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. 

George v. Susanville Elementary School District (Cal. Ct. App. - June 28, 2024)

I disagreed with the result reached in this opinion until I read its very last substantive paragraph -- over a dozen pages in. That one probably changed my mind. Not for sure, but probably. Maybe.

The California Education Code says that school districts have to treat teachers uniformly in terms of salary and experience. No favoring one teacher over another. Fair enough.

The teacher's union enters into a collective bargaining agreement with a school district that sets teacher salaries based on years of experience and training level. It's a grid; so many years of experience plus a master's degree, for example, means you're paid $X.

Susan George worked first as a teacher for five years, and then worked as a teacher for the Susanville Elementary School District for seven years, so those years (5 + 7) put her on "Step 12" of the relevant salary schedule. She then leaves the district and teaches elsewhere for two years, then comes back. The collective bargaining agreement says that once rehired like that, she comes back starting at Step 13 (since her last salary at the district was at Step 12).

But Ms. George says she should be at Step 15 because she's got to get credit for the two (latest) years she taught outside the district.

To be clear: That's not what the collective bargaining agreement says. It says she's at Step 13. No credit for interim teaching if you leave the district and come back. But Ms. George says that violates the "uniformity" clause of the Education Code, which (if applicable) trumps the CBA. To which the school district responds: "Well, maybe, but there's no conflict; we're treating Ms. George the same way we treat everyone who gets rehired. No out-of-district credit."

To me, that's a pretty good response. I presume that school districts aren't required to give out-of-district credit if they don't want to. Maybe that out-of-school district stinks. Maybe districts don't want to have to judge whether a different district is "good enough" to give someone experience. Seems rational to me, and if the union and district agree on that -- as they did here -- that seems fine.

Which is what the trial court held. But the Court of Appeal says at the very outset of the opinion it's reversing, yet for 95% of the opinion, I'm sitting here thinking to myself: "Why? None of the opinion's arguments are persuasive to me yet."

But then I get to the very end of the opinion, which adds one fairly important fact -- one that I wish I knew about earlier. (One that, in retrospect, Justice Robie mentioned early on, in sentence about new district teachers potentially being at Step 13, but which I didn't realize the significance of until the end of the opinion.)

The Susanville Elementary School District does give credit for out-of-district experience. But only for new teachers (who haven't taught in the district before), and only for up to 12 years. Which means Ms. George is out of luck, since she's not a new teacher, but the Court of Appeal says that violates the uniformity clause. If you're willing to give (some) teachers out-of-district experience, you've got to do the same for Ms. George.

Okay. That argument makes some sense to me.

I'm still not 100% it's dispositive, but I could at least see the argument.

It nonetheless still bothers me somewhat to say that Ms. George isn't being treated like other teachers. True, some teachers get up to 12 years out-of-district credit, even though Ms. George only got 5 (the ones she received before coming to the district). But isn't it potentially rational for the district to make a distinction between old and new teachers in whether they receive credit? A district might well want to say "Hey, if you've got experience teaching at ANY level, you're better off than a brand new teacher who's never taught in the classroom before, so regardless of where you taught, we'll bump up your pay for the first 12 years of teaching, wherever it was. But after 12 years, at that point, you know your way around the classroom already, so after those first 12 years, we're not going to give you credit for school districts that might (or might not) just be totally easy and not teach you anything, because it's too tough for us to tell. We'll still give you credit for years in OUR schools, because we KNOW those give you a ton of experience, but otherwise, nope, you only get out-of-district credit for the first 12 years."

That would seem to me to make potential sense. Or at least enough sense for the teachers (through their union) and the school district to agree to such a deal. As, indeed, they unambiguously did here, in their collective bargaining agreement.

The Court of Appeal says that Ms. George is being treated differently because some teachers get 12 years of out-of-district experience but she's wrongly limited to 5. I agree that'd be the case if, say, she taught 5 years outside Susanville, then 2 in Susanville, then another 3 outside. Yeah, at that point, the uniformity clause might compel her (despite the CBA) to be at Step 11 (5 + 2 +3 plus the new school year) once she's rehired, because it's crazy to treat her differently than a new hire with all 11 prior years of experience outside of Susanville.

But Ms. George has already received her full 12 years of credit. Some from Susanville, some from other districts. She's not new any longer. As long as you treat "old" teachers like her the same, which the CBA does (unless some special provision of the Education Code requires otherwise, which it doesn't in this particular case), it still seems plausible to me that the uniformity requirement is satisfied. Ms. George is being treated the same way as all other teachers similarly situated to her.

So I think the Court of Appeal has a good argument in the end. I'd just (1) have liked it to have been clearer (at least to folks like me) earlier in the opinion, and (2) have liked to see the Court of Appeal respond to the above argument about the distinction between what I call "old" versus "new" teachers.

That said, I definitely see both sides, and don't think it's an easy case. I'm not even 100% sure where I stand myself. (I'd want to see how Justice Robie responded to my thoughts; it's eminently possible that he's persuade me in the end.)

People v. Reed (Cal. Ct. App. - June 27, 2024)

I will say that I was impressed with the story the defendant here came up with the story the defendant here came up with. It's tough indeed for a guy on parole after a second degree murder conviction is outside his authorized 50-mile limit, evading police, and driving 124 miles per hour. Plus the whole cocaine part.

But he actually comes up with a pretty tolerable version of events.

Not one that the trial court believes, mind you. (Nor do I, to be honest.) But still. Fairly impressive. Better than the story I could have come up with under similar circumstances; that's for sure.

U.S. v. Page (9th Cir. - June 26, 2024)

I want this problem in my own life. Sort of.

Jeffrey Page files his annual federal individual income tax return -- and most (all?) of us do -- and expects to get a bit of a refund; $3,463, to be exact. He indeed receives a refund check from the IRS.

For $491,104.01.

It's a valid check. It's from the U.S. Treasury Department. It's 100% made out to him. Apparently, unbeknownst to anyone, the IRS accidentally credited tax payments from someone else to Mr. Page's account. Hence the half million dollar windfall.

Mr. Page thinks for a while: "What to do, what to do?" He (allegedly) calls the IRS to figure it all out but (allegedly) can't get through to anyone for an answer. 

