Montejo-Gonzalez v. Garland (9th Cir. - Oct. 17, 2024)

If she had consistently met all her other deadlines but got caught in multiple traffic accidents on her way to court, would you deport someone from the country solely because she was late for her hearing?

Judge Desai wouldn't. Judge Collins would.

Claudia Elena Montejo-Gonzalez had a court hearing in Seattle on October 31, 2019 at 8:30 a.m. She didn't have a lawyer, so she had to show up personally, so she left her house in Bremerton for the hearing at 6:45 a.m. That's typically sufficient time, since the trip normally takes 90 minutes or so at that time of day. 

"But on their way to the hearing, petitioners encountered not one, but two major accidents that caused severe traffic." (She took pictures!) When she didn't show up on time, the immigration judge ordered her deported in absentia. "Upon arrival, Ms. Montejo-Gonzalez spoke with two clerks to try to have her case heard, but to no avail."

Judge Desai says that, under the totality of the circumstances, Ms. Montejo-Gonzalez did everything she could given the extraordinary situation to arrive on time, so shouldn't be deported in absentia. Whereas Judge Collins says that being late was her fault -- she should have left earlier -- so deportation without a hearing is okay.

To me, the correct answer depends on how late you are, and why. It definitely should not be the rule that whatever traffic you confront is your fault because you could always have left earlier than you did.

Here, Ms. Montejo-Gonzalez was two hours late. That's a lot. If she was only 15 minutes late, well, that's not good, but no way you deport someone in absentia for that, IMHO. You just hear her case on second call or whatever. Regardless, honestly, of the excuse -- if any -- for her absence. You don't get booted out of the country because you're 15 minutes late to something. Not in my world, anyway.

But two hours is more than 15 minutes. By that time, the judge had finished calling the calendar and had gone back into their chambers. Now, it's only 10:30 a.m. at that point, so if I'm the judge, I might well be miffed, but it's a serious issue to deport someone in absentia, so I'd have gone back to the bench, vented a little, and heard the thing on the merits. Again: it's only 10:30 in the morning. It's not like everyone's gone home for the day.

Now, Judge Collins is right. Ms. Montejo-Gonzalez could definitely have left earlier than 6:45 a.m. (Though that's already pretty early.) And if I was giving her advice, I definitely would have told her to leave by 6:00 a.m. or so. Sure, that might get her there a whole hour early, since it only typically takes 90 minutes (even with traffic) to arrive, so she'd be there at 7:30 a.m. But better to play it safe.

It nonetheless seems unfairly harsh to say that you get deported -- without a hearing -- if you leave 45 minutes too late. Wholly apart from the injustice of the rule that Judge Collins appears to advance: that traffic is always expected so is always your fault if you don't leave early enough.

Take a look at the route that Ms. Montejo-Gonzalez had to take. It's a long way around the bay to get to downtown Seattle. (Don't even get me started on risking the ferry when your continued presence in the country is at stake.) I plugged in the recommended departure times for Thursday, October 31 (the date of her hearing) into Google maps. That takes, according to Google, from a little under 90 minutes to maybe two and a half hours. But, on the relevant day, it took nearly four hours due to the two major accidents.

That seems fairly exceptional, no? Doesn't exceptionally (e.g., not reasonably anticipated) bad traffic count as a legitimate excuse?

Judge Collins doesn't seem to think so. But really?

Imagine, for example, that Ms. Montejo-Gonzalez had left SUPER early -- say, 5:30 a.m. -- but while she was on the road, the Tacoma Narrows Bridge was suddenly shut down. Maybe a ship hit the thing. (It happens.) Maybe there was a jumper. (Not a hypo: This happened to me once, when the Coronado Bridge was suddenly shut down and I had to go over it to drive one of my children to a game. I had to drive all the way around -- basically to Mexico -- to ultimately get there. Super delayed.)

At that point, there's basically only one way to Seattle: WAY around the bay -- all the way to Olympia and back -- and no way (even leaving early) you're getting to the hearing anywhere near on time. No matter how early you leave. (And that's assuming you don't get stuck on the bridge!)

Your fault? Deported in absentia? After all, it's just "traffic". And you could have left at 2:00 a.m., after all. Or spent the night -- or week -- in downtown Seattle, waiting for your hearing.

So, in my mind, unexpected traffic can be an excuse. But you gotta look at the totality of the thing. Was it just a little worse than usual? A lot worse than usual? Incredibly worse than usual? And what did you do to try to make it work. Did you (could you?) call the clerk? Did you show up while court was still in session? Do we believe you when you say you left when you did and were delayed as you were? All this goes into the assessment of the appropriate remedy.

