Mayall v. USA Water Polo (9th Cir. - Nov. 28, 2018)

Most of the time, I'm merely intellectually interested in the result of a particular published opinion.  But this Ninth Circuit opinion from today hits extraordinarily close to home.

It's a putative class action against USA Water Polo -- the governing body for water polo in the United States -- that alleges that USA Water Polo didn't do anything to stop its players from getting put back into games after they'd suffered a concussion.  Which resulted in some players getting another (more serious) concussion.

The district court dismissed the lawsuit on a 12(b)(6) motion, and USA Water Polo offers a lengthy defense of that dismissal on appeal, arguing that (1) the primary assumption of the risk doctrine bars any claims for injuries, (2) USA Water Polo's rules satisfied its duty of care anyway, and (3) there wasn't "gross negligence" in any event.

The Ninth Circuit squarely rejects every one of these defenses.  In a way that makes it fairly clear (at least to me) that even beyond getting remanded, the case will survive summary judgment.  Which in turn means it's going to eventually settle.  Because even though this is a pleading opinion, what the Ninth Circuit says is strongly pro-plaintiff here.  Which has consequences for how the thing will play out on remand.

The reason why this case is of particular interest to me is because (1) all four of my kids play water polo, (2) all of 'em are members of USA Water Polo, (3) several of them have been concussed, and (4) one of them was and is on the USA National Team, which -- as today's opinion notes -- had a separate and fairly detailed set of concussion rules.  So it's a topic I'm familiar with.  Even though, until today, I had no idea there was a pending class action about the thing.

Water polo is a rough sport.  Rougher than perhaps most people who are unfamiliar with the game -- which definitely included me, until my kids started to play -- realize.  And that ball gets thrown very, very hard.  And sometimes hits people's heads.  Not to mention the elbows and other flying things that very easily give players concussions sometimes.  (I'm also totally putting to one side the out-and-out deliberate punches, which I've seen in games and, yes, happen.)  In short:  It's rough.  Injuries are indeed part of the game.  Unfortunately.

But the Ninth Circuit says that even though initial injuries are inevitable, putting someone back in after they've been injured isn't.  Hence why it reverses the dismissal below.  Because, allegedly, USA Water Polo could and should have done more.

I suspect my family's USA Water Polo annual dues (which, ironically, we just paid earlier today) will increase after this thing settles.  And that a part of 'em have already gone to pay USA Water Polo's lawyers.

That too is the nature of the "sport" -- litigation -- that we also play.

U.S. v. Tydinco (9th Cir. - Nov. 27, 2018)

Today I learned that it's a federal crime to provide shelter to an unauthorized immigrant.  And that we actually prosecute people for it.

A husband and wife live in Saipan (in the CNMI).  They go to China to visit Wife's family and the like and meet up with a friend, who's got a 10-year old kid.  The friend wants the 10 year old to try out studying in an American school, so the husband and wife take the child to Saipan and enroll him in the public elementary school there.

That's okay; the CNMI allows anyone from China to go there for up to 45 days, without a visa or anything.  You've just got to have proof of a return flight back.  Which the kid does; he arrived on September 26 (near the beginning of the school year, presumably), and has a ticket back to China for a month later.  So the kid goes to school, lives with husband and wife, all is fine.  Husband and wife identify the kid a Chinese citizen to the school and Border Patrol, etc., and he lives there for a bit and tries out school.

The kid apparently decides he likes it there, since he skips his flight back and stays with the family (and seemingly keeps attending the school) for around 18 months or so, when he finally leaves.  At some point thereafter, the wife voluntarily speaks to immigration officials and tells them everything about the kid's travels etc.

At which point they prosecute both husband and wife for "harboring" an illegal alien.  And instruct the jury that to "harbor" an illegal alien means "to provide shelter to".

And get convictions of both family members.

I'll forthrightly admit that I didn't realize that we prosecuted situations like this one.  And, to be clear, this is not a "Trump thing" -- the prosecution here transpired in 2015.

Now I know.

David L. v. Superior Court (Cal. Ct. App. - Nov. 26, 2018)

This sounds right to me.  I'm not positive it's right.  But it nonetheless sounds right.

You (of course) take a risk that when you have sex with someone that it'll result in a pregnancy.  (If this is somehow news to you, all I can say is, wow.)  Similarly, if you have sex with a woman who resides in California, you (of course) take the risk that she'll potentially have a kid -- your kid -- in California.  In the parlance of civil procedure, we'd say that it was "foreseeable" that your act (having sex) would have an effect in California.

