Unlike the Ninth Circuit, you don't see many opinions at all from the California Court of Appeal that are per curiam. So when it happens, as it does here, it's worth at least brief mention.
My (somewhat uneducated) guess is that the Court of Appeal does so here because the ultimate result is the denial of a writ of supersedeas, and maybe the thought is that such a result in such a proceeding is best addressed in an opinion without individual authorship. Even though doctrine doesn't require such a result at all, it just "makes sense" that such a result would be per curiam.
Tuesday, January 27, 2009
Monday, January 26, 2009
Doe v. California Lutheran High School Ass'n (Cal. Ct. App. - Jan. 26, 2009)
I know that if I taught at a private high school -- say, for example, the California Lutheran High School in Wildomar -- I'd definitely spend my valuable time looking up the myspace pages of all the female students in my class to see if any of them said that they were bisexual or in love with another female student.
Yes, and if I were the principal of said high school, and a teacher discovered that two female students had in fact so identified themselves, I'd definitely call them into my office and interrogate them about whether they had a consensual lesbian relationship. And if they admitted that they had, in fact, kissed each other and felt that they were in love, you can be darn sure that I'd expel them. 'Cause, sure, we've had male students who used drugs or alcohol and stuff like that who we've only given, say, temporary suspensions to. But a teenage woman questioning her sexuality and -- gasp! -- maybe being a lesbian?! The horror. We're definitely kicking you out.
Look, is a private high school a "business enterprise" subject to the Unruh Act? Justice Richli says it's not, and it's hard to disagree with that. So the law says what the law says. Which means this case comes out the way it does.
I could say a lot of things at this point. But I'll constrain myself to the following. I would not have acted as the principal and board of directors of the California Lutheran High School did here. And both hope and believe -- firmly -- that history will rightly judge their conduct. If for no other reason, I'm glad this opinion is published.
Yes, and if I were the principal of said high school, and a teacher discovered that two female students had in fact so identified themselves, I'd definitely call them into my office and interrogate them about whether they had a consensual lesbian relationship. And if they admitted that they had, in fact, kissed each other and felt that they were in love, you can be darn sure that I'd expel them. 'Cause, sure, we've had male students who used drugs or alcohol and stuff like that who we've only given, say, temporary suspensions to. But a teenage woman questioning her sexuality and -- gasp! -- maybe being a lesbian?! The horror. We're definitely kicking you out.
Look, is a private high school a "business enterprise" subject to the Unruh Act? Justice Richli says it's not, and it's hard to disagree with that. So the law says what the law says. Which means this case comes out the way it does.
I could say a lot of things at this point. But I'll constrain myself to the following. I would not have acted as the principal and board of directors of the California Lutheran High School did here. And both hope and believe -- firmly -- that history will rightly judge their conduct. If for no other reason, I'm glad this opinion is published.
Sanai v. Saltz (Cal. Ct. App. - Jan. 26, 2009)
I'm impressed by this case on a variety of different levels.
First, it tells a tale of litigation run amok. A tale that explains, in part, why some people hate lawyers; and, in particular, engaging in transactions with them. It all starts back in 1997 -- over a decade ago -- when Cyrus Sanai rents an apartment in Newport Beach. He's paying rent of around $2,165 a month for a couple years, and thereafter gets a letter from the new owner of the apartment complex that (in a fairly obvious misprint) says that the new rent is $1,410. To which Cyrus Sanai, a graduate of Harvard College and UCLA Law School -- responds: "Deal."
Sanai gets away with paying the reduced rent for a while, but ultimately gets booted from the apartment. The owner wants the part of the rent that Sanai didn't pay, but doesn't file suit; however, eventually, he does report the alleged rental delinquency to consumer reporting agencies. Which Sanai finds out about when he allegedly is denied for an American Express card. Which causes Sanai to go ballistic. And to file a lawsuit that has now spent the last nine years in litigation, up and down the appellate chain.
For a sense of the merits of the lawsuit, let me just highlight the following line from Judge Terry Green (up in LA), when ruling on the defendant's motion for attorney's fees and awarding them over a million dollars as a result of Sanai's conduct:
"This court specifically finds that this entire action has been prosecuted and maintained in bad faith and for the purpose of harassment. . . . Further, Plaintiff’s prosecution of this matter has been malicious, as evidenced by, among other things, the altering of documents presented to the Clerk’s office and the recording of illegal judgment liens with malice, and then refusing to remove them despite being ordered by the Court to do so. Several other Courts have bluntly noted and condemned Plaintiff’s litigation tactics. It is now this Court’s turn. This Court specifically finds that all unsuccessful pleadings, motions, and papers filed by Plaintiff in this lawsuit were done so in connection with an action under 15 USC Section 1681, and further that these pleadings, motions and papers were filed in bad faith and with the purpose of harassment."
So it's a nightmare of a case. And worth reading if for only that reason alone.
Second, and perhaps even more impressively, is the fact that Justice Perluss doesn't do what I would imagine many, many judges might be inclined to do in this setting. Let's be blunt -- the attorney here, Cyrus Sanai, is a person who's his own worst enemy. He does not look good. Looks horrible, even. As the trial court noted, he is a litigant who's arguably out of control not only in this case, but in others as well. (For a glimpse, take a look at this and this, both of which were engendered from Sanai's role in the whole Judge Kozinski mess.)
For that reason, it would be totally unsurprising -- perhaps even expected -- if Justice Perluss were to have found a way to affirm the judgment. Any way. And it wouldn't have been impossible here; there's enough on the merits to lead even a fair-minded judge to conclude that the trial court may have gotten it right. And for a judge who's interested in "doing justice" writ large, there's a huge (and understandable) incentive to find a way to rule against Sanai and to give him the punishment that he so richly deserves.
But Justice Perluss doesn't do that. He instead plays it straight up, ultimately reversing (albeit remanding) the attorney fee award and a portion of the dismissal of the complaint.
Lots of people would be loathe to reach such a result. Especially when it means, as it does here, that the case will continue into its second decade. Something that no one wants, and that certainly isn't "equitable" in a big picture view.
Nonetheless, when the law says X, then a judge should do X. Even when X means that someone who's abusing the system gets to keep doing it for a while longer. Yes, it sucks for the defendant. I'm sorry about that, I truly am. But that's what the system has to be. The alternative simply reposes too much power to dispense "justice" on an ad hoc basis. We can't -- and shouldn't -- allow that.
I applaud Justice Perluss and the rest of the panel for avoiding that temptation. Perhaps with the realization that, in the end, Mr. Sanai will surely get what's coming to him. Karma. Destiny. Desserts. Whatever. In the end, I have faith that the law will get this one right. No need to shortcut it.
Even if the long way takes a decade and 42 pages. It's worth it.
First, it tells a tale of litigation run amok. A tale that explains, in part, why some people hate lawyers; and, in particular, engaging in transactions with them. It all starts back in 1997 -- over a decade ago -- when Cyrus Sanai rents an apartment in Newport Beach. He's paying rent of around $2,165 a month for a couple years, and thereafter gets a letter from the new owner of the apartment complex that (in a fairly obvious misprint) says that the new rent is $1,410. To which Cyrus Sanai, a graduate of Harvard College and UCLA Law School -- responds: "Deal."
Sanai gets away with paying the reduced rent for a while, but ultimately gets booted from the apartment. The owner wants the part of the rent that Sanai didn't pay, but doesn't file suit; however, eventually, he does report the alleged rental delinquency to consumer reporting agencies. Which Sanai finds out about when he allegedly is denied for an American Express card. Which causes Sanai to go ballistic. And to file a lawsuit that has now spent the last nine years in litigation, up and down the appellate chain.
For a sense of the merits of the lawsuit, let me just highlight the following line from Judge Terry Green (up in LA), when ruling on the defendant's motion for attorney's fees and awarding them over a million dollars as a result of Sanai's conduct:
"This court specifically finds that this entire action has been prosecuted and maintained in bad faith and for the purpose of harassment. . . . Further, Plaintiff’s prosecution of this matter has been malicious, as evidenced by, among other things, the altering of documents presented to the Clerk’s office and the recording of illegal judgment liens with malice, and then refusing to remove them despite being ordered by the Court to do so. Several other Courts have bluntly noted and condemned Plaintiff’s litigation tactics. It is now this Court’s turn. This Court specifically finds that all unsuccessful pleadings, motions, and papers filed by Plaintiff in this lawsuit were done so in connection with an action under 15 USC Section 1681, and further that these pleadings, motions and papers were filed in bad faith and with the purpose of harassment."
So it's a nightmare of a case. And worth reading if for only that reason alone.
Second, and perhaps even more impressively, is the fact that Justice Perluss doesn't do what I would imagine many, many judges might be inclined to do in this setting. Let's be blunt -- the attorney here, Cyrus Sanai, is a person who's his own worst enemy. He does not look good. Looks horrible, even. As the trial court noted, he is a litigant who's arguably out of control not only in this case, but in others as well. (For a glimpse, take a look at this and this, both of which were engendered from Sanai's role in the whole Judge Kozinski mess.)
For that reason, it would be totally unsurprising -- perhaps even expected -- if Justice Perluss were to have found a way to affirm the judgment. Any way. And it wouldn't have been impossible here; there's enough on the merits to lead even a fair-minded judge to conclude that the trial court may have gotten it right. And for a judge who's interested in "doing justice" writ large, there's a huge (and understandable) incentive to find a way to rule against Sanai and to give him the punishment that he so richly deserves.
But Justice Perluss doesn't do that. He instead plays it straight up, ultimately reversing (albeit remanding) the attorney fee award and a portion of the dismissal of the complaint.
Lots of people would be loathe to reach such a result. Especially when it means, as it does here, that the case will continue into its second decade. Something that no one wants, and that certainly isn't "equitable" in a big picture view.
Nonetheless, when the law says X, then a judge should do X. Even when X means that someone who's abusing the system gets to keep doing it for a while longer. Yes, it sucks for the defendant. I'm sorry about that, I truly am. But that's what the system has to be. The alternative simply reposes too much power to dispense "justice" on an ad hoc basis. We can't -- and shouldn't -- allow that.
I applaud Justice Perluss and the rest of the panel for avoiding that temptation. Perhaps with the realization that, in the end, Mr. Sanai will surely get what's coming to him. Karma. Destiny. Desserts. Whatever. In the end, I have faith that the law will get this one right. No need to shortcut it.
Even if the long way takes a decade and 42 pages. It's worth it.
In Re Walter P. (Cal. Ct. App. - Jan. 15, 2009)
Yes, the maximum penalty for possessing a tiny amount of pot is a fine of $100. But if you're a juvenile, the state can also "ground" you (i.e., command "home supervision") for 45 days and make you do "chores" (i.e., spend eight days in the Juvenile Work Project program) as well. So holds the Court of Appeal.
Like many things in life, some privileges come only to adults. Even the privilege to conduct illegal acts with little consequence.
Like many things in life, some privileges come only to adults. Even the privilege to conduct illegal acts with little consequence.
Friday, January 23, 2009
Legal Services for Prisoners With Children v. Bowen (Cal. Ct. App. - Jan. 22, 2009)
I could write at length about this case, which raises a fascinating (and wonderful) issue regarding whether the disenfrancisement of felons under the Fourteenth Amendment for committing a "felony" is limited only to the commission of a felony at common law. For example, I have a great deal of thoughts about whether the Court of Appeal could preferably have taken an entirely different (and arguably superior) approach to the one that's articulated by Justice Richman, and instead of holding that the "exception" of Section 2 negated the underlying equal protection claim, the Court of Appeal might alternatively have held that even if the exception does not apply, the equal protection claim nonetheless fails on the merits because it is permissible to subject this non-suspect class to the relevant penalty. Remember -- and this is often overlooked in this context -- that the part of the Fourteenth Amendment we're talking about only relates to diminution of electoral power. It's plausible to argue (and I'm confident this is actually right) that States are permitted to disenfranchise certain sections of the population -- including, perhaps, "new" types of felonies -- without violating the Fourteenth Amendment but still have the consequence of reduced electoral votes.
But that thought, for whatever it's worth, requires far too long to articulate. Plus, even on the merits of the "exception" point, in truth, I agree with Justice Richman. The Constitution says "crimes". That word likely means all crimes, or at least (at a minimum) all felonies. New or old.
So instead of saying anything interesting, which would require far too much time and virtual ink, I'll instead just briefly make the following (very minor) point. On page 11 of the opinion, to support the argument that the interpretation of words in the Constitution should be given a uniform meaning -- a proposition with which I generally agree -- Justice Richman first cites and relies upon the Supreme Court's opinion in Tidewater (which held that the District of Columbia was not a "State" for Article III diversity purposes). My instant reaction was that there are much, much better cases with which to lead on that point than Tidewater. Not only is that case roundly criticized in the academic community, but the part of the opinion on which Justice Richman relies was in any event only joined by Justices Jackson, Black and Burton, and the only way the "majority" became the majority was due to the concurrence of Justices Rutledge and Murphy, who submitted in their concurrence a relentless attack on the part of the opinion relied upon by Justice Richman.
In short, I might have left the Supreme Court's 3-2-2-2 opinion out of this one. And definitely wouldn't have led with it.
