Rodriguez v. Garland (9th Cir. - Dec. 28, 2023)

This opinion isn't at all about delay. But the factual background of the case struck me as similar to what you typically see in death penalty cases; e.g., tons of delay, even though the government theoretically has a strong interest in getting these cases resolved expeditiously. (For death penalty cases, in having the death sentence carried out promptly rather than 30 or 40 years later; for removal cases, in having the individual deported swiftly rather than a decade-plus later.)

Here's how the Ninth Circuit recounts the facts:

"On October 17, 2014, the Department of Homeland Security (DHS) served Rodriguez with a putative Notice to Appear (NTA) that did not specify the date or time of any subsequent removal hearings. The NTA alleged that Rodriguez (1) was not a citizen or national of the United States, (2) was a native and citizen of Mexico, (3) had entered the United States near Otay Mesa, California, on approximately September 27, 2010, and (4) had not been admitted or paroled after inspection by an immigration officer. . . . DHS did not file the NTA with the immigration court until March 13, 2015, approximately five months after the NTA was served on Rodriguez.

On March 27, 2015, the immigration court issued a notice stating that Rodriguez’s first master calendar hearing was to take place two months later, on June 9, 2015. Rodriguez appeared at the hearing and, through counsel, admitted the first two factual allegations stated in the NTA. She denied, however, the remaining allegations and contested the removability charge. . . . 

The IJ then scheduled another master calendar hearing for eight months later, on February 3, 2016, and gave Rodriguez a deadline of November 3, 2015 to submit a written change to her initial pleading if she wished to do so. Rodriguez complied with the IJ’s directions and, on November 3, 2015, she filed an amended pleading in which she conceded her removability.

At the February 3, 2016 hearing, the IJ scheduled yet another master calendar hearing for sixth months later, on August 17, 2016. Rodriguez’s application for asylum, withholding of removal, and CAT protection was to be filed with the immigration court at that hearing.

But the August 2016 hearing never materialized. On July 8, 2016, the immigration court sua sponte rescheduled the hearing for March 1, 2017. The immigration court sua sponte rescheduled the hearing yet again on November 28, 2016, this time for May 24, 2017. And on May 4, 2017— three weeks before the already twice-rescheduled hearing was to take place—the immigration court sua sponte rescheduled Rodriguez’s proceedings a third time, for December 13, 2017.

At the December 13, 2017 hearing, the IJ asked Rodriguez’s counsel whether counsel had prepared an application for relief. Counsel responded by requesting additional time to review Rodriguez’s medical records. The IJ agreed to provide more time and also scheduled a hearing on the merits of Rodriguez’s forthcoming applications for relief for November 6, 2018. Because Rodriguez’s merits hearing would not take place for another 11 months, the deadline for her application for relief was set for September 6, 2018."

I'll leave out the rest, though will note that (1) Rodriguez allegedly entered the US in 2010, (2) the Department sought her removal in 2014, and (3) it's now 2023 -- and about to be 2024. (Oh, and the Ninth Circuit remands the case, so there's still a lot left to do.)

I would think that if one (or both) sides of the political spectrum wanted to get serious about removal -- as opposed to just perceptually "getting tough" (or doing nothing) -- one fairly achievable (maybe even bipartisan?) solution would be to hire more immigration judges to reduce the backlog. A ton of 'em. The Congressional Research Service recently said that we'd need to at least double the number of judges -- i.e., add 700 more IJs to the 649 currently on staff -- to clear the existing backlog by 2032. Admittedly, I don't practice immigration law (except for isolated pro bono matters), but the kind of delay I get to see from the outside seems fairly intolerable. You'd think that people could agree on doing something about it. Maybe even people whose political interests or desires normally compete with each other.

Or maybe not.

U.S. v. Galecki (9th Cir. - Dec. 26, 2023)

You've probably read about "spice" in news reports, or (perhaps) seen it in head shops. (Have I just dated myself by saying "head" shops instead of "smoke" shops? Probably.) At some level, I knew that the stuff was illegal, and that the fake "Not for Human Consumption" labels don't really work to immunize the manufacturers from legal liability. Yeah, you can say it's just "potpourri" for "making the house smell nice," but you sell it in smoke shops, not Target. Oh, yeah, and it's like a hundred times more expensive than actually potpourri. Everyone knows full well that people exclusively buy it to smoke it and get high.

So, yeah, I knew all that, and at some level, I knew that the manufacturers of the stuff might perhaps face some criminal liability at some point.

But I definitely didn't know that getting convicted earns you twenty years in federal prison.