But the thumb's gotta be on the scale for only deporting someone if they actually deserve to be kicked out of the country. Right?

In re Chreech (9th Cir. - Oct. 16, 2024)

Judge Bybee writes a very persuasive opinion that grants mandamus relief and requires Judge Brailsford to recuse herself from the underlying case.

As far as I can tell, the Ninth Circuit has never before granted mandamus relief in recusal settings like this one. But there's a first time for everything, and this one seems like an appropriate occasion for it. It's a death row habeas case, and the petitioner claims that the prosecutor's office, including the head of that office (Jan Bennetts), introduced fabricated or intentionally misleading evidence at the clemency hearing. 

But Judge Brailsford was a co-clerk with the lead prosecutor (Bennetts) for Judge Thomas Nelson back in 1993. Moreover, even a quarter century later, during Judge Brailsford's investiture to the Idaho Court of Appeals, Ms. Bennetts spoke of their continuing friendship fondly, saying that "Amanda and I met by circumstance, but we became friends by choice. Amanda is the kind of friend you feel incredibly fortunate to find. They’re few and far between." Judge Brailsford's attitude was reciprocal, thanking her “dear friend” Bennetts and describing the two of them as “kindred spirits.”

You can see why a reasonable person might indeed doubt Judge Brailsford's ability to impartially adjudicate the allegations against Ms. Bennetts in such a setting, no?

Judge Bybee also waxes poetic about the incredibly close nature of co-clerks -- and has ample reason to do so, since he's seen many come through during his own tenure, as well as his own experience clerking on the Fourth Circuit. To a degree, his description may be a bit idyllic; that said, I'm confident that he's accurately described many co-clerk relationships, as well as at least a portion of the experience:

"Our clerks represent the best and the brightest from American law schools. Although the selection process is highly competitive, once our clerks begin—typically for a one- or two-year period of service—they are no longer competitors but colleagues in service to the courts of the United States. Our clerks work long hours in monastic conditions, bound by duties of confidentiality and loyalty to the judge. Chambers are tight-knit environments that depend on constant collaboration between co-clerks. The friendships developed between co-clerks can be especially intimate and enduring, often lasting long beyond the clerkship itself."

Ah, those were the days.

People v. O'Bannon (Cal. Ct. App. - Oct. 15, 2024)

There are undoubtedly a lot of reasons why you don't want to be homeless and living in a Salvation Army shelter.

Nontrivially amongst these is not wanting to get slashed in the face with a razor by a fellow resident.

Howard Jarvis Taxpayers Ass'n v. Powell (Cal. Ct. App. - Oct. 11, 2024)

The trial court thought that the board members of the Coachella Valley Water District had brought an entirely frivolous anti-SLAPP motion, so awarded the Howard Jarvis Taxpayers Association over $180,000 in attorney's fees for the frivolous motion.

The Court of Appeal, by contrast, thought that the anti-SLAPP motion was not only frivolous, but meritorious, so reverses and grants the "frivolous" motion on appeal.

Interesting how different judges can reach such dramatically disparate rulings, eh?

Katayama v. Continental Investment Group (Cal. Ct. App. - Oct. 9, 2024)

Clearly I'm just meaner than the Court of Appeal. Or at least the 4/3.

Plaintiff files a lawsuit, and defendant propounds twenty RFAs. Plaintiff entirely fails to respond during the relevant statutory period (30 days). Okay. All objections waived. Not exactly great lawyering, but if that's the type of attorney you hired, so be it. Strike one.

Plaintiff doesn't correct its error and make responses after the deadline either. So now defendant has to move to deem the answers admitted, which it does. Strike two.

Then, ten days before the hearing on the motion, Plaintiff (finally) propounds answers to the RFAs, denying some and admitting others. But he nonetheless objects to every one of the RFAs via "general objections" that have -- duh -- already been waived by the failure to timely respond in the first place.

In my view, that's strike three. Yes, the CCP allows you to not have the RFAs deemed admitted if you propound responses in "substantial compliance" with the rules prior to the hearing. But it's always been the case -- or at least that's what I teach in my Pretrial Practice class -- that propounding an (untimely) response with (obviously waived) objections doesn't count as "substantial compliance" with the CCP. You've just got to answer. No objections.

The trial court thinks so as well, and deems the RFAs admitted. Which in turn results in plaintiff losing at trial.

(There's a "fourth strike" as well, by the way. Over a year later, plaintiff moves for leave to withdraw the deemed admissions -- which Section 2033.300 allows -- but utterly fails to satisfy its requirements.)