Still, notwithstanding my critique, I think that Justice Richman writes a very thoughtful decision here. This is no knee-jerk opinion. It's a thoughtful take on the subject. That I might have done something a little different is hardly a fatal critique. Indeed, in some courts, it might even be taken as a compliment.
Anyway: Great case.
But that thought, for whatever it's worth, requires far too long to articulate. Plus, even on the merits of the "exception" point, in truth, I agree with Justice Richman. The Constitution says "crimes". That word likely means all crimes, or at least (at a minimum) all felonies. New or old.
So instead of saying anything interesting, which would require far too much time and virtual ink, I'll instead just briefly make the following (very minor) point. On page 11 of the opinion, to support the argument that the interpretation of words in the Constitution should be given a uniform meaning -- a proposition with which I generally agree -- Justice Richman first cites and relies upon the Supreme Court's opinion in Tidewater (which held that the District of Columbia was not a "State" for Article III diversity purposes). My instant reaction was that there are much, much better cases with which to lead on that point than Tidewater. Not only is that case roundly criticized in the academic community, but the part of the opinion on which Justice Richman relies was in any event only joined by Justices Jackson, Black and Burton, and the only way the "majority" became the majority was due to the concurrence of Justices Rutledge and Murphy, who submitted in their concurrence a relentless attack on the part of the opinion relied upon by Justice Richman.
In short, I might have left the Supreme Court's 3-2-2-2 opinion out of this one. And definitely wouldn't have led with it.
Still, notwithstanding my critique, I think that Justice Richman writes a very thoughtful decision here. This is no knee-jerk opinion. It's a thoughtful take on the subject. That I might have done something a little different is hardly a fatal critique. Indeed, in some courts, it might even be taken as a compliment.
Anyway: Great case.
Thursday, January 22, 2009
In Re Jose C. (Cal. Supreme Ct. - Jan. 22, 2009)
I agree that it's an interesting problem, and one that I hadn't thought about before. On the one hand, there's the state's obvious interest in controlling juvenile delinquency, an interest that's reflected by (amongst other statutes) Section 602 of the Welfare and Institutions Code, whch grants state court the power to declare any juvenile who "violates any law . . . of the United States" a ward of the court. On the other hand, Congress has granted federal courts "original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States" in 18 U.S.C. § 3231. Does the latter preclude the former?
While it's an interesting point, I think that Justice Werdegar (and there rest of the Court) are indisputably right that the answer is "No." In my mind, to use an analogy different from that used by Justice Kennard, it's similar to Merrell Dow in the civil context. Just like federal law violations can be used to, for example, support a state law negligence per se (or unfair competition) claim without creating federal jurisdiction, so too can state law permissibly regulate juvenile federal offenses as long as this doesn't constitute what we'd normally refer to as the adjudication of federal criminal offense.
Still, a neat issue.
While it's an interesting point, I think that Justice Werdegar (and there rest of the Court) are indisputably right that the answer is "No." In my mind, to use an analogy different from that used by Justice Kennard, it's similar to Merrell Dow in the civil context. Just like federal law violations can be used to, for example, support a state law negligence per se (or unfair competition) claim without creating federal jurisdiction, so too can state law permissibly regulate juvenile federal offenses as long as this doesn't constitute what we'd normally refer to as the adjudication of federal criminal offense.
Still, a neat issue.
U.S. v. Selby (9th Cir. - Jan. 15, 2009)
If I'm a federal official who gets my spouse a job with a government contractor and then helps work flow that way, once the jury comes back and convicts me of (1) honest services wire fraud, (2) making false claims and statements, and (3) felony conflict of interest, I'm probably going to be freaking out. Thereafter, however, when the district court's sentence is merely five years of probation, trust me that I'm going to be dancing in the street. Unless I've got infinite money, I'm not going to hire an attorney to pursue an appeal -- especially if my only argument is insufficient evidence. Which I'm going to lose anyway.
Sometimes, even when you're convinced your innocent, you need to take a larger view. And be happy -- extremely so -- for the bullet you dodged rather than the one that grazed you.
Sometimes, even when you're convinced your innocent, you need to take a larger view. And be happy -- extremely so -- for the bullet you dodged rather than the one that grazed you.
Wednesday, January 21, 2009
In Re Vasquez (Cal. Ct. App. - Jan. 21, 2009)
Maybe I can save everyone a little bit of time. Just cut-and-paste the following and fill in the blanks:
"Petitioner _________ was convicted of murder a long, long time ago, in ________. Since then, he has been almost/entirely discipline-free -- and has accomplished a great deal of positive things -- while in prison. His application for parole has been repeatedly supported by a plethora of individuals at the prison, including but not limited to guards, and he has been described as a model inmate. After several prior denials of parole, the Board of Parole Hearings eventually found petitioner suitable for parole. Governor Schwarzenegger, however, reversed this decision, as he nearly uniformly does in murder cases. We conclude, however, that there was no substantial evidence to support the Governor's conclusion. We accordingly grant the petition and reinstate the Board's parole release order."
That template accurately describes the vast majority of the contemporary parole cases. Including this one.
Isn't it sad when you can create an accurate macro about crucial determinations involving the life and liberty of a hundred or so prisoners?
"Petitioner _________ was convicted of murder a long, long time ago, in ________. Since then, he has been almost/entirely discipline-free -- and has accomplished a great deal of positive things -- while in prison. His application for parole has been repeatedly supported by a plethora of individuals at the prison, including but not limited to guards, and he has been described as a model inmate. After several prior denials of parole, the Board of Parole Hearings eventually found petitioner suitable for parole. Governor Schwarzenegger, however, reversed this decision, as he nearly uniformly does in murder cases. We conclude, however, that there was no substantial evidence to support the Governor's conclusion. We accordingly grant the petition and reinstate the Board's parole release order."
That template accurately describes the vast majority of the contemporary parole cases. Including this one.
Isn't it sad when you can create an accurate macro about crucial determinations involving the life and liberty of a hundred or so prisoners?
People v. Kenefick (Cal. Ct. App. - Jan. 15, 2009)
Shelley Kenefick ran a Ponzi scheme that defrauded six investors, some of them elderly, of $890,000. She's convicted in California state court and receives a sentence of 16+ years in prison.
Let's remember that and compare it to what Madoff -- who (allegedly) defrauded thousands of victims, including the Elie Wiesel Foundation (!) -- of billions of dollars eventually receives.
I bet neither Kenefick nor Madoff are especially happy with how things turned out. Think about that the next time you're thinking that a Ponzi scheme might be a fun thing to run.
Let's remember that and compare it to what Madoff -- who (allegedly) defrauded thousands of victims, including the Elie Wiesel Foundation (!) -- of billions of dollars eventually receives.
I bet neither Kenefick nor Madoff are especially happy with how things turned out. Think about that the next time you're thinking that a Ponzi scheme might be a fun thing to run.
Tuesday, January 20, 2009
Phillip Morris USA v. King Mountain Tobacco Co. (9th Cir. - Jan. 20, 2009)
Hmmm. Phillip Morris versus King Mountain Tobacco Co. Hard to know which side (if any) to root for, eh?
Ultimately, the case actually comes down to tribal exhaustion principles. And the panel clearly gets it right in holding that tribal exhaustion doesn't apply here. Though Judge Fletcher -- not surprisingly, given his definite interest in the subject matter -- doesn't like a lot of what the majority has to say, in the end, everyone on the panel agrees that the case (at least the vast majority of it) rightly belongs in federal rather than tribal court. I too am on board for that.
I just wanted to add one final point. It's a trademark case. Check out the photographs of the two products on page 725 of the slip opinion. Yes, I'm sure that the mountain on the King Mountain cigarettes depicts a sacred mountain (Mt. Adams, or "Pahto" to the Yakama Nation). But I must say that when King Mountain asserts "that any resemblance to Philip Morris’s packaging [for Malboro's] is inadvertent and incidental," my reaction is: "You've got to be freaking kidding me, right?" I think that any reasonable observer would be crystal clear as to what's going on here. To put it bluntly: incindental my ass.
Cigarettes. Indian tribes. Trademarks. You gotta love the combination.
Ultimately, the case actually comes down to tribal exhaustion principles. And the panel clearly gets it right in holding that tribal exhaustion doesn't apply here. Though Judge Fletcher -- not surprisingly, given his definite interest in the subject matter -- doesn't like a lot of what the majority has to say, in the end, everyone on the panel agrees that the case (at least the vast majority of it) rightly belongs in federal rather than tribal court. I too am on board for that.
I just wanted to add one final point. It's a trademark case. Check out the photographs of the two products on page 725 of the slip opinion. Yes, I'm sure that the mountain on the King Mountain cigarettes depicts a sacred mountain (Mt. Adams, or "Pahto" to the Yakama Nation). But I must say that when King Mountain asserts "that any resemblance to Philip Morris’s packaging [for Malboro's] is inadvertent and incidental," my reaction is: "You've got to be freaking kidding me, right?" I think that any reasonable observer would be crystal clear as to what's going on here. To put it bluntly: incindental my ass.
Cigarettes. Indian tribes. Trademarks. You gotta love the combination.
Minasyan v. Mukasey (9th Cir. - Jan. 20, 2009)
It's a new day. A new president. A new blog format.
Everything old is new again. Let the fun begin.
Meanwhile, back in the appellate world, we get to decide fascinating questions of statutory interpretation. Such as: What's a "year"?
That may facially appear to be an easy question. But, if so, you've obviously not been around enough lawyers. Plus, it's an important one. At least for Mushegh Minasyan, who was statutorily required to file his application for asylum within one year of his arrival in the United States on April 9, 2001 and who filed on April 9, 2002. Is that "within one year of his arrival"? Or one day too late? For him, the answer may make the difference beetween staying in the Land of the Free, on the one hand, and going back to country where military forces allegedly beat him in the face and kidneys for two straight days. In short, it's important.
Judge Berzon concludes -- sensibly, in my view -- that the two April 9ths are within a year. I thought it was interesting that the principal argument in that regard comes from the analogous way we calculate things under the Federal Rules of Civil Procedure. This was my first thought as well, though I'm admittedly a little geeky on procedure stuff. I have a proto-thought about how statutory interpretation principles may be colored by analogies to potentially divergent procedural principles in the context of judicial rules, but I'll leave the point at that. Plus, again, I tend to agree with the result here anyway.
So a year is a year. Good to know.
Everything old is new again. Let the fun begin.
Meanwhile, back in the appellate world, we get to decide fascinating questions of statutory interpretation. Such as: What's a "year"?
That may facially appear to be an easy question. But, if so, you've obviously not been around enough lawyers. Plus, it's an important one. At least for Mushegh Minasyan, who was statutorily required to file his application for asylum within one year of his arrival in the United States on April 9, 2001 and who filed on April 9, 2002. Is that "within one year of his arrival"? Or one day too late? For him, the answer may make the difference beetween staying in the Land of the Free, on the one hand, and going back to country where military forces allegedly beat him in the face and kidneys for two straight days. In short, it's important.
Judge Berzon concludes -- sensibly, in my view -- that the two April 9ths are within a year. I thought it was interesting that the principal argument in that regard comes from the analogous way we calculate things under the Federal Rules of Civil Procedure. This was my first thought as well, though I'm admittedly a little geeky on procedure stuff. I have a proto-thought about how statutory interpretation principles may be colored by analogies to potentially divergent procedural principles in the context of judicial rules, but I'll leave the point at that. Plus, again, I tend to agree with the result here anyway.
So a year is a year. Good to know.
Friday, January 16, 2009
Doe v. AOL (9th Cir. - Jan. 16, 2009)
It's a rare day that I'm unable to do some quasi-recreational reading of opinions and talk about them. But with an all-day mediation and Restaurant Week here in San Diego -- both of went swimmingly -- yesterday was such a day.
Today, by contrast, it's a lazy academic day. Which, inter alia, allowed me to read this opinion by the Ninth Circuit this morning. To which I had three thoughts.
First, as to the facts, I was glad that I'm not a member of AOL, which posted the websites searched by 650,000 of its members in 2006. Not something I'd want the world to be able to examine -- as they currently can (on mirror sites) -- at its leisure.
Second, with respect to the law, while the Ninth Circuit holds that the forum selection clause may compel the plaintiffs to file in Virginia, which won't allow a class action, just a reminder to everyone that you don't have to do that in California if you file in small claims court. So any AOL member in California who had their stuff posted online in 2006: Think about maybe filing a quick small claims court action. It could be beneficial.
Finally, you gotta love the last paragraph of Judge Nelson's concurrence, which argues that there's not going to be a new "Gold Rush" to move to California to take advantage of California's favorable laws toward residents. It's funnier in the original. I liked it.
POSTSCRIPT - A little birdy writes to excoriate me at length and note -- correctly -- that the author of the concurrence is not necessarily Judge Nelson, even though her name appears first. While authors are usually listed first, with any other judge "joining" the concurrence listed susequently, here, there's no "joining" line, so the opinion is technically written jointly by Judges Nelson and Reinhardt, with the names listed in order of seniority (e.g., with Judge Nelson first). Given the tone of the concurrence, and the disparity between how Judge Nelson tends to write and how Judge Reinhardt tends to write, I'm going to definitely backtrack on my designation of the concurrence as "Judge Nelson's". My bad.