He's still pondering what to do with his unexpected windfall around a year later -- a relevant time period because (at the time) refund checks expire if they're not cashed within a year.

So Mr. Page ultimately decides: "Screw it. It's made out to me. It's a valid check. It's mine." So he cashes the thing. Presumably hoping that the IRS never gets its act together.

Which -- unfortunately for him -- the IRS eventually does. Albeit a couple of years later.

The IRS sends Mr. Page several letters demanding the half million bucks back, but Mr. Page isn't feeling especially generous. Eventually, though, Mr. Page sends back $210,000, but keeps the rest.

At which point the IRS sues him to get the rest of the money back.

But there's a three year statute of limitations, and the district court feels pretty strongly that the IRS has blown the deadline. So even though Mr. Page has definitely been served and hasn't timely filed a response to the lawsuit, when the IRS seeks to enter his default, the district court sua sponte raises the statute of limitations issue, and after a couple of procedural moves -- none by Mr. Page, I might add, who's still sitting on the sidelines "representing himself" (but not bothering to even file an answer) -- dismisses the complaint with prejudice.

The IRS appeals. And, today, it wins, with the Ninth Circuit holding that the relevant three year statute of limitations runs not from the receipt of the refund check by the taxpayer  -- which is what some loose language from prior Ninth Circuit cases had said, which is why the district court did what it did -- but instead from when the check was cashed and cleared.

Which means that now Mr. Page has to actually go back and defend the lawsuit, which he likely can't do (successfully, anyway). So he'll have to give back the remaining $277,000+. If he still has it. Plus interest, presumably.

Personally, I'd be pretty psyched to receive an unexpected refund check for a half million bucks. Would I cash it? Maybe. Not sure. I'd definitely at least make a copy and frame it, though.

At a minimum, it's a problem I'd probably enjoy having. Especially around tax time.

As for Mr. Page himself, I can't really fathom why he sent back $210,000 instead of the whole thing -- or nothing. If you're going to keep (or spend) it, keep (or spend) it all. Or don't. It seems like the middle ground -- sending back some, but not all, of it -- is the worst of all possible worlds. If you're hoping the IRS never catches on (within the statute of limitations, anyway), why not go for broke and keep the whole shebang? Or if you're sending it back, send it all back. (And make sure you don't spend it in the interim so there's only two hundred grand left. Surely Mr. Page knew that there was a real risk the IRS might eventually catch on, right?)

The other thing that I thought was strange was that Mr. Page is represented on appeal by four lawyers from Gibson Dunn. Can he really afford that? And is tax refund stuff of this type -- and (perhaps most critically) of this size -- really the kind of work that Gibson Dunn does these days?

All I can figure is either that Mr. Page had some prior relationship with Gibson Dunn or that since Mr. Page represented himself below -- not very competently, honestly, but successfully (ironically enough) -- the Ninth Circuit itself might have reached out and appointed him pro bono counsel. Though nowhere in the opinion does it say so (as it sometimes does).

Plus, to add to the irony, the non-attorney Mr. Page who doesn't even bother to file an answer and elects to represent himself wins in the district court, but once he gets a team of lawyers from Gibson Dunn to represent him, he loses.

Ouch.

Luo v. Volokh (Cal. Ct. App. - June 25, 2024)

What a pain for Eugene.

The last name "Volokh" is sufficiently unique that I assumed it was him when I saw the title of the case, a conclusion that was reaffirmed when I read the caption and then the opinion. It's another lawsuit (actually a series of petitions) brought by a pro se litigant against a law professor author that ends the right way -- dismissal -- but with the predictable hassle and expense for the defendant, who did nothing wrong.

So, as you might imagine, I'm sympathetic to his plight.

Xingfei Luo -- also known as Olivia Luo -- files various lawsuits anonymously (under a pseudonym), and Professor Volokh writes about anonymous litigation both on his blog -- the Volokh Conspiracy -- and in traditional law review articles. Professor Volokh's writing discussed, among other cases, those filed by Ms. Luo, identifying her by name. Ms. Luo didn't like that, so filed multiple requests for restraining orders against Professor Volokh, meritlessly asserting harassment. 

The restraining orders were predictably denied, and there were additional procedural complexities as well; e.g., a successful anti-SLAPP motion by Professor Volokh, Ms. Luo's failed effort to withdraw various exhibits that she regrets failing to file under seal, etc. After losing, Ms. Luo then (predictably) appeals, which requires Professor Volokh to spend more time and effort responding to her latest litigious missives.

Professor Volokh wins, of course, but on some of the subsidiary issues, he wins on procedural grounds, because the Court of Appeal concludesthe Court of Appeal concludes that various aspects of Ms. Luo's appeal involve nonappealable issues. Perhaps ironically, it's Professor Volokh that tries to convince the Court of Appeal to treat those aspects of Ms. Luo's appeal as a petition for writ of mandate -- understandably, since presumably Ms. Luo will just file yet another appeal after some procedural moves on remand -- but the Court of Appeal declines to do so. So a win for the party that should indeed prevail, but with potentially more work opposing yet another meritless appeal ahead.

On the upside, as the Court of Appeal mentions, Ms. Luo has at this point been declared a vexatious litigant, which should at least put somewhat of a crimp upon her efforts to meritlessly litigate against others with whom she finds disfavor. It nonetheless remains unfortunate that Professor Volokh had to deal with all this.

Though I suspect that he successfully got in the last word. Ms. Luo's big objection was that Professor Volokh had published her actual name, and the opinion here is under her own name (Professor Volokh having successfully prevailed upon the trial court to preclude Ms. Luo from suing him anonymously) and, while initially unpublished, is now published. So big (psychic) win for the defendant.

Doesn't make it worth all the hassle and expense, I'm sure. But still. Something.

Legislature of the State of California v. Weber (Cal. Supreme Ct. - June 20, 2024)

There's an old saying that "Pigs get fat; hogs get slaughtered." Here's yet another appellate equivalent of that maxim.

