People v. Zamudio (Cal. Supreme Court - April 21, 2008)

When you read all the death penalty cases in California, there are some basic, fairly universal themes. Most of the time, guilt is fairly obvious, and the evidence is overwhelming. And you have some incredibly bad facts about the defendant that, when combined with his obvious guilt, makes you appreciate (even if you don't agree) why the jury sentenced him to death.

Not here.

Yes, it's the murder of an elderly couple, and that's a terrible thing. But unless we're going to kill everyone who commits that offense -- and we don't -- I cannot figure out what distinguishes this case from the others. It's not a particularly outrageous example of the offense; no torture or the random killing of strangers. There's no massive criminal history or a lifetime of violence or even depravity. And, yes, do I think it's likely that the defendant did it, sure, but I gotta say that the evidence of guilt is pretty darn scant, and a fair piece less than you find in most of these cases.

One of the things that the Supreme Court occasionally talks about in death penalty cases is how you're supposed to be able to rationally distinguish those who die from those who live. I can't do that here, and it's not for a lack of trying. It just seems to me that the jury here was hard core: that it thought that someone who killed an elderly couple whom he knew (and was previously very nice towards) for meaningless reasons always deserves to die. That may or may not be correct as a moral matter, but I don't think it helps to distinguish this case from similar ones in which the defendant was sentenced to life without the possibility of parole.

I've read hundreds of death penalty cases, and none of them have ever struck me as highlighting the inequity argument as much as this one. Which is especially interesting given the none-too-overpowering evidence of guilt that's also present here. Although I have always intellectually understood the "lingering doubt" instruction (i.e., that there may still be some doubt about the defendant's guilt even though you're morally certain that he committed the offense), I've never actually felt it. Or even come close. And I'm not sure that I feel it here -- I find it very hard to say that I'm morally confident that a defendant's guilty and yet square that with some lingering doubt, since presumably that would mean that I'm not sure "beyond a reasonable doubt" -- and yet I think this one at least comes close.

So this one generated some unique feelings, at least for me. Which may well be idiosyncratic. But this one didn't sit well with me. I have no substantive objections to Justice Chin's legal analysis for the unanimous Court. But there's still something here that makes me uneasy.

Brooks v. WCAB (Cal. Ct. App. - April 18, 2008)

I don't know why this struck me as particularly funny. And it admittedly came out of some slim pickings today (the Ninth Circuit, for example, didn't publish anything).

But when Justice Vartabedian introduced the case by saying: " that Virginia Brooks sustained an injury to her right shoulder and psyche arising out of and in the course of her employment as a correctional officer," I found myself smiling. Injured in your psyche. That's awesome.

People v. Concha (Cal. Ct. App. - April 16, 2008)

Unlike the Ninth Circuit, you typically don't see that many votes ever cast to grant a petition for rehearing in the California Court of Appeal. My intuition is that many (or at least some) on the Court of Appeal deem it somewhat "out there" to do so; that it's somewhat uncollegial in a way that's different than just dissenting.

But it occasionally happens.

So it's worth mentioning when it does. Especially when, like today, it's thus far a very slow day in the Ninth Circuit and California Court of Appeal. Though the afternoon dump of opinions from the latter is still to come. And we can always hope for a thriller.

POSTSCRIPT - The "afternoon dump" from the California Court of Appeal turned out to be, well, nothing. Oh well. So much for a "thriller"!

U.S. v. Davis (9th Cir. - March 19, 2008)

"When we tell you to jump, the proper response is 'How high?', not 'I'm going to do a double gainer.' Learn it or be reversed."


That's the message the Ninth Circuit sends to Judge Damrell. In a per curiam opinion that takes only a week or so after oral argument to write.

People v. Bragg (Cal. Ct. App. - April 15, 2008)

Taxes are finished. Money has been paid. The national welfare and defense is secure.

So now we can move on to more important issues. To wit: Precisely what is the lingo of your classic exchange between Bloods and Crips?

Let me give you the context. Which, needless to say, is a sad one, since it's reflected in a judicial opinion. Very few happy stories are articulated therein.

But this one, for some reason, struck me as particularly depressing. Maybe because of the uselessness of the underlying violence. Or maybe because of the rapid change in tenor.

W.V. -- I'll call him Wilson -- walks up to Hites Market in Sacramento and sees Adam Bragg, who's hanging out at the entrance to the store about to buy some beer. Wilson and Adam grew up together, but had not seen each other for some time. So it was a happy meeting. Wilson goes over to Adam and gives him a hug, saying "What's up, dog?" Adam's also happy, and "responds" "What's up?!" At which point Wilson says: "Nothing, just kicking back and being boo."

Now, you may not understand what that means. "Being boo?" What the heck is that? And I hear you on that one. Especially since it's possible that this is actually a transcription error, since whenever I've heard the phrase -- and trust me, that's not very often -- I've seen it reported as "being bool," not "being boo". But it's possible that "boo" is street shorthand for "bool."

Which leaves the question: "Fine, but what the heck is 'bool'?!" Which takes us back to the whole Crips and Bloods thing. You notice, I take it, that Crips beings with "C" and Bloods begins with "B". There you have it. Since the Crips don't like the Bloods, Crips often take words that begin with "B" and replace that first letter with a "C". And vice-versa; Bloods take words that begin with "C" and articulate them with a "B" instead. A "Take that, my evil foe: I refuse even to use words that being with your letter! Suffer the indignities of my wrath!" sort of thing.

Yes, I know: it sounds like a petty nothingness. Maybe something you'd see in a really fractious university English Department or something. But when Bloods and Crips feel insulted, they tend to fire off something other than testy internal memoranda.

Which brings us back to Adam and Wilson. And helps to understand Wilson's comment. He was "kicking back and being boo". Which is instantly understood to mean that he's sitting back and being "coo" - i.e., "cool" -- and to simultaneously indicate to the recipient that the speaker either was or is associated with the Bloods. And in a manner that's deemed to be a serious insult to the Crips.

But no problem, right? So Wilson's a Blood? Big deal. Hites Market is in an area frequented by Bloods anyway, so that should hardly be a shock. And, after all, Wilson and Adam grew up together, and just gave one another a hug. No biggie.

Except here's what Adam then reveals to Wilson, whom (recall) he hasn't seen in a while. Adam responds: "I'm a Crip, cuz." Oops.

Okay, now, normal people, in a traditional setting, might say: "Oh, sorry. I didn't know. I didn't mean to insult you. I'm sure there are some very fine Crips out there, and I'm sure you're one of them. I was just talking as a broad stereotype. Sorry if my language offended you." Whether they meant it or not.

Contrast that hypothetical exchange to how Wilson actually responds to his boyhood friend's revelation. He instead says: "Fuck you, then." And walks into the store.

Needless to say, this isn't going to turn out well.

Wilson first insulted his gave-him-a-hug childhood friend accidentally, in a manner offensive to his gang. And then followed it up with a deliberate, in-your-face affront. Sadly, that's not something that's just going to be let go. Adam -- now extremely angry -- starts screaming at Wilson to "bring your bitch ass outside." And at this point I'll let Justice Hull finish the tale:

"At this point, [Wilson] started out of the store thinking only that he and [Adam] were going to engage in a fist fight. [Wilson] did not think there would be greater violence because [Adam] and [Wilson] had grown up together, [Adam] lived just around the corner from the store and, at some point, [Wilson] had trimmed [Adam’s] mother’s trees.

Some of the women who had come to the market with [Wilson] began pleading with [Wilson] not to fight and began trying to hold him back or block his exit as he went back through the door of the market. At or about the point that [Wilson] and the women passed through the doorway, [Adam], standing outside and facing them, took a gun out of his pocket and began firing it in their direction." As Adam fires ceaselessly into the crowd of people in the store, he shoots Wilson twice and two different bystanders as well.

That's how the story ends. With, of course, Adam subsequently being found guilty of multiple attempted murders and sentenced to 85 years in prison.

All of which, remember, began with a hug and greeting. Of childhood friends.

Warner Bros. v. Golden Channels & Co. (9th Cir. - April 15, 2008)

I can't honestly say that I'm interested enough to read the underlying briefs and make sure that my impression of this case is absolutely, positively right. But I can definitely say this: Judge Kleinfeld writes an opinion that I find both entirely persuasive and incredibly equitable. I like it. A lot.

While I respect Judge Morrow (below), I think that Judge Kleinfeld's decision touches my heart -- and instinctive sense of fairness -- a lot more than hers. And seems to have the law behind it as well.


See if you agree.

In Re Viray (Cal. Ct. App. - April 15, 2008)

You know the story. The Board of Parole Hearings grants parole to a convicted murderer in an exceptional case. The Governator files a rubber-stamp reversal of the grant. The defendant files a habeas petition. The California judiciary then reverses the Governor.

What's true writ large in California is even true in fairly conservative San Diego. As this case demonstrates.

Nicomedes Viray stabbed a man to death on a dance floor. In an admittedly senseless act. He was sentenced to 16 to life, and has now been in prison for 24 years. He has no prior criminal history. He's got a pretty good record in the joint. He was 27 at the time of his offense, and is now 51. He's got a ton of employment skills that he obtained in prison. He's got very good job opportunities. And, one more thing, he's going to be deported to the Phillipines upon his release anyway.

The Governor says that he's nonetheless clearly a danger to society. The Court of Appeal says (and rightfully so, I might add): "Not."