Today, by contrast, it's a lazy academic day. Which, inter alia, allowed me to read this opinion by the Ninth Circuit this morning. To which I had three thoughts.
First, as to the facts, I was glad that I'm not a member of AOL, which posted the websites searched by 650,000 of its members in 2006. Not something I'd want the world to be able to examine -- as they currently can (on mirror sites) -- at its leisure.
Second, with respect to the law, while the Ninth Circuit holds that the forum selection clause may compel the plaintiffs to file in Virginia, which won't allow a class action, just a reminder to everyone that you don't have to do that in California if you file in small claims court. So any AOL member in California who had their stuff posted online in 2006: Think about maybe filing a quick small claims court action. It could be beneficial.
Finally, you gotta love the last paragraph of Judge Nelson's concurrence, which argues that there's not going to be a new "Gold Rush" to move to California to take advantage of California's favorable laws toward residents. It's funnier in the original. I liked it.
POSTSCRIPT - A little birdy writes to excoriate me at length and note -- correctly -- that the author of the concurrence is not necessarily Judge Nelson, even though her name appears first. While authors are usually listed first, with any other judge "joining" the concurrence listed susequently, here, there's no "joining" line, so the opinion is technically written jointly by Judges Nelson and Reinhardt, with the names listed in order of seniority (e.g., with Judge Nelson first). Given the tone of the concurrence, and the disparity between how Judge Nelson tends to write and how Judge Reinhardt tends to write, I'm going to definitely backtrack on my designation of the concurrence as "Judge Nelson's". My bad.
Wednesday, January 14, 2009
People v. Harbert (Cal. Ct. App. - Jan. 14, 2009)
I wasn't at the trial. But I can read. And Justice Richman does a very good job of summarizing the testimony. Given what I've read, I'm pretty darn confident that Lee Harbet was guilty of a hit-and-run. And that, though not convicted of the offense, he was totally drunk (after a seven hour "meeting" at a restaurant/bar) when he hit and killed 55-year old Gardeep Kaur with his Jaguar. And then promptly drove away and tried to cover it up.
I'm not an "always lock drunk drivers up for the rest of their life" kind of guy. But I think Harbet's darn lucky to have only gotten three years.
I'm not an "always lock drunk drivers up for the rest of their life" kind of guy. But I think Harbet's darn lucky to have only gotten three years.
Rubke v. Capital Bancorp (9th Cir. - Jan. 13, 2009)
Here's something that doesn't happen every day: a Ninth Circuit judge publishing an opinion on the same day a leading constitutional scholar calls for his impeachment.
For the record, while I respect Ackerman's work and intellect, I think he's wrong on this one.
For the record, while I respect Ackerman's work and intellect, I think he's wrong on this one.
Tuesday, January 13, 2009
Kaiser v. Abbott Labs (9th Cir. - Jan. 13, 2009)
It's an HMO versus a large pharmaceutical company. So I know many people will find it hard to root for either side.
But it's also a very interesting patent and antitrust dispute, and for those in the hard core intellectual property field, a definite must read. If the words "Walker Process," "sham litigation," and "Noerr-Pennington" mean a lot to you -- and, on my end, I recall spending several years with those concepts in the forefront of my brain -- the view of the Ninth Circuit here is something that in which you'll be interested.
P.S. - I like the way the Ninth Circuit has tweaked the new web site, particularly that the opinions now directly pop up rather than are initially viewed in a small window. Keep up the good work.
But it's also a very interesting patent and antitrust dispute, and for those in the hard core intellectual property field, a definite must read. If the words "Walker Process," "sham litigation," and "Noerr-Pennington" mean a lot to you -- and, on my end, I recall spending several years with those concepts in the forefront of my brain -- the view of the Ninth Circuit here is something that in which you'll be interested.
P.S. - I like the way the Ninth Circuit has tweaked the new web site, particularly that the opinions now directly pop up rather than are initially viewed in a small window. Keep up the good work.
In Re Grunau (Cal. Ct. App. - Dec. 30, 2008)
There are good appellate lawyers, there are great appellate lawyers, and there are bad appellate lawyers.
You can't get much worse than this.
You can't get much worse than this.
Monday, January 12, 2009
Espinoza v. Calva (Cal. Ct. App. - Jan. 7, 2009)
This is what passes for justice in Orange County?!
It's a short opinion, so feel free to read the whole thing. That a judge would think that this was okay more than a little bit surprises me. I mean, come on.
It's a short opinion, so feel free to read the whole thing. That a judge would think that this was okay more than a little bit surprises me. I mean, come on.
Riverside County Sheriff's Dep't v. Zigman (Cal. Ct. App. - Dec. 23, 2008)
You're a cop. So's your spouse. He's been extremely irritable lately, so you ask him what's up. He says he's been using meth. Plus stealing it from suspects and others at work.
What do you do?
Wholly beyond the resulting ethical issue, there's also a legal one. Not surprisingly, your employer requires you to disclose when you know that a cop's stealing drugs. But it's your spouse, and the only way you know is through a privileged marital communication. Can they disclipline you for keeping quiet? (They found out, by the way, when your husband -- who had allegedly promised to stop -- was caught stealing more meth in a sting operation.)
Justice Ramirez -- in one of the rare published opinions of the Fourth/Two -- holds that you can properly be discliplined, and that the marital privilege doesn't apply in such administrative proceedings. And I think that's right.
On a non-legal front, what do you think the right penalty is for a spouse who fails to disclose this stuff. Termination from the force? Suspension for a month? Demotion? A week without pay? Counseling only?
The penalty imposed here, FWIW, was the loss of pay for a day.
What do you do?
Wholly beyond the resulting ethical issue, there's also a legal one. Not surprisingly, your employer requires you to disclose when you know that a cop's stealing drugs. But it's your spouse, and the only way you know is through a privileged marital communication. Can they disclipline you for keeping quiet? (They found out, by the way, when your husband -- who had allegedly promised to stop -- was caught stealing more meth in a sting operation.)
Justice Ramirez -- in one of the rare published opinions of the Fourth/Two -- holds that you can properly be discliplined, and that the marital privilege doesn't apply in such administrative proceedings. And I think that's right.
On a non-legal front, what do you think the right penalty is for a spouse who fails to disclose this stuff. Termination from the force? Suspension for a month? Demotion? A week without pay? Counseling only?
The penalty imposed here, FWIW, was the loss of pay for a day.
Gonzalez v. Duncan (9th Cir. - Dec. 30, 2008)
Judge Bybee is a scholar. And even if you didn't know that before, you can tell it from this opinion. Which is written precisely how you'd expect a former law professor to write (at least on this topic).
Personally, I like it. It's a comprehensive, structured, coherent, and (in my mind) persuasive analysis of the issue. Plus, I agree with the equities. A sentence of 28 to life merely for failing to re-register within 5 days of one of your birthdays is simply too much. As a matter of both fairness as well as the Eighth Amendment.
Of course, maybe that's just one professorial kettle calling a professorial pot good-looking. But I'm on board for that.
Personally, I like it. It's a comprehensive, structured, coherent, and (in my mind) persuasive analysis of the issue. Plus, I agree with the equities. A sentence of 28 to life merely for failing to re-register within 5 days of one of your birthdays is simply too much. As a matter of both fairness as well as the Eighth Amendment.
Of course, maybe that's just one professorial kettle calling a professorial pot good-looking. But I'm on board for that.
In Re Noelle M. (Cal. Ct. App. - Dec. 16, 2008)
Don't steal your grandmother's methadone pills (!) and sell them to your friends at a high school football game.
People could -- indeed, did -- die.
A seemingly obvious message. And yet one that apparently bears repeating.
People could -- indeed, did -- die.
A seemingly obvious message. And yet one that apparently bears repeating.
Friday, January 09, 2009
U.S. v. Kaczynski (9th Cir. - Jan. 9, 2008)
Let's start out by admitting that you're not the most sympathetic party in the universe when you're the Unabomber. Let's double that when, arrayed on the other side, are the victims of your crimes. I think we can all agree that, emotionally, you've got a pretty steep hill to climb -- regardless of the potential merits of your arguments -- in convincing the Ninth Circuit that you deserve relief.
Let me also add that you don't do yourself any favors, Ted, by representing yourself. You had a dude who was apparently representing you. I'd have stuck with that. Wholly beyond the fact that s/he'll probably make better arguments that you did on the merits, you need to remember the "creepy" factor that results when a clerk reads work authored by the Unabomber. I mean, I know you like to write and all (witness your 30,000 word manifesto), and I also know that you have plenty of time in SuperMax to devote to the appeal, but trust me, in the future, stick with counsel if you can get one.
This is the final installment of what to do with the stuff that the U.S. seized when it arrested Kaczynski. And the answer is: We're putting it on the internet for sale. Ted doesn't like that, but tough. There's a restitution order out there, and this is a reasonable way to give them some of the money (and/or to let 'em use a credit bid to make sure your stuff is destroyed). Sorry you don't like that, but maybe that's one more thing you could have thought of before you decided to blow people up.
Unlike the lack of sympathy shown to Ted, not only does the Ninth Circuit go out of its way to be extremely respectful to the position of the unnamed victims, but it's also positively effusive in its expression of appreciation for the pro bono counsel who were appointed to represent them. Not only does the court go out of its way to thank these counsel (Steven Hirsch and Kelly Woodruff)in the text and identify them by name -- both of which are rare -- but the court also expresses this appreciation both repeatedly and strongly, opening with "The court is extremely grateful for the extraordinary efforts of pro bono counsel . . . ." Extremely! Extraordinary! You don't see that kind of praise from the Ninth Circuit often, and lemme tell you, for a shot at those types of kind words immortalized forever, I bet a lot of attorneys would be more than willing to take on pro bono assignments from the Ninth Circuit in the future. So good job to both Judge Hawkins (who gave the kudos) and Steve and Kelly (who earned them).
Let me also add that you don't do yourself any favors, Ted, by representing yourself. You had a dude who was apparently representing you. I'd have stuck with that. Wholly beyond the fact that s/he'll probably make better arguments that you did on the merits, you need to remember the "creepy" factor that results when a clerk reads work authored by the Unabomber. I mean, I know you like to write and all (witness your 30,000 word manifesto), and I also know that you have plenty of time in SuperMax to devote to the appeal, but trust me, in the future, stick with counsel if you can get one.
This is the final installment of what to do with the stuff that the U.S. seized when it arrested Kaczynski. And the answer is: We're putting it on the internet for sale. Ted doesn't like that, but tough. There's a restitution order out there, and this is a reasonable way to give them some of the money (and/or to let 'em use a credit bid to make sure your stuff is destroyed). Sorry you don't like that, but maybe that's one more thing you could have thought of before you decided to blow people up.
Unlike the lack of sympathy shown to Ted, not only does the Ninth Circuit go out of its way to be extremely respectful to the position of the unnamed victims, but it's also positively effusive in its expression of appreciation for the pro bono counsel who were appointed to represent them. Not only does the court go out of its way to thank these counsel (Steven Hirsch and Kelly Woodruff)in the text and identify them by name -- both of which are rare -- but the court also expresses this appreciation both repeatedly and strongly, opening with "The court is extremely grateful for the extraordinary efforts of pro bono counsel . . . ." Extremely! Extraordinary! You don't see that kind of praise from the Ninth Circuit often, and lemme tell you, for a shot at those types of kind words immortalized forever, I bet a lot of attorneys would be more than willing to take on pro bono assignments from the Ninth Circuit in the future. So good job to both Judge Hawkins (who gave the kudos) and Steve and Kelly (who earned them).
Thursday, January 08, 2009
Prospect Medical Group v. Northridge Emergency Medical Group (Cal. Supreme Ct. - Jan. 8, 2009)
I won't say much about this opinion except to say that (1) it's important to anyone who's in an HMO in California, and (2) it's unanimous, which I think tells you a little bit about the merits. Justice Chin holds that even if the HMO doesn't have an agreement with an emergency room physician, the physician can't bill the patient ("balance bill") for any amount charged by the doctor that the HMO decides it won't pay. The HMO and doctor instead have to work out the dispute solely between themselves.
It makes HMOs more attractive (or at least less unattractive) to prospective subscribers. And protects patients. So not surprising that the case turns out the way it does.
It makes HMOs more attractive (or at least less unattractive) to prospective subscribers. And protects patients. So not surprising that the case turns out the way it does.
Brewer v. Premier Golf Properties (Cal. Ct. App. - Dec. 3, 2008)
Here's an appeal that I couldn't have adjudicated. Since I (a) played golf at this course (several times), (b) had the plaintiff as my waitress (ditto), (c) am sure I tipped her as part of the "generous" afternoon, as opposed to cheap morning, crowd (ditto), and (d) am probably -- sadly -- part of the "old" golfer crowd that the manager of the facility allegedly wanted to get rid of in favor of "young high-rollers" (definitely not me).
Plus, I can tell you with some confidence that I cared not a whit about whether there were lots of "tits and ass" around the snack bar or restaurant after 18 holes. All I wanted was water. And, on rare occasion, a cold beer.