Some anti-tax folks want to make it harder for the Legislature (or pretty much anyone) to raise taxes or fees on anything, so circulate an initiative to do exactly that -- the Taxpayer Protection and Government Accountability Act (the TPA). The initiative would amend the California Constitution to require that basically any new taxes or fees obtain both a two-thirds vote in both houses of the Legislature as well as approval by the voters in a referendum. The TPA contains a plethora of other provisions as well, all designed to cover pretty much any possible way a statute (or law, or regulation, or municipal act, or whatever) could raise revenue or impose costs. They get more than enough signatures on the initiative proposal, so it's scheduled to go to the voters in November.

But the California Supreme Court, in a rare pre-election review, strikes down the thing and removes it from the ballot, unanimously holding that the scope of the initiative is so radical and wide-ranging that it constitutes an impermissible "revision" of the California Constitution rather than a mere amendment. To reiterate: unanimously.

The proponents of the TPA could have accomplished a lot of their objectives by narrowing the thing to particular subjects or, potentially, by getting multiple different -- narrower -- initiatives qualified for the ballot. But by trying to do the whole thing at once, they end up getting nothing.

Hence the whole "pigs get fed, hogs get slaughtered" analogy.

Because, today, the initiative gets slaughtered.

I did, however, want to make one final point. Just about the saying itself. (Which is sometimes rendered as "Pigs get fed [rather than "fat"], hogs get slaughtered.")

I've mentioned this saying -- which I grew up hearing in Virginia many, many times -- in several prior posts. Its meaning is fairly clear, and is basically a more graphic equivalent of "Don't be greedy."

But in my heart of hearts, I've never really understood it.

As far as I know, hogs are pigs. It's just another name for the same thing. So if you're a pig, you're also a hog; you can't choose choose to be one or the other. So what's the point of the saying; there's actually no choice involved. (This is also, I think, why I often forget which one comes first; whether it's pigs that get fed or hogs that get fed. 'Cause they're the same thing.)

I understand that, colloquially, "hogs" are thought of as fatter. Though why I don't know. Plus, being a pig itself carries the whole "greedy" connotation; as in "Don't be a pig," or being "piggish". This is also why, again, I sometimes think the phrase begins with hogs and ends with pigs getting slaughtered. It's confusing. Especially, I might think, for non-English speakers, or someone hearing the phrase for the first time. Like: What?! What the hell are you saying?

My final point on the subject is that it's my firm belief that both pigs and hogs end up . . . slaughtered, right? No one raises pigs for their milk or something like that. Both are raised to be killed. Which also means hogs get fed too; otherwise, they wouldn't get fat in the first place.

So, really, the phrase should be: "Pigs and hogs both get fed, and both get slaughtered." Which sort of means to me that you might as well go for it and have a good time in the process. Which in turn is sort of the opposite of the message the maxim is trying to convey: that if you're narrow and circumscribed in your objectives, you're more likely to succeed.

Nope. Either way, you're getting a sledgehammer to the skull in the end. So why not eat as much as you can in the meantime.

I'm almost certainly going to keep using the aphorism. But, just to be clear, in my heart, I know it likely makes no actual sense.

L.R. v. K.A. (Cal. Ct. App. - June 7, 2024)

There were four published Court of Appeal opinions today, and one published Ninth Circuit opinion, but to be honest, none of them really struck my fancy. For example, is it somewhat interesting that the 32nd District Agricultural Association isn't required to obtain competitive bids to run the Orange County Fair? Well, yeah, I guess. To some, perhaps. But the opinion didn't really thrill me sufficiently to want to write anything about it. Ditto for the other opinions today.

So I thought about just writing nothing. It happens. Not every day merits a deep -- or even superficial -- look into one particular aspect of the appellate process. Some days merit a vacation. (Like tomorrow, I might add; Juneteenth.)

When I'm not exceptionally excited about the published opinions, on occasion, I'll waste some time reading unpublished opinions from the Court of Appeal. Not all of them, of course. God forbid.

I generally limit myself to opinions from my home jurisdiction -- the 4/1 -- and skip the criminal ones, on the theory that they're the least likely to be interesting. (The combination of the fact that nearly all criminal convictions get appealed plus a result that no one on the panel thinks merits publication strongly suggests that I can skip these.) That leaves a manageable number of opinions, so I generally check 'em out.

Today, I came across this one, from a couple of weeks ago. It's a run-of-the-mill family law dispute in which one of the former spouses files a pro se appeal. You see a ton of these. You can probably guess how pretty much all of them end up.

This one's no different. The former wife, L.R., filed notice of appeal as to which the Court of Appeal couldn't even figure out -- after some effort -- what she was trying to appeal, so ends up telling her that most of what's she's trying to appeal isn't appealable (because it's interlocutory) so to focus her opening brief on the only thing that's final: the sanctions decision. To which L.R. responds, according to the Court of Appeal, by filing "a 74-page opening brief addressing everything but the trial court’s denial of her request for sanctions under section 271."

So you can readily figure out what happens next. The Court of Appeal writes a short (5-page) unpublished disposition in which it affirms, concluding that "L.R. has failed to meet her affirmative burden on appeal to demonstrate reversible error" with respect to the one issue that was actually appealable.

No surprise there.

The opinion nonetheless struck me as interesting for two very pedestrian reasons.

First, as is typical in family law cases, the parties are uniformly referred to by their initials. L.R. is the former wife, and K.A. was her spouse. Family law is a sensitive area, so there's no need to make full names public, after all. Especially when, as here, there's a minor child involved, as well as therapy issues involving that child.

All well and good.

But since L.R. represents herself on appeal, the opinion nonetheless includes the following line immediately after the caption: "Leila Rhodes, in pro. per., for Appellant."

That sort of defeats the purpose of calling her L.R. in the caption and in the opinion, right?

Second, the name sounded somewhat familiar, and a quick search revealed that that's because I drive by her office -- with a big sign that includes her name -- approximately ten times a week, since it's on a busy surface street that's on the way to and from my kids' school and their sports practice locations.

Now I know a little bit more about her than I got from the sign.

Maybe it's rule, maybe it's not (I honestly don't know), but when a litigant represents themselves in a case in which we use initials, my suggestion is that we maybe also should use those same initials on the "counsel" listing. That'd make sense to me.

U.S. v. Rivera-Valdes (9th Cir. - June 17, 2024)

This opinion will go en banc. 