Even Justice Haller -- who writes separately because she wants to be a fair piece more deferential to the Governor than expressed in the majority opinion by Justice McIntyre (who's hardly a flaming leftie) -- concurs in the result. This is not a case where the Governor is trying to do the right thing. Or even making a real effort to follow the law. It's a token, routinized political act. To which the judiciary rightly responds.

U.S. v. Reveles-Espinoza (9th Cir. - April 15, 2008)

"So you want to petition for rehearing and rehearing en banc with respect to our memorandum disposition, eh? Maybe getting a little traction on the latter, are you? So be it. We hereby vacate the memo dispo and replace it with an opinion that's a bit more solid in its analysis, and hence more difficult to attack. Oh -- and this will shock you, I know -- the opinion comes out the same way. So you still get deported. One last thing. We'll publish this one. So now it's precedent. Ha!"

As wise practitioners know, sometimes it doesn't pay to petition for rehearing, and you should instead make a beeline for en banc or Supreme Court review.

Munson v. Del Taco (9th Cir. - April 14, 2008)

There's courtesy, and then there's courtesy.

Appellate certification requests often begin with a standard boilerplate; for example, the common "We respectfully ask the California Supreme Court to exercise its discretion and decide the certified questions below. . . ." That's how, for example, the Ninth Circuit on Thursday formulated its certified question, and the certification order then goes through the usual steps to formulate and present the question. During which, of course, the Ninth Circuit continues the usual mantra of respect, including standard lines like: "We understand that the Supreme Court of California may reformulate our question, and we agree to accept and follow the court’s decision." Sure, it's rote at this point, but, still, it's uniformly respectful.

But the Ninth Circuit today ups the respect ante, and not only includes all those standard mantras, but adds some more. Lines like: "We are mindful that our request adds to the demanding caseload of the California Supreme Court, but this case raises difficult questions of California law on which trial courts, both state and federal, are sharply divided. The questions have broad implications for disability rights under the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51, and for countless lawsuits alleging violations of the Unruh Act. Comity and federalism counsel that the California Supreme Court, rather than this court, should answer these questions."

Which makes sense; after all, you're basically asking the California Supreme Court to do your work for you. For free. So you might as well pitch the assignment.

Sort of like: "Painting this fence is so fun. Important, too."

We'll see if the California Supreme Court takes the bait.

Martinelli v. International House (Cal. Ct. App. - April 11, 2008)

It was not a good day today for lawyers in the California Court of Appeal and the Ninth Circuit. At least in those cases in which they were parties.

On the criminal side, California attorney (and U. of Houston Law graduate) Geoffrey Mousseau loses his appeal of his conviction for five counts of bankruptcy fraud and conspiracy. "Sorry," the Ninth Circuit says, "but there was more than sufficient evidence of your guilt." Mousseau was previously sentenced to 21 months in prison (by my former colleage, now district court judge, Gary Feess, no less), and resigned from the Bar last year. Parenthetically, Mousseau hasn't had any greater success in the California Court of Appeal either.

On the civil side, California attorney (and San Fernando College of Law graduate) Marie Martinelli didn't win either. She wanted the California Court of Appeal to reverse the dismissal of her libel and slander lawsuit, in which she claimed that defendant defamed her by claiming that she illegally asked it not to report her niece to Immigrations and Customs Enforcement for overstaying her student visa. Justice Rothschild, however, says: "No dice."

On the upside, at least Ms. Martinelli doesn't have to go to prison.

People v. Gomez (Cal. Supreme Ct. - April 10, 2008)

Here's a great opinion for those substantive criminal law buffs out there. Or, for that matter, anyone else who wants to know the precise difference between "larceny" and "robbery".

Here, it starts as larceny, but turns into robbery. I'll leave you to the opinion to ascertain precisely when (and how) that happens.

Buell-Wilson v. Ford Motor Co. (Cal. Ct. App. - April 10, 2008)

You'd think that Ted Olson and Ted Boutrous -- among others -- would know that they tape these things. And I'm infinitely positive that they do.

Yet Justice Nares amends his opinion to add the following today. And scores some definite points in doing so:

"At page 87, following the last sentence on that page, a footnote 14 is added, stating:

In its petition for rehearing Ford asserts that our opinion erroneously states that counsel conceded at oral argument that Ford failed to raise instructional error in the first appeal. However, a review of the oral argument record shows otherwise. First, at 9:20 a.m., the following exchange took place:

"[The Court:] Are you saying there was instructional error at the trial?
"[Ford's Counsel:] Yes.
"[The Court:] Did you raise it in your first appeal?
"[Ford's Counsel:] In our first appeal, Your Honor, we focused on the third party harm issue, but we focused on the Bronco II --
"[The Court:] So the answer is, 'No'?
"[Ford's Counsel:] The answer is, 'No,' we did not specifically raise the instructional issue in our first appeal . . . ."

In rebuttal, the following exchange took place, beginning at 9:51 a.m.:

"[The Court:] But did you complain about instructional error in your appeal?
"[Ford's Counsel:] We, we did not complain about it in our, in the first go-round.""

I'd say it looks like Justice Nares wins that battle.

Council of Interstate Insurance Agents v. Molasky-Arman (9th Cir. - April 10, 2008)

Do States occasionally unconstitutionally (and brazenly) favor their own residents? Darn tooting they do.

And when they do, I couldn't be happier to see the Ninth Circuit whack 'em.

Privileges and Immunities Clause. Learn it. Love it. Live it.

People v. Wilson (Cal. Supreme Court - March 27, 2008)

Virtually every death penalty case is sad. But some are even more tragic -- and senseless -- than others.

"On July 25, 1996, her first day as cashier at Seng Heng Market, victim Sary San was shot and killed during an attempted robbery. The fatal shooting was captured by the market’s surveillance cameras, which recorded both picture and sound. . . . The videotape revealed that before San had a chance to open the cash register, the suspect shot her in the back of the head at pointblank range."

Another death sentence unanimously affirmed.

Committee to Save the Hollywood v. City of Los Angeles (Cal. Ct. App. - April 9, 2008)

Trying to build a fence in Hollywood sometimes gets more attention -- both from the executive and the judiciary -- than putting a guy in prison for 20 years. Check it out.

I'm not saying that a dispute over this fence should be taken lightly. It's a real issue. But, wow. That's a lot of work, and social investment, about a single fence.

People v. Garelick (Cal. Ct. App. - April 8, 2008)

I'm pretty impressed. It's one thing to get a pedophile to show up at a park for a rendezvous with an alleged 13-year old girl. That's not too hard. It's another thing to have the foresight to ask the pedophile to bring with him a particular brand of condoms and a particular brand of bubble gum. That's pretty creative. 'Cause when you stop that guy at a park, and he's got that stuff in his pocket, that pretty much proves he's the one you're after, right? And the bubble gum is an obvious -- and brilliant -- jury atmospheric. The only thing better is if you could ask him to bring a particular type of comic book. Classic.


As for the wisdom of trolling for or responding to alleged 13-year old minors over the internet, or leaving kiddie porn on your computer while you do so, I can only reiterate what I constantly like to say.

People v. Lessie (Cal. Ct. App. - April 8, 2008)

I'm far from the most tech-savvy person in the universe. I was a late adopter of e-mail. I barely know how to send a text message. I've IMed maybe twice in my life. And -- horror of horrors -- only earlier this year did I purchase a cell phone. (My theory, right or wrong, was that very few students ever say: "I need to talk to my Civ Pro professor ASAP.")

But even I know that the relevant provider is spelled "Nextel", not "Nextell". So when Justice Huffman -- or the even-more-cell-phone-provider-challenged-than-I-am law clerk in his chambers -- repeatedly misspells that particular word in this opinion, it definitely caught my eye. Especially on page 6, in which the court reporter below transcribed the word as "Nextel", and Justice Huffman quotes this portion of the transcript but changes it to "Nextel[l, a cellular phone.]" Yikes.

Maybe this will help. It's memorable. And approximates how I used to dance in college.

People v. Woods (Cal. Ct. App. - April 7, 2008)

There are some holdings that seems so obviously correct that you wonder how the other side could possibly argue the contrary. Like here.

Justice Swager holds that a criminal defendant convicted of being an accessory to murder after the fact can't be ordered to pay restitution to the murder victim's family. And that seems clearly right. The criminal offense for which the defendant was convicted didn't cause the murder. Hence restitution is improper. Seems totally easy.

And, in my view, that's exactly right. But I wanted to make a couple of additional points as well. First, notice that the State actually prevailed below. So obviously it wasn't that easy. Second, Justice Swager's opinion is much more detailed -- and persuasive - - than you might think necessary given the question presented. In particular, Justice Swager does an exceptional job of distinguishing California precedent that holds that in granting probation, a court can order restitution for even uncharged or acquitted offenses; moreover, that squarely holds that restitution orders are proper in probation cases even if based upon an accessory after the fact conviction. Honestly, I was surprised that the latter holdings even existed, since they don't seem to make sense given the nature of the conviction. But Justice Swager not only does a good job of distinguishing those cases, but also making them seem to make sense. Which is true testament an honest and rational attempt to properly distinguish a case: a description that makes the differences between the two cases matter, and make both cases understandable given their factual predicates.

So I was very impressed with this opinion, especially since the issue seemed so facially intuitive at the outset. In the end, my conclusion didn't change, but my understanding markedly improved. And that's a great sign of a quality opinion.

