral doesn't like to pay taxes. But if you've got a $45 million aircraft parked in California, you've got to pay taxes on it.

So on December 28, 2016, Mr. Koral flew the plane to Oregon, and kept it there while he put it up for sale.

Ventura County, however, said that he still owned the plane (through the underlying trust and LLC), so taxed him on it; roughly a quarter million dollars worth. Mr. Koral sued, claiming that's not okay. He lost in the trial court at a bench trial, and then files an appeal.

The Court of Appeal agrees with Mr. Koral, and reverses the judgment, instructing the trial court to find in favor of Mr. Koral and order Ventura County to refund the $250,000 in taxes.

There's a lot in favor of how the opinion comes out. Justice Baltodano explains at length how California is only able to tax property located within its borders, and here, the plane was undeniably outside of the state during 2017 and beyond. Hence the Court of Appeal's ruling that, under both the relevant statutes as well as the Due Process Clause, it was impermissible for a California municipality to tax the aircraft once it was moved to Oregon.

So, as I said, there's a lot about the opinion that I find persuasive, and nothing that I think is clearly and indisputably wrong. Or even that it close but that I definitely think is wrong.

Nonetheless, here are the two questions that still linger in my mind:

(1) Justice Baltodano says that it doesn't matter that the owner was still in California, that Oregon never taxed the property (because it was only "temporarily" there, abeit for a long time until it eventually sold), or that the property never changed its situs while owned by Mr. Koral since it was only temporarily in the other locations and hence never acquired the situs of another state (and hence was never taxed). The Court of Appeal says that the Due Process Clause nonetheless prohibits taxation and jurisdiction even in such a setting.


Take the one area I know a great deal about; personal jurisdiction and residency. Which is all about the Due Process Clause. For these purposes, you indisputably maintain your former residence -- even when you move -- until you permanently acquire another situs. So if I permanently reside in, say, California, and only temporarily relocate to Texas (say, for a work assignment, or on military orders), I remain a California resident unless and until I obtain a new permanent residence. Even though I'm no longer located here. California retains the ability, under the Due Process Clause and otherwise, to subject me to jurisdiction here, via taxation and otherwise (e.g., to assert personal jurisdiction over me).

Ventura County argues that this same rule should apply in the present case, but the Court of Appeal says that the Due Process Clause compels otherwise. But are the two situations really different? At least for purposes of the Constitution, I'd think not; jurisdiction to tax and to do those other things seems to me to be synonymous. (Put to a different side the statutory point; California might choose not to tax unless the property's physically located here, but I'm talking about the Due Process argument.)

Plus, even in the taxation realm, does the Due Process Clause really operate that way? Here's one thing I know for sure: the United States has the power to -- and actively does -- imposes taxes on residents regardless of where they're located and regardless of whether that income is earned in other countries. How's that consistent with today's interpretation of the Due Process Clause? 

So, in the end, I'm just left to wonder if the scope of the Due Process Clause is really what the Court of Appeal today thinks it is. I get the argument. I just wonder if it's right.

(2) On a totally separate front, the Court of Appeal expressly says that since "the facts are undisputed" it reviews de novo, and on the basis of its holding, it reverses and instructs the trial court to find in favor of Mr. Koral and to order Ventura County to refund the money.

Is that really right too?

I agree that lots of the facts are undisputed; e.g., when the plane left, that Oregon didn't tax it, etc. But the only thing the trial court held was that, in its view, taxes were owed regardless of Mr. Koral's intent because (in its view) taxes are owed because no new situs for the aircraft was established.

The Court of Appeal says that's wrong as a legal matter, and okay, let's assume for present purposes that's right. Does that really mean -- as the Court of Appeal holds -- that Mr. Koral automatically wins because the facts are entirely undisputed?

It seems to me that there's at least a colorable argument -- indeed, one that, as a judge, I might factually find persuasive -- that Mr. Koral did not in fact intend to permanently relocate the plane outside of California. The Court of Appeal takes at his word Mr. Koral's testimony -- which might, perhaps, be 100% true -- that once he put the plane up for sale in 2016 and shipped it off to Oregon, he expected that the plane would be there forever and "never wanted anything to do with it."