All that money you made selling the stuff not really worth it at that point, eh? (Not to mention the moral cost.)

People v. Ramirez (Cal. Ct. App. - Dec. 22, 2023)

Before today, the police were generally only authorized to do those things that were actually spelled out in the court's warrant. So if the warrant said, for example, "The police are hereby authorized and instructed to search the house," the police could only search . . . the house.

But, today, the Court of Appeal holds that that's no longer the case. Rather, as long as the warrant says (as they all do) that the "facts in support of this warrant are contained in the Statement of Probable Cause and any exhibits, which are attached hereto and incorporated by reference," and the probable cause statement asks for something additional -- something that's NOT actually ordered by the warrant -- that's fine too.

So, here, the police asked the court to allow them to use the suspect's finger to unlock the computer, but the warrant didn't actually say "Yes" or "No" to that. No bother. It was in the probable cause part, so it's allowed.

That's not how we traditionally view warrants. They're technically orders from a court, and you're only ordered to do what they actually order you to do.

No longer, I guess.

Elden v. Nirvana LLC (9th Cir. - Dec. 21, 2023)

Spencer Elden gets photographed as a four-month old baby as he's swimming naked in a pool. Nirvana uses that photo in its iconic album cover, which depicts the baby -- including its penis -- swimming towards a hundred dollar bill on a fish hook. 

Mr. Elden has been trying to cash in on that cover through litigation for years. His present lawsuit says that the cover is child pornography, so he sues under a federal statute. The district court dismisses the lawsuit on statute of limitations grounds, but the Ninth Circuit reverses, and Judge Ikuta seems right when she says that every republication of the cover (some of which occurred within the current ten-year SOL period) creates a new accrual.

So Mr. Elden gets a remand.

Though it seems to me that he's going to lose on the merits, likely on a Rule 12(c) or MSJ (or, perhaps, at trial), because that album cover isn't "child pornography" under the relevant federal statute, which is defined as "the use of a minor engaging in sexually explicit conduct." Since, in my view, a photo of a naked baby swimming in a pool isn't a photo of a minor engaging in sexually explicit conduct. 

Particularly in the context of that baby allegedly swimming towards money on a fish hook.

I get that that's the next stage of the litigation, and not at issue in the present appeal.

But it's next.

Miller v. PG&E (Cal. Ct. App. - Dec. 19, 2023)

I'm seriously thinking that Justice Petrou might have a future career as a short story author. Check out the third paragraph of today's opinion:

"It was a typical Saturday evening in the neighborhood. It had drizzled earlier in the evening and the night sky was dark, foggy, and misty. The sidewalk was wet and crowded with people."

I'm so excited to hear what happened next!

(Actually, the only thing that transpired was that a woman tripped on a metal plate that was covering one of PG&E's underground utility vaults. Not that thrilling. But I'm confident that Justice Petrou's next short story will be exponentially more exciting.)

The prior opinion was unpublished, but today, she published the thing. Which, of course, makes her a . . . published author.

Congratulations.

People v. Diaz (Cal. Ct. App. - Dec. 18, 2023)

Justice Wiley authors a lengthy opinion (for him) that discusses and applies 22 pages of legal doctrine. But I can summarize the key practical lesson that I garnered from the thing in a single sentence:

Don't commit a cold-blooded murder in broad daylight with witnesses if you have a very distinctive neck tattoo.

Otherwise they'll pretty much almost certainly catch you and throw you in prison for life.

As here.

People v. Rojas (Cal. Supreme Ct. - Dec. 18, 2023)

To be honest, when I first read the question presented, I thought I was going to come out the other way in this one.

Proposition 21, adopted in 2000, increased the penalty for gang-related murders and mandated the death penalty or LWOP for anyone convicted of murder while "an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22" (if committed to further the gang). Prop. 21 also says that it can't be amended except by the voters or by a two-thirds vote of the Legislature.

So here's the question: Can the Legislature narrow the definition of a criminal street gang in Section 186.22 for purposes of Prop. 21 without a two-thirds vote? (Which is what the Legislature indeed purported to do, by majority vote, in 2021.)

The typical rule here is that if a statutory reference to another statutory provision is specific, then the definition embodied in that second provision is "locked in" as of the date of the second statute's passage for purposes of that subsequent statute. Whereas if a reference is "general" -- for example, to the entire body of common law, or something like that -- then the reference isn't locked in, and can change over time.

When first presented, I thought the Attorney General would have the better of the argument here. The reference in Prop. 21 seems awfully specific to me. Indeed, I can't think of anything much more specific. So it seemed to me like the voters wanted that definition locked in.