Were it me, I'd be just fine with this result. Yes, we want people to have a trial on the merits if they can. But we also need lawyers to comply with the rules, and have the process proceed like it should. This was not just a one-off mistake. This was a consistent and entirely inexplicable failure to follow even the most basic of requirements -- ones that even any first-year associate knows full well. Sorry, plaintiff. Go ahead and sue your lawyer. But this particular lawsuit, in my view, is properly dismissed.

By contrast, the Court of Appeal reverses. It's fine to impose monetary sanctions, it says. But despite the inclusion of (clearly waived) objections, plaintiff's responses were in "substantial compliance" with the rules, so the trial court had no ability to deem the RFAs admitted.

A gift to bad lawyers (and their clients), to be sure. But not one I would have tendered.

But, again, that's because I'm way too mean.

Montana Medical Ass'n v. Knudsen (9th Cir. - Oct. 9, 2024)

Montana passed a statute during the height of COVID that prohibited anyone from requiring vaccination; e.g., for employment or to enter an establishment. "This means that a private pediatrician cannot ensure that her staff is vaccinated for measles before interacting with newborn patients;[FN] a geriatric specialist cannot ensure influenza or shingles vaccinations; and an HIV clinic cannot ensure bacterial pneumonia vaccination. [FN:] The Center for Disease Control explains, 'Measles is highly contagious. If one person has it, up to 9 out of 10 people nearby will become infected if they are not protected.'"

The Montana Medical Association sued, claiming that Montana's statute was preempted by federal law. The district court agreed. Today, the Ninth Circuit reverses.

Judge McKeown writes a super interesting concurrence, by the way, that discusses at length the Supreme Court's oft-criticized jurisprudence regarding facial challenges. For those readers who aren't already well-versed in this field, I highly recommend it. It's scholarly -- almost like a law review article -- much much, much more concise: ten pages total. Definitely worth a read.

People v. SanMiguel (Cal. Ct. App. - Oct. 8, 2024)

It seems like the Court of Appeal is gradually becoming more like the Ninth Circuit.

Sadly.

Union Pacific R.R. v. Superior Court (Cal. Ct. App. - Oct. 7, 2024)

I feel like most of the cases with the caption "Union Pacific R.R. v. Superior Court" are from an earlier century -- say, the 1800s. That's definitely when railroads were most heavily involved in litigation, and that's where most of the railroad cases we read in law school come from. (Maybe early 1900s as well.)

But this one is definitely a product of a more modern -- post-automobile -- era. As well as one with probably even greater significance to ordinary landowners than to any particular railroad.

The question presented is whether a landowner who owns property that abuts a public street is liable when cars on that street crash, veer off the street, and hit a tree located on the landowner's property. That's what happened here, and there's little doubt that hitting the tree substantially increased the resulting injuries to the driver.

Are you liable for letting a tree grow on your property when it might injure someone who veers off the street (perhaps, as here, allegedly through no fault of their own)?

The Court of Appeal says: No. 

I think I'm fairly on board for that result. The issue is whether there's a duty under those circumstances; that in turn involves balancing a ton of different factors. On the whole, the Court of Appeal's opinion seems right to me. Yes, we could -- if we wanted to -- impose a duty on people with respect to trees on their property, and, yes, that might decrease (for some crashes) the resulting injuries. But I'm not sure it's worth it, and the resulting rule might well go too far. For one thing, personally, I like trees; they're good for the environment. (Plus they're pretty.) For another thing, if we impose a duty, I'm worried the resulting rule would go too far. Most of us -- or at least most landowners -- own property that abuts a public street. Most of us also have things that might increase injuries to someone who veered off that street and came onto out land; a tree, a concrete wall, a parked vehicle, or the like. It's just too much, I think, to hold that we all have a duty to minimize those common (but admittedly potentially injury-causing) obstructions. When applying the relevant balancing test, I tend to agree that imposing a general duty probably just goes too far for me.

That said, Justice Snauffer somewhat lost me -- at least in terms of persuasive value -- at around page 28 of the opinion, and continuing to around page 32. There, Justice Snauffer articulated at length his view that imposing a duty in such settings might well constitute an unconstitutional "taking" of private property without just compensation.

I don't agree with that. There are lots of regulations that restrict what you can do with your land. Some of them (e.g., zoning and environmental rules) are infinitely more onerous than any duty that even possibly be at issue in the present case and yet are entirely permissible. Others are directly relevant to public safety and entirely permissible notwithstanding the view that you're allowed to do on your own property whatever you want. You may well, for example, want to set a spring gun on your property to deter or incapacitate would-be criminals. Tough luck. We can 100% permissibly prohibit that, and it's not an impermissible taking. So too here.