But that's not enough for personal jurisdiction.  Justice Dato doesn't cite the case in today's opinion, but we know from the Supreme Court's opinion in Worldwide Volkswagen that such a foreseeable effect doesn't establish minimum contacts.  When you sell a car, or have sex, the fact that your act could have an effect -- an explosion or a baby -- in the forum state isn't enough.

Now, if you have sex in California, that'd be enough.  California sex plus California resident equals California personal jurisdiction.  But here, they had sex in Nebraska, not California.  Or at least that was the sex that gave rise to the pregnancy -- and we're talking about specific jurisdiction, so we care about the contacts that gave rise to the cause of action, not those contacts (like other sex) that didn't give rise to the child at issue.

Sex in Nebraska, albeit with a California resident, doesn't create specific jurisdiction in California.

As I said, that seems likely right.

The only thing that gives me slight pause in that conclusion is the other (previous) sex between the parties in California.  (I agree that the concerts, business trips, etc. in California are totally irrelevant.)  I could see an argument that those contacts are sufficiently "related" to the eventual pregnancy -- even though they didn't directly cause it -- to give rise to specific jurisdiction.

But I think the other view -- the one adopted by the Court of Appeal -- seems slightly more persuasive.  No purposeful availment with respect to this cause of action.  Hence your paternity action needs to be brought where the defendant lives (Connecticut) or, perhaps, where the cause of action indeed arose (Nebraska).  You choose.

Fortunately, we have fax machines and airplanes.  So not prohibitively difficult.

Even though I concede that it'd obviously be easier for the plaintiff if she could file in California.

County of San Diego v. Commission on State Mandates (Cal. Supreme Ct. - Nov. 19, 2018)

We're slowing coming to the Thanksgiving break, so you'll likely see a trickle of published appellate cases from the Ninth Circuit and California Court of Appeal as we head into Turkey Thursday.

Meanwhile, check out the new format of today's California Supreme Court opinion.  As contrasted to the old format.

Like it?  Hate it?  Indifferent?

I'm not sure whether this is the "new normal" or merely a one off.  But if it's the former, I'm sure we'll get used to it.

Or maybe we're just changing things up for the holidays.  Time will tell.

Meanwhile, today's opinion is a pretty clear win for the counties -- and a loss for the state -- which will get more money to help pay for SVP proceedings.  Though precisely how much will be decided only on remand.

Still.  Unanimous opinion today.

With a funky newlook.

People v. Randolf (Cal. Ct. App. - Nov. 14, 2018)

Doing this job -- or at least writing this blog -- you get used to various personalities and institutions in the Court of Appeal.  I was reminded of that when I read this otherwise totally innocuous amendment to a prior opinion.  A tiny little thing.  That states, in toto:  "On page 5, footnote 7, beginning 'In raising this appeal, appellant' is deleted in its entirety."

Okay.  Out goes footnote 7.  Guess it wasn't really necessary.

But I did just wonder:  What did footnote 7 say?  I know it starts with "'In raising this appeal, appellant . . . ."  What's the rest?

Not much, as it turns out.  But the "rest" is nonetheless meaningful.

The original footnote read, in its entirety:  "In raising this appeal, appellant does not contend the officers should have been designated as experts pursuant to Evidence Code section 801, subdivisions (a) and (b)."  So the Court of Appeal deletes that footnote.  Which leads one to believe that, well, maybe, appellant did contend that the officers should have been designated pursuant to Section 801.

Which in turn makes me think:  Well, what about that?!  If they did in fact argue that -- otherwise, why delete the footnote -- what about the merits of that argument.  Does it work?

The Court of Appeal doesn't say.

Of course, the Court's under no obligation to say why it does what it does.  So I can just deal.  But I will say that the amendment nonetheless did leave an open question in my mind.  Not a burning open question or anything, but still, something that the Court of Appeal might have liked to say something about.  If, in fact, the reason for deleting the footnote was because the appellant did indeed argue the thing that the Court of Appeal (originally) said it didn't, and hence, that the Court of Appeal didn't address.

Now, the Court of Appeal not only doesn't have to satisfy my curiosity -- or anyone else's, for that matter -- but is also fairly busy.  Though, in that regard, it probably bears mention that this is the Fifth District.  In my experience, you can count on that district to publish an opinion about once every week or two.  Rarely more.