Anyway, it's the story of a 60+ waitress at a golf club. Plus a doctrinal inquiry into whether certain statutory penalties are exclusive; e.g., whether they bar punitive damages claims. (Answer: Yes.)
Visit this world -- appropriately enough -- at your leisure.
Plus, I can tell you with some confidence that I cared not a whit about whether there were lots of "tits and ass" around the snack bar or restaurant after 18 holes. All I wanted was water. And, on rare occasion, a cold beer.
Anyway, it's the story of a 60+ waitress at a golf club. Plus a doctrinal inquiry into whether certain statutory penalties are exclusive; e.g., whether they bar punitive damages claims. (Answer: Yes.)
Visit this world -- appropriately enough -- at your leisure.
Wednesday, January 07, 2009
People v. Crabtree (Cal. Ct. App. - Jan. 9, 2008)
Arthur Crabtree's a respectable citizen. He's a lawyer. He's a former police officer. He even serves as a pro tem judge up in Glendale. The kind of guy you want to have on your block, right?
Except for the fact that he also stalks and molests children.
When you read the (very lengthy) facts contained in Justice Cooper's opinion, you may well have the following reactions: (1) Crabtree's really creepy (as well as pathetic); (2) I'm not excited at all about any teenage child of mine being on the internet unsupervised, for fear they'll run into the Crabtree's of the world; and (3) there are really a ton of police officers pretending to be teenage children in the various pedophile chat groups. I mean, a ton.
One final thing. Crabtree's the only lawyer I've ever seen who, even though he's not eligible to practice law, has dutifully kept the State Bar apprised of his current address; namely, his address in prison. Too funny.
Except for the fact that he also stalks and molests children.
When you read the (very lengthy) facts contained in Justice Cooper's opinion, you may well have the following reactions: (1) Crabtree's really creepy (as well as pathetic); (2) I'm not excited at all about any teenage child of mine being on the internet unsupervised, for fear they'll run into the Crabtree's of the world; and (3) there are really a ton of police officers pretending to be teenage children in the various pedophile chat groups. I mean, a ton.
One final thing. Crabtree's the only lawyer I've ever seen who, even though he's not eligible to practice law, has dutifully kept the State Bar apprised of his current address; namely, his address in prison. Too funny.
In Re Jaheim B. (Cal. Ct. App. - Jan. 7, 2009)
Some family law cases are tough. Others, not so much.
In some ways, I appreciate the mother's honesty here. The father's in prison in Alabama and not scheduled for release until 2028. The state picks up the child when the mother, Bridgette, drops him off (unattended) in a parking lot 100 yards from a relative's house, a witness sees Jaheim running after Bridgette screaming "Mommy, mommy," and Bridgette gets into a car and drives away. Bridgette says she just can't handle the child anymore, which you already got a sense of from the mere fact that she drives away after leaving her child alone wailing for her in a parking lot. Plus, she admits that she's homeless and without a job, but is "making money in other ways," and doesn't want Jaheim alongside her when she's so occupied. And I can read between the lines as to what that means.
Bridgette is also depressed and occasionally suicidal. And she also elects not to attend the overwhelming majority of opportunities to visit or spend time with her child after he's picked up by the state, plus she says she wants to go back to Florida without him.
Which, in my mind, is icing on the cake. Judge Campos (down here in San Diego) takes the kid away from the parents, and while there's a very brief jurisdictional fight (whether California's the right place for adjudication vs. Florida), Justice McConnell doesn't take long to rightly hold that California's an entirely appropriate forum to solve this problem. Affirmed.
In some ways, I appreciate the mother's honesty here. The father's in prison in Alabama and not scheduled for release until 2028. The state picks up the child when the mother, Bridgette, drops him off (unattended) in a parking lot 100 yards from a relative's house, a witness sees Jaheim running after Bridgette screaming "Mommy, mommy," and Bridgette gets into a car and drives away. Bridgette says she just can't handle the child anymore, which you already got a sense of from the mere fact that she drives away after leaving her child alone wailing for her in a parking lot. Plus, she admits that she's homeless and without a job, but is "making money in other ways," and doesn't want Jaheim alongside her when she's so occupied. And I can read between the lines as to what that means.
Bridgette is also depressed and occasionally suicidal. And she also elects not to attend the overwhelming majority of opportunities to visit or spend time with her child after he's picked up by the state, plus she says she wants to go back to Florida without him.
Which, in my mind, is icing on the cake. Judge Campos (down here in San Diego) takes the kid away from the parents, and while there's a very brief jurisdictional fight (whether California's the right place for adjudication vs. Florida), Justice McConnell doesn't take long to rightly hold that California's an entirely appropriate forum to solve this problem. Affirmed.
Tuesday, January 06, 2009
Metro Lights v. City of Los Angeles (9th Cir. - Jan. 6, 2009)
Larry! My man! Welcome back!
I learned a massive amount from Larry Tribe, my former boss and professor. I can't say enough about him, both professionally as well as personally. I shan't regale you with stories from my youth, but suffice it to say that Professor Tribe is a gem. On all fronts.
One of the things that I learned from Larry is the ability of an academic to be actively tied to the real world, particularly in the appellate context. Larry always did a fair number of appellate cases, both in the Supreme Court as well as in other appellate courts, and while I was in law school I was fortunate enough to be able to work with him on quite a few. My goal was to eventually be half as smart and hardworking as he was (and is), and I'm proud to say that I'm almost a tenth of the way there.
But even though Professor Tribe is an incredibly active appellate advocate, it's been over a half decade since he's graced either the Ninth Circuit or California Supreme Court/Court of Appeal. So my heart skipped a beat -- and happily so -- when I saw his name as counsel in this opinion. And the fact that the lower court's ruling in the case was issued by my former boss and colleague (and now district court judge) Gary Feess only made my heartstrings tug that much harder.
It's a First Amendment case, which is a topic (amongst many) right in Larry's wheelhouse. And there's a fair amount at stake, which helps pay his fee. The issue is whether Los Angeles can constitutionally ban nearly all offsite commercial advertising while simultaneously allowing (and auctioning off for itself) a massive amount of offsite commercial advertising on its own bus stops and benches. It's a great case, and while Larry ends up losing -- with the Court reversing the district court and holding that such a regime is perfectly fine -- it's a darn good fight, and I think that the plaintiffs have a pretty good argument here.
I doubt that Larry was especially happy once he saw the panel he drew, which consisted of Judges Thompson, O'Scannlain and Tallman. There are lots of upsides of being a famous advocate, but one of the many downsides is that while you're famous and loved for your positions by some judges, you're famous and far-from-loved for your positions by others. Those in the latter category may also feel a little more inclined to take free shots at you in the opinion than they would less renowned (and perhaps thick-skinned) advocates. Hence, to give one example, the following line about Professor Tribe from Judge O'Scannlain's opinion:
"Not to be deterred, Metro Lights drew our attention to additional precedents at oral argument in support of a further variation on this allegation of unconstitutional favoritism. Upping the rhetorical ante, Metro Lights accused the City of “auction[ ing] off First Amendment rights” to the highest bidder, in this case CBS. This is strong, if rather sloganeering, language, but after reviewing the case law on which Metro Lights relies, we believe it to be little more than a canard."
Regardless of who's right or wrong, it's a neat case. And it's great to see Larry back in the Ninth.
P.S. - Nice new web site, Ninth Circuit. Fancy! (Though, I'll add, incredibly slow, at least thus far.)
I learned a massive amount from Larry Tribe, my former boss and professor. I can't say enough about him, both professionally as well as personally. I shan't regale you with stories from my youth, but suffice it to say that Professor Tribe is a gem. On all fronts.
One of the things that I learned from Larry is the ability of an academic to be actively tied to the real world, particularly in the appellate context. Larry always did a fair number of appellate cases, both in the Supreme Court as well as in other appellate courts, and while I was in law school I was fortunate enough to be able to work with him on quite a few. My goal was to eventually be half as smart and hardworking as he was (and is), and I'm proud to say that I'm almost a tenth of the way there.
But even though Professor Tribe is an incredibly active appellate advocate, it's been over a half decade since he's graced either the Ninth Circuit or California Supreme Court/Court of Appeal. So my heart skipped a beat -- and happily so -- when I saw his name as counsel in this opinion. And the fact that the lower court's ruling in the case was issued by my former boss and colleague (and now district court judge) Gary Feess only made my heartstrings tug that much harder.
It's a First Amendment case, which is a topic (amongst many) right in Larry's wheelhouse. And there's a fair amount at stake, which helps pay his fee. The issue is whether Los Angeles can constitutionally ban nearly all offsite commercial advertising while simultaneously allowing (and auctioning off for itself) a massive amount of offsite commercial advertising on its own bus stops and benches. It's a great case, and while Larry ends up losing -- with the Court reversing the district court and holding that such a regime is perfectly fine -- it's a darn good fight, and I think that the plaintiffs have a pretty good argument here.
I doubt that Larry was especially happy once he saw the panel he drew, which consisted of Judges Thompson, O'Scannlain and Tallman. There are lots of upsides of being a famous advocate, but one of the many downsides is that while you're famous and loved for your positions by some judges, you're famous and far-from-loved for your positions by others. Those in the latter category may also feel a little more inclined to take free shots at you in the opinion than they would less renowned (and perhaps thick-skinned) advocates. Hence, to give one example, the following line about Professor Tribe from Judge O'Scannlain's opinion:
"Not to be deterred, Metro Lights drew our attention to additional precedents at oral argument in support of a further variation on this allegation of unconstitutional favoritism. Upping the rhetorical ante, Metro Lights accused the City of “auction[ ing] off First Amendment rights” to the highest bidder, in this case CBS. This is strong, if rather sloganeering, language, but after reviewing the case law on which Metro Lights relies, we believe it to be little more than a canard."
Regardless of who's right or wrong, it's a neat case. And it's great to see Larry back in the Ninth.
P.S. - Nice new web site, Ninth Circuit. Fancy! (Though, I'll add, incredibly slow, at least thus far.)
In Re Singler (Cal. Ct. App. - Jan. 6, 2009)
"On February 1, 2007, Singler’s petition for writ of habeas corpus was summarily denied by this court. . . . On April 25, 2007, the California Supreme Court granted Singler’s petition for review and transferred the matter to this court, with directions to vacate our denial of the petition and to order the Board to show cause why it “did not abuse its discretion and violate due process in finding petitioner unsuitable for parole in June 2006, and why petitioner remains a danger to public safety." . . . On March 26, 2008 . . . we held [the] decision finding Singler unsuitable for parole was not supported by the evidence presented at the time of the hearing. . . . On October 28, 2008, the Supreme Court transferred this matter to us with directions to vacate our decision and to reconsider the case in light of [two cases]. We have done so and . . . ."
Third time's a charm?
Third time's a charm?
Monday, January 05, 2009
People v. Doolin (Cal. Supreme Ct. - Jan. 5, 2009)
The majority (led by Justice Corrigan) and dissent (authored by Justice Kennard) disagree on whether there's constitutional or prejudicial error. But I should hope that we would all agree that a system (here, the County of Fresno's) that tells a criminal defense lawyer "You'll be paid a flat $80,000 to do a death penalty case, and that rate includes all expenses (e.g., for investigation and experts)" creates an unacceptably high risk that counsel might skimp on experts and investigation since, after all, that money essentially comes out of his or her own pocket.
Someone's life is at stake. Can we please, at a minimum, devise a system that doesn't create obvious incentive problems? That doesn't seem too much to ask.
P.S. - It also doesn't seem to much to ask, BTW, to not kill two prostitutes and attempt to kill at least four others. And if you find that too much for you, don't be surprised that you're both sentenced to death and that the California Supreme Court decides to affirm.
Someone's life is at stake. Can we please, at a minimum, devise a system that doesn't create obvious incentive problems? That doesn't seem too much to ask.
P.S. - It also doesn't seem to much to ask, BTW, to not kill two prostitutes and attempt to kill at least four others. And if you find that too much for you, don't be surprised that you're both sentenced to death and that the California Supreme Court decides to affirm.
In Re Complaint of Judicial Misconduct (9th Cir. - Jan. 3, 2009)
The Ninth Circuit judicial misconduct process under Chief Judge Kozinski is going to be hard core transparent. So, for example, we're going to publish our resolution of even frivolous complaints from crackpots.
Plus we'll make it clear that we're not going to listen to you anymore. Which seems totally fine to me.
Plus we'll make it clear that we're not going to listen to you anymore. Which seems totally fine to me.
Friday, January 02, 2009
The Thermo Company v. Luther (Cal. Ct. App. - Dec. 17, 2008)
I wish I could give you some insight into the exciting opinions published by the Ninth Circuit and California appellate courts during 2009. But no such luck. None yet.
Nonetheless, that doesn't stop us from learing. For example, many people think there are too many "fundamental rights," including those allegedly invented by the judiciary. Those disputed fundamental rights typically involve civil liberties; e.g., rights to procreate, raise children, privacy, etc.
Here's a "fundamental right" that I didn't previously know about: the "fundamental right" to avoid having to cap an abandoned oil well even if it's been idle for a decade and is arguably an environmental and safety hazard.
I wonder if many people who think that the former group entail fundamental rights agree that the latter are equally protected. Or vice-versa.