Fogel v. Farmers Group (Cal. Ct. App. - April 7, 2008)

I think it's fair to say that no attorney wants the Court of Appeal to call him or her a liar in a published opinion. Especially when you're at a white shoe firm like Skadden Arps.

So when Justice Willhite wrote last month that counsel for defendants -- Joren Bass, Richard Zuromski, and Raoul Kennedy -- repeatedly "misled" the Court of Appeal, including at oral argument, by stating a certain fact that wasn't true, you can understand why these attorneys might have been more than a little bit bummed. As well as prompted to immediately prepare a petition for rehearing that says, essentially: "Please, please, please: Whatever else you may or may not do, please get rid of that line."

Today, Justice Willhite obliges, and makes the following modification to the opinion: "On page 17, in the first line, the word 'mislead' is changed to 'are incorrect' so the line reads: we note that defendants are incorrect when they repeatedly state -- including at oral"

On the theory, no doubt, that it looks better to be stupid -- or a zealous advocate -- than a liar. Which is undoubtedly true. Or at least, for an attorney, better than being an unsuccessful liar.

POSTSCRIPT - A (very informed) reader disputes that Skadden is a "white shoe" firm, to which my only response was that I knew of no similar-but-more-accurate phrase. At which point he suggested: "How about 'green shoe,' to imply a lot of money and indifference to style." Ouch.

In Re Hanford Nuclear Reservation Litigation (9th Cir. - April 4, 2008)

It's not only death penalty cases that sometimes take forever. Check out this one.

You don't see many civil cases in the Ninth Circuit nowadays in which the district court docket number begins "CV-91-....".

People v. Rundle (Cal. Supreme Court - April 3, 2008)

It took the jury less than a day to convict David Rundle, and less than a day to sentence him to death.

It takes the California Supreme Court 159 pages -- and over 18 years -- to unanimously affirm. And we're not talking about intermediate reversals or the like; nope, this is the very first opinion.


An interesting contrast.

Johnson v. American Standard (Cal. Supreme Court - April 3, 2008)

"The Restatement of Torts allows a 'sophisticated user' defense; i.e., a manufacturer doesn't have to warn a sophisticated user of its product of particular dangers when such dangers are well-known to such high-level users. Other states allow this defense. The California Court of Appeal has allowed this defense. The federal courts have predicted that the California Supreme Court would allow this defense. We haven't expressly done so yet. But we do so now. Unanimously."

Sometimes your job on the California Supreme Court is merely to confirm that what everyone else is saying about you is correct.

Fair Housing Council v. Roommates.com (9th Cir. - April 3, 2008)

There are benefits to being the Chief Judge.

For example, when you've written the panel opinion, and it gets taken en banc, you're always on the en banc court to defend -- and vote for -- your ruling. Plus, at least if you're in the majority in the en banc court, you get to assign who writes the opinion. And you can feel free to assign yourself. Which then lets you do a cut-and-paste job, if you'd like, from your prior opinion. Which is nice.

Finally, particularly if you've just become the chief judge, and particularly if you're known as "irrepressable," you can prove that your new position will not change you much by writing the majority decision to confront your dissenting colleagues more than a little bit directly. Not by name or anything. But at length. And in a fashion that's, in places, a bit biting.

All of which works for you particularly well if your first name is Alex.

Fresh off the cover of this month's California Lawyer magazine, Chief Judge Kozinski does all of the above in this closely-watched CDA case. Which finds that roommates.com isn't categorically immune under the CDA for setting up its roommate matching system to allow illegal discrimination. I won't comment much about the merits, since I'm sure that this 8-3 decision will get a lot of press anyway. But I will say that I think that Chief Judge Kozinski does a darn good job here. And that his opinion for the en banc court was even better than his panel opinion. Which I liked as well.

Sanchez v. Mukasey (9th Cir. - April 2, 2008)

I can make my points about this case fairly concisely:

(1) I always find it interesting when a judge wants to use a word other than "concurring" or "dissenting" or the like. After all, in general, you either disagree with the judgment or not, and the description of your separate opinion pretty much follows from that. Nonetheless, there may be a decent reason for Judge Wallace to label his opinion in this case "writing separately," since what he wants -- for the case to be taken en banc -- doesn't really fit the usual categories. Mind you, since the panel grants the petition for review, and since Judge Wallace wouldn't do so, both procedurally as well as (you can pretty much tell by his opinion) on the merits, I think that the label "dissenting" wouldn't be an inaccurate one either.

(2) You'll definitely see a call for en banc review here. Judge Wallace is admittedly senior, but my sense is that they'll be others who'd join the call. Indeed, in truth, regardless of the merits, I think the case should probably go. The circuit precedent on this point (an immigration removal issue) is in a fair piece of conflict, and it's an issue that arises in a decent number of cases. It's an issue that deserves a clearer rule articulated en banc.

(3) Judge Schroeder's majority opinion contains a darn good discussion of what's "dicta" from a panel and what isn't. It's definitely worth reading. And goes well with Judge Berzon's tangential (but also very good) discussion of the topic which I mentioned last year.

(4) But I would change one thing, Judge Schroeder. Page 3406, first sentence, second full paragraph. The one that says: "The government’s principle contention in this case is that Moran’s discussion of the applicability of the family unity waiver to cancellation is dictum that we are free to ignore." I believe you mean to refer to the government's "principal" (e.g., "primary") contention, even though admittedly that principal contention also involves a rule (e.g., principle). You're hardly alone in confusing these words, even amongst your colleagues, but no reason not to eventually use the right one.

Miller v. Davis (9th Cir. - April 2, 2008)

I agree with Judge Reinhardt -- and think it's pretty clear -- that the Governor of California should be (and hence is) entitled to absolute quasi-judicial immunity for even an erroneous reversal of a parole board's grant of parole. Sure, as it turns out, the Governor does't actually have the power to reverse parole grants for people convicted of conspiracy to commit murder, as opposed to actual murder. But that wasn't totally obvious. So when Governor Davis reversed the grant of parole for Donald Miller, it was a quasi-judicial act that wasn't in deliberate excess of his jurisdiction, and hence he's absolutely immune from suit.

That said, you gotta love Judge Reinhardt. In the midst of explaining why quasi-judicial immunity applies, he says: "Admittedly, several of the Butz factors weigh against such a conclusion—the Governor’s review is not adversarial in nature, there is no requirement that the Governor consider precedent in making his determination, and the Governor is, by definition as an elected official, not insulated from political influence, as Governor Davis’s almost uniform denials of parole amply demonstrate." (emphasis added).

The gratuitous -- and yet totally accurate -- slam. A hallmark characteristic of my former boss.

P.S. - Cathy & Molly: The Ninth Circuit's web site lists all of the opinions today as from April 3rd. Maybe that's a delayed April Fool's joke. Because unless I slept a long time last night, I'm pretty sure it's only the 2nd. POSTSCRIPT: Thirty minutes after my post, they make the change. Nice.

Metters v. Ralphs Grocery Co. (Cal. Ct. App. - April 1, 2008)

You might be a big, fancy corporation, with lots of stores. And you might well be able to trick a low-level employee into signing an arbitration clause by disguising what it is.

But you won't be able to fool the Orange County Superior Court. And you won't be able to fool the California Court of Appeal either.

Justice Sills definitely published this one on the correct day.

Ortega v. Sacramento County Dep't of HHS (Cal. Ct. App. - April 1, 2008)

Justice Sims tellingly begins this opinion with the line: "This tragic case will make you sad." A line that I liked.

But, personally, I thought it might be even more accurate to add: "and, perhaps even more significantly, angry." Since that was my definite reaction.

Not that I'd be angry at Justice Sims, since I think he rightly affirms the grant of summary judgment to the defendants. But even though I'm persuaded that that's what the law requires -- let's hear those cheers for the discretionary function exception, shall we? -- I'm not particularly pleased by that fact. Nor am I happy that an 11-year old daughter gets returned to a PCP-abusing father after a stunningly inadequate investigation by CPS that fails to review the required CPS file and thus remains ignorant of the father's long history of serious drug use, violence, and child abuse. The direct result of which is that CPS returns the daughter to the abusive father and, four days later, the father stabs her in the heart and lungs.

I wish I could say that was an April Fool's joke. But it's not. It's reality. And it bites.

U.S. v. Smith (9th Cir. - March 31, 2008)

It takes a fair piece to get Judge Dorothy Nelson to write a dissent. But it occasionally happens. As it does here.

I think this is a pretty darn good candidate to get taken en banc. It's a case in which the majority opinion arguably conflicts with a prior en banc decision. It's a case in which, at a minimum, the issue is close. And it's a case involving a model jury instruction that even the majority opinion concedes could probably be written a lot better.

This opinion was filed almost two full years (to the day) after oral argument. Don't be surprised if its shelf life is significantly less than that.

Momeni v. Chertoff (9th Cir. - March 31, 2008)

"It's one thing to legally come to the United States as an au pair, fall in love while you're here, marry a citizen, have your spouse die, and then ask to please be allowed to stay. It's another thing to legally come to the U.S., illegally overstay your visa, then marry a citizen -- who's still alive -- and ask to stay. The former's much more sympathetic. The latter looks like fraud; or, at a minimum, risks it.

So maybe we'll let the former stay, if only because we would otherwise look incredibly mean. But being nice to a widow who didn't do anything wrong ain't going to help someone like you, Kambiz. Don't confuse limited acts of kindness as a policy. You're being deported. Affirmed."

