People v. Hicks (Cal. Ct. App. - July 31, 2024)

I understand the whole part of this opinion about not necessarily being able to strike minority jurors due to their "attitude". That's an amorphous and essentially unreviewable category, as well as an attribution that's historically been differentially directed towards African-Americans (e.g., calling someone "uppity").

So when Justice McConnell doesn't think that explanation for striking the juror flies, I can potentially get behind that.

But this particular juror disclosed that she had two prior felony convictions. One for grand theft. The other for perjury.

I know that she said that she could be fair. Pretty much every juror says the same thing. But I don't know a prosecutor in the universe who'd want on their jury someone with multiple felony convictions -- including one for perjury, hardly a typical offense. Regardless of their race.

The Court of Appeal nonetheless reverses and remands for a new trial, finding that the trial court erred by finding the prosecutor's reasons for his peremptory strike of this juror race-neutral.

That's a tough one for me. Particularly since the prosecutor didn't strike the other African-American on the jury venire. It's just difficult to believe that a similarly-situated white juror wouldn't be struck for the identical reasons.

Maybe opinions like this one are a backhanded way of just getting rid of peremptory challenges entirely. Which might not be a bad thing anyway. I think that, normally, prosecutors find peremptory challenges more valuable than defense counsel, so would ordinarily fight to retain them as an option. But if even the "normal" reasons for striking jurors start to result in potential reversals, maybe now both sides can get on board for eliminating them.

Still, I think that there are a lot of panels in the Court of Appeal that would have come out differently on this one.

Lots.

Bailey v. San Francisco D.A.'s Office (Cal. Supreme Ct. - July 29, 2024)

The California Supreme Court unanimously holds today that even the single use of an unambiguous racial epithet (e.g., the "n-word") can potentially actionable constitute racial harassment in the workplace.

In my (academic) sphere, there are differing opinions about whether it's appropriate (or wise) to use actual racial epithets, rather than a shorthand, when discussing particular cases in which those words appear. Some -- likely most -- professors use a shorthand, while others use the actual words.

For those in California, I wonder if today's opinion will affect that calculus.

Regardless, for those outside the ivory tower, the lesson from today is probably fairly clear: Don't say it. (Or at least recognize that you run at least some degree of litigation risk if you do.)

In re Masingale (9th Cir. - July 26, 2024)

Mr. and Mrs. Masingale filed for bankruptcy and said they were claiming a statutory exemption for 100% of the value of their house. That's too much -- the statute only lets you keep $45,950. But no one objected to their petition, and the Supreme Court has expressly held that if a debtor uses the exact words that Mr. and Mrs. Masingale used on their form, they get to keep the excess -- even the amount about the statutory cap. The Masingale's house had appreciated a ton by the time the bankruptcy petition was finally resolved, so the Bankruptcy Appellate Panel relied on the Supreme Court precedent to hold that they were entitled to retain the full $200,000+ above-statute homestead exemption since no one objected in time.

The Ninth Circuit reverses. It distinguishes the prior Supreme Court case on the grounds that, here, there were other statements in the Masingales' petition that suggested that they were not, in fact, claiming an amount in excess of the statutory limit. So they're limited to the usual amount.

Motivated in part, I'm confident, to disincentivize bankruptcy petitioners from attempting to pull a similar trick in the future.

Seems fine to me. They've changed the relevant bankruptcy form in the interim to reduce any similar potential manipulation in the future. But I don't feel too bad for the Masingales. They got a discharge. There's no need to give 'em the extra couple of hundred grand. That can go to their creditors, and if there's anything left, great, they get that anyway.

I also noticed one last thing about the opinion that made me smile.

In Property class, professors often talk (as you may know) about "Blackacre" and -- sometimes (especially in the modern era) -- "Greenacre". Mr. and Mrs. Masingale's home is in Washington state. In a tiny little community on the eastern border of the state of around 5,000 residents called Greenacres. So the Ninth Circuit repeatedly calls their home the "Greenacres property".

And in this fashion, a law school hypothetical comes to life.

