City of Gridley v. Superior Court (Cal. Ct. App. - Sept. 11, 2024)

I quite literally thought I was misreading this opinion -- or that it accidentally used the wrong word -- when I first read it.

Nope. That's actually what the lawsuit's about.

Here's how the opinion begins:

"The City of Gridley operates an electric utility that provides electricity to local residents. In this case, real parties in interest (plaintiffs) challenge the city council’s approval of reduced electric rates for residential users in September 2020. Plaintiffs believe these rates—which were in effect for about three years—exacted a tax from residential users . . . ."

Wait. Plaintiffs allege that the reduction of electricity rates constitutes the imposition of a tax? Surely the opinion means to say that the City increased electricity rates, and that that's a tax.

No. Plaintiffs are indeed challenging the City's decision to decrease electricity rates.

The trial court refused to grant summary judgment to the City. The Court of Appeal heard the City's writ and reverses.

Reducing electricity rates is not imposing a tax. Even if you don't think the reduction goes far enough.

Sounds right to me.

McCurry v. Singh (Cal. Ct. App. - Sept. 10, 2024)

I'm in the legal field, not the medical sphere, so I don't really know how much it matters which hospital you are taken to (presumably in an ambulance) after a medical emergency; say, a heart attack. I assume that emergency rooms and trauma centers are fairly competent, at least in a big city (say, Sacramento). So it wouldn't seem to me like it would matter too much. At the same time, I understand that some hospitals may well be a little better than others, so if I had my druthers, I'd presumably rather go to them.

That said, after reading this opinion, I have -- accurately or not -- a keen sense that I'd rather not go to Methodist Hospital in Sacramento if I'm ever in the area and in the midst of a cardiac emergency. Here's a brief recitation of facts -- which are even labelled "undisputed facts," I might add, so they're presumably at least somewhat accurate -- from the opinion:

"On March 9, 2019, at 7:28 a.m., decedent was brought by ambulance to the emergency department at Methodist Hospital. She had a history of chronic obstructive pulmonary disease, and she presented with shortness of breath. A chest x-ray and a CT scan, however, indicated decedent had an aortic dissection. She quickly decompressed and was intubated.

Dr. Michael Brandon, the treating emergency physician, worked to have decedent transferred out as quickly as possible. Two cardiovascular surgeons he consulted with believed the dissection was not the most pressing issue, so Dr. Brandon focused on the fact that, given changes in decedent’s electrocardiogram (EKG) and other symptoms, decedent was most likely having a heart attack (myocardial infarction). He believed decedent needed a cardiac catheterization, a procedure that Methodist Hospital did not have the capability to perform.

Dr. Brandon spoke with defendant, Dr. Singh, an on-call interventional cardiologist at Mercy General Hospital. Dr. Singh initially agreed that decedent needed acute catheterization, but upon learning of decedent’s elevated creatinine and other conditions, he concluded decedent would not be a candidate for the procedure. He offered to consult on decedent’s case if she were transferred to Mercy General. But before decedent could be transferred and Dr. Singh could consult on the case, an intensivist (an ICU doctor) had to accept decedent’s transfer. Dr. Singh never agreed to decedent’s transfer.

Dr. Brandon spoke with Dr. Jamal Sadik, a Mercy General intensivist. Dr. Sadik initially agreed to accept decedent’s transfer provided interventional cardiology was involved. But he changed his mind after learning that Dr. Singh did not plan on performing a catheterization on decedent. Dr. Sadik could not accept the transfer if, as a result of Dr. Singh’s decision, decedent would not receive any interventions at Mercy General that Methodist Hospital could not provide.

Dr. Brandon submitted transfer requests to Sutter, UC Davis, and Kaiser, but each facility declined to accept the transfer. Dr. Brandon then consulted with Methodist Hospital’s chief medical officer and, ultimately, with Mercy General’s chief medical officer. At around 6:15 p.m. that evening, Dr. Brandon learned that Dr. Sadik had agreed to the transfer and to admit decedent to Mercy General. Unfortunately, decedent died while awaiting transfer."

So if I read all this correctly, the patient here arrived at Methodist Hospital during the early morning hours (7:28 a.m.) during a cardiac emergency and, in response, the medical staff there futzed around and tried to get her transferred to a hospital in which she could actually be appropriately treated for approximately the entire day, ending only when, that evening (sometime around 6:15 p.m.), she died awaiting care.

Not exactly a great look for Methodist Hospital, and one that might well get me to tell the driver of any ambulance that picked me up: "Yeah, maybe take me someplace else first, please."

P.S. - The opinion was originally unpublished. It gets published today.

Sunflower Alliance v. California Department of Conservation (Cal. Ct. App. - Sept. 6, 2024)

When you pump oil out from the ground (at least out here in California), you get a lot of water alongside the oil. You then have to do something with the water -- which is oily water, so neither drinkable nor of any real use. So oil companies generally just pump it back into the ground, though federal law says you can only pump it back in if the aquifer you're pumping it back into isn't drinkable anyway. (Which, I suspect, is generally the case, since the underground aquifer is probably pretty oily anyway, since you're getting oil from there. But maybe there are circumstances in which the water at one level is fine but at another level -- the level you're pumping the oil from -- it's not.)