The question is whether the Due Process Clause requires the government to do more to deport someone when it sends notice of the deportation proceedings via certified mail to the address that the individual to be deported provided some months ago (with no updated address in the interim) but the notice is returned by the USPS is undeliverable.

The Supreme Court has held that the Due Process Clause requires that the government do more than this before it sells someone's home for nonpayment of taxes. Is the same amount of effort (or more) required before deporting someone from the country?

The majority says "No." The dissent says "Yes." One hundred and sixteen single-spaced pages explain the associated reasoning of the various members of the panel. Feel free to peruse it at your leisure.

Who wins in my predicted en banc proceeding will, I think, likely depend on the panel draw. I suspect the vote will be close either way.

And then the Supreme Court may well take the case up.

In short, I suspect this is very much not the last word on this subject.

We'll see.

DeFries v. Union Pac. R.R. (9th Cir. June 14, 2024)

I don't typically post anything about an opinion if the only thing I have to say about it is that it's extraordinarily well-written and cogent. Particularly when the opinion is written by someone sitting on the Ninth Circuit by designation.

But, today, I'm going to make an exception.

Judge Hamilton is a senior judge on the Seventh Circuit. He authors this opinion, which is about when American Pipe tolling ends (rather than begins) for putative class members who are ultimately excluded from a class definition ultimately certified by a court (and, here, then decertified on appeal).

The opinion is . . . extraordinarily well-written and cogent.

Well done.

In re Jose R. (Cal. Ct. App. - June 13, 2024)

Today's opinion doesn't recite the facts of the underlying offense in any detail, largely because the legal issue on appeal (precommitment custody credits as a applied to the maximum term of confinement) does not depend in the slightest on those facts. Nonetheless, here's how the Court of Appeal briefly describes the offense:

"This case arises out of a shooting in which Jose and an adult man fired multiple gunshots, killing the victim."

As a minor, the sentence imposed on Jose for his offense is . . . .

Three years in juvenile lockup.

Now, I understand that Jose was only 15 at the time, so his sentence reflects that fact, and also that this was a negotiated plea. It might also be the case that Jose ends up spending less than 3 years -- if there's a finding that he's rehabilitated, with reviews every six months -- and that if he's really in bad shape, his absolute maximum confinement is 6 years (with credit for a year served, so five extra years total at the outside).

All that said, if 15-year olds get three years in juvie for killing someone, you can readily see why gangs might elect to employ minors as their killers -- as they apparently do.

Lee v. Thornell (9th Cir. - June 11, 2024)

There are plenty of judges who are not all that keen on actually putting someone to death, and are even potentially willing to jump through the (very high) hurdles to granting federal habeas relief under AEDPA. But even where the Ninth Circuit panel in this particular case -- Judges Callahan, Nguyen and Bress -- so inclined (and they're not), the stark facts of the underlying crimes would make it very surprising were this case to have come out any different than it did.

Which, by definition, it didn't.

It's a death penalty case from Arizona, and even though it's taken 32 years (!) to work itself through the system, I'm fairly confident it's going to end up as you would ultimately expect. Here's a quick synopsis of the relevant facts:

"On April 6, 1992, Lee, then 19 years old, and his accomplice, David Hunt, age 14, called Pizza Hut from a pay phone and ordered a pizza delivered to a vacant house. When Linda Reynolds arrived with the pizza, Lee and Hunt pointed a rifle at her and forced her to remove her shorts and shirt. The two put Reynolds in Lee’s car, and Lee drove her into the desert. Hunt drove Reynolds’s car to meet them.

Once in the desert, Lee and Hunt removed Reynolds’s car stereo, smashed the windows and other parts of her car with a bat, punctured the tires, cut various hoses and wires to disable the engine, and shot a bullet through the hood. Lee later testified that he destroyed Reynolds’s car to prevent her from escaping.

Lee and Hunt forced Reynolds to remove her shoes, socks, and pantyhose and to walk barefoot into the desert. Hunt then raped her, and Lee forced Reyolds [sic -- the panel should really correct this mistake] to perform oral sex on him. After finding Reynolds’s bank card in her wallet, Lee drove Reynolds and Hunt to an ATM. Lee gave Reynolds his flannel shirt to wear and then forced Reynolds to withdraw $20 of the $27 she had left in her account.

From there, Lee and Hunt drove Reynolds back into the desert. Reynolds tried to escape, but Hunt forced her back to the car. By the time she was returned to the car, her face and lips were bloody. According to Lee, Lee and Hunt argued in front of Reynolds over whether to kill her, and Reynolds “freaked” and tried to grab the gun.

Lee shot Reynolds once in the head. But Reynolds was still alive. Lee retrieved a knife from his car and twice stabbed Reynolds in the chest to “put her out of her misery.” Lee and Hunt then drove away. Medical evidence indicated that Reynolds “would have been alive for at least a couple minutes, and probably more,” following the stabbings. The next day, Lee pawned Reynolds’s car stereo, wedding ring, and gold ring for a total of $170."

Pretty bad, right?

But wait. There's more:

"Ten days later, on April 16, 1992 around midnight, Lee used another payphone to call a taxi. David Lacey was dispatched to pick up Lee. Meanwhile, Hunt drove Lee’s car to the location where Lee and Hunt planned to rob the driver. When Lacey arrived, Lee pulled out a revolver and demanded money. According to Lee, Lacey attempted to grab the gun. Lee then fired nine shots, four of which hit Lacey. Lee took “forty dollars from Lacey’s pockets and dumped his body by the side of the road.” Lee then drove Lacey’s cab to a dirt road, where he searched the cab’s contents and shot its windows and tires."

You can see why Lee gets sentenced to death.

But fear not. There's still more. Eleven days later:

"On April 27, 1992, Lee entered a convenience store around 1:00 a.m. to purchase cigarettes. When Harold Drury, the store clerk, opened the cash drawer, Lee shot Drury in the shoulder, causing Drury to fall backwards. Lee then “shot Drury in the top of the head, the forehead, the cheek, and the neck.” After Drury slumped to the floor, Lee “walked around the counter and shot Drury two more times in the right temple.” Lee retrieved the cigarettes and took the cash drawer before leaving the store. Hunt was waiting in Lee’s car, and they left together."