That's what Judge Kleinfeld, in a nutshell, says today. And you can see where he's coming from.

In short, there's precedent, and then there's "precedent." Some opinions are, as they sometimes say, pretty much "good for this case only." And recognized as such.

Cook v. Superior Court (Cal. Ct. App. - March 26, 2008)

Justice delayed, as we all know, is justice denied. By contrast, sometimes, speedy justice is pretty darn impressive. As it is here.

I gotta tell you, I'm pretty floored by how rapidly -- and properly -- this case gets resolved. As in less than 10 days from the filing of the lawsuit to resolution of the appeal. Wow.

The complaint gets filed on March 17th, in which the treasurer of the California Republican Party (Keith Carlson) state seeks to prevent Debbie Cook -- who's a candidate in the June Democratic (!) primary in the 46th District -- from using the title of "Mayor" in her ballot designation. (Cook is indeed the Mayor of Huntington Beach, but she was elected by the city council, not directly by the electorate.). Later that same week, on Friday, March 21st, the trial court denies a motion to dismiss for lack of jurisdiction and orders Cook to sit for a deposition. On Monday, March 24th, Cook files a writ, alongside a stay request, in the Court of Appeal. Which the Court grants later that same day. On Tuesday the Court of Appeal stays the trial, and on Wednesday, Justice Sills publishes a very complete -- and 10-page -- resolution that grants the writ.

That's pretty darn impressive. Great job.

P.S. - Lest one think that all opinions are like Bush v. Gore, it bears at least brief mention that Justice Sills rules against the treasuer of the California Republican Party here -- and goes out of his way to highlight the facial silliness of a Republican challenging the designation of a participant in the Democratic primary -- notwithstanding the fact Justice Sills was formerly a member of the Calilfornia Republican State Central Committee. Sometimes the law is simply the law, and is applied accordingly. And rightly so. (On the other hand, perhaps a cynic would mention that Justice Sills was also a former Mayor -- of Irvine -- in the same City Council context as Debbie Cook in Huntington Beach. But I prefer to, and do, believe in the former.)

Duffens v. Valenti (Cal. Ct. App. - March 27, 2008)

You're killing me, Court of Appeal.

Earlier this week, I complain -- okay, I whine -- about the flood of opinions coming out of the Ninth Circuit and Court of Appeal this week. Including 30 in 32 hours. Crushing. At least for devoted court-watchers (and -readers) such as myself.

So what does yesterday bring? Twenty-plus opinions.

Good to know that people are listening. Not, I admit, that I expected anything else.

Fortunately, I have had time to read this opinion by Justice Huffman. An opinion that I'd mention, wholly apart from anything else, if only because it concerns Irene Valenti, who runs the "Valenti International" dating service. Which you've undoubtedly read about if you've ever been stuck on a transcontinental flight with a dead laptop battery and thus forced to read the free airline magazines (and advertisements therein) stuck helpfully in the seatback in front of you.

This is yet another in a series of cases against various "high profile" -- read: high cost -- dating services that promise contact with "high profile" -- read: rich -- men. Allegedly with no intent (or ability) to perform. The services also ain't cheap; the average plaintiff in this action paid almost $50,000. And didn't get married to, or presumably even nail, a multimillionaire. The latter of which would hardly be worth 50 Gs anyway. Trust me.

Anyway, the question here is whether the plaintiffs have to arbitrate -- in San Diego, no less (Valenti works out of Rancho Santa Fe, the tony neighborhood down here -- pursuant to the contract. Sure, the plaintiff is making the usual "recission" and "invalidity" claims about the contract in general, but, typically, you've got to arbitrate notwithstanding such arguments.

But the Court of Appeal holds otherwise here. There's no fraud going particularly to the arbitration clauses, Justice Huffman admits. But the underlying statutory regime governing dating services requires particular disclosures in the contract, and those weren't made here. Moreover, the statute prohibits misrepresentations in the contract as well. And since the statute says that a contract that violates the statute is void, the whole contract -- including the arbitration provision -- is void, Justice Huffman holds. At least on the particular record here.

There's a lot to be said for this opinion, which both manifestly understands and clearly articulates the underlying principles. But I wish there was more analysis in the last two or three pages of this 27-page opinion, which is basically the meat of the analysis. Justice Huffman admits that alleging that a contract is "void" (or voidable) doesn't automatically negate an arbitration requirement; after all, even in the common law, contracts can be voidable, but arbitration is still required. Justice Huffman understands that, but says that in the particular statutory context here, it seems like the Legislature meant to void the entire contract. But, again, that doesn't necessarily preclude mandatory arbitration; after all, an arbitrator could do that. Plus, lots of statutes say that a contract is void if certain requirements aren't met; does this mean that a statute that requires you to put the date on any signature line, for example, under penalty of having the contract be void also prevent mandatory arbitration? This seems both overly hypertechnical and not at all consistent with the overall doctrinal preference for arbitration. Justice Huffman concedes, in this regard, that only violations of "material" requirements would both void the contract as well as the arbitration clause, but doesn't really spell out either (1) what it means for materiality to extend to the arbitration clause rather than merely voiding the contract as a whole, or (2) why the particular provisions here were allegedly "material". For example, one of the statutory violations that made the contract void here was the failure to disclose that if the plaintiff moved more than 50 miles, they could get out of the contract. Well, sure, the (inexplicable!) failure to include such a provision might indeed make the contract void, but especially if none of the plaintiffs here in fact moved, why would it negate the arbitration provision? Presumably an arbitrator could -- and would -- find what the law requires and refund the money. Which is what the doctrinal preference for arbitration assumes.

It's not that I'm a monster fan of mandatory arbitration, especially in the context of statutes that reflect public policy and/or that protect consumers, or fully buy into existing doctrine. But I think it has a point, and given those contours, I think that Justice Huffman could have done a little more to articulate his doctrinal vision here -- particularly its limitations. I'm not saying that the result he reaches is wrong. Far from it. But I think there needs to be a bit more here. And I think that including it would substantially enhance, as well as clarify, the law here. Which is hardly limited to dating contracts, but instead will apply to a whole slew of contractual arbitration claims in the face of statutory allegations.

So that's my academic take. On the practical side, I only have one point: How could a high-classed pimp -- er, I mean, "matchmaker" -- not hire an attorney to make sure that her contracts comply with the one statute that exhaustively regulates her business and voids any contract that doesn't? It seems to me that doing so would be more than worth even a single $50,000 fee. (And I know I'm going to get grief for that pimp comment, but oh well. I wrote it, I was obviously being sarcastic, and this post is long enough, so I'll leave it in. Yes, I know, matchmaking is a profound and historical institution, many lives have been improved, blah blah blah. All of which is true, I'm sure. But I still get to insult people if I want. Because I love America, baby.)

Harvest v. Castro (9th Cir. - March 27, 2008)

I agree with Judge Tashima -- and think it's a significant point -- that we should treat a State's request for modification of a habeas grant as a Rule 60 motion, rather than as a free-floating equitable principle. I'm a little bit concerned that such requests don't neatly fit into the typical Rule 60 mode (witness, for example, the misfit between the "mistake" here and the typical Rule 60(b)(1) "mistake" that gives rise to the judgment itself), and think that there are some Rule 60 constraints that aren't mentioned by Judge Tashima that might give rise to problems in the habeas context (e.g., the one-year limitation on several Rule 60(b) categories), but think that he nonetheless generally articulates a proper approach. I may or may not tie the State as tightly to the literal terms of Rule 60 as Judge Tashima does -- and, to reiterate, I might -- but I think that Rule 60 is indeed the right construct for such relief. And totally agree both that the State's mistake here was inexcuable (which it forthrightly admits) and that it's not that great of a burden to say to a State, in esssence: "When the judiciary orders you to retry or release a prisoner within 60 days, and you don't, you can't just ignore the Order and continue to hold him; you've got to release him. Sure, you can generally rearrest him, and if you want to do that the second he steps foot out of prison, go ahead. But that doesn't mean you can just violate the Order." That seems entirely right to me. (P.S. - I obviously made up that quote, which isn't from Judge Tashima, but think his point is basically the same.)

So I think this is a very good development in habeas jurisprudence. As well as equitable in this individual case. It may not be perfect, and I'm a tiny bit queasy about parts. But, overall, I like it.

In Re Singler (Cal. Ct. App. - March 26, 2008)

One of the fairly memorable constants of reading all of the published California appellate decisions during the past decade or so revolves around the treatment of parole applications by convicted murderers. The current scoop -- for those who don't recall it -- is that Governors Davis and Schwarzenegger (among others) (1) made sure to appoint very hard core (anti-parole) people to the Board of Parole Hearings, and (2) adopted and applied (and, in the latter case, continue to apply) an unannounced policy -- one that would be clearly illegal if formally announced -- of uniformly reversing the Board of Parole Hearings in those rare circumstances in which the Board eventually grants parole to an individual convicted of murder. Basically, the elected official doesn't want to take a potential political hit by granting parole to a murderer since, by definition, there is a non-zero chance that anyone who's released from prison would reoffend, and the political consequences of granting parole to a murderer who does so might be immense. So why take the chance? Especially since the only people who care strongly about the murderer are his family and (typically, few) friends, and the number of those votes ain't all that large.