Okonowsky v. Garland (9th Cir. - July 25, 2024)

Free speech and the workplace intersect in complicated ways. Outside the workplace, you can say pretty much anything (with few exceptions) about anyone. Insider the workplace, by contrast, you're limited -- both practically and doctrinally -- in what you're categorically permitted to say without potentially adverse consequences.

But those spaces intersect. Many of the people you interact with on a daily basis are those you meet at work. What can you say about them in your private sphere; e.g., on Instagram?

It's a toughie. As this Ninth Circuit opinion amply demonstrates.

Here, the Ninth Circuit holds that it's potentially a Title VII violation (hostile work environment) for one co-worker to make various derogatory posts on his Instagram page about another co-worker. Read more from Judge Wardlaw if you wish.

I'm just now returning from a family vacation, so don't have much to say about the opinion other than it, at a minimum, demonstrates a practical reality:

Be careful what you publicly say about your co-workers. Your freedom in that sphere is not nearly as expansive as what you're able to say about, say, presidential candidates.

AGK Sierra de Montserrat, LP v. Comerica Bank (9th Cir. - July 19, 2024)

Most of what Judge VanDyke (who authors the opinion) and Judge Miller (who authors the concurrence) seems right to me. The Ninth Circuit previously relied on California state precedent to say that first-party attorney's fees are recoverable as damages when third-party attorney's fees are recoverable. But thereafter came a ton of California appellate cases that held to the contrary, saying that prior California (and federal) precedent was wrong.

Normally, a Ninth Circuit panel is bound by circuit precedent unless the intervening authorities from higher courts make it clear that circuit precedent is wrong. But the standard's different when it's state law, since each panel is "predicting" what the highest tribunal in that state would do. There's more flexibility in that context. So, here, when it's (now) pretty clear that California courts would hold X, a Ninth Circuit panel applying state law can hold X even though prior circuit precedent has held Y.

So far, so good. I agree.

But it seems to me that the panel's opinion, while correct in the current case, is perhaps a bit too broad as a general matter.

Here, the intervening change in California precedent was fairly clear. California precedent was a bit split even at the time of the initial panel's decision, but thereafter, the Court of Appeal's holdings seem almost uniformly tilted the other way. So I agree that California law has changed.

But both Judge Van Dyke and Judge Miller take quite the "permissive" (to use Judge Miller's words) view of the ability of one Ninth Circuit panel to depart from another circuit panel when issues of state law are in play. To quote Judge Miller (with emphases in original, but citations omitted):

"On the other hand, we have stated, albeit without explanation, that circuit precedent interpreting state law “is only binding in the absence of any subsequent indication from the [state] courts that our interpretation was incorrect.' That statement suggests a more permissive view—that a decision of an intermediate state appellate court could be a sufficient basis on which to depart from circuit precedent on a state-law question. . . . Today the court correctly adopts the more permissive view."

Isn't that way too broad?

Imagine, for example, that there are 20 Court of Appeal decisions that squarely hold X, and that none go the other way. On that basis, a Ninth Circuit panel holds that state law is X, and applies and follows it in a given case. In the next two decades, there are 50 Court of Appeal decisions that similarly hold X, all in reasoned opinions, but since there's no horizontal precedent in California, there's also a single outlier opinion by a crazy panel that holds Y. No other Court of Appeal opinion holds Y, and the other 50 Court of Appeal opinions critique the one outlier and say it's wacko.

According to AGK Sierra, a new Ninth Circuit panel isn't bound by the earlier circuit precedent, and can hold that state law is in fact Y. Because there is indeed some intervening precedent that says Y. (Remember: There just needs to be "any" indication from "any" state court that Y is true, and even a single opinion can suffice.)

That seems to me to grant insufficient consideration to the value of horizontal precedent in the federal system. Particularly in the present politically polarized era. A conservative panel that likes Y (or go the other way -- a liberal panel that likes Y) might well be inclined to go with Y in such a setting despite the existence of circuit precedent and the weight of authority in the state. Then you'd need an en banc court to fix the problem: the very thing that Judges Van Dyke and Miller (rightly) want to avoid.