Happy 2009!
Nonetheless, that doesn't stop us from learing. For example, many people think there are too many "fundamental rights," including those allegedly invented by the judiciary. Those disputed fundamental rights typically involve civil liberties; e.g., rights to procreate, raise children, privacy, etc.
Here's a "fundamental right" that I didn't previously know about: the "fundamental right" to avoid having to cap an abandoned oil well even if it's been idle for a decade and is arguably an environmental and safety hazard.
I wonder if many people who think that the former group entail fundamental rights agree that the latter are equally protected. Or vice-versa.
Happy 2009!
Wednesday, December 31, 2008
Belmontes v. Ayers (9th Cir. - Dec. 30, 2008)
You should read this one if only to read the concurrence of Judge Reinhardt (joined by Judge Paez) from the denial of the petition for rehearing en banc. Basically, Judge Callahan dissents from the denial in this death penalty case, and begins her dissent by noting that the underlying opinion was the third time the panel in the case had reversed the death sentence. Judges Reinhardt and Paez -- who were the majority of the panel -- do not like the implication. And respond in a classic (and exceptionally well-written) Judge Reinhardt fashion.
You gotta read the whole thing to get the appropriate warm and fuzzy feeling. I'll only emphasize that Judge Callahan might have picked a better vehicle for the attack, since Judge Reinhardt cogently points out that the last two times the panel reversed the death sentence, admittedly, the Supreme Court reversed. But the first time was simply a GVR (which expressly reflects no view on the merits), and the second was on a 5-4 vote. Hardly an example of an out-of-control, viciously anti-death penalty Ninth Circuit panel that needs to be stopped at all costs.
I wanted to add one more thing, which I thought was interesting. It's a death penalty case, so you might facially expect the votes to line up along the usual lines. Of course, the actual vote isn't public, only who signed onto the dissent from the denial. But what's striking about who joined the dissent -- at least to me, and this is something I haven't ever noticed before -- was that, sure, you have your usual conservative vs. liberal (and related, but no coterminous, pro-versus-anti-death penalty) lineup to a degree, but even more than that, there's a geographic split that's fairly striking.
Every single one of the eight dissenters is located north of the 36th parallel, and none of the 14 active judges who are south of the 36th joined the dissent. Every single active judge from Alaska (Kleinfeld), Washington (two Democratic appointees, Gould and Tallman), and Idaho (N.R. Smith) joined the dissent. Add to that a judge from Oregon (O'Scannlain), a judge from barely-north-of-the-36th Sacramento (Callahan), and a judge from also barely-north-of-the-36th Las Vegas (Bybee) and San Francisco (Bea) and you have your eight dissenters. By contrast, not a single judge from Southern California, Arizona, or Hawaii joined the dissent.
Think about that the next time people talk about splitting the circuit.
You gotta read the whole thing to get the appropriate warm and fuzzy feeling. I'll only emphasize that Judge Callahan might have picked a better vehicle for the attack, since Judge Reinhardt cogently points out that the last two times the panel reversed the death sentence, admittedly, the Supreme Court reversed. But the first time was simply a GVR (which expressly reflects no view on the merits), and the second was on a 5-4 vote. Hardly an example of an out-of-control, viciously anti-death penalty Ninth Circuit panel that needs to be stopped at all costs.
I wanted to add one more thing, which I thought was interesting. It's a death penalty case, so you might facially expect the votes to line up along the usual lines. Of course, the actual vote isn't public, only who signed onto the dissent from the denial. But what's striking about who joined the dissent -- at least to me, and this is something I haven't ever noticed before -- was that, sure, you have your usual conservative vs. liberal (and related, but no coterminous, pro-versus-anti-death penalty) lineup to a degree, but even more than that, there's a geographic split that's fairly striking.
Every single one of the eight dissenters is located north of the 36th parallel, and none of the 14 active judges who are south of the 36th joined the dissent. Every single active judge from Alaska (Kleinfeld), Washington (two Democratic appointees, Gould and Tallman), and Idaho (N.R. Smith) joined the dissent. Add to that a judge from Oregon (O'Scannlain), a judge from barely-north-of-the-36th Sacramento (Callahan), and a judge from also barely-north-of-the-36th Las Vegas (Bybee) and San Francisco (Bea) and you have your eight dissenters. By contrast, not a single judge from Southern California, Arizona, or Hawaii joined the dissent.
Think about that the next time people talk about splitting the circuit.
People v. Bradford (Cal. Ct. App. - Dec. 29, 2008)
People admittedly watch a lot of television. Including -- and increasingly -- cop shows. So there's no doubt that many suspects already know their Miranda rights if only as a cultural reference point.
Nonetheless, Miranda warnings are not designed to be a game show. Instead of simply reading the rights off the card (for from memory) -- a simple enough task -- the police here instead basically asked the suspect (often rhetorically) which rights he already knew about from television shows. Which I guess is fine (?), so long as he names all four of the relevant warnings. But, like some game shows, if you miss one of the answers, there's no proper Miranda warning, and thus a reversal of any resulting convicion. Which is exactly what happens here.
Let's not get to tricky in the future, okay? Just read 'em their rights. It's really not all that difficult.
Nonetheless, Miranda warnings are not designed to be a game show. Instead of simply reading the rights off the card (for from memory) -- a simple enough task -- the police here instead basically asked the suspect (often rhetorically) which rights he already knew about from television shows. Which I guess is fine (?), so long as he names all four of the relevant warnings. But, like some game shows, if you miss one of the answers, there's no proper Miranda warning, and thus a reversal of any resulting convicion. Which is exactly what happens here.
Let's not get to tricky in the future, okay? Just read 'em their rights. It's really not all that difficult.
Tuesday, December 30, 2008
People v. Olguin (Cal. Supreme Ct. - Dec. 29, 2008)
Anyone get a pet over the holidays? If so, make sure to tell your probation officer. Because the California Supreme Court holds that it's a permissible condition of probation for a DUI offense (!) to impose a continuing obligation to tell your probation officer of any pets you might have. That condition is "reasonably related to continuing criminality."
Notwithstanding the counterintuitive nature of the holding, Chief Justice George (who authors the majority opinion) makes a decent point that owning a pet might make it more difficult or dangerous for a probation officer to conduct unannounced searches of the premises, and hence telling the officer about your pet might indeed be a permissible condition. Dogs, after all, can bark and bite, so maybe the officer should indeed know whether they're there.
Nonetheless, while Chief Justice George mentions "dogs" 15+ times, as I was reading the opinion, I kept looking for any example other than dogs. And the opinion doesn't contain any. After all, having to tell the officer that you've got a goldfish hardly makes any sense. This point doesn't escape Justice Kennard, who dissents (joined by Justice Moreno), and who concludes that the condition is overbroad for this reason. Justice Kennard would have the condition read something like "dogs and any other dangerous animal". Whereas Chief Justice George thinks that a more bright-line (albeit overly broad) notification rule is equally permissible.
But I was wondering: Why not just a bright-line rule that says you have to tell the officer about any dogs? These are the only real animals you can worry about. Cats? Come on. They ignore even their owner, so hardly a threat to probation officers. Fish? Nah. Then I looked up the other top ten pets. Birds? Hamsters? Rabbits, mice, gerbils, rats, and guinea pigs? Forget about it. Of the top ten pets, I can't think of any other than dogs for which there's any reasonable relationship between the notification requirement and preventing criminality (at least in the DUI context).
Now, if the defendant has a tiger as a pet, well, of course. But I honestly don't see the harm in having a condition that's more narrowly tailored than this one. That at least carves out 9 of the top 10 animals and says "Tell us about any pets (but you need not disclose cats, fish, birds, hamsters, rabbits, mice, gerbils, rats, or guinea pigs)." That's gotta be a better system, right? Wholly beyond preserving the rights of defendants, who wants probation officers to waste their valuable time -- even if only a minute per probationer -- taking a call every time there's a new fish or cat in town. Come on.
For this reason, I'm somewhat sympathetic to Justice Kennard's dissent. And, at a bare minimum, I'd change the standard probation form so that the relevant boxes the judge checks (under the "pet" condition) excludes nine of the top ten pets. Otherwise we're just being silly.
And perhaps, deliberately nor not, imposing a condition of probation that we know that a large portion of probationers will violate, and hence give the officer pretty much unlimited discretion to violate him any time the officer feels like it.
So let's all agree to at least take away fish and guinea pigs, shall we?
Notwithstanding the counterintuitive nature of the holding, Chief Justice George (who authors the majority opinion) makes a decent point that owning a pet might make it more difficult or dangerous for a probation officer to conduct unannounced searches of the premises, and hence telling the officer about your pet might indeed be a permissible condition. Dogs, after all, can bark and bite, so maybe the officer should indeed know whether they're there.
Nonetheless, while Chief Justice George mentions "dogs" 15+ times, as I was reading the opinion, I kept looking for any example other than dogs. And the opinion doesn't contain any. After all, having to tell the officer that you've got a goldfish hardly makes any sense. This point doesn't escape Justice Kennard, who dissents (joined by Justice Moreno), and who concludes that the condition is overbroad for this reason. Justice Kennard would have the condition read something like "dogs and any other dangerous animal". Whereas Chief Justice George thinks that a more bright-line (albeit overly broad) notification rule is equally permissible.
But I was wondering: Why not just a bright-line rule that says you have to tell the officer about any dogs? These are the only real animals you can worry about. Cats? Come on. They ignore even their owner, so hardly a threat to probation officers. Fish? Nah. Then I looked up the other top ten pets. Birds? Hamsters? Rabbits, mice, gerbils, rats, and guinea pigs? Forget about it. Of the top ten pets, I can't think of any other than dogs for which there's any reasonable relationship between the notification requirement and preventing criminality (at least in the DUI context).
Now, if the defendant has a tiger as a pet, well, of course. But I honestly don't see the harm in having a condition that's more narrowly tailored than this one. That at least carves out 9 of the top 10 animals and says "Tell us about any pets (but you need not disclose cats, fish, birds, hamsters, rabbits, mice, gerbils, rats, or guinea pigs)." That's gotta be a better system, right? Wholly beyond preserving the rights of defendants, who wants probation officers to waste their valuable time -- even if only a minute per probationer -- taking a call every time there's a new fish or cat in town. Come on.
For this reason, I'm somewhat sympathetic to Justice Kennard's dissent. And, at a bare minimum, I'd change the standard probation form so that the relevant boxes the judge checks (under the "pet" condition) excludes nine of the top ten pets. Otherwise we're just being silly.
And perhaps, deliberately nor not, imposing a condition of probation that we know that a large portion of probationers will violate, and hence give the officer pretty much unlimited discretion to violate him any time the officer feels like it.
So let's all agree to at least take away fish and guinea pigs, shall we?
Friday, December 26, 2008
People v. Roscoe (Cal. Ct. App. - Dec. 26, 2008)
The day after Christmas. A time for family. For shopping. For rest. And for thinking about hopping on that treadmill. Surely not a day for issuing public opinions, right?
That's what I would have thought, anyway. And, at least with respect to the Ninth Circuit, I was right. The Ninth Circuit's web site doesn't even contain its usual "No Opinions Filed Today" notation for the 26th. We see instead only something posted yesterday, December 25th (!), that says something different: "None Filed Today." Perhaps posted remotely. After a little too much eggnog.
But, like rust, the California Court of Appeal never sleeps. And dutifully published a single opinion this morning. It's a decision that affirms a multi-million dollar civil penalty against corporate officials under the responsible corporate officer doctrine. And that reminds me never to own a gas station. Ever.
Hope you had a good Christmas, John F. & Ned F. Roscoe. 'Cause the day after sucked for you. You may have hired some fancy lawyers (including Gibson Dunn) to try to help. But to no avail.
Here's hoping that 2009 is better than 2008 for you. And that you saved the receipts from the presents. Since you may well need the cash.
That's what I would have thought, anyway. And, at least with respect to the Ninth Circuit, I was right. The Ninth Circuit's web site doesn't even contain its usual "No Opinions Filed Today" notation for the 26th. We see instead only something posted yesterday, December 25th (!), that says something different: "None Filed Today." Perhaps posted remotely. After a little too much eggnog.
But, like rust, the California Court of Appeal never sleeps. And dutifully published a single opinion this morning. It's a decision that affirms a multi-million dollar civil penalty against corporate officials under the responsible corporate officer doctrine. And that reminds me never to own a gas station. Ever.
Hope you had a good Christmas, John F. & Ned F. Roscoe. 'Cause the day after sucked for you. You may have hired some fancy lawyers (including Gibson Dunn) to try to help. But to no avail.
Here's hoping that 2009 is better than 2008 for you. And that you saved the receipts from the presents. Since you may well need the cash.
Wednesday, December 24, 2008
McGuire v. United States (9th Cir. - Dec. 24, 2008)
Show me the money.
Okay, so that was fairly obvious. Since the plaintiff's name is Jerry McGuire. Since he filed for bankruptcy (so he clearly needs the money). And since he's suing the government -- initially successfully -- for over a million dollars in damages in a regulatory takings action.