But the trial court was surely not required to believe Mr. Koral's testimony. And there's at least some reason to think that he might have shipped the plane off to Oregon for perhaps other purposes, right? Do you think, for example, that it's just happenstance that he shipped the plane to a place outside California on December 28, 2016 -- just days before a new tax year started (and hence taxes would be due on planes located in California)? Were a credibility call to be made, surely it'd be permissible for the trial court to find, if it thought it true, that Mr. Koral didn't intend to dispossess himself of the plane on that date, and instead did it primarily for tax reasons, and intended to take the plane back if it didn't sell. (To be clear: I'm not saying it'd have to find that, but surely it could, right?)

Now, as it turns out, the trial court wasn't required to make any finding at all in that regard, because in its view, Mr. Koral's intent was irrelevant, since the plane never acquired a new situs in Oregon. But once the Court of Appeal says that latter view is legally erroneous, isn't the proper remedy to remand the case back down for the trial court to apply the proper law, at which point a finding as to Mr. Koral's intent now becomes relevant? Is the Court of Appeal really right that the relevant facts are undisputed even under the different test applied by the Court of Appeal? That reversal, not remand, is required?

Those are the questions that pop through my mind as I read this one. A case in which, perhaps, the right result is reached. But I wonder if the reasoning, or the process employed, really establishes what the Court of Appeal thinks it does.

Monday, April 17, 2023

Palmer v. City of Anaheim (Cal. Ct. App. - April 17, 2023)

I love the way this opinion is written, which is not surprising once I reached the end of the opinion and saw that it's author was Justice Bedsworth. What I also loved about it was that it highlights a creative way to potentially circumvent the requirements of Proposition 218 -- the amendment to the California Constitution that requires voters to vote to approve any taxes imposed by local governments -- that I hadn't at all thought about previously.

(That's not intended to be a normative statement, by the way; I'm not saying that I love or hate the idea of getting around Prop. 218, just that it's always interesting to think about ways that people might try to do so and whether they'd legally succeed or fail.)

The basic scoop is that voters have to approve taxes, but not fees. With electricity, one of the things that the electricity company pays for is using public right of ways: transmission lines above sidewalks, power lines under streets, etc. So the City definitely gets to charge the electricity company (and gas company, cable company, internet provider, etc. etc.) fees for that access.

But, of course, the company just turns around and charges its customers those same costs. And with most of these entities, it's not like you have a choice whether to pay. What are you going to do, after all: live without electricity, or water, or sewage, or (gasp!) internet at your home?

So if a city wants to raise taxes without voter approval notwithstanding Proposition 218, why not just jack up the rates we charge the various service providers for public access? Regardless of how high a city sets those charges, it's not like SDG&E (or PG&E, or whomever) is going to say: "Screw it, we're going to get of the monopoly market in that city and no longer provide power." Nope; they're just going to raise their own rates on customers in return. And we're going to pay it. Every single time.

So the City gets whatever money it wants and the public pays it. Without voter approval. Neat, huh?

Now, in the present case, that's not a problem -- nor one that Justice Bedsworth is required to address -- because in Anaheim, there are already parts of that city's particular charter that are designed to prevent various types of electricity rate increases. But for other cities, or for situations (potentially like here) where those provisions don't apply, that's an interesting potential way around Proposition 218, no?

Of course, even if that's true, that doesn't necessarily mean that Proposition 218 is meaningless. Cities would still have to get voter approval if they wanted to (effectively) raise taxes in other ways. Moreover, there might well be reasons why cities would be somewhat more unlikely to raise, say, electricity rates (via public access charges) as a means of obtaining revenue than, say, imposing taxes on high-income earners, so we might be less worried about this particular "loophole" than some others.

Still, it'd have been a much harder sell for Proposition 218 if the pitch was: "Good news: passage of this law means that we'll have a harder time taxing the rich (since voters might strike that down), but fear not, cities can still totally soak the rest of us -- anyone who uses water or electricity, anyway -- at their total leisure." Which, effectively, might turn out to be really how the thing works. Though you might have to replace "rich" with "businesses, landlords, etc." to actually capture all the different ways that contemporary taxes get imposed, with or without voter approval.