So, for example, this (tiny) amendment was on November 14.  The Fifth's most recent published opinion was two weeks earlier, on November 1.  Then one a week before that, on October 23.  Then October 19th and October 12th, then one on October 1, then just one opinion in all of September (on September 10).

Which is just a longwinded way of saying (and/or showing) that there aren't legions and legions of published opinions typically coming out of the Fifth.  So maybe a tiny explanation for that argument that we're now hinting the appellant did, in fact, potentially make -- and its merits, or lack thereof -- might potentially be something we could do.

All of which is not to blame the Fifth.  It's been understaffed, especially recently.  It just got two new justices -- Justices DeSantos and Snauffer -- in August.  Being two short can make a big deal for a district that only has ten or so justices when it's fully staffed.  So I get it.

Still.  Could have potentially seen a more detailed amendment on this one.  If in fact the appellant did in fact make the argument we initially thought it didn't.

C.A. v. C.P. (Cal. Ct. App. - Nov. 13, 2018)

The first line of this opinion will tell you a lot about (1) California, and (2) where the law in this area is likely to go in the future.  It's a line that will strike horror (or bemused cynicism) in the minds of many viewers in different parts of the country, as well as one that would have been unlikely to have been written in most appellate courts twenty or thirty years ago.

Here's the line.  Authored by Justice Duarte:

"This case involves a little girl bonded to and loved by each of her three parents."

Three parents.  Controversial now (at least in some minds).  Likely to be more prominently -- and more formally -- accepted in the future, I think.

It's a good case for that line.  A good set of facts.  So while the opinion might well be mocked by certain audiences, who might view it as a classic example of the nuttiness that is California, here are the circumstances that lead Justice Duarte to say what she does:

"The child was born in July 2012 to wife, who was then and remains married to husband. . . . Defendants [the husband and wife] never questioned plaintiff’s status as the child’s biological father, a fact each defendant had known before the child was born. Wife led plaintiff to believe she was separated but continued to cohabit with husband without plaintiff’s knowledge. Plaintiff and wife were coworkers, and wife wanted to ensure other coworkers did not find out about the affair, which caused plaintiff to refrain from seeking paternity leave from their employer. Plaintiff was involved with the child’s early medical evaluations and treatment, openly held her out as his daughter, received her into his home, paid child support, and had regular visitation until defendants cut him off after he filed the instant petition. Plaintiff’s close relatives (sister, nieces, and mother) also developed relationships with the child. Plaintiff had thought the child bore his last name until he saw a prescription bottle showing otherwise, when the child was about eight or nine months old.

Plaintiff had regular overnight parenting that increased over time to every other weekend, and saw the child “from time to time” during the week, from when the child was about seven months old until late in 2015, when this petition was filed. . . . [P]laintiff [paid] informal child support payments, set in an amount determined by wife. Plaintiff only stopped paying when defendants refused to let him continue to see the child. Plaintiff respected the marriage and wanted to co-exist with husband; in turn, husband was committed to maintaining his marriage and conceded that if the roles were reversed he would want to be recognized as a third parent.

The trial court found “no doubt” the child was “well bonded to [plaintiff] and his extended family” and that “he has established a strong, long and enduring bond with” her that defendants had allowed to form. Plaintiff and husband were each found to be a presumed father of the child. Weighing the two presumptions, the court found it appropriate to recognize all three adults as parents, otherwise the child would suffer detriment. The judgment declares that the child has three parents who shall share custody, with mediation to resolve any conflicts, and also adds plaintiff’s last name to the child’s existing set of names, though not as her last name."

So you can see why the trial court did what it did.

The harder part is how this holding comports with California's existing statutes.  Which, as you might suspect, are the product of earlier times (and thinking).

But the Court of Appeal gets around this by saying, essentially, that while the Legislature said that the husband of a child born during a marriage is conclusively presumed to be "Daddy," that doesn't mean that he's the only Daddy.  You can have two (plus a Mommy).  Hence the relief here.

California and the twenty-first century.  Encapsulated into nineteen double-spaced pages.

Tricarichi v. CIR (9th Cir. - Nov. 13, 2018)

Beware of individuals who claim to be able to reduce your tax liability by millions of dollars.

Maybe it'll work, of course.  Maybe.  But maybe that little "Midco Transaction" they're pitching -- the saga of those notorious deals is recounted here -- will instead attract the attention of the IRS.  And in the end subject you to being individually liable for over $35 million in taxes, penalties and interest.