Unfortunately for this particular Jerry McGuire, litigating against the government is even more complicated than negotiating with the Arizona Cardinals. Yes, he initially won in the bankruptcy court. But the district court reversed, holding that his claims weren't ripe. And while the Ninth Circuit disagreed with that point, McGuire's win was only temporary, as the next section of the opinion held that his action was only cognizable in the Court of Claims. So remanded and transferred ye shall be.
So it's a mixed bag for our Jerry. Does he get his seven figures? Nope. Does his loss get affirmed? No, not that either. It's a remand for you, my friend. Enjoy the next season of litigation.
Okay, so that was fairly obvious. Since the plaintiff's name is Jerry McGuire. Since he filed for bankruptcy (so he clearly needs the money). And since he's suing the government -- initially successfully -- for over a million dollars in damages in a regulatory takings action.
Unfortunately for this particular Jerry McGuire, litigating against the government is even more complicated than negotiating with the Arizona Cardinals. Yes, he initially won in the bankruptcy court. But the district court reversed, holding that his claims weren't ripe. And while the Ninth Circuit disagreed with that point, McGuire's win was only temporary, as the next section of the opinion held that his action was only cognizable in the Court of Claims. So remanded and transferred ye shall be.
So it's a mixed bag for our Jerry. Does he get his seven figures? Nope. Does his loss get affirmed? No, not that either. It's a remand for you, my friend. Enjoy the next season of litigation.
In Re H.E. (Cal. Ct. App. - Dec. 23, 2008)
In the spirit of the holidays, be thankful that the mother of your children is not like the mother here.
I only know what I read, of course. But I get far from a positive vibe about her. Far.
I only know what I read, of course. But I get far from a positive vibe about her. Far.
Tuesday, December 23, 2008
Salazar-Luviano v. Mukasey (9th Cir. - Dec. 23, 2008)
Let's read the first paragraph in the fact section of the opinion and see where we think this one is going. You can basically tell not only what the case is probably about, but also where the panel is likely headed. Here goes:
"Salazar-Luviano is a fifty-five-year-old citizen of Mexico, originally admitted to the United States as a lawful permanent resident in 1976. He has lived in the Los Angeles metropolitan area for over thirty years with his wife, also a lawful permanent resident. As of 2005, Salazar-Luviano had four U.S. citizen children and five U.S. citizen grandchildren."
Hmmm. Let's see. An immigration case, right? Yep. The U.S. is trying to deport him, correct? Yep. What equities did the court just introduce us to? He's elderly. He's been here a long time. He's been married for over thirty years. He's got lots of U.S. citizen children and grandchildren. I bet they're saying all this just so we feel really good when the court holds that we're forcing the guy out of the country, right?
Oh, wait. One more hint about how it comes out. It's two days before Christmas.
Yeah. This one's not too tough.
"Salazar-Luviano is a fifty-five-year-old citizen of Mexico, originally admitted to the United States as a lawful permanent resident in 1976. He has lived in the Los Angeles metropolitan area for over thirty years with his wife, also a lawful permanent resident. As of 2005, Salazar-Luviano had four U.S. citizen children and five U.S. citizen grandchildren."
Hmmm. Let's see. An immigration case, right? Yep. The U.S. is trying to deport him, correct? Yep. What equities did the court just introduce us to? He's elderly. He's been here a long time. He's been married for over thirty years. He's got lots of U.S. citizen children and grandchildren. I bet they're saying all this just so we feel really good when the court holds that we're forcing the guy out of the country, right?
Oh, wait. One more hint about how it comes out. It's two days before Christmas.
Yeah. This one's not too tough.
Monday, December 22, 2008
Patel v. Liebermensch (Cal. Supreme Ct. - Dec. 22, 2008)
Back in August 2007, the Court of Appeal down here in San Diego issued an opinion in a fact-specific contract case written by Justice Huffman over the very strong dissent of Justice McIntyre. The question was basically whether this particular contract was specific enough to enforce, with the majority thinking it wasn't and the dissent thinking it was.
Later that same day, I mentioned both the massive USD Law School connections of the participants, as well as the fact that I agreed with Justice McIntyre's dissent. Though noted that my opinion "with $3.50, will get you a cup of coffee at Starbucks."
But while my opinion may not matter much, the California Supreme Court's does. And, today, it unanimously agreed with Justice McIntyre (and me). In nine-page (double-spaced) opinion remarkable for its brevity. As if to say "Sorry, Justice Huffman, but this one's pretty easy. Those other guys got it right."
Somes, in extreme cases, the California Supreme Court will indeed get in the error-correcting business. This is one of those cases, IMHO. And I'd have done the same.
Later that same day, I mentioned both the massive USD Law School connections of the participants, as well as the fact that I agreed with Justice McIntyre's dissent. Though noted that my opinion "with $3.50, will get you a cup of coffee at Starbucks."
But while my opinion may not matter much, the California Supreme Court's does. And, today, it unanimously agreed with Justice McIntyre (and me). In nine-page (double-spaced) opinion remarkable for its brevity. As if to say "Sorry, Justice Huffman, but this one's pretty easy. Those other guys got it right."
Somes, in extreme cases, the California Supreme Court will indeed get in the error-correcting business. This is one of those cases, IMHO. And I'd have done the same.
Carver v. Lehman (9th Cir. - Dec. 22, 2008)
Yes, I know that it's the holiday season. So, yes, you're busy. We all are. Nonetheless, you've got to read this one. It's an instant classic.
The opinions aren't fascinating for their doctrinal significance -- though feel free to read about the underlying case is you'd like. Rather, what's a must-read is the dispute between Judge Milan Smith and Judge Reinhardt about what should happen when a member of the panel dies. As well as the language that each of them uses, in a fairly personal manner, when addressing this issue.
Cases about the internal workings of the court, especially in which the judges consciously talk directly to one another in the opinions, don't happen every day. And this one's a gem. Don't miss it.
I can shorthand what transpired here -- and you can guess the parties' respective positions -- fairly succinctly. Back in June, Judge Reinhardt (joined by Judge Ferguson) issued a majority opinion that held that a particular Washington statute (about sex offenders) created a liberty interest, but that because this fact wasn't heretofore sufficiently clear the defendant was entitled to qualified immunity. Judge Milan Smith concurred, arguing that there wasn't even a liberty interest. Fair enough on all sides. (I especially liked, in retrospect, the way Judge Smith opened his concurrence, with a non-saracastic first sentence that reads: "I respectfully part ways with the majority." As you'll see, some of that attitude was retained in the subsequent opinion, but some of it went a bit away.)
Predictably, thereafter, the parties filed petitions for rehearing (plaintiff arguing for a panel rehearing and the defendant arguing for rehearing en banc). Two days thereafter, Judge Ferguson died. At which point Judge Tallman was drawn to replace him, and Judge Tallman agreed with Judge Smith rather than Judge Reinhardt. So Judges Smith and Tallman voted to grant the petition for rehearing and essentially made Judge Smith's previously-filed concurrence the new majority opinion.
Which, as you can imagine, pleased Judge Reinhardt to no end. And resulted in the battle you see played out at the end of Judge Smith's opinion and at the outset of Judge Reinhardt's concurrence.
I wish I could cut-and-paste all of the classic lines from both opinions, but that'd take up way too much room. Let me instead just give you a taste, and encourage you to savor in the original in its entirety. Representative lines from Judge Smith include things like: "We respectfully disagree, however, with much of the balance of our concurring friend’s preambular observations about this case." "Our colleague . . . . implies that the previous panel majority unearthed an unalloyed constitutional nugget waiting to be discovered within the primordial crust of the Fourteenth Amendment."
From Judge Reinhardt's opinion: "To those who question whether the results in constitutional and other cases depend on the membership of the panel, or whether the replacement of even a single Supreme Court justice can change the fundamental nature of the rights of all Americans with respect to matters as basic as affirmative action, a woman’s right of choice, and the nature of religious liberty, the result in the case currently before our panel is merely a minor illustration of how the judicial system currently operates." And "To say as the majority now does, that despite the absence of a single circuit opinion on an issue that has been presented to the court a number of times, there was “existing law” that Judge Ferguson and I “changed,” and that Judge Smith and Judge Tallman, by now reaching the diametrically opposite result are merely restoring our circuit law to the “status quo ante” is more than mindboggling. If we were to accept this view, the law in this circuit would no longer be declared in opinions; “existing” circuit law could be found in whatever sources suited anyone’s whim or fancy, including the Sewanee Law Review." (Did you really mean this reference?!)
Great stuff. Simply wonderful. Read the whole thing and see what you think.
My sense, for what it's worth, is that both sides have good points. But the central issue that I don't think Judge Smith adequately addresses is the prudential argument that I read Judge Reinhardt making. Can a new panel grant a rehearing when someone dies? Yes. Definitely. And Judge Reinhardt doesn't disagree. But should it? Personally, if I were drawn for the panel, I'd vote "No," regardless of what I felt about the underlying case. If only as an issue of form, I'd hate -- and it seems facially unfair -- to have someone's death so starkly result in a changed outcome. So even for a majority opinion that I disagreed with, I'd probably concur and say "Look, I don't agree with the former majority, but I'm unwilling to grant a rehearing solely on the basis of the death of my colleague. It just doesn't seem right. So I'll concur in what he previously wrote." Would I then vote for a rehearing en banc if I thought it appropriate? Sure. That seems entirely fine. But that's qualitatively different to me than withdrawing an opinion purely because someone dies.
I'm not saying I'm never willing to change the result in a case due to death or retirement. I am. Had Judge Ferguson died before the majority opinion had issued, for example, I'd have no problem changing the result by voting (after being assigned) with the would-have-been concurrence or dissent. But the formal issuance of an opinion to me changes things. Not because the opinion is doctrinally "final" in any way. It's not. But rather because a change in such settings seems untoward.
Say, for example, we're the Supreme Court, and we issue a 5-4 decision in favor of X against Y. Then one of the 5 dies two days later, and I'm immediately nominated and confirmed by the Senate, and as a result I'm on the Court when Y files a petition for rehearing. Even if I agreed with the 4, I wouldn't vote to grant rehearing. It just seems wrong to me, even if (as is of course the case) the matter isn't "final" yet. Might I potentially vote to grant certiorari in a later case and, with appropriate regard for stare decisis, overrule the earlier case. Yes. I would think about it. But I still wouldn't grant a rehearing. That seems different -- starker, and perceptually more unfair -- to me.
I understand that reasonable minds might differ on this one. Plus, it's tough to restrain yourself when you have the votes. Or to vote for a result that you don't believe in merely on prudential procedural grounds.
But I think here, especially when it involves the death of one of your colleagues, that's probably the right answer. At least in cases (as here) that don't fundamentally rock the world. Might I wimp out and vote my own way if it was a critical constitutional issue involving the lives and/or fundamental liberties of millions? Maybe. Maybe I'd be weak (or whatever) and feel compelled to vote my deeply-felt conscience there. But when it's an otherwise routine case, I'm persuaded, upon reflection, that the right thing to do is to defer. If only in the memory of and with respect for my departed colleague. That means something to me. And if it means I concur instead of change the outcome, so be it. That seems not only totally fine as a doctrinal matter, but likely preferable as a policy matter as well. The opinion may well not be final, but it's entirely within my discretion to treat it as something significant. So that's what I'd do.
Anyway, a great -- and interesting -- debate. Check it out.
The opinions aren't fascinating for their doctrinal significance -- though feel free to read about the underlying case is you'd like. Rather, what's a must-read is the dispute between Judge Milan Smith and Judge Reinhardt about what should happen when a member of the panel dies. As well as the language that each of them uses, in a fairly personal manner, when addressing this issue.
Cases about the internal workings of the court, especially in which the judges consciously talk directly to one another in the opinions, don't happen every day. And this one's a gem. Don't miss it.
I can shorthand what transpired here -- and you can guess the parties' respective positions -- fairly succinctly. Back in June, Judge Reinhardt (joined by Judge Ferguson) issued a majority opinion that held that a particular Washington statute (about sex offenders) created a liberty interest, but that because this fact wasn't heretofore sufficiently clear the defendant was entitled to qualified immunity. Judge Milan Smith concurred, arguing that there wasn't even a liberty interest. Fair enough on all sides. (I especially liked, in retrospect, the way Judge Smith opened his concurrence, with a non-saracastic first sentence that reads: "I respectfully part ways with the majority." As you'll see, some of that attitude was retained in the subsequent opinion, but some of it went a bit away.)
Predictably, thereafter, the parties filed petitions for rehearing (plaintiff arguing for a panel rehearing and the defendant arguing for rehearing en banc). Two days thereafter, Judge Ferguson died. At which point Judge Tallman was drawn to replace him, and Judge Tallman agreed with Judge Smith rather than Judge Reinhardt. So Judges Smith and Tallman voted to grant the petition for rehearing and essentially made Judge Smith's previously-filed concurrence the new majority opinion.
Which, as you can imagine, pleased Judge Reinhardt to no end. And resulted in the battle you see played out at the end of Judge Smith's opinion and at the outset of Judge Reinhardt's concurrence.