I would think that the better standard would say something like: "Circuit precedent on state law is not binding when there is substantial intervening authority in the state court suggesting that state law on the issue has changed." That's not as tough as the standard for intervening federal authority, which requires "clearly irreconcilable" precedent, but still tougher than the very "permissive" state law standard set forth in this opinion.

A somewhat minor change, perhaps. But I think a valuable one regardless.

Because circuit precedent matters. A fair piece.

Even in state law cases. Predictability, safeguard against political manipulation, etc. All that jazz.

Let Them Choose v. San Diego USD (Cal. Ct. App. - July 18, 2024)

I definitely agree with Justice Dato's opening missive in this opinion, which begins as follows:

"A developed system of justice, with fair and impartial courts to decide disputes among citizens, is in many ways the hallmark of a civilized society. By providing an accessible forum for resolving both economic and philosophical disagreements, courts preserve order and a sense of community, preventing these differences from devolving into active conflict and even violence. Equally important, courts foster attitudes of tolerance for and respectful acceptance of different points of view, traits often sadly lacking in today’s polarized political landscape."

Bravo for that.

He goes on to hold that the trial court erroneously refused to award CCP 1021.5 fees to a group that successfully challenged the San Diego Unified School District's "Roadmap" for a potential future student vaccination requirement for in-person learning during the height of the COVID-19 epidemic. 

Reasonable minds could (and surely do) disagree on that point. The trial court thought that fees weren't warranted because the litigation did not, in fact, change anything; the District abandoned the "Roadmap" for reasons unrelated to the litigation, given the changing dynamics of the epidemic. By contrast, the Court of Appeal concludes that the litigation still achieved a public benefit: namely, the recognition that school attendance requirements (even during COVID) had to be passed statewide, not by local school districts.

Fair enough. Process is indeed important. On that we can likely all agree. Admittedly, not every lawsuit that obtains a precedent qualifies for fees under Section 1021.5, otherwise every dispute that resulted in a published opinion would qualify. But this one was perhaps special. I see the point.

Hopefully the fees ultimately awarded on remand won't be huge. But they will -- and should -- include the fees incurred in this appeal. So they definitely won't be tiny.

But particularly given that no actual physical change resulted from the lawsuit, I simultaneously hope that the courts make sure that the fees are indeed reasonable.

As they should be in any fee award, obviously.

People v. Caparrota (Cal. Ct. App. - July 16, 2024)

As a practical matter, this seems a pretty darn important holding by the Court of Appeal. It definitely ups the ante for any of the readers out there who are trial lawyers in jury trial.

As you may or may not know, under the fairly recently enacted Racial Justice Act -- effective as of 2021 -- certain types of reasons for peremptorily striking potential jurors are now presumptively. Reasons that you might perhaps think would be valid, and that were definitely valid previously, but no longer. 

Here are some of the presumptively invalid reasons under CCP 231.7(e): 

(1) Expressing a distrust of or having a negative experience with law enforcement or the criminal legal system.

(2) Expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.

(3) Having a close relationship with people who have been stopped, arrested, or convicted of a crime.

(4) A prospective juror's neighborhood.

(5) Having a child outside of marriage.

(6) Receiving state benefits. . . .

(9) Dress, attire, or personal appearance. . . .

(11) Lack of employment or underemployment of the prospective juror or prospective juror's family member.

Once you strike a juror, sometimes the other side objects and you're forced to give a reason for your strike. Not surprisingly, sometimes, you give multiple reasons, if only because, typically, you do indeed have multiple reasons why you don't especially like that particular juror.

The Court of Appeal holds today that if any of the reasons you identify are within the presumptively invalid category, your strike fails. Period. Even if your other, nonprohibited, reasons are a valid basis for the strike.

So, at a minimum, know the words you're not allowed to say. Don't include amongst your reasons for the strike that the juror dresses poorly, isn't employed, distrusted the police or the legal system, etc.

Otherwise, you're going to be stuck with that juror.

Just say the reasons that are allowed, not the other ones.

And, critically, know the difference between the two.

Defense for Children Int'l v. Biden (9th Cir. - July 15, 2024)

I'm not sure what plaintiffs thought this lawsuit was plausibly going to achieve.