Greedy people sell these scams.  But greedy people also buy 'em.  Hard to be particularly sad when someone gets socked with tax liability that's entirely appropriate.

Or when the Ninth Circuit affirms.

Williams v. Filson (9th Cir. - Nov. 12, 2018)

It's a holiday today -- even though many of us (myself included) nonetheless remain hard at work -- so no published cases today.

But this death penalty case from Friday reminds us that cases -- even (and perhaps especially) death penalty cases -- are straightforward and easy when you don't have all the facts.

The knifing murder of a pregnant woman and her baby during a botched nighttime burglary is surely a terrible crime.  It's what got the defendant sentenced to death.  A murder that was described at trial and at sentencing in excruciating detail.

But there's also a long story about how the defendant -- who was 19 at the time of the murder -- got to that point.  Only a fraction of which was presented at sentencing.

So the Ninth Circuit remands.  Read the full opinion for more details.  But be forewarned that pretty much everything about this case is depressing.  None of it will make for a happier day.  None of it.

I've also got to at least mention how long all this took.  The murder was in 1982.  The death penalty was imposed (after defendant pled guilty) in early 1983.  That's thirty five years ago.  And we're only now on the first federal appeal.  The state proceedings took until 1998.  Though that leaves nearly two decades for the case to eventually wind its way from the district court to the Ninth Circuit.

That's a long, long time.

Of course you want to get these things right.  There are few things more important than whether someone lives or dies.

But still.  That's a long time.

And it's not even nearly over at this point.

1550 Laurel Owners Ass'n v. Munshi (Cal. Ct. App. - Nov. 8, 2018)

Here's something that's good to know.  The Court of Appeal holds that you can't bring an anti-SLAPP motion to strike in a limited civil case.  That's at least the interpretation of the existing statutes.  (I'm not certain that's what the Legislature intended, so maybe they'll be a fix, but at least for now, after today's decision, that'll be the rule going forward.)

So if you've got a case that's worth less than six figures, and are worried about the defendant filing an anti-SLAPP motion (and potentially recovering fees and/or delaying the case with an appeal), maybe limit your recovery to $25,000 and file a limited civil action.  That'll get you faster relief and avoid an anti-SLAPP motion.

Worth thinking about.

Guerrero v. California Dep't of Corrections (Cal. Ct. App. - Nov. 7, 2018)

Wow.

For some reason, I've never before commented on an opinion by Justice Streeter.  Or at least if I have, I've never mentioned him by name.  He's been on the Court of Appeal for almost four years now, so I'm certain I've read some of his opinions.  But for whatever reason, they've never stuck out to me -- or at least I never felt the need to call him out by name.

Today's opinion is different.  It definitely stuck out to me.

Because it's absolutely brilliant.

It's about something (1) that's incredibly complicated, and (2) about which I know fairly well -- the preclusive effect of a federal judgment on subsequent state court litigation, particularly when (as here) the federal court either cannot or declines to exercise jurisdiction over part of the claim (e.g., supplemental state law claims).  So I have a healthy respect for the subject matter, alongside high standards -- despite the indisputable difficulty of the task -- for any attempt to resolve the matter.

But Justice Streeter nails it.

It's not just that the opinion is a persuasive one.  It's more than it's just such an incredibly smart opinion.  Super smart.  Brilliant, even.  Cogent, in depth, sophisticated, nuanced.  All these things.  Everything you want in an opinion and more.

Sometimes -- rarely -- I see an opinion that I could never write in a million years.  Because it displays talents -- in writing, in style, in other things -- that I know I do not possess and never will.

This is not one of those.  Rather, this is precisely the type of opinion that I would always hope to write, even though the vast majority of times I would come short.  Even if I tried my hardest.  It's my style, and my mode of analysis, and precisely my type of sophistication.  At least what I'd strive for.  But Justice Streeter pulls it off in a way that puts most of my own efforts to shame.

An incredibly thoughtful, incredibly sophisticated, incredibly cogent opinion.

I'm profoundly jealous.  No joke.

Absolutely wonderful to see.

Murray v. BEJ Minerals (9th Cir. - Nov. 6, 2018)

Here's something that never in my wildest dreams did I previously think would be litigated in a federal court:

Are dinosaur fossils minerals?

It totally matters.  Because the dinosaur fossils found on this property are worth millions of dollars -- tens of millions, even.  And one owner of the land has the right to use the surface of the property and owns one-third of the rights to the "minerals" on the land, whereas another owner owns the right to two-thirds of the "minerals" on the land.