If we rationally concluded that huge trees right near a fast-speeding highway were injurious to public health, well, sorry, then you can't grow them. Ditto, by the way, if you want to put a half-dozen spears on your property pointed right towards the road. Yep, it's your land. Nope, you can't do that, and any claim that such a prohibition constitutes an illegal "taking" should (and would) fail.

So I'm on board for the result, but part of the underlying analysis actually pushed me in the other direction, rather than ostensibly supporting (as was the point) the opinion's conclusion.

Maybe I'd go the other way, in this particular case, if there was zero reason for the tree being there, or if it was literally right next to the road (as opposed to 20 feet from it) and the road was a super-fast and oft-crashed freeway. Maybe. But, here, I think the Court of Appeal gets the result right.

Even if its analysis, in places, might go a little too far.

E.G. v. M.L. (Cal. Ct. App. - Oct. 3, 2024)

Whenever you might think that your family life contains a bit too much drama, feel free to compare your situation to this one for a little perspective.

Yikes.

In re Maury (Cal. Ct. App. - Oct. 2, 2024)

Maybe I should listen to more "true crime" podcasts, but I didn't know before reading this opinion that there was a serial killer in Northern California who would kill women and then -- chillingly -- report the location of their bodies to a "tip line" set up by the police in return for reward money.

Frankly, that doesn't seem like a good business model. But I guess it worked for a tiny period of time; before they caught him, anyway.

Regardless, I had never before thought about killers exploiting their own killing for reward money.

In re Powell (9th Cir. - Oct. 1, 2024)

There's a fight between Judge Sung and Judge Collins as to whether someone who has filed a Chapter 13 bankruptcy petition has an absolute right to dismiss that petition -- which is what the statute facially says -- even if, in truth, they don't satisfy the requirements of Chapter 13. Judge Sung says "yes" whereas Judge Collins says "no". Judge Forrest agrees with Judge Sung, so after this opinion, the answer is Yes. At least in the Ninth Circuit.

Okay. Definitely important for those who practice bankruptcy law. Less so for the overwhelming majority of us, who do not.

What struck me most about the case, though, was the tenaciousness of the party opposing the dismissal here.

The debtor was someone who had (allegedly) stolen confidential information and other stuff from his employer. The employer sued him in state court and obtained a $200,000+ judgment against him way back in 2000. That's not a huge number, and it's against an individual, so it's tough to actually get the money, even after obtaining a judgment. But even after "years of litigation" to get that award (and incurring the undoubtedly large costs and fees required to do so), "[f]or over a decade, TICO unsuccessfully attempted to collect this judgment from Powell [the debtor]." Which presumably required the expenditure of yet more costs and attorney's fees by the employer.

Then, in 2021, the debtor files his bankruptcy petition. Which the employer then actively fights, not only in the bankruptcy court, but then in front of the Bankruptcy Appellate Panel, and then here, in the Ninth Circuit.

There's no way that this is an economically rational decision. The employer has got to be spending way more money fighting this thing than they're ever going to actually collect from the guy. Particularly since, thus far, they've consistently been losing -- in the bankruptcy court, the BAP, and, today, in the Ninth Circuit.

So I'm thinking that the employer must just hate the guy. Want to make his life miserable. Want him to have to fight a quarter-century fight as retribution for the stuff he stole long ago.

They've got a judgment. They're entitled to do that if they want.

Just don't think that it's actually worth it. Money-wise, anyway.

People v. Harris (Cal. Ct. App. - Oct. 1, 2024)

No, the Court of Appeal did not just affirm the trial court's refusal to resentence Kamala Harris based upon her conviction for murder.

The petitioner here is Kwana Harris. Not Kamala.

Kwana was convicted in 2009 of first-degree murder for a 2004 killing in Los Angeles, though that conviction was reduced via habeas to second-degree murder in 2019. She petitioned to be resentenced yet again under Section 1170.95, but the trial court -- after initially saying it was going to grant that petition -- ultimately found that she was a direct aider and abettor of the victim's murder, so denied the petition.

So Kwana Harris will remain in prison.

Whereas Kamala Harris has a decent shot at shortly becoming the most powerful person in the world.

U.S. v. Patterson (9th Cir. - Oct. 1, 2024)

October begins with an interesting discussion between Judge Tashima, who authors the majority opinion, and Judge Christen, who writes a concurrence, about precisely what it takes for someone qualify for the "hate crime" enhancement in the sentencing guidelines.

The guidelines say you get an extra three-level enhancement if the sentencing court "determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of any person." In other words -- and in its classic incarnation -- if you decide to assault someone who's gay because you hate homosexuals, your sentence may be slightly higher. (I understand that there are people who disagree with whether this should be the rule, but this case involves the interpretation of that rule, not its normative wisdom.)