But, over the years, I've gotten the sense that an uneasy -- and unusual -- arrangement has essentially developed between the California judiciary and the California executive branch with regard to this issue. Basically, the judiciary realizes that the executive is violating the spirit (and perhaps the letter) of the parole statutes, but in the face of an executive denial of illegality, is unwilling to call the executive a liar (especially since motive and intent is such a hard thing to prove). Hence there's no categorical judicial solution to the problem. At the same time, the judiciary realizes, over the years, what's going on, and eventually develops its own solution, and starting with a trickle -- and then, later, with a pour -- starts to routinely overturn the executive in individual cases, holding that in the particular case the executive's reversal of a parole grant was unfounded. Which, in turn, the executive -- while ostensibly (and, likely, in reality) opposing what the judicial branch is doing, is in truth not all that bummed at the resulting arrangement. Sure, some murderers get let out, and maybe that's not the greatest thing. But, on the upside, only in the most exceptional of worthy cases will a hard-core Board of Parole Hearings grant parole in the first case, and even amongst that group of cases, only in ones with exceptional merit will the judiciary step in and reverse the Governor's reversal of parole. So, in the end, the Governor realizes that only a select few will be released, that these are probably the ones that are really entitled to parole, and in the unlikely event they reoffend, it's the judiciary that will take the hit. So it's a win-win for both the executive and the judiciary. The judiciary gets to "do justice" and the executive gets to take a political stand whose adverse human consequences are mitigated by the judiciary. And everybody is happy with the arrangement -- at least as compared to the plausible available alternatives.

That's my thought, anyway, about where we stand, and although the way I've articulated this vision may suggest conscious decisionmaking by the parties, I don't think that's the case. I just think that, in the end, the participants have reached somewhat of a steady state, and that -- especially in the last couple of years -- one has tended to see this state of affairs more firmly reflected in the conduct of both the executive and judiciary. The executive's denials of parole become even less plausible than normal (since they know that the primary thing they have to do is simply to deny parole for political reasons) and the judicial reversal of such denials has become both less cautious and more routine.

Obviously, I'm talking about a meta-vision here, so there's no single case or (or even isolated group of cases) that affirmatively establishes the validity of my sense in this regard. But I do think that this case from today, as well as this case from a couple days ago, reach results that are consistent with my view of what's tended to happen over the past couple of years. Note particularly, in the case from today, that the Court of Appeal initially summarily denied the murder's petition, but ended up reversing the denial of parole after the California Supreme Court vacated this decision and ordered an OSC. I think that the California Supreme Court -- albeit alongside several important justices on the Court of Appeal -- has solidified the prevailing norm in this area both by various opinions in individual cases as well as by constant reaffirmation of the underlying principle.

Which is not to say that there aren't exceptions, as there surely are. But I do think that this is a rare situation in which two branches have found -- albeit somewhat clumsily, and without deliberate design -- a relationship that "works" for both of them. One that's extralegal, but nonetheless based on law. So it's an interesting dynamic. And something that's definitely worth thinking about.

In Re H.B. (Cal. Ct. App. - March 25, 2008)

Look, I like reading judicial opinions as much as anyone. Even more so, I think.

But the last 32 hours have seen no less than twenty published opinions by the California Court of Appeal and another double-digits by the Ninth Circuit. Can't we spread this stuff out a bit, people? I've got other stuff I've got to do, you know. :-)

That said, I wanted to briefly mention this case. Anyone who works either in the dependency system or on the Court of Appeal knows how profoundly and deeply depressing many of the cases in this area are. So when the dependency court -- a court that's typically understandably jaded by weeks and years of incredibly sad stories -- begins its opinion in the following way, you can only imagine what an incredible downer the underlying situation must be:

"This is truly a sad case. The history of Gail B[.]’s life is well known to the Juvenile Dependency Court -- first as a 9-year dependent herself and now, for the last seven years, as the mother of children [D.B, D.B., B.B. and T.B.] who are currently dependents of the Court."

The opinion by the Court of Appeal doesn't give all of the relevant and historical facts. For which part of me is thankful. There are perhaps some depressing, life-crushing stories that even I don't want to know. And I get a sense that this may be one of them.

Manzarek v. St. Paul Fire & Marine Ins. Co. (9th Cir. - March 25, 2008)

Zzzzzz. Another boring insurance coverage case. Sure, it's a well-written opinion by Judge Randy Smith. But it's insurance, right? So nobody's going to read it.

Wait! You say it's an insurance coverage case that involves Ray Manzarek and John Densmore -- former members of The Doors -- as well as the parents of Jim Morrison and Morrison's late wife?! Well, okay then. That's a whole different kettle of fish. In that case, we'll check it out.

P.S. - Andrew McCloskey, a USD Law graduate, loses this one. But don't feel bad, Andy. You won below. Albeit in front of Judge Real. And, for what it's worth, I think you lost because Judge Smith is right. Even if you're a stud, sometimes you've simply got a case that's wrong on the merits. In which case there's very little you can do. At least in front of a smart and interested panel.

Department of Toxic Substances v. Burlington Northern (9th Cir. - March 25, 2008)

Sometimes you can tell the complexity of a case merely by looking at the caption. Here's an example.

Check out this part of the (lengthy) caption:

Argued and Submitted
September 12, 2005—San Francisco, California
Submission Withdrawn September 14, 2005
Resubmitted March 16, 2007
Filed March 16, 2007
Amended September 4, 2007
Second Amendment March 25, 2008

Finishing up two and a half years after oral argument. Sort of gives you a sense of how not-so-easy the case is.

And, if you don't believe me, you can read the remaining eighty two pages of single-spaced text to confirm this impression. Go ahead. I dare you.

Foulon v. Klayman & Toskes (9th Cir. - March 24, 2008)

This doesn't happen every day. Indeed, it's sufficiently rare that it took me quite a while to figure out even what happened.

It's a forum selection clause issue. The parties briefed the case in 2005, and argued it in Seattle before a three-judge panel on November 17, 2006. Then, almost a year later, in September 2007, before issuing a ruling, the panel asked the parties to brief whether the case should be decided en banc. At which point both of the parties said: "No." To which the Ninth Circuit appropriately responded, two months later, by taking the case en banc. Sweet.

As they say, however, you can lead a horse to water, but you can't make it drink. The Ninth Circuit sets the oral argument for March 26th (the day after tomorrow) in San Francisco. But guess what? The parties don't feel like showing up. As a result, presumably as a result of a settlement, today, two days before oral argument, the Ninth Circuit dismissed the appeal.

Hope those tickets to San Francisco were refundable, judges! (Just kidding. I know you guys are going there anyways. And now 11 of you have got an extra couple of hours to hang out!)

In Re Lawley (Cal. Supreme Court - March 24, 2008)

Let me be the first to alert you to the most significant development in California jurisprudence imaginable. An event of the most profound significance -- one that has been developing for at least the past three decades, and yet has exploded with a fury over only the past several days.

I speak, of course, of the unspeakable. Yes: That Word.

"Motherfucker".

It was first used in a published opinion in California back in 1972. Ah, the golden era of speech. It was Justice Kaus who, in that year, had the honor of introducing us to that phrase -- using that colorful term in recounting the defendant's witty retort of "Right here, motherfucker" to a comment made by a witness. Showing the type of linguistic innovation, I might add, that undoubtedly directly led to Justice Kaus's subsequent elevation to the California Supreme Court.

It took six full years until anyone else on the Court of Appeal followed Justice Kaus's bold lead, but then, in 1978, Justice Paras entered the fray. Thereafter, in the 1980s and 1990s, all bets were off. As of today, my search reveals no less than 70 published opinions -- and an additional 263 unpublished opinions -- from the Court of Appeal that deploy this now-time-honored word.

It's now 2008. Thirty-six years since Justice Kaus first blessed us. And, notwithstanding the harsh language of those foul-mouthed justices on the Court of Appeal, the California Supreme Court had never used the term in print.

Until Thursday, that is.

Justice Baxter pulled the trigger in the California Supreme Court in People v. Gay. For proof, check out page seven, in which Justice Baxter recounts the defendant's alleged comment -- "Take this, you motherfucker" -- while shooting a police officer in the back.

I briefly talked about this case the day it came out, but the fact that Justice Baxter had broken a heretofore pristine barrier in the California Supreme Court didn't occur to me. Until today. At which point I read Justice Werdegar's opinion in another death penalty case -- In Re Lawley -- and noticed that it thrice recounts this word (on pages three and four) as "[m_________r]". (Presumably with the appropriate number of spaces for each letter, though I can't tell.)

This jogged my memory about Justice Baxter's opinion, which, crazily enough, was the last opinion issued by the Court before Justice Werdegar's. And then I did a little digging. On the history of the word.

So there you have it. On Thursday, Justice Baxter lays it all out for you. "Motherfucker". But a mere two business days later, Justice Werdegar lets you know what she's talking about, but protects your sensibilities. "M__________r".

A real innovation -- and contrasting styles -- on the California Supreme Court.

POSTSCRIPT - A little birdy up in San Francisco (anonymity assured, of course!) tells me -- correctly -- that the California Supreme Court actually broke this barrier back in 1983, when the Court used the phrase "Open the door, motherfucker" and -- in a cool sentence that I hope to use myself one day -- "Get out of my life or get it in it, motherfucker." And guess who was the author of this opinion? None other than Justice Kraus. A mere two years after coming on the Court, no less. Cool!