So are the fossils "minerals" or not?

What's funny is that no one disputes that the fossils are in fact minerals.  'Cause that's what fossils are.  Even "regular" bones mostly contain minerals -- and here, the fossils are either hydroxylapatite or francolite, both of which are minerals.

But when you sell (or maintain) your oil and "mineral" rights to a piece of property, that definitely covers gas, and gold, and copper, and the like.  But does it cover dinosaur fossils?

No one thought about the issue at the time.  'Cause no one knew there were fossils on the property.

So who owns the thing?

The district court said that "mineral" rights don't include fossils.  The Ninth Circuit reverses, in an opinion written by Judge Robreno (sitting by designation from Pennsylvania) -- and joined by Judge Smith -- to which Judge Murguia dissents.

I remember that during the first days of my Property class in law school we talked about who owned foxes and the like.  Maybe we can now add to that fascinating discussion whether the ownership of "mineral" rights includes fossils.

Probably not many cases on that.  But, today, we've got the leading one.

Check it out.

People v. Vera (Cal. Ct. App. - Nov. 5, 2018)

Mr. Vera's real complaint is that the officer who just so happened to be travelling with a drug-sniffing dog just so happened to stop him for "illegally tinted windows" as an excuse to search for drugs.  But unfortunately for Mr. Vera, the Supreme Court has allowed pretextual stops, so that argument doesn't work.

So Mr. Vera's attorney makes the argument that at least legally works -- that getting the drug-sniffing dog out of the car etc. unreasonably prolonged the stop.  The problem with this argument, however, isn't the law, but is instead the facts.  We're talking 30 or 90 seconds or so.  Time during which the other officer's busy writing the ticket.  That's not illegally prolonging the stop sufficient to compel the suppression of the evidence.

So those 4.5 kilos of methamphetamine that the dog smelled, and that hence the officers found, is coming in at trial.

Good job refusing consent to search.  But bad job having illegally tinted windows that allowed 'em to stop you in the first place.

U.S. v. Carter (9th Cir. - Nov. 2, 2018)

It's pretty important in a criminal case to have the victim actually testify in court.  I'm using the phrase "pretty important" as a deliberate understatement.  There's even part of our foundational document (the Constitution) -- we call it the Confrontation Clause -- that's devoted to the subject.

I understand that, sometimes, the world's not perfect.  If you've got a very good reason, maybe we can allow a critical witness to testify through a camera.  One-way, or two-way, or whatever.  So, here, in a particular case, maybe having the victim testify via a two-way video while she sits in Minnesota (the trial's in federal court in California) might perhaps be okay.

But when there's an readily available alternative -- just delay the trial for a couple of months, since the reason the victim can't testify in person is because she's seven months pregnant and says that her doctor doesn't want her to travel -- that doesn't count as "good cause" to do the thing on television.  Putting a guy away (as here) for forty years is a pretty big thing.  Let's try to get it right, shall we?  Even if that means doing a trial in July rather than April.

The Ninth Circuit, in an opinion by Judge Bybee, basically says the same thing.  Albeit in 26 pages instead of three paragraphs.

Palmieri v. California State Personnel Bd. (Cal. Ct. App. - Oct. 31, 2018)

This opinion is yet another classic example of the Streisand Effect.  (Parenthetically:  How cool would it be to have something like that named after you.  I'm not sure that I'd want any particular thing to be called the "Martin Effect," but even if it were something bad, hey, as long as they spell your name correctly, right?)

Before reading this opinion, I had never heard of Pamela Palmieri.  She was just one of many attorneys hired by California to prosecute various disciplinary cases against prison guards.  She allegedly had some problems at her job, so California fired her.  She appealed her dismissal, the lower tribunals ultimately affirmed her dismissal, and she promptly took the thing to the Court of Appeal.

Prompting this opinion, which (1) affirms her dismissal, (2) requires her to pay court costs in favor of the California Board, and (3) issues a published opinion that explains to the world precisely what Ms. Palmieri did and why she was fired.

Not a great Halloween treat, to be sure.  At least for Ms. Palmieri.  (It's probably a treat for the Board, but that's a fairly amorphous body, not someone with actual feelings.)