Anyway: A neat little thought experiment about how cities might be able to get around Proposition 218 if they feel like it.

Wednesday, April 12, 2023

Boydston v. Padilla (Cal. Ct. App. - April 12, 2023)

I'm all for tilting at windmills if you think it has a point, particularly with respect to elections procedures that you believe to be unconstitutional. So if you think (as the voters do here) that it should be a violation of the Constitution for a state to only allow registered members of a party to vote in that party's primary, then by all means, feel free to make that argument.

But the Supreme Court held back in 1990 that it was unconstitutional for states (like California) to require an open primary when that's not what the party wants. And that decision wasn't even especially close, with only two dissenting votes. (Justices Ginsberg and Stevens, neither of whom, I might add, remain either on the Court or breathing).

Given that the Supreme Court has indisputably said that primaries have to be closed if that's what the party wants, the plaintiff's argument here that it's unconstitutional for a state to allow primaries to be closed is a surefire loser. Even if the plaintiff's request (as here) only that they be allowed to vote for "expressive" purposes and do not ask that their votes be counted. No way that's gonna win; not even back in 1990, and certainly not with the contemporary composition of either the federal or California judiciary.

So tilt away, my San Diego friends; just know that there's a 0% chance of winning this one. The best that you could possibly hope for anyway is to somehow prevail in state court (which ain't gonna happen) and then have that decision summarily reversed by the Supreme Court in a blistering opinion.

But as it is, as expected, you lose -- consistently -- long before that, including but not limited to in today's published opinion by the Court of Appeal.

Tuesday, April 11, 2023

People v. Thai (Cal. Ct. App. - April 11, 2023)

I was going to mention this opinion regardless of the merits, if only because of the offhandedly humorous way that Justice O'Leary introduces the facts. She says:

In June 1997, 12-year-old John Doe walked from his father’s house to the liquor store across the street where 39-year-old Thai worked. . . . As Doe perused the candy, Thai asked him how old he was. When Doe said 12 years old, Thai said he looked big for his age and asked him if he worked out. Not so subtly, Thai asked Doe, “‘Do you jack off?’” Thai gave Doe a Playboy magazine and directed him to the empty office in the back of the store.

In the office, Doe sat down in a chair. After Thai entered the office, he asked Doe to look at the magazine and pull down his pants. When Doe hesitated, Thai pulled down Doe’s pants and underwear. Thai knelt on the floor and masturbated Doe until he ejaculated. Doe got dressed and fled. Later that day, Doe felt ill from what happened and told his mother, who called the sheriff’s department."

Obviously, a terrible offense, and you totally feel bad for Doe. I nonetheless had to laugh at the "Not so subtly" part. True that.

On the merits, the Court of Appeal reverses the trial court, which kept Mr. Thai on the sex registry on the ground that (as the statute requires) "community safety would be significantly enhanced by requiring continuing registration." Mr. Thai spent three years in prison, is now 65 years old, has been on the registry for 23 years, and has never reoffended. Justice O'Leary says there's insufficient evidence to support a finding that "community safety would be significantly enhanced" if this now-elderly man was kept on the registry. Not that there isn't some risk that he'd reoffend, just like there's some risk that any of us would. Just not enough to justify continuing registration after 23 blameless years.

"Not so subtly." Funny.

Thursday, April 06, 2023

Nijmeddin v. Superior Court (Cal. Ct. App. - April 5, 2023)

On the one hand, Mr. Nijmeddin was convicted of murder (including backing his truck up over the victim) and sentenced to life in prison, has a criminal history that includes assaults and burglaries, and while in prison has committed several serious rules violations, including violations for fighting and serious threats. He's also only been in prison for the murder conviction for seven years thus far.