I wish I could cut-and-paste all of the classic lines from both opinions, but that'd take up way too much room. Let me instead just give you a taste, and encourage you to savor in the original in its entirety. Representative lines from Judge Smith include things like: "We respectfully disagree, however, with much of the balance of our concurring friend’s preambular observations about this case." "Our colleague . . . . implies that the previous panel majority unearthed an unalloyed constitutional nugget waiting to be discovered within the primordial crust of the Fourteenth Amendment."
From Judge Reinhardt's opinion: "To those who question whether the results in constitutional and other cases depend on the membership of the panel, or whether the replacement of even a single Supreme Court justice can change the fundamental nature of the rights of all Americans with respect to matters as basic as affirmative action, a woman’s right of choice, and the nature of religious liberty, the result in the case currently before our panel is merely a minor illustration of how the judicial system currently operates." And "To say as the majority now does, that despite the absence of a single circuit opinion on an issue that has been presented to the court a number of times, there was “existing law” that Judge Ferguson and I “changed,” and that Judge Smith and Judge Tallman, by now reaching the diametrically opposite result are merely restoring our circuit law to the “status quo ante” is more than mindboggling. If we were to accept this view, the law in this circuit would no longer be declared in opinions; “existing” circuit law could be found in whatever sources suited anyone’s whim or fancy, including the Sewanee Law Review." (Did you really mean this reference?!)
Great stuff. Simply wonderful. Read the whole thing and see what you think.
My sense, for what it's worth, is that both sides have good points. But the central issue that I don't think Judge Smith adequately addresses is the prudential argument that I read Judge Reinhardt making. Can a new panel grant a rehearing when someone dies? Yes. Definitely. And Judge Reinhardt doesn't disagree. But should it? Personally, if I were drawn for the panel, I'd vote "No," regardless of what I felt about the underlying case. If only as an issue of form, I'd hate -- and it seems facially unfair -- to have someone's death so starkly result in a changed outcome. So even for a majority opinion that I disagreed with, I'd probably concur and say "Look, I don't agree with the former majority, but I'm unwilling to grant a rehearing solely on the basis of the death of my colleague. It just doesn't seem right. So I'll concur in what he previously wrote." Would I then vote for a rehearing en banc if I thought it appropriate? Sure. That seems entirely fine. But that's qualitatively different to me than withdrawing an opinion purely because someone dies.
I'm not saying I'm never willing to change the result in a case due to death or retirement. I am. Had Judge Ferguson died before the majority opinion had issued, for example, I'd have no problem changing the result by voting (after being assigned) with the would-have-been concurrence or dissent. But the formal issuance of an opinion to me changes things. Not because the opinion is doctrinally "final" in any way. It's not. But rather because a change in such settings seems untoward.
Say, for example, we're the Supreme Court, and we issue a 5-4 decision in favor of X against Y. Then one of the 5 dies two days later, and I'm immediately nominated and confirmed by the Senate, and as a result I'm on the Court when Y files a petition for rehearing. Even if I agreed with the 4, I wouldn't vote to grant rehearing. It just seems wrong to me, even if (as is of course the case) the matter isn't "final" yet. Might I potentially vote to grant certiorari in a later case and, with appropriate regard for stare decisis, overrule the earlier case. Yes. I would think about it. But I still wouldn't grant a rehearing. That seems different -- starker, and perceptually more unfair -- to me.
I understand that reasonable minds might differ on this one. Plus, it's tough to restrain yourself when you have the votes. Or to vote for a result that you don't believe in merely on prudential procedural grounds.
But I think here, especially when it involves the death of one of your colleagues, that's probably the right answer. At least in cases (as here) that don't fundamentally rock the world. Might I wimp out and vote my own way if it was a critical constitutional issue involving the lives and/or fundamental liberties of millions? Maybe. Maybe I'd be weak (or whatever) and feel compelled to vote my deeply-felt conscience there. But when it's an otherwise routine case, I'm persuaded, upon reflection, that the right thing to do is to defer. If only in the memory of and with respect for my departed colleague. That means something to me. And if it means I concur instead of change the outcome, so be it. That seems not only totally fine as a doctrinal matter, but likely preferable as a policy matter as well. The opinion may well not be final, but it's entirely within my discretion to treat it as something significant. So that's what I'd do.
Anyway, a great -- and interesting -- debate. Check it out.
Friday, December 19, 2008
In Re R.C. (Cal. Ct. App. - Dec. 19, 2008)
Sometimes parental termination cases are difficult to even read (at least for me), as you're left with the firm -- and utterly depressing -- conclusion that none of the participants even have a whiff of a shot , and that the child both never had and currently has almost no shot whatsoever at a reasonable existence. And you don't know what to do betweenthe two available alternatives, both of which are terrible: leaving the child in a horrible foster care situation or giving the child back to an unstable and potentially harmful parent
Not here.
This is one of those cases where I have little doubt that Justice Irion (as well as Judge Isackson, down here in San Diego) got it exactly right. It's not that the mother here is horrible; I've seen far, far worse. But the child has a real shot here. It couldn't be clearer that his best interests are to be adopted, and he totally can be. He's a bright, cute, healthy, and completely lovable 11-month old child. He should stay where he is.
A ray of sunshine on a cold(ish) but beautiful Friday morning.
Not here.
This is one of those cases where I have little doubt that Justice Irion (as well as Judge Isackson, down here in San Diego) got it exactly right. It's not that the mother here is horrible; I've seen far, far worse. But the child has a real shot here. It couldn't be clearer that his best interests are to be adopted, and he totally can be. He's a bright, cute, healthy, and completely lovable 11-month old child. He should stay where he is.
A ray of sunshine on a cold(ish) but beautiful Friday morning.
Thursday, December 18, 2008
Van Horn v. Watson (Cal. Supreme Ct. - Dec. 18, 2008)
See someone stuck in a car crash and worried that the car might catch fire or explode? Don't pull 'em out. Or at least don't pull 'em out if you don't want to potentially get sued. 'Cause you can be.
I'm not saying that the 4-3 decision here is right or wrong. It's a statutory interpretation matter, and there are reasonable arguments on both sides.
I'm just telling you what the law is. There's no immunity, at least in California, for pulling someone out of a burning car. Giving 'em CPR? Yep. Immunity. Ditto for giving trying your hand at a tracheotomy with some scissors and a bic pen.
But trying to save someone's life in a different ("non-medical") way? Nope. No immunity. Not now, anyway.
I'm not saying that the 4-3 decision here is right or wrong. It's a statutory interpretation matter, and there are reasonable arguments on both sides.
I'm just telling you what the law is. There's no immunity, at least in California, for pulling someone out of a burning car. Giving 'em CPR? Yep. Immunity. Ditto for giving trying your hand at a tracheotomy with some scissors and a bic pen.
But trying to save someone's life in a different ("non-medical") way? Nope. No immunity. Not now, anyway.
People v. Mentch (Cal. Supreme Ct. - Dec. 17, 2008)
This may be surprising for those who know me as a relentless cynic, but I'm affirmatively proud -- yes, proud -- that I reside in California. There's a part of me that identifies with this Great State. I like it. I want to make it better. And I'm happy, and proud, when it does something good. (The flip side, of course, is that it makes me extraordinarily sad when it does something bad, but that's another story.)
Perhaps for this reason, I can't tell you how impressed I was when I read this from the California Supreme Court. For reasons both personal and (perhaps) subtle, I was very proud of our judiciary to see the Court amend its opinion sua sponte in the way it did. Bravo.
A little background. This is a medical marijuana case, and the question is who counts as a "primary caregiver" sufficient to provide limited immunity from state prosecution. In this case, the defendant said that she was a primary caregiver even though the only real "care" she actually gave was weed. Not good enough, the Court said. Which made sense.
But the Court also went beyond that holding, and stated that in order to be a primary caregiver, you also have to have started giving the care before you start providing the pot. I thought that this part of the opinion was wrong, and explained why a couple of hours after the opinion came out. As I'm wont to do.
Basically, I argued that even if you started providing pot beforehand, the Compassionate Use Act would still immunize any future provision of weed undertaken after you became a true primary caregiver, and hence that the Court's requirement that a defendant not provide pot beforehand was erroneous. That even though your becoming a caregiver wouldn't retroactively immunize you from prosecution for the earlier weed, you post-caregiving pot provisions would still be protected. Or so I postulated. And thought I was clearly right.
So guess what then transpires? The A.G. petitions for rehearing to make a minor stylistic change to the opinion, which the Court does. But guess what? The Court also sua sponte amends the opinion to add the following footnote: "In holding that the assumption of primary caregiver responsibilities cannot apply retroactively to immunize prior cultivation or possession of marijuana, we do not suggest it would not apply prospectively. Defendants who show they satisfied all other prerequisites for primary caregiver status for a given patient at some point after the onset of providing marijuana may avail themselves of the defense going forward, even if they remain subject to prosecution for actions taken prior to assumption of a primary caregiver role."
Exactly right! And, more impressively, the Court added this without even the slightest bit of prodding from the parties.
I've always thought that it was too bad that there's not a formal structure for outsiders to provide input on points or holdings raised in an opinion after its issuance (since you can't move for rehearing if you weren't a prior amicus), and think that, sometimes, opinions contain some tangential holdings or statements that the parteis might not care about but others might. However, to the degree that the judiciary can correct those things on its own, that's the best of all possible worlds. Before today, I'm not sure I'd have thought that's very plausible. After today, I'm not so sure. And, regardless, I'm impressed that the California Supreme Court was able to do it here.
So great job, California Supremes. You've made at least one of your loyal subjects intensely proud.
Perhaps for this reason, I can't tell you how impressed I was when I read this from the California Supreme Court. For reasons both personal and (perhaps) subtle, I was very proud of our judiciary to see the Court amend its opinion sua sponte in the way it did. Bravo.
A little background. This is a medical marijuana case, and the question is who counts as a "primary caregiver" sufficient to provide limited immunity from state prosecution. In this case, the defendant said that she was a primary caregiver even though the only real "care" she actually gave was weed. Not good enough, the Court said. Which made sense.
But the Court also went beyond that holding, and stated that in order to be a primary caregiver, you also have to have started giving the care before you start providing the pot. I thought that this part of the opinion was wrong, and explained why a couple of hours after the opinion came out. As I'm wont to do.
Basically, I argued that even if you started providing pot beforehand, the Compassionate Use Act would still immunize any future provision of weed undertaken after you became a true primary caregiver, and hence that the Court's requirement that a defendant not provide pot beforehand was erroneous. That even though your becoming a caregiver wouldn't retroactively immunize you from prosecution for the earlier weed, you post-caregiving pot provisions would still be protected. Or so I postulated. And thought I was clearly right.
So guess what then transpires? The A.G. petitions for rehearing to make a minor stylistic change to the opinion, which the Court does. But guess what? The Court also sua sponte amends the opinion to add the following footnote: "In holding that the assumption of primary caregiver responsibilities cannot apply retroactively to immunize prior cultivation or possession of marijuana, we do not suggest it would not apply prospectively. Defendants who show they satisfied all other prerequisites for primary caregiver status for a given patient at some point after the onset of providing marijuana may avail themselves of the defense going forward, even if they remain subject to prosecution for actions taken prior to assumption of a primary caregiver role."
Exactly right! And, more impressively, the Court added this without even the slightest bit of prodding from the parties.
I've always thought that it was too bad that there's not a formal structure for outsiders to provide input on points or holdings raised in an opinion after its issuance (since you can't move for rehearing if you weren't a prior amicus), and think that, sometimes, opinions contain some tangential holdings or statements that the parteis might not care about but others might. However, to the degree that the judiciary can correct those things on its own, that's the best of all possible worlds. Before today, I'm not sure I'd have thought that's very plausible. After today, I'm not so sure. And, regardless, I'm impressed that the California Supreme Court was able to do it here.
So great job, California Supremes. You've made at least one of your loyal subjects intensely proud.
Wednesday, December 17, 2008
People v. Yarbrough (Cal. Ct. App. - Dec. 17, 2008)
Sorry, my gun-loving friends. There's no right to carry a concealed weapon under Heller. At least in California.
This is not a surprise for anyone familiar with the Supreme Court's holding. The right to possess a gun in one's home for self-defense is a bit different from the right to possess a concealed weapon in public. But this is the first post-Heller appellate case in the California Court of Appeal to so hold. So I thought it was worth at least brief mention.
So, if you've got 'em, keep those weapons at home. Or out in the open.
This is not a surprise for anyone familiar with the Supreme Court's holding. The right to possess a gun in one's home for self-defense is a bit different from the right to possess a concealed weapon in public. But this is the first post-Heller appellate case in the California Court of Appeal to so hold. So I thought it was worth at least brief mention.
So, if you've got 'em, keep those weapons at home. Or out in the open.
Aguilera-Montero v. Mukasey (9th Cir. - Dec. 1, 2008)
You've been granted a full and unconditional pardon for your possession offense. But we're still going to deport you based upon that conviction.
Tuesday, December 16, 2008
Sarei v. Rio Tinto PLC (9th Cir. - Dec. 16, 2008)
Want to see how fractured an en banc opinion can be? Take a look.