The Reabold oil company pumps a lot of oil out of the Brentwood Oil Field, and has done so for over 60 years. Lots of oil, lots of water. There's one particular oil well out there that they're not using any more, since it's over an area where they've already pumped out all the oil that's economically feasible to remove.  So they plugged that well, but now they want to fix the thing to inject into the ground all the dirty water that comes out of all the other surrounding (still productive) oil wells. That'll stop them from having to truck the dirty water to the existing place where they dump all that dirty water back into the ground.

The question at issue is whether Reabold needs to get a CEQA permit to do so. The statute says that you don't have to get a permit for something that involves only a "negligible or no expansion" of the use of an existing facility; here, the oil well.

The trial court says that this exemption doesn't apply, since Reabold is turning an existing well that's currently doing . . . nothing . . . into a well that's proposed to be doing something (e.g., dumping dirty water into an aquifer). The Court of Appeal reverses, holding that the exception applies.

I totally understand why it probably makes a ton of sense to dump the dirty water back into an already-dirty aquifer nearby, instead of trucking it -- with associated pollution etc. -- to a different already-dirty aquifer somewhere else. But I'm not entirely sure as to why California can't (or doesn't) allegedly require a permit to make sure that dumping the already-dirty water back into an (allegedly) already-dirty aquifer isn't actually dumping water into an otherwise clean (or useful) aquifer, or -- textually -- why turning nothing into something allegedly involves "negligible or no expansion" of that facility.

Seems to me it's a big deal to make sure that our drinking water is, in fact, clean. (Or already so dirty that it doesn't matter.)

It's maybe also a testament to modern society -- or maybe just longstanding geology -- that we already have underground water supplies that are so completely dirty and disgusting that we feel totally confident making them even more polluted.

U.S. v. Perez-Garcia (9th Cir. - Sept. 4, 2024)

Seven judges on the Ninth Circuit join this concurrence from the denial of rehearing en banc, which likely reflects a little bit of historical (and continuing) annoyance at Judge VanDyke. Here's a snippet:

"In United States v. Perez-Garcia, 96 F.4th 1166 (9th Cir. 2024), we unanimously held that the Government could temporarily disarm two criminal defendants—Jesus Perez-Garcia and John Fencl—pending their felony trials consistent with the Bail Reform Act of 1984 and the Second Amendment. Perez-Garcia stood accused of importing eleven kilograms of methamphetamine and half a kilogram of fentanyl through the southern border. Id. at 1171. Fencl faced up to seventy years in prison for felony unlawful possession of three unlicensed short-barreled rifles and four unlicensed silencers. Id. 

Because neither Fencl nor Perez-Garcia remains subject to any pretrial release conditions, all agree that “there is now no live controversy before our court regarding either the merits of the underlying case or the propriety of the [firearms condition].” Washington v. Trump, 858 F.3d 1168, 1169 (9th Cir. 2017) (Berzon, J., concurring in the denial of reconsideration en banc). And “[i]n our system of government, courts have ‘no business’ deciding legal disputes or expounding on law in the absence of such a case or controversy.” Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). Nevertheless, Fencl and Perez-Garcia filed a petition for rehearing en banc seeking the concededly “unusual remedy” of equitable vacatur. See Dkt. 31, at 3. Today, our court correctly denied the petition.

A single judge of our court dissents from the order denying the petition for rehearing en banc. I join my colleagues who have voiced concern about these so-called “dissentals,” which often present a “distorted presentation of the issues in the case, creating the impression of rampant error in the original panel opinion although a majority— often a decisive majority—of the active members of the court . . . perceived no error.” Defs. of Wildlife Ctr. for Biological Diversity v. EPA, 450 F.3d 394, 402 (9th Cir. 2006) (Berzon, J., concurring in denial of rehearing en banc); see also Marsha S. Berzon, Dissent, "Dissentals," and Decision Making, 100 Cal. L. Rev. 1479, 1491 (2012).

The dissent in this case, though, is particularly curious. In a case where—everyone agrees—we lack jurisdiction to rehear the merits of the appeals, one judge has taken it upon himself to write a 61-page advisory opinion. Only about 5 of those 61 pages purport to address the relevant question at hand—what exceptional circumstance, if any, renders en banc review appropriate? The rest details Judge VanDyke’s views of the Second Amendment and his disagreements with the three-judge panel decision. As we have long recognized, critiques of this nature are irrelevant because “[w]e do not take cases en banc merely because of disagreement with a panel’s decision, or rather a piece of a decision.” Hart v. Massanari, 266 F.3d 1155, 1172 n.29 (9th Cir. 2001) (quoting E.E.O.C. v. Ind. Bell Tel. Co., 256 F.3d 516, 529 (7th Cir. 2001) (en banc) (Posner, J., concurring)).