The district court said that in order to be eligible for this enhancement, all that matters is that you chose the victim "because" he had the protected quality, not whether you had distaste for that group. Here, the defendant contacted his (gay) victims over Grindr; that way, they'd be less likely to go to the police after he robbed them (for fear of being outed). So according to the district court, that qualifies for a three-level enhancement; he selected his victims "because" of a protected characteristic (sexual orientation).

The Ninth Circuit unanimously disagrees with that, though there's a split as to precisely why. Judge Tashima says that a but/for "because" (as here) isn't good enough; that, instead, the enhancement requires proof of animus. His basic point (which is a good one): "Patterson used the dating platform Grindr to find people who would be willing to meet him alone so that he could rob them. That is, their membership in the protected group was a proxy for other information about them – their willingness to agree to meetings where he knew they would be alone. This is insufficient to impose the hate crime enhancement without finding beyond a reasonable doubt that Patterson was motivated by hatred or animus of the victims because of their membership in the protected group."

So for Judge Tashima, you've got to prove animus, so the Ninth Circuit remands on this issue, since the district court made no such finding.

Judge Christen concurs in the result, but articulates the relevant test in a slightly different way. She says: "By requiring a finding that the defendant selected the victim “because of” the victim’s actual or perceived membership in a protected class, the enhancement bakes in the requirement that the protected characteristic at issue—e.g., sexual orientation—was the defendant’s motivation for selecting the victim. In my view, nothing more is required to establish the requisite animus needed to impose the hate crime motivation enhancement." So for her, you're not required to find animus; or, to put it differently, "animus" is found whenever a characteristic is your "motivation" for selecting a particular victim.

I wonder, though, if both groups of judges aren't using the word "animus" slightly differently than how it's typically employed.

I agree that most hate crimes are motivated by animus. Some others -- like, perhaps, the one here -- aren't motivated by animus, but rather by ancillary (correlated) characteristics. You might elect to prey on women, or certain minority groups, because they're physically smaller. Or less likely to contact the police. Or stereotypically less likely to resist. Tons of reasons. You don't "hate" that group. They just make easy (or at least "easier") pickings.

Now, maybe, for Judge Christen, that itself constitutes "animus". Though I could see you having no real "animus" at all. Maybe I love women, or believe that, on balance, Asians (or homosexuals, or whatever) are wonderful, and actually prefer their company to anyone else, and think they're better overall people and should rule the world. It's just that, for my particular present purpose -- robbery -- they're a better set of victims. Just like I rob empty houses; it's not that I hate empty houses, or have animus towards them, as compared to owner-occupied houses; it's just that they're easier to rob.

So if you think of "animus" as ill-will -- which is the classic definition -- I'm not really certain that what Judge Christen is getting at is "animus" at all. (Now, maybe we don't care about animus at all -- we just want to protect a certain group from differential victimization. That's fine. It's just that Judge Christen continues to use the word "animus" in her description of the underlying mental state, and that word is typically used to describe a particular mental state that doesn't always exist in her chosen definition.)

I'll go even further. It's true that many crimes are motivated by animus, but many crimes aren't, and it's at least conceivable that at least some crimes are motivated by the exact opposite. For example, imagine that I love Christians -- absolutely love them, and am one myself -- and desperately want them to go to heaven when they die. (Whereas I give not one whit about Muslims, atheists and the like.) But I also believe that a big impediment to going to heaven is having too much wealth, and that it's better to be a Christian that's impoverished, because that way they'll struggle and focus more on God and not be so concerned with material wealth and will therefore be more likely to spend eternity in Paradise. So to ensure that Christians -- whom I prefer -- go to heaven, I steal from them, exclusively. I select victims based entirely on their religion, so their religion is a but/for cause of their victimization.

I think that Judge Tashima would say that there's no animus in this scenario and no enhancement. Whereas Judge Christen would say that there was animus "baked in" because "the protected characteristic at issue [being Christian] was the defendant’s motivation for selecting the victim" and "nothing more is required to establish the requisite animus needed to impose the hate crime motivation enhancement."

That's fine. But loving someone and wanting them to go to heaven is hardly how we usually use the term "animus". It's kind of exactly the opposite, no?

So, yes, animus is often present, and there are lots of settings in which the competing definitions of that requirement advanced by Judges Tashima and Christen overlap.

But it seems like there are at least some settings in which they definitely don't. Including at least some in which I'd be hard-pressed to find "animus" and that we wouldn't typically define as a "hate crime".