I don't think there are many judges at all out there who are going to bend over backwards to try to find a way to give this guy habeas relief. Even notwithstanding the fact that he was 19 years old at the time.

Simply too many senseless murders in way too short a time.

Needless to say: Denial of habeas relief affirmed.

Not going to change en banc or in the Supreme Court either, IMHO.

In re Andrew M. (Cal. Ct. App. - June 11, 2024)

Cases like these would be the hardest for me personally.

The Court of Appeal seems to be convinced that the toddler here -- Andrew M. -- would be better off with his foster (to-be-adoptive) parents rather than his biological parents. They accordingly conclude that the trial court's finding to the contrary was an abuse of discretion and end the opinion by saying that parental rights to the child should be terminated unless there's something new that's extremely material.

I'm not nearly as confident.

The parents here seem clearly to love their child. They visit the child all the time when they're allowed to do so. The child definitely likes hanging out with them (again, when he's allowed to do so). There's lots to be said in the parents' favor, and there's none of the wholesale abuse or abandonment that you (sadly) see in so many of these cases.

Are the parents perfect? Of course not. They seem dramatically disinterested in taking drug tests, and on some (not-radically-often) occasions miss or are late for visits. Moreover, the would-be adoptive parents seem clearly wonderful.

The Court of Appeal seems strongly influenced by the fact that the toddler doesn't scream or make a fit when the visits with his biological parents end -- Justice O'Leary emphasizes that fact in several places in the opinion. But it seems harsh to make that the overarching principal of who gets a child. Maybe the child is just incredibly good natured. Were I the biological parent, I would very much hate to have my child's generally pleasant disposition used as a factor -- much less a major one -- in whether I'm allowed any future parental contact with him.

In the end, this seems to me one of those cases that's exceedingly close. Either set of parents might well turn out fine (or, perhaps, not so fine). It's incredibly hard to judge -- at least for me. Particularly on a paper appellate record, without ever meeting the child or the biological parents. Which is why we have abuse of discretion as the relevant standard, of course. But the Court of Appeal here seems very certain that the biological parents wouldn't be sufficient. I'd have a much harder time making that same call.

Which is not to say that Justice O'Leary might not be right. She might well be. I just simply don't know.

Olson v. State of California (9th Cir. - June 10, 2024)

Last year, in a high-profile case (and opinion), a Ninth Circuit panel held that A.B. 5 -- passed essentially to try to classify Uber and Lyft drivers as employees rather than independent contractors (something that Proposition 22 later reversed) -- was likely unconstitutional under the Equal Protection Clause, despite the fact that the standard of review was rational basis. The opinion was written by Judge Rawlinson, with Judge Forrest and Senior District Judge England joining the opinion.

Today, the en banc court disagrees, and holds that A.B. 5 was constitutionally validwas constitutionally valid. The vote: 11-0.

Kind of a crush.

Health Freedom Defense Fund v. Carvalho (9th Cir. - June 7, 2024)

You might perhaps have guessed from the panel draw how this one was going to come out. The Los Angeles Unified School District has occasionally required (but does not currently require) its employees to be vaccinated against COVID-19, and a group of anti-vaccination plaintiffs sue. There's a big fight about both whether the lawsuit is moot (since the LAUSD no longer has this requirement) as well as on the merits -- whether mandatory vaccination survives rational basis review. The district court held for the LAUSD on the merits and dismissed the lawsuit.

The Ninth Circuit panel drawn to hear the appeal consisted of two Trump appointees (Judges Nelson and Collins) and one Clinton appointee (Judge Hawkins).

The panel reverses and remands, with Judge Hawkins dissenting.

I'll not wade into the fight about whether the case is moot -- the majority thinks it's not, whereas the dissent thinks it is -- but rather want to talk briefly about the merits.

Pretty much every prior federal opinion on the whole COVID-19 vaccine front has gone the same way as the district court did. In no small part because there's a controlling Supreme Court opinion (Jacobson) that says it's permissible for the government to require vaccinations during an epidemic (there, smallpox).

But the Ninth Circuit panel thinks that this case is different because, here, plaintiffs allege that the various COVID-19 vaccines are "not really vaccines" -- that they don't, in fact, deter the spread of COVID, but instead merely alleviate its symptoms. The panel says that, at the pleadings stage (as here), the court must accept these factual representations as true, and hence says that Jacobson is distinguishable, and reverses and remands on that basis.

But my reaction to this move was twofold -- one substantive, and one procedural.

First, the panel's clearly correct that, at the pleading stage, factual allegations are generally taken as true. But only if they're plausible. Conservative judges in particular are often quite keen on this caveat, and on that basis reject a plethora of factual allegations that they hold are not, in fact, accurate.

Is it plausible that the COVID-19 vaccine is not, in fact, a vaccine, and does not in fact stop the spread of COVID?

If that's true, I've got to admit, this is the first I've heard of it. And I conducted a quick Google search to try to find scientific evidence of this purported fact, and couldn't find any. That said, I'm not a scientist, and admit that I'm not completely well-versed in this field, so I'm not willing to reject the proposition out of hand.

So what support does the panel have for its conclusion that this factual assertion is plausible? Here's the entirety of the opinion on this point -- the only two the opinion even mentions plausibility:

"If the parties provide competing but plausible explanations, the plaintiffs’ complaint survives. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). . . . At this stage, we must accept Plaintiffs’ allegations that the vaccine does not prevent the spread of COVID-19 as true. Twombly, 550 U.S. at 556. . . .  Because we thus must accept them as true, Plaintiffs have plausibly alleged that the COVID-19 vaccine does not effectively “prevent the spread” of COVID-19. Thus, Jacobson does not apply, and so we vacate the district court’s order of dismissal and remand."

That's not really an analysis of plausibility now, is it? It merely says that the allegation is plausible, with no support whatsoever.

Now, if the conclusion comported with common understanding -- e.g., that the Earth is not flat -- it may well be permissible to just conclude offhand that a factual allegation is plausible. But I don't think that the factual claim that the COVID vaccine isn't actually a vaccine so qualifies as obviously true. In fact, I'm personally somewhat suspicious of the claim.