I concur in the denial of rehearing en banc, and I write separately to make two brief points. First, this appeal is clearly unworthy of en banc review. Second, the Supreme Court’s recent decision in United States v. Rahimi, 144 S. Ct. 1889 (2024), vindicates the analysis in Perez-Garcia."

Everyone's free to write pretty much whatever they want, of course. That's the beauty of (amongst other things) the First Amendment.

But maybe there's a time and place for everything. Judge VanDyke thinks that the appropriate place is in a dissent from the denial from rehearing en banc. Judge Sanchez (the author of the concurrence) is of a contrary view.

For his part, Judge VanDyke's fairly annoyed at his colleagues as well. Here's a snippet of what he has to say on that front:

"For a majority of the judges on the Ninth Circuit, “any loss in a Second Amendment challenge at the Supreme Court is celebrated as a tool to further our artificial cabining of Bruen.” Duarte v. United States, 108 F.4th 786, 788 (9th Cir. 2024) (VanDyke, J., dissenting from the grant of rehearing en banc). Now, barely weeks after I levied this pointed charge in my Duarte disgrantle, our circuit seems determined to prove I’m right. The court not only declines to vacate a lengthy, deeply flawed, and wholly unnecessary Second Amendment opinion issued long after the defendants’ constitutional challenges became moot. It also piles on even more advisory commentary in a concurral, this time about United States v. Rahimi, 144 S. Ct. 1889 (2024)— a decision released months after the panel issued its opinion—and what Rahimi means for the analogical approach required by Bruen moving forward.

The observation I have made repeatedly in cases like this keeps being validated: our circuit is “more interested in sidestepping than following the [Supreme] Court’s Second Amendment precedent” by “latch[ing] onto phrases” and “conveniently overlooking such bothersome details like the government’s burden of supplying relevantly similar historical analogues.” Duarte, 108 F.4th at 788 (VanDyke, J., dissenting). Add this case to the top of the list. This latest effort stems from a particularly enticing opportunity for Second Amendment shenanigans, as the panel first rushed to issue a terse, unreasoned order affirming the district court. That order deliberately moot-proofed the panel’s ability to issue what was effectively, if not technically, an advisory opinion long after subsequent events overtook the defendants’ claims. More than a year later, the panel then made the most of the opportunity it had generated for itself, announcing as much new law as possible in a moot case where it was wholly unnecessary to do so, and then using mootness as a shield to argue against en banc review. Judge Reinhardt would be proud. . . .

 I must say I respect the feisty energy emanating from my concurring colleagues’ attempted pushback. But there is that thing about living in glass houses and throwing rocks. Consider what the panel did here: (1) it took the highly unusual step of quickly issuing a summary decision in a case that was likely to become moot, which served no discernable purpose except to ensure the panel could still issue its opinion long after doing so became unnecessary; (2) it later issued that lengthy and needless opinion notwithstanding the fact that everyone—including the panel—agreed the case was moot; (3) it unnecessarily provided redundant alternative rationales in its opinion deciding important Second Amendment issues in this circuit that could have far-reaching effects well beyond just this moot case; and (4) it deliberately reached outside the history and resources provided by the government in this case in an obvious attempt to help the government meet its burden rather than hold the government to it. That many off-panel members of the court now gratuitously rush to signal their agreement with the panel’s gratuitous legal reasoning in a concurral strangely criticizing my disagreement as gratuitous really deepens the irony. Projection, anyone?"

That's a pretty bitter -- and personal -- attack. One that includes throwing in a seemingly gratuitous slam on a long-dead colleague (Judge Reinhardt) to boot. (Conflict disclosure: I clerked for Judge Reinhardt. It's not wrong to say that he felt strongly about particular things. Though in my experience, he worked as hard to get his colleagues to not say unnecessary things that he thought would be counterproductive -- even things he agreed with -- as he did to say things that he thought were right. Regardless, it seems kind of unnecessary to zing the guy. My usual rule is that comparing living people to dead people -- be they Adolph Hitler, Justice Taney, Joe McCarthy, etc. -- rarely advances the ball.)

In any event, some fairly vitriolic stuff out of the Ninth Circuit today. 

X Corp. v. Bonta (9th Cir. - Sept. 4, 2024)

Given that it's an entirely for-profit company, I think you'd be surprised to learn that X (formerly Twitter) actually engages in speech that's allegedly noncommercial. 

But so holds the Ninth Circuit today, in an opinion by Judge Smith that's joined by Judges Bennett and Johnstone.

I wouldn't be at all surprised if this isn't the last word on the matter. The opinion's about X's content moderation policies -- quite a hot topic, these days. I suspect you're going to see some votes to take this case en banc and perhaps some Supreme Court interest as well. (That said, because conservatives tend to think support X's views on these matters, as well as X generally, there's likely to be a fairly strong political split in how the various judges approach this thing.)

People v. Mejia (Cal. Ct. App. - Aug. 30, 2024)

I'm not sure if the correct word is ironic or something similar, but I found it insightful that after hitting and killing a bicyclist while driving (and then fleeing the scene), the defendant in this opinion posted on social media a picture of her walking into the police station with the caption:

"Might be my last day of free dumb."

Yep. Free dumb.