There are some other occasions in which the Court has used the term as well, all of which (for some reason) were omitted from my search results. I nonetheless remain excited about the contrasting styles. And await the day that the Court uses this term outside the context of a quotation. :-)

In Re R.K. (Cal. Ct. App. - March 21, 2008)

It may be a holiday (Good Friday) here at my Catholic employer, the University of San Diego. As well as at a variety of other private and public institutions. But no such luck for our relentless judicial officers. Who even today continue to crank out published opinions.

Fortunately, Justice Robie understands that today is a lazy day for many us. And hence begins this opinion in a style that I very much like: by making things clear, simple, and easy to understand at the outset. Here's the very first paragraph of the opinion:

"A deputy sheriff finds an intoxicated minor in a woodshed located 10 to 15 feet from the side of a house. The minor complies with the deputy’s requests to come out of the shed and to the street. A juvenile court finds true an allegation that the minor violated Penal Code section 647, subdivision (f) (section 647(f)) for being “found in any public place under the influence of intoxicating liquor.” Can the true finding stand, either because the woodshed was a “public place” or because the minor ended up in a “public place” when he complied with the deputy’s requests to come out of the shed and to the street? The answer to these questions is “no.” We therefore reverse the judgment against the minor R. K."

How crystal clear is that, my friends? I love it. You can read on if you like -- as I happily did. Or simply stop there. Either way, you know the scoop -- either the basics or the basics plus additional details.

I'm not saying that every opinion needs to be written like that, or contain a summary at the outset. But it's nice -- very nice -- at least once in a while.

Thanks, Justice Robie. And have a wonderful, lazy weekend.

People v. Gay (Cal. Supreme Ct. - March 20, 2008)

When the California Supreme Court unanimously reverses a death sentence -- and, these days, that's an exceptional rarity -- you can be pretty sure that it's reached the correct result. As, indeed, is the case here.

I might add, however, that it may be a bit easier than for the Court to reverse the death sentence here -- as contrasted to a typical case -- because the defendant has been sentenced to death twice, before two different juries. Yes, that sentence has now twice been reversed. But the fact that multiple juries have come out the same way, as well as the fact that the offense here involves the cold-blooded killing of a police officer, tends to suggest that the third time won't be a charm for the defendant either: that, in the end, he'll likely be sentenced to death yet again.

Sure, they'll be delay. And, yes, I think the Court's right that the error here isn't harmless, and that there's a chance that Gay will only be sentenced to life at Penalty Phase No. 3.

Nonetheless, the fact that the ultimate outcome may well be the same -- especially when combined with what I perceive to be the belief by at last some members of the Court that Gay might not have been the actual shooter -- may have helped the reversal here to become unanimous. In some ways, or at least for some people, it may be easier to reverse a death sentence when you have a fair sense that the next jury is likely to reimpose this sentence anyway. And that feeling may be a little bit in play here.

New Hampshire Ins. Co. v. C'est Moi (9th Cir. - March 20, 2008)

Chief Judge Kozinski begins this opinion with the following line: "We consider the doctrine that’s on everyone’s lips: uberrimae fidei."

Which is indeed a funny opening. Especially since, as loyal readers already know, that doctrine is indeed on everyone's lips, at least after Judge McKeown's scholarly exposition on the subject last month.

Two published Ninth Circuit opinions on uberrimae fidei in the scope of six weeks. Not bad. Our lead in the field of maritime insurance doctrine has never been more secure.

P.S. - For what it's worth, I tend to agree with Alex in this one. Even though, as he forthrightly concedes, his decision creates a fairly clear split with the Eleventh Circuit. Notwithstanding the split, however, I doubt that the Supreme Court will instantly take this one up, as they'll probably require a bit more "percolation" in the lower courts before stepping in. Which should easily happen in, say, three or four decades.

By the way, I doubt even more that the Eleventh Circuit will follow Chief Judge Kozinski's virtually-tongue-in-cheek suggestion that his colleages on the Eleventh Circuit "reconsider this question the next time they have occasion to rule on it." Ho ho ho. You're a riot, my man.

On Vacation - March 17, 2008

I am on vacation in Hawaii until Thursday, March 20, 2008,
and I will write again upon my return.

Lanier v. City of Woodburn (9th Cir. - March 13, 2008)

Wait a minute here. You want to drug test part-time library pages based upon some alleged "special need" to avoid, say, a hopped up page potentially giving a library patron the wrong book?

Even Judge Rymer says: I think not.

Rightly so.

People v. Clemons (Cal. Ct. App. - March 12, 2008)

I'm not one of those people who bend over backwards doctrinally to let people represent themselves or do whatever idiotic thing comes into their head at trial. Yes, I know, you have a right to represent yourself. But it's a terrible idea, generally. And I'm not entirely convinced that, systemically, the upsides of permitting wholesale self-representation are worth the pervasive downsides. (And I'm not alone; a huge hat tip in this regard goes to my former boss, who's expressed similar concerns and whose thoughts both initially motivated by examination of the issue and continue to influence it.)

That said, I very much agree with Justice Flier in this one. Who (alongside the rest of the panel and their staff) also deserves a hat tip for catching the issue when the Second District's appointed appellate lawyer apparently missed it in the briefing. Put simply, any prisoner who (1) has been in and out of mental institutions, (2) is at various points found incompetent to stand trial, (3) slices the crap out of his own arm (deeply!) with a razor blade in prison, (4) profusely grins at the sheriffs as he reveals his mutiliation, and (5) repeatedly expresses his desire to plead not guilty by reason of insanity to possession of the contraband razor blade he used to slice his arm should, indeed, be allowed to plead not guilty by reason of insanity. Especially when there is, as here, virtually no other possible available defense!

Wholly apart from a criminal defendant's right to control his own plea (and Justice Flier is pretty persuasive on this point), this seemed like an entirely reasonable decision, and is entitled to deference. I think the Court of Appeal gets this one exactly right. And I'm as chagrined that the appointed appellate lawyer didn't catch it as I am pleased that chambers did.

In Re Carl N. (Cal. Ct. App. - March 12, 2008)

"Dude, I hear you about footnote 3. But mellow out. We already changed that one, man."

That's myspeak. Justice Huffman puts it more elegantly: "The Attorney General's March 6, 2008 request for modification of the opinion filed herein on February 25, 2008, as to footnotes 1 and 3, is denied as moot with respect to footnote 3 because this court has already revised that footnote on its own motion."

Notice, by the way, how Justice Huffman puts in that the AG's request for modification was filed on March 6th. Since that was the same day as the Court of Appeal's sua sponte revision.

That's a different kind of "race to the courthouse."

P.S. - Can I tell you how annoying it is that even the docket sheet in juvenile cases is confidential? I mean, I understand that the name of the juvenile and the like are properly kept secret. But what day the briefs were filed? And the names of the attorneys -- which are listed in any published opinion anyway? Come on. I think we should be able to take a look at at least a limited docket sheet. But what do I know?

Desimone v. County of Los Angeles (Cal. Ct. App. - March 10, 2008)

I usually don't comment about -- or, truthfully, even read all of the -- unpublished opinions by the Court of Appeal. There are simply too many of them.

But this one is so cool to require at least brief mention.

First, who knew that those little tracking devices the police put on your car can catch fire and burn your house (or garage) down?! Wow. You learn something new every day.

Second, who knew that the Public Corruption Unit up in L.A. actually takes seriously where elected officials in fact live? It's an open secret that more than a few politicians don't actually reside where they claim to live -- a place in which they "reside" solely for the purpose of running in that district. But usually there's just a nod and a wink about actually enforcing those rules, at least as far as the police are concerned.

I'm psyched to see actual police work -- i.e., installation of surveillance devices pursuant to a warrant --performed to root out this problem. Deliberate and well-known violations of the law by public officials isn't something on which I'm especially keen.

Trans-Tech Asia v. M/V Harmony Container (9th Cir. - March 11, 2008)

Choice of law?! Maritime liens?! Application of the Bunker Confirmation pursuant to Malaysian contract principles?! How exciting!!

What's that? You say that Judge McKeown has written an opinion that spans over 25 single-spaced pages on these fascinating principles? Let me at it!

Oh, how I wish I had time to reread that opinion. Because not only do I not want those 15 minutes of my life back, but I'd be absolutely thrilled to devote another hour or so to the task.

That said, my hat's off to Judge McKeown, her law clerk, and the district court (Judge Steven Wilson and his clerks) for putting up with this one. I only had to spend 15 minutes on the matter. By contrast, I'm sure they had to devote weeks to it. A soporific, thrilling set of weeks.

P.S. - What undergraduate and legal training apparently prepares you for a life of litigating Malaysian maritime law, you might ask? Just ask California attorney Bradley Rose, one of the lawyers for the appellee. Who got both his undergraduate and legal degrees from the most obvious place if that's your future life. That's right. The University of Oklahoma. As they say daily in Kuala Lumpur: Go Sooners!

POSTSCRIPT - Proving once and for all that true loyalty lasts more than 12 full months, a former clerk for Judge Wilson e-mailed me to note (correctly) that his first name is actually spelled "Stephen". And cogently added that my praise for all of the hard work on the opinion that this chambers did below will undoubtedly be highly appreciated in the context of a decision reversed with a comment about the statute's "plain meaning". Touche!

Manta v. Chertoff (9th Cir. - March 11, 2008)

Does it really take almost a full decade to extradite someone to Greece for a run-of-the-mill crime? It does here.