"Asserting violations of international law, the plaintiffs in this case ask us to enjoin the President and other senior Executive Branch officials from providing military, diplomatic, and financial support to Israel in its ongoing operations in the Gaza Strip. The plaintiffs also ask for a declaration that the United States’ current support of Israel is unlawful."

I guess that, in theory, one could imagine a federal judge somehow being so personally invested in the dispute to somehow find the matter to not involve a nonjusticiable political question. But even in that unlikely event, the opinion would undoubtedly be promptly reversed. So what's the point?

In any event, here, the district court held that it was a political question, and the Ninth Circuit unanimously affirms. The Supreme Court will deny certiorari, and that'll end the thing once and for all.

Were I the public interest groups pondering bringing such a lawsuit, that's not how I would have elected to spend my time and money.

WasteXperts, Inc. v. Arakelian Enterprises, Inc. (Cal. Ct. App. - July 11, 2024)

Plaintiff's attorneys get a big win here, and secure the Court of Appeal's reversal of the trial court's grant of an anti-SLAPP motion in favor of the defendant. That's fairly huge, and, typically, would be the basis for undiluted celebration.

But the Court of Appeal's opinion concludes with a separate section that chastises the winning lawyers -- from Frost LLP in Los Angeles -- for their "incivility" and their appellate briefs' use of "inappropriately harsh terms to launch needless and unsubstantiated attacks on the decisions made by the trial judge, as well as against the opposing party and its lawyers."

The lawyers at Frost luckily get off without being sanctioned -- and, again, they win the appeal on the merits -- with only a concluding warning from the Court of Appeal that "Appellant’s counsel would be well advised to refrain from incivility in the future."

Which is definitely a suggestion best taken to heart. Particularly if you expect to potentially file appeals in the future before the same -- or even a different -- panel.

I'll admit that I didn't read the underlying briefs, but I'll add that at least with respect to the quotes in the briefs cited by the Court of Appeal . . . well, they're not great, but I've definitely read worse. The lawyers at Frost called the ruling below "transparently erroneous,” “egregious,” [and] a “truly perverse miscarriage of justice.” Those phrases are surely overwrought. Ditto for arguing that "the overreach by the trial court here is nothing short of shocking, effectively blessing Athens’ business threats . . . and immunizing them.”

Yeah. Definitely tone that down.

Though, again, I've read worse.

Regardless, a sound warning from the Court of Appeal for everyone. The justices definitely prefer understatement to overstatement. Keep the adverbs to a minimum if you can.

P.S. - I wonder whether Frost's self-description affected the Court of Appeal in any manner, or even if the justices were aware of it. The law firm's website leads with a description that labels the firm (with emphasis) "unapologetically aggressive", and the first line proclaims (in 72-point type) "We are fighters." With professional MMA-type photographs of the various attorneys. Oh, and when you click on the photographs, the heading for each photo is "Our Warriors."

That's a theme, for sure.

People v. Canales (Cal. Ct. App. - July 10, 2024)

Justice Wiley seems right to me when he says that, under the statute, continuous sexual abuse of a child doesn't necessarily require an intent to sexually arose one's self, and that whatever the alleged flaws of the jury instruction given here, they don't really matter in this particular case, since the only alleged basis for defendant's digital penetration of this child was to "punish" her. That's not a good enough reason. You can ground the child or do other stuff (like taking away their phone -- always effective) to punish them, but molesting them is not one of the permissible options. Rightly so.

I'm less confident that Justice Wiley is correct when he says "This mental state—requiring only proof that Canales voluntarily inserted his finger or penis into his stepdaughter’s vagina, without any further level of mental culpability—satisfies the presumption of mandatory culpability. Canales does not suggest, nor can we imagine, any morally innocent reason for him to decide to penetrate her."

Justice Wiley himself suggests, later on in the opinionlater on in the opinion, that there might well be acts that constitute literal violation of the statute and yet wouldn't (and shouldn't) constitute a crime. Inserting a rectal thermometer into a child's anus, for example. What Canales did was admittedly different. But I could at least "imagine" a situation in which digitally penetrating a child would be morally innocent (though, admittedly, not many). For example, a parent who was a gynecologist might perhaps morally innocently place his (or her) finger in a child for medical reasons; e.g., during a legitimate pelvic exam. Perfectly permissible, in my view.