Which is how I would have probably come out in this one. Which in turn would have meant that I'd have written a solo dissent, since the California Supreme Court unanimously comes out the other way.

Except for one thing. Something that, for me, is dispositive. Something that, for better or worse, I learned only more than halfway through Justice Liu's opinion.

Here's the thing that changed my mind.

In a couple of places in Proposition 21, it expressly locks in existing law. For example, Section 14 of the proposition, which involved a change in the "three strikes" law, reads: "Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act." Similarly, Section 16 of the thing says: "Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994 General Election, for all offenses committed on or after the effective date of this act, all references to existing statutes in Section 1170.12 are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act."

That makes a huge difference to me. The people who wrote Prop. 21 knew full well how to lock in the existing statutory definitions when that's what they intended. They did so in multiple places, but not here. That's pretty damn good evidence of their intent, in my view.

So if that's their intent, as evidenced by the statutory text itself, I'm cool with that. That's the right way to view the statute, and that's the way I'd interpret it.

Which is why, in the end, I'm on board for the California Supreme Court's opinion.

Mind you, it's still somewhat tough to square that decision with precedent, which has found statutes "specific" (and hence locked in) in a wide variety of settings that look pretty darn similar to the case here. Similarly, I'm not really sure that Justice Liu's opinion really ever persuasively responds to what seems to me the obvious policy argument, which is that if the Legislature can narrow the scope of the gang definition, then the two-thirds requirement is essentially meaningless, since the Legislature could essentially repeal Prop. 21 entirely by changing Section 186.22 to define a gang in such exceptionally narrow terms that it never applies -- thus making Proposition 21 entirely moot.

Those are still problems for me, and serious ones.

But, hey, the people who write propositions are typically super smart. If they write the thing so that various definitions are expressly locked in, whereas others aren't, well, I'm going to operate under the assumption -- an entirely reasonable one, IMHO -- that this decision was deliberate, and interpret the statute accordingly.

Makes sense to me.

People v. Lagunas (Cal. Ct. App. - Dec. 12, 2023)

Defendant is driving drunk, fails to negotiate a turn, and runs over and kills a six-year old girl. Pretty egregious. He's charged with second degree murder. He wants the jury to be instructed on gross vehicular manslaughter while intoxicated, which is a lesser offense, and of which he's pretty clearly guilty. But the California Supreme Court has said that even though you generally have a right to have the jury instructed on lesser included offenses, gross vehicular manslaughter while intoxicated isn't a lesser included offense of second degree murder because the former requires that you be driving whereas, in other types of cases, you can be convicted of the latter without driving a vehicle. Never mind the fact that, here, there's zero doubt (or dispute) that the defendant was driving, and that's the only way he can be convicted.

Defendant gets convicted at trial, and sentenced to 15 years to life. He reiterates his challenge to the failure to instruct on lesser included offenses, and the Court of Appeal -- not surprisingly -- follows the California's Supreme Court precedent. But adds the following:

"Lagunas argues: “Criminal courts are not supposed to be gambling halls where juries are faced with all or nothing verdicts.” Lagunas claims the prosecution “engineered an all or nothing case by only charging second degree murder, betting that no jury would let appellant walk free after causing the death of an innocent little girl.” We are not taking a position on this oft-raised argument, but we are publishing this opinion to make clear that this argument is more properly directed to the Legislature."

Which is, I guess, theoretically true -- once the California Supreme Court decides something, barring its reconsideration of this issue, the only thing left is to ask the Legislature to change the law.

But I'm fairly sure that the class of people who drive drunk and kill people don't exactly have awesome lobbyists in the California Legislature. Even if they did, I strongly doubt that, regardless of the merits of the argument, many elected officials would be super interested in legislation that might perhaps benefit individuals who drunkenly killed little girls. Which is not exactly what you want as your campaign slogan, and what you're probably hugely worried might be your electoral opponent's campaign slogan against you.

But as a "Talk to the hand" argument, sure, it doctrinally works.

Stanard v. Dy (9th Cir. - Dec. 12, 2023)

It's slim pickings in the California appellate judiciary lately, with a single opinion in the last several days from the Court of Appeal and only a couple from the Ninth Circuit. This one nonetheless struck my eye not because of any complicated doctrinal discussion, but rather from the caption. It lists the plaintiff's name as "ROBERT A. STANARD, AKA Robert Allen Stanard." Which I guess I understand; sometimes he's known as Robert A. Stanard, and sometimes as Robert Allen Stanard.