On the other hand, Mr. Nijmeddin now has advanced pancreatic cancer, has only 3 to 6 months to live, is now bound to a wheelchair, can't walk, stays in his bed 22 hours a day, can't take care of himself, is 65 years old, and will soon need 24-hour care. He's also got a brother who's an attorney and judge pro tem in Fresno who has not always gotten along with him (e.g., previously evicted him), but who's nonetheless willing to take care of Mr. Nijmeddin during his final days, who's view is that “I think that in the end of his life, [] [Nijmeddin] is looking to mend fences, not to create more problems.” The brother's willing to be his caregiver, has started to arrange hospice services, and although "his house has a safe with guns in it, [] he has already arranged for it to be moved to his sister’s house, which is about 10 miles away."

The trial court refused to grant Mr. Nijmeddin compassionate release, holding that he was still a serious danger to society. On appeal, the California AG's Office confessed error, and the Court of Appeal agrees, reversing and ordering the trial court to order Mr. Nijmeddin's release forthwith.

I suspect that at least most of the fighting that Mr. Nijmeddin did in prison was long before he had terminal cancer and was unable to walk and stuck in a wheelchair.

Wednesday, April 05, 2023

Soni v. Cartograph (Cal. Ct. App. - April 5, 2023)

Lawyers fighting clients. About virtually nothing. Never a good look, and usually someone comes out very much on the short end of the stick. Interestingly, here, at various times, both sides were on the short end. But in the end, it's the lawyer who ends up very much wishing that the thing had been resolved in a more informal matter.

It's a totally tiny underlying dispute. Client T hires Attorney S to do some minor legal work. Seriously minor. As of October 2013, S says that the total fees due are $7,211. T doesn't want to pay for some of that work, which he says was unauthorized, so ends up paying $3,531.

So there's a difference of three grand and change. No big deal, right? Just write it off, or resolve it, or whatever.

But no. Client T files for fee arbitration, disputing the remaining $3,720 that the parties can't agree on. Again: Just resolve the thing. But no. The matter gets arbitrated. Ultimately resulting in an award to the attorney (S) of a whopping . . . $2.50.

But S isn't happy with that award. So instead of just moving on, files a lawsuit for the $3,580 in fees, plus twenty some thousand in "collection expenses" (presumably the fees expended in arbitration and the like). Client T responds by saying that the lawsuit -- which was filed 33 days after the arbitration award -- was too late, and wants the $2.50 award confirmed. But the trial court says that the suit was filed timely and awards the attorney $2,890 of the $3,580 requested.

But then there's the matter of fees. Attorney S then asks for over a quarter million dollars (!) in fees for the $2,890 award. The trial court slices that down a ton, to roughly $80,000. Still, a ton of money for a $3,000 award.

At which point Client T appeals, and wins, with the Court of Appeal holding that the lawsuit was indeed filed too late.

So now, on remand, everyone moves for a (relatively) absurd amount of fees. Attorney S now asks for over half a million ($543,365) in fees for this $3,000 dispute, claiming that he's the prevailing party given the $2.50 arbitration award he won. Whereas Client T in turn asks for over a third of a million dollars in fees ($339,603) for this $3,000 dispute, claiming that S didn't do better than the arbitration award, hence is liable for fees. The trial court agrees with T, and awards nearly everything requested; $328,166.50 in fees.

Again, over a $3,000 attorney-client fee dispute.

Today, the Court of Appeal affirms. As well as awards T costs on appeal. Which means yet additional fees to be awarded on remand.

I'm going to say it one last time: All as a result of a $3,000 fee dispute.

I think we can all agree that the world would have been better off had this minor dispute been resolved informally long ago.

Tuesday, April 04, 2023

People v. Jones (Cal. Ct. App. - April 4, 2023)

This seems to me to be largely a "forgot to put it on the record" problem.

The judge dismissed the jury after it rendered its guilty verdict, but forgot that the jury hadn't yet decided whether the defendant had been previously convicted of a serious felony, which was one of the charged enhancements. Before the jury left the courthouse, the judge had the jury call them back in. But the jury didn't actually come back into the courtroom until four hours or so after they'd been discharged, and the judge failed to put on the record what the jury was doing in the meantime. As a result, it was unclear from the record whether they'd discussed the case with outsiders, had talked to the lawyers, etc.