And, indeed, below, the LAUSD permissibly introduced evidence (government reports) that showed that the rate of COVID infection and deaths appreciably diminished once people started to receive the COVID vaccine. Something that's fairly common knowledge anyway, I might add. It seems to me a very natural reading of these statistics that vaccination does, in fact, assist in reducing the transmission of COVID. What's the evidence to the contrary? What's the "alternative explanation" of those statistics that makes plaintiffs' claim -- that vaccination is allegedly not effective at all in reducing transmission -- plausible? The panel never says. Which seems to me a pretty big gap.

Is it plausible to me that being vaccinated reduces the severity of COVID and thus reduces death rates? Totally. That appears to be plaintiff's claim -- that the vaccine merely helps the body fight COVID and hence not die. But if the body's effectively fighting the disease, it seems common sense that the rate of "shedding" -- how much virus would be expelled outside the body, in coughs, saliva, etc. -- would also be reduced. Which is not only what I previously understood to be true, but also a fact amply supported by the underlying scientific data.

So what, exactly, makes it plausible for plaintiffs to say that vaccination isn't effective at all in reducing to any degree the transmission of a deadly epidemic disease that has already killed millions of people? This omission seems fairly critical, since (as the panel admits) only plausible factual allegations are to be accepted as true.

To be clear: I might well find it plausible that the COVID vaccine mostly only reduces the severity of the illness. Or at least I don't find such an allegation obviously implausible; again, I'm not a scientist and haven't reviewed all the data. But Jacobson nowhere says that the government can only require a vaccine when it's100% effective (which, even back then, it wasn't): it only says that it's constitutional for the government to require injections in order to reduce transmission in the face of a public health epidemic. I haven't seen anything cited by plaintiffs or the panel that suggests to me that the was either not an epidemic (there was) or that COVID vaccines didn't reduce, in at least a non-trivial way (and likely in a massive way), the rate of transmission of that deadly virus. If so, Jacobson controls.

That's the substantive point.

The procedural point is this. The panel basically says: "Well, Jacobson's different because that involved a vaccine, and plaintiffs here plausibly claim that the vaccination here isn't a vaccine, so we reverse and remand." But the Court of Appeal reviews judgments, not reasoning. The LAUSD argued that its rules survive rational basis review -- a very low-level review, I might add -- because even if what plaintiff says is true, the LAUSD had a rational basis for requiring "vaccination" because it reduced the severity of the illness and hence resulted in (amongst other things) less absenteeism. That's a rational basis for sure. One that, as far as I can tell, plaintiffs never even denied.

What about that? If that's true, the policy survives rational basis review, and the judgment is affirmed, even if the district court's reasoning was erroneous?

Moreover, the fight here is not centrally about whether COVID vaccines are effective or not, a matter about which there's (arguably) some factual dispute. It's rather when the government can permissibly conclude that they might be and, on that basis, require vaccination in order to reduce the millions of deaths resulting from that epidemic. The Supreme Court has said that we generally let the government, not the courts, draw conclusions from even seriously disputed medical studies, particularly during national emergencies like epidemics. Doubly so when, as here, the standard of review is rational basis, "a paradigm of judicial restraint."

If, during an undisputed national epidemic in which millions are being killed, the government, from consultation with its most serious medical experts, concludes that a particular vaccine would in fact reduce transmission rates and save millions of lives, that seems constitutional even if there exist some medical experts (or plaintiffs) who allege otherwise. No? We instead let courts decide what the medical evidence suggests? Not under rational basis review, surely: that I know for certain.

I don't think anyone seriously disputes (outside of some really hardcore tin hat folks) that the LAUSD required vaccination because it thought, with at least some serious basis, that this would at least reduce the transmission of COVID in schools -- both to adults and to kids. Maybe it was wrong, maybe it was right. But that conclusion was at least plausible, and Jacobson seems on point. Particularly if, as here, a contrary conclusion -- that COVID vaccines allegedly don't reduce transmission at all -- doesn't appear consistent with either the undisputed facts (that rates plummeted after widespread vaccination) or the underlying medical evidence (that reduced severity and/or enhanced immune responses decrease virus shedding and hence transmisson).

That's my reaction to today's opinion. We'll see in due course whether the Ninth Circuit takes it en banc. (My guess is that it will.)

People v. Gefrerer (Cal. Ct. App. - June 6, 2024)

Let's harken back to those halcyon days in which you took the bar exam. Here's a question of the type you might perhaps have found on it:

"While walking down the street, Victim has his pockets picked by Defendant, thereby losing a wallet that contains $1500 in cash. Defendant is guilty of:

A. Felony theft

B. Felony robbery

C. Both (A) and (B).

D. Neither (A) nor (B)."

The correct answer is (A), right? It's a felony because the theft is over $950. And it's a theft, not robbery, because robbery requires that the theft (which is a lesser included offense) be accomplished by means of force or fear, which didn't occur here.

Now let's slightly change the hypo. Same fact pattern, but Victim is aware that his pocket is being picked, despite Defendant's attempt to do so secretly. Victim is triple Defendant's size, so Victim could easily resist the theft were they to attempt to do so. But unbeknownst to Defendant, due to a childhood trauma, Victim is intensely fearful of anyone wearing a red fez hat, which Defendant happens to have on, so Victim does not resist the pickpocket.

What now? Simple theft, or is it now robbery?

I think the answer is fairly clearly that it's still only theft. Yes, the fear that Victim had was a but for cause of the successful theft. But Defendant didn't intend that fear, nor is such fear an objectively likely outcome of the circumstances of the offense. So no robbery.

Yet today's opinion from the Court of Appeal appears to say that, nope, this latter hypothetical would indeed constitute robbery.

I think that's wrong.

I don't disagree with the outcome of the actual case, in which the defendant enters two different banks, gives the victims a note each time that demands $5000 with a warning "Don't play," and the tellers in both banks give him the cash and testify that they did so because they feared he had a weapon or would otherwise hurt them if they resisted. I agree with Justice Huffman that the elements of robbery are met in such a setting, in my view because (1) the victim was in fact in fear (a subjective test), and (2) the circumstances surrounding the taking are such that a reasonable person might in fact harbor such fear as a result -- an objective test.