But I'm not sure why there's an AKA. I mean, sure, I'm confident he's "also known" as Robert Allen Stanard, because that's (presumably) his full name. Sometimes he uses Robert A. Stanard, and sometimes he uses Robert Allen Stanard. Moreover, on occasion, I imagine he just goes by Robert Stanard. Maybe even just "Bob". (Bobby?)

I get AKAs when the guy uses a different name entirely ("Ron Johnson"), or perhaps a moniker ("Slash"). But if I file suit, it just seems strange to say "Shaun P. Martin, AKA Shaun Martin, AKA Shaun Patrick Martin." Unless we're adding AKAs to every single lawsuit, which just seems weird.

Anyway. Robert Stanard. A man, apparently, of many names.

People v. Ehmer (9th Cir. - Dec. 7, 2023)

Would you like to spend your entire afternoon reading a book-length opinion about a particular criminal prosecution?

If so, well, you're in luck. Here's 160 -- yes, you read that correctly, 160 -- pages of single-spaced text that affirms the convictions of four defendants for forcefully occupying the Malheur National Wildlife Refuge in eastern Oregon in early 2016.

This particular missive was over three years in the making. The case was argued in June of 2020 and here we are with an opinion in December 2023.

You can read the whole thing if you're keenly interested in what it's about. I can nonetheless give you a hint by letting you know the identity of one of the amicus submissions filed on behalf of the defendants, which was filed by: "Amicus Curiae Idaho Political Prisoner Foundation and The Real 3%ers of Idaho."

That's a clue.

People ex rel Schlesinger v. Sachs (Cal. Ct. App. - Dec. 4, 2023)

When I first read this opinion, I thought: "Duh. That's so obviously right." Which is a testament to how articulate Justice Sanchez was in writing the thing.

But, now, upon reflection, I'm not so sure he's right. (Even though there's do dissent.)

It's an election dispute: Are these three particular members of the Mission Viejo City Council still part of the City Council or not? The part about Judge Sanchez's opinion that seems so obviously and clearly right is that (1) these three members were elected in November in 20218, (2) they were expressly elected to two-year terms, and (3) they didn't run for reelection in November 2020. 

So, after November 2020, they are obviously no longer members of the City Council. Right?

Duh.

So when the trial court said, in 2022, that these three were no longer entitled to hold that office, it seems clear that the trial court's right. Which is precisely what the Court of Appeal's opinion says as well.

But the truth, I think, is a bit more complicated than that.

Because, yes, these three were elected in 2018 for two year terms, and didn't get reelected in 2020. But here's the wrinkle: that's because (for complicated reasons) there was no election in 2020.

Justice Sanchez says that doesn't matter. And he's got a point. They were elected to two-year terms. They were on the City Council when the City Council voted to cancel/postpone the 2020 election. Indeed, all three of them voted in favor of that decision. Yes, the normal rule -- set forth by statute -- is that if there's a vacancy in an office, the prior officeholder gets to stay on until the successor is elected. But the most persuasive part of Justice Sanchez's opinion is when he says that it can't possibly be the rule that this statute allows members of the City Council to extend their own terms by cancelling the subsequent election. That'd be crazy in a democracy, right? It'd seem almost Trumpian. (My words, not Justice Sanchez's.)

So, when I read all that, my reaction -- again -- was: "Yep. Clearly right."

But then I thought some more. Which is generally a good thing.

'Cause here's the thing. There wasn't an election in 2020. So after the two-year terms expired (in 2018), under the Court of Appeal's rule, there (1) wasn't anyone elected to these positions on the City Council, and (2) the old officeholders were automatically booted out.

At one point, Justice Sanchez's opinion tries to make hay out of the fact that these three officeholders didn't run in 2020, saying "Mission Viejo did hold a municipal election in 2020 but Sachs, Bucknum, and Raths did not run for reelection." Well, yeah, kinda, but mostly not -- though I have to be honest, Justice Sanchez's opinion on this point takes multiple re-readings (at least for me) to understand the underlying facts. There were five seats on the City Council. Two of these seats were indeed up for reelection in 2020, but not the ones held by the three people at issue. So, yeah, there was an election for the two seats whose four-year term was up in 2020, but not for the seats held by Sachs, Bucknum, and Raths. Those three seats didn't get an election at all. Which is why the three (understandably) didn't run for 'em. They already held those seats, there was no election for them, and state and city law said that vacancies (if any) would be held by the incumbants until a successor was elected.

Viewed in that light, it's hard to see why the failure to run for these three seats should somehow be held against the three.