I'll leave it you the reader to check out the opinion to learn the things that got Ms. Palmieri fired.  Suffice it to say that her nickname is probably not "Prompt Palmieri," at least when it comes to attending various court hearings and other things on time.  ("The OAH ALJ found Palmieri returned late “numerous” times “not just a few minutes late, but substantially longer.” He found her tardiness was “extreme.”)  A reader may also infer that she perhaps has some temper issues that she may want to work out in a more constructive fashion.  (On Friday, April 30, 2010, at 4:30 p.m., Palmieri severely abused a coworker (N.) in the personnel office. She began yelling about a mistake with the withholding in her paycheck, she swore, she pounded her fist, and called the employees “terrible.” When N. said she would look into the problem “Palmieri responded that [N.] should make it fast because she was parked at a meter.” N. found an error in Palmieri’s paycheck but did not return to the counter immediately because she was upset and crying. . . . N. “described Palmieri’s behavior as the most [abusive] and aggressive she has experienced in 15 years” in human resources. The OAH ALJ found Palmieri’s “screaming, demanding, and profanity laced tirade at the personnel staff was outrageous and cruel.”"

Plus there's that whole alleged "dishonesty" thing.  (Side note:  It's never good when an opinion about you in the Court of Appeal recites various bad facts about you and then adds a paragraph that begins with the sentence:  "And there was more.")  Culminating in a sentence that reads "We agree with Palmieri that some of her conduct, such as misleading a quasi-judicial officer, may well present grounds for the State Bar to investigate her."

Oopsies.  Not exactly something that you want to see in a published opinion.

So be careful what you wish for.  On the upside, the Court of Appeal definitely investigated your complaints and came to a conclusion.  Unfortunately for Ms. Palmieri (whose prior disciplinary record via the Bar can be seen here), the conclusion it reached was not exactly in her favor.

And it told the world in published opinion why.

Knox v. Brnovich (9th Cir. - Oct. 31, 2018)

Like a lot of states, Arizona allows early voting.  By mail and otherwise.  But also like a lot of states, you've got to personally mail (or otherwise return) your ballot yourself.  Other than a few specified exceptions (giving the ballot to family members, etc.), you're not allowed to give your ballot to someone else.  Even to mail the thing for you.

Today the Ninth Circuit decides that these restrictions are valid.  They're not preempted by federal laws that govern the Postal Service.  And they're not invalid under the First Amendment.  They're instead just fine, and survive.

You can see why we might not want others to possess your ballot.  Because we're principally worried that they might vote for you -- that you might just give 'em your ballot and have 'em vote it.  That's in part why we want to make sure you do these things personally.

Mind you, that concern only goes so far.  It's a good reason why someone else shouldn't possess your unvoted ballot.  And also why someone else shouldn't be able to change your voted ballot once you give it to 'em.

But, for me, there aren't especially powerful reasons why you can't give you voted ballot to someone else and have 'em mail it (or drop it off) for you.  It's still your vote.  It's still your ballot.  If someone is willing to save you a trip to the polling booth and drop off (or mail) your ballot for you, I don't see a good reason why they shouldn't be able to do it.  Or at least no good reason sufficient to outweigh our desire to help everyone vote and make the thing easy.

But if a state disagrees, today's opinion holds that the Constitution (and federal postal laws) are no bar.  The net effect might be -- and undoubtedly is -- to suppress a certain degree of voting, and to make the process harder than it otherwise would (and probably should) be.  But that's up to states.  Some can make it easy, some can make it hard -- as long as it's not too hard.  This doesn't fall into that latter category, nor does it infringe upon "free speech," so it's constitutional.

Parenthetically, I was in Arizona last weekend, and I gotta say I'm generally impressed with Arizona's efforts to get out the vote.  There are not only a ton of campaign signs -- much more than here in San Diego, at least -- but I also heard and saw tons of billboards, radio advertisements, and other efforts of a nonpartisan nature to encourage people to vote.  Great to see.  Particularly given that not all states see it the same way, and deliberately make it harder to vote as a means of ensuring a particular outcome (since the demographics of who doesn't vote when it's difficult to do so are quite known to the various participants in the state legislative process).

But if Arizona wants to make sure that people mail their ballots themselves, that's up to Arizona.  So holds the Ninth Circuit.

People v. Henry (Cal. Ct. App. - Oct. 29, 2018)

Usually, when one district in the Court of Appeal expressly disagrees with another district, the resulting split is a good candidate for review by the California Supreme Court.  Particularly when -- as in the present case -- the split involves a fact pattern that's fairly prevalent.