Greece asked for Crystalla Kyriakidou to be extradited from the U.S. to Greece in 1999. You'd have thought that she'd have been sent packing way before 2008. But, apparently, things don't always go fairly smoothly. Though I can't see why. This seems a pretty routine and easy case.

I can't blame the district judge (Judge Whelen), or the Ninth Circuit for much of the delay. Judge Whalen ordered her extradited, and Judge Milan Smith not only (rightly) affirms, but also cranks out the published opinion fairly quickly -- a couple months after oral argument.

Anyway, I thought that seemingly routine extraditions didn't take this long. Apparently, sometimes, they do. (And I'm not persuaded, by the way, that the delay here was because there's a huge dispute about whether "Christina Manta" -- the person the U.S. is trying to extradite -- is really Crystalla Kyriakidou. I think that Judge Smith is totally right that there's quite a bit of evidence that she is.)

U.S. v. Rodriguez (9th Cir. - March 10, 2008)

It's sometimes hard to explain to students -- or even, on occasion, lawyers -- what precedential difference (if any) it makes that a Supreme Court opinion is a 5-4 rather than a 9-0. After all, the legal rule adopted by the majority constitutes binding precedent, right? The rule is the rule, and as long as it gets any number of votes greater than 4.5, it controls.

Yes. Entirely right. Only, maybe, not entirely.

The great thing about this case from the Ninth Circuit today is that I think it provides a very good example of what I mean -- or at least feel -- when I tell students that starkly split decisions are, as a factual matter, less precedentially powerful than others. Sure, everyone understands that a 5-4 might more easily be overruled by a future Court than a 9-0. That's intuitive. But how does that matter to a lower court, that's bound to follow Supreme Court precedent until it is in fact overturned?

Well, let's examine what happens here. Jose Rodriguez gets stopped by some federal rangers in Lake Mead because it seems like he's drunk. He's got some pistols and some other stuff, including a homemade silencer, that leads the rangers to read him his Miranda rights. After which they ask him whether he wanted to talk, an inquiry to which Rodriguez responds "I'm good for tonight."

Well, what exactly does that mean? Personally, I tend to think that means "I've got a nice buzz on, and don't feel like being busted, so leave me alone. I'm good." But I can easily see that it also might mean "I've got a nice buzz on, and am a happy-go-lucky sort of drunk, so go ahead and chat with me, I'm good." In legalese, we say that the whole "I'm good" thing constitutes an "equivocal" invocation of your right to remain silent. Sure, he might be saying "Leave me alone." But he might also be saying "Keep talking to me." So when the police, in the face of this equivocal request, simply keep talking to the defendant, and elicit incriminating information as a result, is that okay? Or are they required to ask "What do you mean by that? Do you want to talk or remain silent?"

Well, there's a Supreme Court case called Davis in which the Court held that the police facing an equivocal invocation are not required to seek clarification before continuing to question the suspect. And the Court's holding was pretty darn clear on that point. In Davis, the defendant said "Maybe I want a lawyer," the police kept questioning him notwithstanding this equivocal invocation, and the Court thought that was just fine, thank you very much. The Court said that “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.” And further expressly "decline[d] to adopt a rule requiring officers to ask clarifying questions. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.”

Pretty clear, right? So Rodriguez's post-invocation statements can be used against him, no?

Not so fast. Judge Milan Smith -- a Bush II appointee, and hardly a raving liberal -- writes an opinion joined by Judge Thompson (a Reagan appointee) and Judge Canby that holds that the statements made by Rodriguez post-equivocal invocation must be suppressed because the police didn't clarify what he meant by "I'm good."

"Wait a minute," you might say, "that's exactly what the Court in Davis went out of its way to hold was not required." And you'd be entirely right. But Judge Smith says that holding was by a slim "five-member Court
majority" -- definitely bothering to point that fact out -- and involved a defendant who had previously waived his right to remain silent unequivocally (e.g., signed a previous written waiver). The police don't have to ask clarifying questions from defendants who waive and then equivocally evoke, Judge Smith says. But they do have to ask clarifying questions from defendants who merely equivocally evoke. The rule in Davis, he argues, is thus factually distinguishable from the case at hand.

Which may or may not be right. Reasonable minds might disagree. Though I'm hardly going to doubt Judge Smith's neutrality on this one, since I think he's definitely reaching out to do what he thinks the law requires. Which I think speaks volumes about the merits.

But my principal point is this: This case ain't coming out the same way, IMHO, if Davis is a 9-0. The fact that it's a sharply split opinion creates play in the joints. Wholly apart from the facts, the fact that it's a 5-4 matters. To academic observers. To those who are results-oriented. And even to neutral and principled lower tribunals. Yes, the "law" is technically the same regardless of whether it's 5 votes or 9. But it matters. Definitely, in some cases. It matters.

So this is a good one. It exemplifies in a concrete fashion, anyway, something that I believe. Or at least I think it does. And hence thought I'd share.

People v. McGowan (Cal. Ct. App. - March 10, 2008)

Let me give you a running commentary of my thought process as I read this one:

"On the morning of March 19, 2006, defendant was partying in his house with C.G., B.M., and two other gentlemen. . . ."

Okay, not so bad. A little relaxation. Good friends. Seems fine.

"The group was drinking Southern Comfort, mixed cocktails of brandy and coke, and beer. . . ."

Whoa. Slow down a little, my friends. That Southern Comfort stuff can get wicked.

"The group were also smoking marijuana. . . ."

Not great to add to the mix. It's sounding more like a Court of Appeal case now.

"As they drank, the group danced to music. . . ."

Geeky, perhaps, but no crime there.

"C.G. did something similar to a lap dance, but with her clothes on, in front of the men. . . ."

Oh no. Please don't have this go where I think it's going.

"At this point, C.G. began to feel numb and lay down on her stomach on the floor in the living room of defendant’s home. As she lay on the floor . . . ."

Darn it. That's what I feared. Conclusion:

"On September 14, 2006, the jury found defendant guilty of sexual penetration by foreign object by use of force (§ 289, subd. (a)(1)) and guilty of the lesser included offense of misdemeanor sexual battery (§ 243.4, subd. (a).) On October 27, 2006, the trial court sentenced defendant to three years in state prison."

And rightly so.

In Re Rachel L. (Cal. Ct. App. - Feb. 28, 2008)

Things aren't going very well for Justice Croskey lately.

He published an opinion late last week about homeschooling that was interesting, but which I didn't think was especially worthy of comment because I understood (I think) what he meant and where he was coming from, at least in the context of the children at issue in the case, who had been allegedly highly abused and neglected. As I read the opinion, he meant to say -- albeit in a somewhat overbroad fashion -- that parents don't possess a categorical constitutional or statutory right to educate their children in whatever fashion they wish, and that a reasonable response to the neglect at issue here would be to require the children to be educated in a public or real private school, not in a "homeschool" with virtually no supervision run by neglectful parents.

But then the firestorm began.

The press got a hold of the opinion, the homeschoolers went up in arms, and all of the sudden Justice Croskey was barraged, I'm sure, with a plethora of phone calls, e-mails, and critiques. All for a loosely-worded opinion that, I believe, anyway, wasn't intended to stand for the extreme proposition claimed for it by its opponents.

My strong, strong sense is that Justice Croskey's chambers (and the rest of the panel) is as we speak working on a sua sponte amendment to the opinion to make its more limited message clearer. Mind you, I might be wrong about this, and assure you I have no inside information in this regard. But I bet that what Justice Croskey meant to say isn't what some/many readers have garnered from the opinion, and imagine that he's feverishly working to bring that point home.

But, in the meantime, Justice Croskey even has the Governator totally insulting him. Yikes. And on the other side, Justice Croskey has my kind words from last year. And even this from a guy who occasionally misspells Justice Croskey's last name. So small solace there.

Sorry for the hassle during the last several days, Justice Croskey. It happens.

Kendall v. Visa (9th Cir. - March 7, 2008)

Want to know how credit cards work; in particular, who gets what money (and what percent) when you buy something with a credit card? Judge Bea tells you in pretty exhausting detail. And also gives you a keen sense that there's a ton of money made by a ton of different groups here, who may also be colluding to make sure it stays that way.

So fun stuff. By contrast, thus far, the California Court of Appeal has published four things today (here, here, here, and here), every single one of which is merely a modification of a prior opinion. Zzzzzzzzzz.

California Back Specialists v. Gary Rand (Cal. Ct. App. - March 6, 2008)

You don't see a plethora of cases in which attorney's fees are awarded to the non-moving party on an anti-SLAPP motion; i.e., because the anti-SLAPP motion was frivolous. Much less do you see that happen a lot when the party spanked is an attorney.

But Van Nuys attorney Gary Rand learned today that it happens. And learned it the hard way.

Not everything you do as a lawyer -- e.g., not pay medical liens -- is protected conduct. As a result, you can't file an anti-SLAPP motion to every single lawsuit against you.

Now you know.

In Re Anthony M. (Cal. Ct. App. - Nov. 8, 2007)

Not too much from the Ninth Circuit or California Court of Appeal today. We'll see what the late afternoon brings from the latter.

In the meantime, here's a story you don't want to hear:

"On the afternoon of July 8, 2005, the minor, 14-year-old Anthony M., was alone at the home of his father’s girlfriend. He invited two friends, Christian D. and the victim, Daniel V., to come over to the house. When the two boys arrived, the minor retrieved a .38 caliber handgun from the master bedroom, placed one bullet in the bottom chamber of the gun’s cylinder, pointed the gun at Daniel while dancing around the room, and . . . ."