So I think there is, in fact, a mens rea requirement here. Maybe not the requirement that one engage in the act for sexual arousal. But the jury instruction is, in fact, wrong when it says (and when the Court of Appeal says) that there is "no heightened mental requirement beyond his voluntary decision to perform the physical movements of the act." Otherwise the gynecologist is also guilty, for they surely perform the physical movements of the act, and voluntarily so.

The erroneous instruction here may well be harmless, because there was no evidence that Mr. Canales here performed the act for a morally legitimate reason. But it's still wrong, and should be revised. The statute does, in fact, require more, in my view. (At least unless we want to start throwing tons of doctors in prison.)

One last thing. Mr. Canales denied everything at trial, but the jury took only an hour to convict him, and he was sentenced to 60 years to life in prison. The one strike law doesn't, in fact, apply to him, so the Court of Appeal remands for resentencing. Nonetheless, he's going to almost certainly spend all (or nearly all) of his life in prison, and the jury didn't have much trouble at all in convicting him. That's a fairly good example of the prosecution winning big -- and easily.

Cassierer v. Thyssen-Bornemisza Collection Fund (9th Cir. - July 9, 2024)

Judge Graber feels strongly about this oneJudge Graber feels strongly about this one.

The case involves an otherwise arcane doctrinal dispute about whether California or Spanish law should apply to the dispute. But it's a high-profile fight about who should get to keep a Pissarro painting stolen by the Nazis; the Spanish museum that currently holds it or the sole living descendant of its original Jewish owner from whom it was stolen.

The painting is worth $60 million, by the way.

After a plethora of procedural fights, the Ninth Circuit decided that Spanish law applied, which meant that the lawsuit here was barred by the statute of limitations, and hence the museum gets to keep the painting. Judge Graber disagrees with the decision not to take the case en banc, and explains her position in forceful terms.

As I count it, her statement regarding the refusal spans roughly twenty pages and contains over thirty different places in which the statement underlines certain words or phrases for emphasis. As is usual for these sorts of things, these emphases are increasingly prevalent and emphatic as the statement goes on. And that's all in addition to the adjective-filled descriptions of the positions with which Judge Graber disagrees -- to take but one example, labelling the panel's prior opinion on one point as "myopic" as well as "illogical and without support in California law."

I get it. I, too, often get worked up when writing about issues about which I feel strongly. When writing briefs or articles, lots of my early drafts contain tons of italics and emphases.

Though, as the drafts progress, I typically try to tone the thing down for the final version.

Regardless, Judge Graber authors a strong statement about why she thinks this case should be taken en banc. Only Judge Paez joins her statement, so it doesn't look like it was a very close vote.

But Judge Graber nonetheless wants to make sure you know how she feels in this one.

Marks v. Davis (9th Cir. - July 8, 2024)

I often recommend the people read particular opinions that are doctrinally complicated or that contain factually interesting material. Basically, if I was glad that I read the opinion, and thought that others may perhaps similarly enjoy it, on occasion, I'll recommend it to others.

This one is the opposite.

Did I learn anything from reading it? Definitely. It's a death penalty case. It's got tons of details about the defendant's life, the crime, the procedural complexities of the trial, the attitude of the state court judge and their rulings, etc. I definitely learned stuff.

But here's the thing. It's long. L-O-N-G. 145 single-spaced pages. Essentially, a full book.

All about a person who committed crimes in 1990, for which he was sentenced to death 30 years ago, in California. A jurisdiction in which, in reality, no one's actually going to be executed at this point.

As a result, you'd basically be reading the resolution of a hypothetical question about a person who committed a long-ago crime the result of which is preordained. He's going to die in prison.

It's not that the story of how he got there isn't interesting. It's just that other 145-page books would likely be even more rewarding to read.

Unless you're a true death penalty and/or federal habeas nerd. In which case: Go to town.