That still leaves Justice Sanchez's (very good) point that you shouldn't be allowed to hold on to your two-year seat by the mere expedient of cancelling the election for your replacement at the end of your term. Now, in this particular case, there was probably a good(-ish) reason for cancelling the election, so it wasn't just a case of three officeholders scamming the system. But I still take the general point, which is that the "vacancy" trick would be a gaping loophole if it indeed worked like these three say.

But, upon reflection, I'm not sure that the flip side isn't equally (or even more) pernicious.

As I see it, under Justice Sanchez's rule, you can effectively vote your opponents off their seats. Say, for example, that your party has 222 seats on a particular legislative body that has a total of 435 seats. The other party -- with 213 members -- is being a pain in your behind. Everyone has two year terms. After this opinion, no problem, right? Just cancel the upcoming election for those 213 seats. Now, all those 213 people don't have an election to run in, and their terms automatically expire. Boom! Now you have all the remaining seats, right? You've just taken over 100% of the legislative body.

That's not just a hypothetical: the same sort of thing seems like the net effect in Mission Viejo, too. As I read the opinion, after the 2020 election, once the three were gone, there were now only TWO members of the City Council. Last ones standing. One hundred percent control.

That seems as dangerous -- or certainly close to it -- as people voting themselves in office by cancelling an election.

Plus, I'm unclear on one of the last things that Justice Sanchez says about the whole "vacancy" thing (the statute). He says at the end of Section B:

"In the present case, the holdover provisions in section 57377 and the Mission Viejo Municipal Code would have permitted Sachs, Bucknum, and Raths to stay in office temporarily past the expiration of their two-year terms in November 2020 until their positions could be filled. Under Government Code section 36512, subdivision (b), a city council shall fill vacancies in an elected municipal office within 60 days of the commencement of vacancy either by appointment or by calling as special election. Thus, Sachs, Bucknum, and Raths would have been permitted to holdover in office only for so long as it would take to call and hold a special election or to have the city council meet and appoint their replacements. Mission Viejo did hold a municipal election in 2020 but Sachs, Bucknum, and Raths did not run for reelection. Under the circumstances, the holdover provisions did not extend their two-year terms of office to four years."

I get the concept, but not the application here. The Court of Appeal says that the statute does let the three councilmembers stay in office, temporarily. Okay. For how long? The answer (according to the opinion): "until their positions could be filled." Normally, that'd be 60 days after the vacancy, either through appointment or by special election. So I get that the Court of Appeal is saying that they could stay in office for a maximum of 60 days -- more accurately, 60 days if by appointment, or 60 days to call for an election then some additional months to actually have the election -- and at that point, their successors would be elected (or appointed).

But here's the thing: That didn't happen here.

The City Council, as far as I can tell from the opinion, didn't appoint anyone new. (Or at least the opinion doesn't mention it.) Plus, it didn't call a special election: the opinion says that the next election was in November 2022. 

If that's the case, then these three positions could not, in fact, be filled until November 2022. Not under what the City Council actually did, anyway. So even under the Court of Appeal's own caveat, doesn't that mean these three got to stay in until at least then -- directly contrary to it's conclusion that they weren't, in fact, entitled to hold office until November 2022?

Maybe I'm missing something. That's distinctly possible. Should there have been a special election or appointment? Seems so (at least to me). But as far as I can tell, there wasn't. If there was a special election (or appointment), sure, these three should definitely be bounced once there successor was selected.

But if, in fact, there were no successors (at least until November 2022), then it seems to me like the statutory "vacancy" provisions in fact apply. Perhaps for super good reasons, lest there be an ability to kick out (at least potentially) your opponents on the legislative board.

Those are my thoughts.

Even though, again, at the outset, I thought that Justice Sanchez was definitely right, and that there's no way that someone expressly elected for a two-year term could possibly be allowed to stay on for a full four years.

Gutierrez v. Todasto (Cal. Ct. App. - Dec. 1, 2023)

You're driving along the I-5 (or whatever) and all of the sudden an ambulance negligently sideswipes your vehicle. How long do you have to sue?

The normal rule is that you have two years. But the Court of Appeal holds that since it's an ambulance, it's providing "medical care" so you're subject to MICRA, and only have one year to sue. Same as any other "medical malpractice" case.

Justice Bromberg disagrees, and his dissent is fairly persuasive to me. 'Cause I was having the same sort of thoughts that he articulated when I was reading the majority opinion myself.

Full disclosure, though: Twenty or so years ago, I did a little work alongside then-not-a-Justice Bromberg. He was absurdly smart then, and although this is the first dissent I've seen him write since being appointed to the Court of Appeal earlier this year, he clearly hasn't lost his touch in the meantime.