But today's opinion seems to entirely eliminate this second prong, and instead hold that all that matters is the victim's state of subjective fear. The opinion says:

"Gefrerer also argues “the contents of the note, ‘don’t play’ can reasonably be interpreted not as a threat but as an indication of a serious invocation of the ‘hand it over’ policy.” We disagree that this was a reasonable interpretation of the note and that this point would be relevant. There is no evidence that Gefrerer was aware of the bank’s policy, let alone that he sought to invoke it. And if such evidence did exist, it is the subjective fear of the victim, not the existence of intent to cause fear by the perpetrator, that is relevant. (People v. Anderson (2011) 51 Cal.4th 989, 995; Bordelon, supra, 162 Cal.App.4th at p. 1319.) Here, both victims testified as to their subjective fear caused by the threating note."

The second part of that paragraph seems wrong to me -- or, at a minimum, inartfully worded and thus misleading. Yes, the subjective existence of fear is relevant to the first prong. But the second prong of the robbery test is satisfied only if either (1) the perpetrator intended to cause fear (and thus had the requisite subjective mens rea), or (2) notwithstanding the lack of such intent, the circumstances of the offense would objectively engender such fear, notwithstanding the defendants' (unreasonable) failure to anticipate such a result. So "evidence [that fear] did exist" is necessary, but not sufficient, for robbery; in addition to this subjective state of affairs, fear needs to be either a subjective intent or objective result.

Otherwise, the fez hypothetical is robbery too. So too would walking up to a person and politely saying "Could you please donate $10 for UNICEF?" if the person you're talking to, unbeknownst to you, for some reason thinks that UNICEF is a terrorist organization and that your puffy jacket is actually filled with explosives that you intend to detonate if the requested donation is not made.

It seems to me critical to make clear the objective part of the test, and that subjective fear alone most definitely does not suffice to turn theft into robbery. Particularly where, as here, the objective test is satisfied, it seems to me wrong to say (or inartfully imply) that it is only "the subjective fear of the victim . . . that is relevant." You gotta meet the objective test as well.

CBRE v. Superior Court (Cal. Ct. App. - June 4, 2024)

I most definitely do not know the inner workings of how construction crews operate, but one of the nice things about reading appellate cases is that you get the tiniest of glimmers into how things work in places you would never otherwise know anything about.

So, in this opinion, I got to learn that when owners of commercial buildings modify the office to fit the needs of an incoming tenant, things are (at least sometimes) much more loosey-goosey than I would have thought they'd be.

What you'd think would happen (if you're me, anyway) is that the contractor would get building permits, make sure everything was up to code, carefully do the work, etc. These are big projects and fancy types of companies ordering and doing the work, after all.

Apparently not.

"On March 18, Crew sent CBRE a timeline for the project that still included the permitting process, noting the project would need to begin the following week to meet the tenant’s move-in date. On March 22, CBRE’s senior real estate manager asked for an updated timeline “without a permit,” indicating, “[w]e’ll probably get started on this one right away.” . . .

PRI’s asset manager “gave the ok to begin” on April 9, and work on the project commenced. In soliciting bids from subcontractors, Crew indicated the project “won’t be permitted.”

On April 26, Johnson was working as foreman on the electrical wiring in the suite. Johnson knew no permits had been pulled for the project. He also knew the 277-volt power circuit was turned on to power the building’s lights, as the mandatory temporary lighting had been removed the prior day. However, he believed the 277-volt system was “separate and apart” from the 120-volt system he was working on, as currently required by code. Further, he did not know there were no engineering plans, as-built drawings, as-built plans, building inspections, or plans to bring the building up to code. Prior to April 26, someone had removed the PCF superintendent’s lockout/tagout. While attempting to replace a cover on a junction box labeled as 120-volt and containing wires color-coded as 120-volt under the current code, Johnson touched a live 277-volt wire, fell off a ladder, and sustained serious injuries."

One defense the defendant has is that an electrician should make sure that a wire isn't live every single time by testing it before he touches it, and I'm certain that's true.

But the junction box was labeled as 120-volt, had wires color-coded as 120-volt, and was supposed to be separate (under the building code) from the 277-volt system, yet none of that was true. So you can somewhat see why the worker thought that everything was okay.

One lesson I've learned from all of this is that being an attorney is perhaps infinitely preferable to being an electrician. At least on these types of projects.

'Cause, sure, lawyers occasionally have to deal with difficult opposing counsel (and/or clients). But at least none of them are literal (as opposed to figurative) 277-volt live wires.

Mueller v. Mueller (Cal. Ct. App. - June 3, 2024)

How's this for a marital investment strategy:

"Ling and Paul Mueller married in 2009 and separated in 2017. During their marriage, they cultivated cannabis and buried the proceeds on their property."

How much did they bury, you might ask?

$600,000. In cash.

There are so, so many things that can go wrong in this scenario. The one that ends up transpiring here is that after separating, the wife digs up the majority of the cash and spends it. Leading -- as one might well expect -- to a fairly bitter divorce fight.

I know that there are tough banking restrictions on marijuana proceeds, especially back in the old days.

But still. The "buried treasure" strategy is probably not the most optimal of choices.

G.G. v. G.S. (Cal. Ct. App. - May 28, 2024)

This opinion involves the trial court's non-renewal of a domestic violence restraining order (DVRO). The Court of Appeal reverses and remands so the trial court can properly analyze the relevant factors, and I've got no substantial qualms with that result.

But one sentence in Justice Zukin's opinion struck me as interesting, so I thought I'd look into it further.

After separating, the husband pervasively stalked his ex-wife, so there was clearly a basis -- for this reason as well as many others -- for the initial two-year DVRO entered below. After the DVRO was issued, there's dispute about what exactly the husband did, but everyone admits that his stalking radically diminished, though there still might have been some obsessive components and potential stalking. (You can read the opinion for more details.)

In reversing and remanding, Justice Zukin points out -- clearly correctly -- that there doesn't need to be physical violence to issue, or renew, a DVRO. Stalking's enough. Among other things, the stalking itself may entirely reasonably put the victim in fear for her safety, thereby justifying a DVRO.

So Justice Zukin says:

"The law does not permit courts to make a distinction between physical and non-physical abuse when issuing DVROs. Nor is there any indication that courts should make such a distinction when deciding whether to renew them. And with good reason. Stalking is 'strongly associated with physical violence'; men who stalk their partners after a break-up are four times more likely to assault them."