Under such circumstances, yeah, you gotta reverse the subsequent jury's finding that the defendant had a prior felony. You can't reassemble a jury unless you're totally sure they remained under the judge's control the whole time.

That said, all this means is that a new jury's going to be empaneled to decide whether the defendant had previously been convicted. Which I'm certain he has been. So it's going to be the quickest retrial in the history of California jurisprudence.

As well as perhaps the most boring jury service ever.

Monday, April 03, 2023

Bolden-Hardge v. Office of Cal. State Controller (9th Cir. - April 3, 2023)

The Ninth Circuit only publishes one opinion today, and it reverses the dismissal of a claim by a Jehovah's Witness that requiring her to take a sworn oath as a condition of state employment violates her right to free exercise of religion as well as Title VII and the California Fair Employment and Housing Act.

Judge Friedland's opinion concisely describes the relevant dispute: "The California Constitution requires all public employees, except those 'as may be by law exempted,' to swear or affirm to 'support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic' and to 'bear true faith and allegiance' to those constitutions. Cal. Const. art. XX, § 3. Bolden-Hardge, a devout Jehovah’s Witness, believes that her faith precludes her from 'swearing primary allegiance to any human government' over 'the Kingdom of God' or pledging to engage in military activity. She objects to California’s loyalty oath because she believes that it would require her to pledge primary allegiance to the federal and state governments and to affirm her willingness to take up arms to defend them, both of which she says would violate her religious beliefs."

Bolden-Hardge offered a substitute oath. She was happy to say: "I, Brianna Bolden-Hardge, vow to uphold the Constitutions of the United States and of the State of California while working in my role as an employee of the State Controller’s Office. I will be honest and fair in my dealings and neither dishonor the Office by word nor deed. By signing this oath, I understand that I shall not be required to bear arms, engage in violence, nor to participate in political or military affairs. Additionally, I understand that I am not giving up my right to freely exercise my religion, nor am I denouncing my religion by accepting this position."

California wasn't cool with that. So Bolden-Hardge didn't get the job. Then she sues, and California defends the suit on the grounds that the oath requirement is just fine, and that it's okay to make people say that when and if their religious requirements conflict with their employment requirements, the latter rules.

I can see the arguments on both sides. Ultimately the Ninth Circuit says that it's not okay to dismiss the thing at the pleading stage, and that seems kinda right to me. We'll have to figure out of the facts.

Nonetheless, here's my take:

The oath requirement comes from the California Constitution, which requires most state employees -- and there are a TON of them -- to take that oath. Here's what Section 3 of Article XX says:

"Members of the Legislature, and all public officers and employees, executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation . . ."

The following is my dominant, nonlegal reaction:

Seriously? Come on. Who cares? Why put that thing in there?

It's not like an "oath" is really going to change people's behavior, or "screen out" bad people. It doesn't really screen out anyone, and to the degree it does, its only effect is on people with conscience like Ms. Bolden-Hardge. The thing gets passed in the 1950s or whatever when there's McCarthyism and we're all super paranoid about communism taking over the American government and the like. [POSTSCRIPT - That might actually have been the amendment, not the original oath. Still. It was back in the old days, for sure.] It doesn't work -- or really accomplish anything, actually. Just delete the thing. It's stupid.

Do I really care if people like the President are required to take an oath? Not really. It's symbolic, and at some high level, maybe there's a role for that. But every state employee?! Seriously? Do you really feel better knowing that your communications professor at UC Berkeley was willing to sign a stupid oath as a condition of teaching? Or, as here, someone working in the bowels of the Comptroller's Office?

Courts can't just totally ignore a state constitutional command, of course. My dominant reaction to this case was nonetheless that it's just silly that we have disputes like this over an oath that serves utterly no purpose in the first place. All this money and attorney's fees wasted by the state on something that accomplishes essentially -- probably, literally -- nothing.

I can't believe we don't have better things to do with our time.

Anyway, the case gets remanded back to Judge Mendez. We'll see how it goes.