Needless to say, this fact pattern doesn't end well.

People v. Duncan (Cal. Ct. App. - March 5, 2008)

Let me speak to you know as your lawyer. Or friend. Or merely someone who has half a brain.

If you have methamphetamine, marijuana, small baggies, and an electronic scale in your vehicle, as well as a suspended license, do not drive around San Diego -- or anyplace else in California, for that matter -- with your license plate upside down. Perhaps it looks "cool". I don't know; I'm so unhip, I've lost track of what's hip. But regardless of whether it's "in style" or not, it definitely does constitute something else. Something that we call "probable cause". And once we stop you and impound your vehicle, we're going to bust you. And you'll spend a fair piece of time in the pokey. A result that Justice McIntyre won't have a problem in the slightest affirming. And, to prove it, he'll only take eight double-spaced pages to do it.

So that's my counsel. Mind you, on the academic side, I think there's actually a pretty good argument the other way. The only statute that an upside-down license plate allegedly violates is Section 5201 of the Vehicle Code, which provides that a license plate "shall be mounted in a position so as to be clearly visible, and shall be maintained in a condition so as to be clearly legible." Justice McIntyre holds that under the plain meaning of "clearly legible," an upside-down plate doesn't qualify, since it's hard to read. But I'm not totally sure. Maybe I'm idiosyncratic, but upside-down plates don't seem all that hard to decipher. And from the context of the statute it seems like they're more talking about dirt and grime and the like. So I can definitely see a reason why you might think it was okay to put the thing upside down. Or at least make a "rule of lenity" or similar claim in an attempt to avoid a conviction.

But, academic commentary aside, the powers that be say that an upside-down license violates the statute. So wear those license plates "straight up, yo." You'll have a better life. Or at least more freedom.

Hicks v. KNTV Television (Cal. Ct. App. - March 5, 2008)

KNTV (NBC 11) says to Brad Hicks: "You were fine as an anchor when we were just in Salinas/Monterey. But now that we're in San Jose/Oakland/San Francisco, you're fired."

Brad responds: "You just want to replace me as anchor because I'm white. And hired an African-American to replace me. I'm suing. And moving to Milwaukee."

Justice Premo says: "There's no evidence of discrimination. And you really are somewhat aloof as an anchor, Brad. Summary judgment for KNTV affirmed."

P.S. - There's lot about what Justice Premo says that makes sense. But I disagree with the first paragraph on page 15, which reads: "Plaintiff contends that the station’s Web site, which referred to Janice Edwards as an anchor, shows how desperate defendants were to give the impression that the station was more diverse than it was. The argument is not rational. Edwards was employed by KNTV, there was no misrepresentation in that. We cannot fathom how misidentifying her as an anchor on the Web site would have advanced the station’s alleged desire to have an African-American anchor on the air. The inference plaintiff would have us draw from this evidence is simply not reasonable." I think that's some evidence, and not an "irrational" argument. It may or may not, when combined with the other stuff, be sufficient to get to a jury. But I understand the contention, and in an appropriate setting might indeed raise an inference of deliberate discrimination.

Tall v. Mukasy (9th Cir. - Feb. 27, 2008)

You mean to tell me that I can be deported if I make a crappy knockoff of a Pink Floyd (or whatever) t-shirt?

Yep.

U.S. v. Alghazouli (9th Cir. - March 4, 2008)

Why is the Southern District of California -- i.e., San Diego -- so overwhelmed with federal criminal cases, you might ask? Well, one reason is because it's so darn easy to make money down here, albeit illegally. You drive down to Mexico, pick up some stuff, sneak it across the border, and sell it to Americans with a voracious appetite for your product. It's relatively easy money. As long as you don't get caught.

The stuff you can easily pick up in Mexico can be sold in a heartbeat for double or triple the price up here. I think you know what I'm talking about.

Yep. Freon.

U.S. v. Cannel (9th Cir. - March 3, 2008)

Okay, I get it now. Obviously the problem is that I'm not being specific enough.

Sure, I told everyone back in December that anyone named "Horneygirl14" -- or any such name -- isn't really a 14-year old girl, but is instead an FBI agent. Then I again articulated a similar message in January, this time as the opinion related to an FBI agent whose nom-de-chat-room was "SusieBabyGirl" and who also pretended to be a 14-year old girl.

What I was trying to make clear -- and I thought this was pretty obvious -- was that you shouldn't go around lurking in chat rooms trying to pick up children for sex. Because, wholly apart from moral reasons (duh!!), it ain't gonna happen. Yes, it might well end up in sex. But in prison. And not with your intended participant.

So I think I was pretty clear on the whole 14-year old girl thing. But perhaps the particulars resulted in the larger message being unclear. Since, today, this opinion by the Ninth Circuit tells the story of James Cannel, who lurked around chat rooms with the (entirely appropriate) screen name "surching" until he stumbled upon an alleged 12-year old boy with the screen name "tim_12_seattle". To whom Cannel promptly sent pictures of his genatalia -- which I might add, is always the sexiest act in the world -- was well as an invitation to meet for an evening of child molestation. (Please tell me that you know that I'm kidding about how hot it is to send a complete stranger your c**k shot.)

Anyway, in the most surprising fact in the universe, the reality of which could hardly be imagined by even the most compelling intellect on the entire planet, it turns out that "tim_12_seattle" was actually a Seattle police officer. Who busts Cannel, finds (again, shockingly) lots of child pornography on his computer, and invites the feds to incarcerate Cannel for six years. An invitation which they accept, and which the Ninth Circuit affirms. End of story.

So let me make it crystal clear. 14-year old girl. 13-year old girl. 12-year old boy. It doesn't matter the precise age. Or gender. Or screen name: Horneygirl14, SusieBabyGirl, tim_12_seattle, pretending_I'm_underage_to_trap_pedophiles, whatever. They're not real. And you shouldn't be looking for that type of sex anyway. So get out of the chat rooms. Stop collecting child pornography. And try to obtain a more healthy sexual obsession.

Learn it. Live it. 'Nuff said.

U.S. v. Mendoza (9th Cir. - March 3, 2008)

I don't know.

Yes, there was an eight year delay between when Paul Mendoza was indicted and when he was arrested. That's a long time. So I can see why the panel here -- Judges Nelson, Paez, and Bybee -- dismisses the conviction as a violation of his Sixth Amendment speedy trial rights.

But I gotta tell you that there's a big part of me that leans the other way. Mendoza embezzled a quarter million dollars from his employer and then got caught. Because he didn't pay taxes on his ill-gotten booty, eventually the IRS gets onto him, and in June 1995 an IRS Special Agent serves a subpoena on Mendoza's attorney for some handwriting exemplars and the like. At which point Mendoza undoubtedly realizes: "Shucks. The feds are after me. Time to make haste." Which he promptly does. He skips the subpoenaed meeting with the IRS and flees, moving from Los Angeles to Seattle. Shortly thereafter, the IRS tries to catch up with him in Seattle, but they're then told by his wife that Mendoza moved to the Phillipines back in June 1995. In other words, immediately after Mendoza skipped out on the subpoena, he not only fled the state, but fled the country.

Mendoza's wife gives the IRS a number for Mendoza's relatives in the Phillipines, the Agent leaves a message for him there, and Mendoza promptly does indeed call back. From a pay phone, of course. And refuses -- not surprisingly -- to give the IRS agent any contact information. Mendoza fabricates a cock and bull story about what he's doing in the Phillipines, and says he's coming back to Seattle soon, but the IRS agent hardly finds this information credible. And rightly so. So a couple of months later -- in April 1996 -- they indict Mendoza in federal court. And make sure to put out the warrant so that whenever Mendoza does eventually return to the United States, he'll be picked up in customs.

Eventually, in 2004, Mendoza does indeed return from his eight-year sojourn abroad, and gets arrested. At which point he boldly moves for dismissal of the indictment due to this eight-year delay. Judge Lew (in Los Angeles) says "no dice," but the Ninth Circuit reverses, concluding that the eight-year delay constitutionally compels dismissal of the resulting conviction.

As you can probably tell, I'm less than entirely persuaded. Yes, it was an eight-year delay between indictment and arrest. But that's because Mendoza had fled the jurisdiction. I'm quite confident -- certain, in fact -- that if he'd have stayed around, he'd have promptly been arrested. Indeed, that that's precisely why Mendoza left.

And, yes, I know that the IRS agent never told Mendoza that he'd have been indicted, even during the calls he had with him in the Phillipines. But I wouldn't have told him either. The guy's fled the country. The only way he's ever going to come back, I imagine, is if he thinks the heat's off him. That ain't going to happen if he knows there's an indictment out there and he'll be detained the second he steps off an airplane in the United States.

It seems reasonable to me to not tell a fleeing felon that he shouldn't step foot back on U.S. soil if he doesn't want to be arrested. Yes, I know, that may result in some delay. And, yes, maybe, if there's reason to believe that the defendant would have indeed come back if you'd have told him about the indictment, then that delay is on the government, and should result in dismissal.

But none of that seems true here. Mendoza's an embezzler who skipped out on a subpoena and promptly fled the country. The eight-year delay seems pretty much entirety on him, in my mind.

Yes, I know that even Judge Bybee signs on to reversing the conviction (albeit reluctantly), and who am I to be even more pro-prosecution? But my gut still tells me that Mendoza's conviction should be upheld. I just don't like how this one sits with me.