But this may be one of those rare cases when leaving things as they are may well be just fine.

Today's opinion says something that sounds pretty right (to me, at least).  If you do X, and there's a statute that expressly says that doing X is a misdeameanor, then you can't be charged with the more general felony Y -- even if what you did technically counts as a violation of Y.  'Cause the passage of X by the Legislature pretty much convincingly proves that they thought that the right penalty for doing X was to find you guilty of a misdemeanor.

To make things less theoretical and more concrete:  Here we're dealing with some who gave a false name to a police officer during a traffic stop.  That's the "X".  That's a misdemeanor.  Because there is a specific statute that says that doing that specific act ("X") is a misdemeanor offense.  But doing that same thing might also count as a felony -- as "false personation".  So that's what the prosecution charges the defendant with as well.

But the Court of Appeal says, nope, can't do that.  Specific statute trumps general.

The only problem with that (or at least the largest one) is that the's a prior Court of Appeal case that expressly goes the other way, and allows the greater ("Y") felony charge.  So the Court of Appeal today creates an intra-California split.  Something that we generally want the California Supreme Court to potentially review.  Particularly when the underlying act (e.g., giving a false name to a police officer) is something that doesn't just happen once in a blue moon.  We don't want what rule applies to depend exclusively on what particular panel you draw on appeal.  We generally want the same rule to apply statewide.

But even though that's the general principle, Justice Premo's opinion explains at some length that the contrary prior opinion in the Court of Appeal was decided a fair piece ago -- before some relevant California Supreme Court cases were decided.  Given that reality, if the California Supreme Court thinks that today's opinion probably got the merits right, you might just want to let the thing stand.  See whether trial courts (and other panels in the Court of Appeal) agree with the most recent case -- Justice Premo's -- and agree that the prior case is old, bad law.  If so, then the world is basically fine.  Everyone (at least in the modern era) agrees.  If not -- i.e., if a subsequent case thinks, contra Justice Premo, that the new case is wrong, and the old case is still right -- then grant review.  Over that one.

But let the issue percolate in the lower courts a bit more.  See what transpires.  Then act if and only if necessary.

That's what I'd probably do here.

If only because there's a decent chance that (1) Justice Premo is right, and (2) future courts will see it that way.  If so, no need for the California Supreme Court -- already super busy -- needs to step in.

People v. Saelee (Cal. Ct. App. - Oct. 26, 2018)

It's a testament to the volume and nature of Proposition 64 petitions -- which seek to reduce certain prior convictions to a misdemeanor -- that the Court of Appeal has a write a published opinion that says that when the prosecution attempts at the hearing to make a certain required showing (e.g., that the defendant will be dangerous if released), they've got to actually introduce evidence on that point.  Not merely argument of counsel.

You'd think that the proposition that "you need to introduce evidence at court hearings" would be a pretty basic one.  Intuitive, even.  Apparently not.

Lots of this evidence will be subject to judicial notice; prior convictions, etc.  But lots of it isn't.  In any event, you gotta at least try.  Not just merely say things and back 'em up with zip.

Good to know that parties have to introduce actual evidence in the future.  A pretty important concept in a judicial system.

MCI Communications Inc. v. California Dep't Tax Admin. (Cal. Ct. app. - Oct. 24, 2018)

This is an otherwise boring tax case, as well as one that reaches what seems to me a straightforward resolution of the thing.  So I'm not mentioning the opinion for that reason.

(In case you're wondering what it's actually about, here's Justice Guerrero's helpful synopsis:  "The California Sales and Use Tax Law (Rev. & Tax. Code, § 6001 et seq.) (SUTL) imposes sales and use taxes on retailers and purchasers for the sale, use, storage, or consumption of tangible personal property within California. Certain categories of property are excluded from the definition of tangible personal property and therefore are not subject to sales and use taxation. Under section 6016.5, one such category of excluded property includes "telephone and telegraph lines, electrical transmission and distribution lines, and the poles, towers, or conduit by which they are supported or in which they are contained." This appeal requires us to decide whether the tax exclusion in section 6016.5 extends to the pre-installation component parts that may one day be incorporated into completed telephone and telegraph systems. We hold that section 6016.5 excludes only fully installed and completed telephone and telegraph lines from sales and use taxation, not the pre-installation component parts of such lines. Accordingly, we affirm the judgment."  Seems exactly right to me.)

Instead, here's the sum total of my reaction to the case:

"Wait.  MCI's still around?!"