As for the actual result: Judge Murguia writes the majority opinion, which remands the case for a new factual determination regarding whether the defendant is sufficiently mentally retarded to preclude his execution. Judge Berzon agrees with this, but would go a bit further. Judge Nelson disagrees, and would allow the execution.

The devil's in the details, of course. But that's the short and sweet version of the end product.

In re B.H. (Cal. Ct. App. - July 3, 2024)

It's true, as the Court of Appeal mentions, that there's no specific evidence that Father has ever driven drunk while four of his six children were in the car. Or that Mother knew that Father was driving drunk with those four children in the vehicle. For that reason, the Court of Appeal holds that it was improper for the trial court to exercise dependency jurisdiction over those four children.

But Father was twice arrested for driving drunk with the other two children in the vehicle. And Mother let him; indeed, she once let him drive drunk with the kids the very next day after she told the social worker that Father shouldn't drive drunk with the kids.

It's also not like this is an isolated incidence. Father has been arrested for drunk driving not once, not twice, not three times, but . . . twelve times.

Doesn't it seem reasonable to conclude that someone who's been arrested for drunk driving twelve times, included repeated occasions in which his kids were in the vehicle at the time, might again drive drunk with children in the vehicle? Including but not limited to the kids he's not yet been caught driving drunk with?

Musquiz v. U.S. R.R. Retirement Bd. (9th Cir. - July 3, 2024)

Here's a very non-legal -- but perhaps fairly accurate -- summary of this opinion:

"Domingo Musquiz worked on the railroad for nearly 28 years. He left that job when he was 55 years old and, four years later, briefly worked for a hospital before being let go around two years later. He needed money -- he was in his 60s -- so he asked the Railroad Board to start his pension, and it did. The Board eventually discovered that Mr. Musquiz was later rehired by the hospital (because it has access to Social Security statements), but in the meantime, the interim pension benefits paid to Mr. Musquiz were slightly higher than they should have been. So the Board sued to recover the overpayment.

Mr. Musquiz is now 73 years old. He's on a fixed income, struggles to even make his monthly mortgage payments, has numerous health problems, and can't even afford a haircut (!). Leave the guy alone. If the Board wants to recover a tiny portion of the overpayment, go ahead. But otherwise, does it really make sense to hound the guy? Doesn't seem so to us.

Have a good Fourth of July, Mr. Musquiz. Thank you for your service."

Gutierrez v. Garland (9th Cir. - July 2, 2024)

Like death penalty cases, immigration disputes are another area in which there's often lengthy delay, in a manner in which no one -- not the pro-immigration folks, nor the anti-immigration ones -- should prefer.

For example, here, Sergio Gutierrez gets convicted of carjacking in 2006, and since Mr. Gutierrez is only a legal permanent resident -- he came here from El Salvador when he was a toddler in 1986 -- the INS files a petition to deport him.

All sorts of procedural wrangling follows, often revolving around whether carjacking in California is a "categorical" crime of violence. All of which results in today's opinion, which holds that it's not, and thus remands for the BIA and IJ to resolve the remaining issues in the case. Which, in turn, means that there are a lot more proceedings to come. In addition to all the ones that have come before.

With a reminder that Mr. Gutierrez's carjacking case was all the way back in 2006 -- 14 years ago (and counting).

He was 23 or so when he committed that crime. He's 37 or so now. It may well be that a lot has changed in the interim. Many people who are not-particularly-productive members of society in their early 20s have changed a fair piece as they approach their 40s. Yet we're still looking to deport the guy.

If you're an anti-immigration type, you're miffed that it's taken almost a decade and a half (and counting) to get the guy out of the country. If you're a pro-immigration type, you're miffed that Mr. Gutierrez has had to live his life the last 14 years under the specter of being kicked out of the only country he's ever known. Plus had to spend money on lawyers to fight the proceedings against him this whole time.

Sure, he has been able to stay in the country in the meantime, which I'm confident Mr. Gutierrez appreciates. But neither side particularly benefits from a decade-plus (and, again, counting) of delay.

A speedier resolution would be preferable for everyone.