I was struck by that last sentence. Is it really true that men who stalk their former partners are four times more likely to assault them? (The sentence is also gender-specific; is the same true for women, or, if it's not, is the number higher or lower?)

I'll say at the outset that this last sentence fully comports with my own intuition. If you asked me, I would think it common sense that someone who stalks someone is substantially more likely to physically assault them too. The underlying cause -- the obsession, the lack of self-control, the desire to control the victim, etc. -- are all part and parcel of both the stalking as well as the physical assault.

But I wanted to know the actual number, and what, if anything, the research bore out on this front.

Justice Zukin's opinion cites her source for the "four times as likely" number as "(Lo, A Domestic Violence Dystopia: Abuse via the Internet of Things and Remedies under Current Law (2021) 109 Cal. L.Rev. 277, 282.)." So I went back and looked at that. 

That 2021 article didn't itself conduct a study; it simply cited Molly Dragiewicz & Yvonne Lindgren, The Gendered Nature of Domestic Violence: Statistical Data for Lawyers Considering Equal Protection Analysis, 17 AM. U.J. GENDER SOC. POL’Y & L. 229, 256 (2009). So I read that one. That 2009 article in turn didn't conduct its own study either; rather, it cited PATRICIA TJADEN & NANCY THOENNES, U.S. DEP'T OF JUSTICE, STALKING IN AMERICA: FINDINGS FROM THE NATIONAL VIOLENCE AGAINST WOMEN SURVEY 8 (1998).

But that final reference was, indeed, a study. It involved a telephone survey of 8,000 and 8,000 men. And the findings there are very robust. It does indeed mention the "four times" figure. So there you have it.

Two things, though.

First, the survey was conducted from November 1995 to May 1996. As a result, its results are now over a quarter-century out of date. That doesn't necessarily mean that the numbers or results are different now, of course. I would (obviously) hope that the current number would be lower -- as would all of us -- but I have no idea. Regardless, I thought this was a good example of how a particular figure can be (entirely properly) established at some past historical point and then reiterated and taken as established contemporary fact notwithstanding the passage of a substantial period of time.

Second, and perhaps more substantively, when I read the Court of Appeal's opinion, I thought that this figure was employed as a "cause-and-effect" shorthand; i.e., that we need to take stalking seriously in part because stalking often leads to physical abuse as well. That's basically what I hear Justice Zukin saying, and, again, that comports with my own preexisting intuition.

But that's not what the study actually says. It's instead correlation, not causation. The study says that ex-husbands (or partners) who stalk are four times as likely as non-stalkers to abuse. But a different way of saying that same figure is to say that ex-husbands who abuse are four times as likely as non-abusers to stalk. The two are merely associated; one doesn't cause, or even differentially result in, the other.

Further, there's no temporal differentiation there. The study didn't ask which of the abuse or stalking predated the other. Yep, it's four times more likely that they're correlated. But that could be because people who abuse during the marriage are far more likely to then stalk after the marriage collapses than non-abusers -- a result that would (again) correspond to my preexisting intuition on this front as well. Abusers are nutjobs, and nutjobs stalk.

Could it also be that people who don't abuse during the marriage but who stalk thereafter are more likely to then physically assault their former spouse after separation? Of course. But the study doesn't establish -- or even try to establish -- that connection. It doesn't distinguish between abuser husbands who then stalk as opposed to stalkers who then abuse.

So if you're someone who's stalked after your marriage collapses, does the fact that you're stalked mean that you're four times more likely to be physically assaulted by your former spouse (and hence that your enhanced fear in this regard is utterly rational)? No idea. Not from the study, anyway. It didn't look at that. It just looked at the correlation -- either way -- between abuse and stalking.

For all we know from the study, if you're stalked, you might have two times -- or ten times -- the risk of being physically assaulted by your former spouse. Or maybe half; we don't know. Correlation doesn't mean causation, especially when when you combine temporally disparate events (e.g., abusers who then stalk with non-abusers who then stalk and abuse).

This is another example, I think, of people using purportedly "hard numbers" to back up a preexisting intuition in a way that doesn't actually hold up. Do people that go to the hospital have higher mortality rates even after leaving the hospital? Sure they do. But that doesn't at all mean that going to the hospital killed 'em or heightened their risk of dying. People go to the hospital tend to do so because they're sick or injured, and those people in turn have a higher risk of dying later. Ditto, I would think for physical abuse and stalking. Spouses who abuse (I suspect) have a higher risk of stalking, and stalkers (I again suspect) have a higher risk of abuse, but that doesn't necessarily mean that you have a higher risk of being assaulted if your formerly non-assaultive husband starts stalking you. Maybe you do, maybe you don't, but the number isn't 4x. Or at least the study doesn't say so.

So that's my thought on that. An old number that might or might not be right about what it actually says, but probably not right -- or at least a total guess -- for what that number is ostensibly being employed to establish; i.e., that you can statistically and rationally fear that being assaulted is four times more likely if you're ex-husband is stalking you than if he's not.

People v. Superior Court (Cal. Ct. App. - May 30, 2024)

The majority and the concurring justice disagree somewhat on the reasons why. But both agree -- in my view, entirely correctly -- that while it might be second degree murder if you down a massive amount of oxycodone, speed recklessly, and crash into someone, it's not second degree murder if you chug the oxy, speed recklessly, crash yourself, and then half an hour later and a half-mile away, a truck driver doesn't see the resulting traffic jam and slams into someone, killing them.

This is a classic example, I think, of the difference between but-for causation and proximate causation. Did the driver's conduct result in death? Yes. If she hadn't done what she did, someone currently dead would still be alive. And did the defendant have the requisite mens rea for a murder conviction? Sure. At least at the time she took the oxy and decided to drive recklessly. (Maybe not, however, during the half hour she was totally out of it and wouldn't get out of the vehicle.)

But but-for causation isn't sufficient for murder. Otherwise every mother of a murderer would themselves be potentially guilty as well. There's got to be proximate cause -- something for which, unfortunately, there is no set bright line rule, but that's why we have incredibly bright and sophisticated judges, as well as the resulting common law.

And, here, a murder charge is simply a bridge too far.