Those of us who grew up in a certain era -- post-breakup of AT&T but pre-cell phones -- remember the days when long distance was expensive (but not absurdly expensive) and a valuable commodity.  For kids, having to spend $20 a month (or whatever) on phone calls to long-distance girlfriends (or whatever) was no small expenditure.  So we -- or at least I -- shopped around, and one of the major players in the long distance industry was MCI.

But that was then.  I haven't heard of the company since then.  Apparently it was bought by WorldCom (another infamous company of a different era) and then bought by Verizon and substantially disappeared.  Seems like true long distance providers of the MCI type don't really even exist at this point.

But, so it seems, they live on as corporate shells.  Hence today's opinion involving taxation of MCI.

Who knew?!  A memorable relic from a bygone time.

U.S. v. Henderson (9th Cir. - Oct. 23, 2018)

The FBI is no slouch.

People use the Internet for a variety of things.  Those things include, inter alia, child pornography.  But the people into such things are generally aware that this is a crime.  So they typically go to great lengths to hide what they do.

So here, for example, there's a particular website that's only available on Tor.  The website address is the utterly nonmemorable upf45jv3bziuctml.onion.  Tor makes sure that your IP can't be traced.  And the website's presence on the "dark web" means you can do whatever you'd like on the thing.  Those things including viewing and sharing child pornography.

But, again, the FBI is no slouch.  They get wind of all this, so they (1) get a warrant to seize the servers of this particular website, and then (2) run the website themselves (!).  While doing the latter, the FBI then inserts a malicious code into the website that causes the computer of anyone who visits the thing to transmit its IP address (among other things) to the government.  No more anonymity, notwithstanding the whole "Tor" thing.  Then the FBI follows up on that by getting a warrant and searching the home of all the visitors to the "hidden" website.  Thus getting legions of evidence to prosecute the relevant visitors.

Brilliant.

The short lesson is never to assume, no matter how many precautions you take, that what you send over the Internet is secure.  The FBI has a long reach.

And are pretty darn sophisticated.

People v. Bedolla (Cal. Ct. App. - Oct. 22, 2018)

The typical opinion has some terrible, tragic facts and is depressing.  Yet today's opinion actually contains some degree of happiness.  It could have been a terrible thing.  But ends up being just a frightening event that hopefully the kid gets over.

Here are the facts:

"A.D., who was then 14 years old, rode his bicycle home from school on October 31, 2014, around 12:30 p.m. He entered the house, locked the door, and went upstairs to his room. He and his 11-year-old brother were the only people at home. About 10 minutes later, A.D. heard knocking at the front door. He ignored it but it became louder so he went downstairs and looked through the front door peephole. He saw a man, later identified as Bedolla, wearing a white t-shirt. A.D. did not know the man, so he returned upstairs and looked out the window for a better view. Another man, wearing a black hoodie, was pacing between the front walkway and the sidewalk. He appeared to be acting as a lookout. Meanwhile, the banging on the front door became louder, like kicking. A.D. heard more than 30 kicks and believed someone was trying to break in. He called his father who told him to call 911.

A City of San Jose police officer arrived at the scene within 30 to 45 seconds of the emergency call. Two men were standing in the driveway of A.D.’s house. They took off running. The officer intercepted them and detained them at gunpoint. One suspect, later identified as Joseph Mariscal, was wearing a black jacket with a gray hoodie. The other, identified as Bedolla, was wearing a white t-shirt. Officers brought Bedolla and Mariscal to the sidewalk in front of A.D.’s house for an in-field identification. A.D. identified them from the upstairs window as the individuals he had seen outside his house.

The front door of A.D.’s house was closed when the officers arrived and was visibly damaged. There was white debris on the door mat and splinters from the door, which was “almost partially open.” The damage was consistent with other burglaries in which the front door had been kicked in. Shoe prints on the door matched the shoes worn by Mariscal."

You gotta love that the San Jose police officer arrived within 30 to 45 seconds after the 911 call.  An event that made all the difference here.

The defendant, Mr. Bedolla, ends up essentially getting sentenced to time served -- the 215 days he was in jail before trial (since he couldn't bond out).  Plus three years of probation.  So not a huge penalty.

Though this is not Mr. Bedolla's first run-in with the criminal justice system.  (Though he's also far from a hardened criminal.  Yet.)  We'll see whether we run into his name again in some future case.

Hopefully not.

In the meantime, let's all be thankful for the 30- to 45-second response time here.