It's a 3-2-2(minus 1)-1-4. What?! You heard me. Three (McKeown, joined by Schroeder and Silverman) write the "plurality" opinion. Two (Bea, joined by Callahan) concur. Four (Reinhardt, joined by Pregerson, Berzon and Rawlinson) dissent. Two more (Ikuta, joined fully -- and yet sort of -- by Kleinfeld) dissent on a different point (subject matter jurisdiction). But that leaves utterly no plurality, so Kleinfeld then writes a concurrence in the result reached by the three (Judge McKeown) so, when joined by the two (Bea and Callahan), there's at least a modicum of direction to the district court.
You gotta love how this one plays out. A variety of opinions. A total "count-the-votes-and-why" kind of case. A neat one.
It's a 3-2-2(minus 1)-1-4. What?! You heard me. Three (McKeown, joined by Schroeder and Silverman) write the "plurality" opinion. Two (Bea, joined by Callahan) concur. Four (Reinhardt, joined by Pregerson, Berzon and Rawlinson) dissent. Two more (Ikuta, joined fully -- and yet sort of -- by Kleinfeld) dissent on a different point (subject matter jurisdiction). But that leaves utterly no plurality, so Kleinfeld then writes a concurrence in the result reached by the three (Judge McKeown) so, when joined by the two (Bea and Callahan), there's at least a modicum of direction to the district court.
You gotta love how this one plays out. A variety of opinions. A total "count-the-votes-and-why" kind of case. A neat one.
People v. Martinez (Cal. Ct. App. - Dec. 16, 2008)
I spent a summer after high school living with my then-girlfriend at her parent's house in Canoga Park. It was both fun and memorable, especially for an unworldly kid from Virginia, and especially for one who had never before been to Southern California.
That said, I have somewhat detailed memories of Canoga Park. Which was not probably the abolute highlight of the experience. And, among other things, recall seeing the Canoga Park Wienerschnitzel -- a chain, among others, of which this East Coast boy had never heard a peep.
Based upon this (admittedly long-ago) experience, I can say fairly confidently that it surprised me not in the least that there were multiple gang-related murders at this establishment.
Check out the opinion for a fairly good discussion (by both the majority and the dissent) of the nature of gangs in the modern era as well as the legal implications of routine gang-on-gang confrontations. It's an interesting tale. Even for those who've never been to this particular Wienerschnitzel.
That said, I have somewhat detailed memories of Canoga Park. Which was not probably the abolute highlight of the experience. And, among other things, recall seeing the Canoga Park Wienerschnitzel -- a chain, among others, of which this East Coast boy had never heard a peep.
Based upon this (admittedly long-ago) experience, I can say fairly confidently that it surprised me not in the least that there were multiple gang-related murders at this establishment.
Check out the opinion for a fairly good discussion (by both the majority and the dissent) of the nature of gangs in the modern era as well as the legal implications of routine gang-on-gang confrontations. It's an interesting tale. Even for those who've never been to this particular Wienerschnitzel.
Monday, December 15, 2008
Lewis v. Superior Court (Cal. Ct. App. - Dec. 15, 2008)
Let me get this straight. A dude with the last name of "Lewis" is convicted of oral copulation with a minor under the age of 18. What's his first name?
Philander.
You can't make this stuff up. And I didn't.
Philander.
You can't make this stuff up. And I didn't.
Sklar v. CIR (9th Cir. - Dec. 12, 2008)
There's a difference between Orthodox Jews and Scientologists.
Or, to put it even more concretely, there's a difference between paying private school tuition to send your kid to a Hebrew Academy and paying whatever charges adult Scientologists pay for their "training" in Scientology.
The latter may be partially deductable as a charitable contribution. That former definitely ain't.
I'm sufficiently clear on these points to not need the Ninth Circuit to inform me of these facts. But it's good to know it doesn't disagree.
Friday, December 12, 2008
Seattle Affilliate v. City of Seattle (9th Cir. - Dec. 12, 2008)
I think that Judge Fisher beats Judge Ikuta in this one.
People are entitled to demonstrate under the First Amendment. The City of Seattle lets them, of course, but can (obviously) subject demonstrations to reasonable time, place and manner restrictions. So, for example, sometimes you can close off the streets and let demonstrators walk a particular path, and other times -- for example, with very tiny protests -- you can make them use the sidewalks. That seems fine.
But the City of Seattle vests unlimited discretion in the Chief of Police to decide when a particular protest is relegated to the sidewalk and when they can use the streets. And that discretion has been utilized -- as one might expect with unlimited government discretion -- in a potentially abusive manner: namely, the Chief of Police has been much more likely to put greater restrictions on political marches (e.g., to limit them to the sidewalk ) than other types of marches (e.g., sports gatherings). So, for example, the Chief of Police has been more likely to say to political marchers "You've got to have at least 200 people show up to be able to march on the street" than to non-political marchers. And when the annual march against police brutality transpired in Seattle, guess what? Yep. Relegated to the sidewalk.
Judge Fisher says that statutory structure doesn't comply with the First Amendment. I agree. Judge Ikuta dissents, but I think undervalues the danger of unlimited governmental discretion in this critical area. I'd have little problem with a statute that says, for example, "Any march under 200 people must normally stay on the sidewalk, whereas any march with over 200 people may normally march on the street," and that provides for particularized exceptions for particular reasons. But I have a big problem with a statute that essentially says "Any march the Chief of Police likes can march on the streets, but any march the Chief of Police doesn't like has to stay on the sidewalk."
So, like Judge Gould, I'd have to vote with Judge Fisher on this one.
People are entitled to demonstrate under the First Amendment. The City of Seattle lets them, of course, but can (obviously) subject demonstrations to reasonable time, place and manner restrictions. So, for example, sometimes you can close off the streets and let demonstrators walk a particular path, and other times -- for example, with very tiny protests -- you can make them use the sidewalks. That seems fine.
But the City of Seattle vests unlimited discretion in the Chief of Police to decide when a particular protest is relegated to the sidewalk and when they can use the streets. And that discretion has been utilized -- as one might expect with unlimited government discretion -- in a potentially abusive manner: namely, the Chief of Police has been much more likely to put greater restrictions on political marches (e.g., to limit them to the sidewalk ) than other types of marches (e.g., sports gatherings). So, for example, the Chief of Police has been more likely to say to political marchers "You've got to have at least 200 people show up to be able to march on the street" than to non-political marchers. And when the annual march against police brutality transpired in Seattle, guess what? Yep. Relegated to the sidewalk.
Judge Fisher says that statutory structure doesn't comply with the First Amendment. I agree. Judge Ikuta dissents, but I think undervalues the danger of unlimited governmental discretion in this critical area. I'd have little problem with a statute that says, for example, "Any march under 200 people must normally stay on the sidewalk, whereas any march with over 200 people may normally march on the street," and that provides for particularized exceptions for particular reasons. But I have a big problem with a statute that essentially says "Any march the Chief of Police likes can march on the streets, but any march the Chief of Police doesn't like has to stay on the sidewalk."
So, like Judge Gould, I'd have to vote with Judge Fisher on this one.
Thursday, December 11, 2008
People v. Rodriguez (Cal. Ct. App. - Nov. 26, 2008)
Perhaps this case struck me harder than usual becuase my wife's a UNC fan (and graduate). Or maybe also because I know that, as a white guy, it wouldn't happen to me.
But while stopped at a red light at an intersection in Hayward in September of 2003, Francisco Sanchez -- who had just paid his union dues and wasn't afilliated with a gang in any way -- was murdered in cold blood for no reason other than an idiot Norteno gang member concluded that Sanchez was a member of a rival Sureno gang because he was wearing a blue UNC baseball cap.
The thought that you can be killed for utterly no reason other than that you're Hispanic and wearing the wrong color baseball cap seems even more profoundly wrong than the legions of other senseless killings I read about every day in the annals of the California Reporter.
A depressing, and telling, tale.
But while stopped at a red light at an intersection in Hayward in September of 2003, Francisco Sanchez -- who had just paid his union dues and wasn't afilliated with a gang in any way -- was murdered in cold blood for no reason other than an idiot Norteno gang member concluded that Sanchez was a member of a rival Sureno gang because he was wearing a blue UNC baseball cap.
The thought that you can be killed for utterly no reason other than that you're Hispanic and wearing the wrong color baseball cap seems even more profoundly wrong than the legions of other senseless killings I read about every day in the annals of the California Reporter.
A depressing, and telling, tale.
Wednesday, December 10, 2008
In Re Complaint of Judicial Misconduct (9th Cir. - Dec. 10, 2008)
There's more than one way to get your name in the Federal Reporter. For example, you can be an attorney and file a frivolous complaint of judicial misconduct. To which the Ninth Circuit will respond by (1) expressly admonishing you in a public forum, and (2) entering a prefiling order against you.
In short, if you waste our time -- the time of ten judges, I might add -- we'll make you look bad. Or at least we'll let everyone know how bad you look, Joseph Nascimento.
P.S. - Oh, yeah. We'll also alert the State Bar of Montana.
P.P.S. - A little research reveals that Mr. Nascimento may not be as adversely affected by the publicity as I might have initially thought, since he's (1) already pretty public about his (somewhat paranoid) allegations, and (2) is already indefinitely suspended from the practice of law.
In short, if you waste our time -- the time of ten judges, I might add -- we'll make you look bad. Or at least we'll let everyone know how bad you look, Joseph Nascimento.
P.S. - Oh, yeah. We'll also alert the State Bar of Montana.
P.P.S. - A little research reveals that Mr. Nascimento may not be as adversely affected by the publicity as I might have initially thought, since he's (1) already pretty public about his (somewhat paranoid) allegations, and (2) is already indefinitely suspended from the practice of law.
Davies v. Sallie Mae (Cal. Ct. App. - Dec. 1, 2008)
If I was a law school graduate (which I am), and if I had gotten seven straight years of economic hardship deferments while I was working as an attorney (which I didn't), I wouldn't have filed a lawsuit against Sallie Mae when it boldly demanded that I actually start paying my loans.
But, then again, I'm not Eureka attorney Stephen Davies.
Regardless, even had I filed such a lawsuit, let me promise you that upon losing said action, I would not have filed an appeal. Lest the result be a published opinion that (a) affirms, (b) lets everyone in the world know that I not only lost, and (c) tells everyone that I didn't even repay my student loans. Which is hardly what a would-be client probably looks for in an attorney.
Yet that's exactly what happens here.
But, then again, I'm not Eureka attorney Stephen Davies.
Regardless, even had I filed such a lawsuit, let me promise you that upon losing said action, I would not have filed an appeal. Lest the result be a published opinion that (a) affirms, (b) lets everyone in the world know that I not only lost, and (c) tells everyone that I didn't even repay my student loans. Which is hardly what a would-be client probably looks for in an attorney.
Yet that's exactly what happens here.
Tuesday, December 09, 2008
Societe Civil Succession Richard Guino v. Renoir (9th Cir. - Dec. 9, 2008)
Copyrights are not perpetual. So it's pretty darn rare, in this day and age, to see a copyright claim involving a series of sculptures created by Pierre-Auguste Renoir. Yes, that Renoir -- the French impressionist who made, inter alia, several $70 million-plus artworks.
After all, Renoir was born in 1841, and died almost a century ago. Surely there can't be any lingering copyright claims about his stuff, can there?
Yes. There can. And is.
It's actually an interesting IP puzzle. Which you should, in any event, read while you can. 'Cause litigation involving the copyright ownership of Renoirs ain't gonna be around indefinitely.
After all, Renoir was born in 1841, and died almost a century ago. Surely there can't be any lingering copyright claims about his stuff, can there?
Yes. There can. And is.
It's actually an interesting IP puzzle. Which you should, in any event, read while you can. 'Cause litigation involving the copyright ownership of Renoirs ain't gonna be around indefinitely.
Hakopian v. Mukasey (9th Cir. - Nov. 19, 2008)
"I've got some good news and some bad news. Good news first. The United States was totally and completely wrong about your asylum application being time-barred. As was the immigration judge and the BIA below. So we're going to publish an opinion that not only makes that fact crystal clear, but that also preserves your name forever in the annals of the Federal Reporter.
Now for the bad news. We're also issuing an unpublished memorandum disposition. Which ships you back to Iran."
Sorry about that.
Now for the bad news. We're also issuing an unpublished memorandum disposition. Which ships you back to Iran."
Sorry about that.
Monday, December 08, 2008
Marley v. United States (9th Cir. - Dec. 8, 2008)
It's always interesting to see the myriad of ways attorneys trick pro se litigants into losing their case. Like here.
Plaintiff -- initially represented by counsel -- files a timely FTCA case against the United States for medical malpractice. Plaintiff's attorneys then withdraw, after which an AUSA representing the U.S. writes plaintiff and asks him whether he'd like to dismiss the case "without prejudice," and included a proposed stipulation. After that tactic didn't initially work -- plaintiff didn't even respond -- the AUSA tried again, and this time, plaintiff returned the stipulation.
When plaintiff, now represented by counsel, subsequently refiled, the U.S. responded: "Sorry. The dismissal was without prejudice, sure. Like we promised. But you missed that as a result of the dismissal, you're now time-barred. And the statute of limitations is jurisdictional, so don't even try arguing equitable estoppel based upon our misleading you. Ha! We win."
And the Ninth Circuit agrees.
Fooling the unwary. Especially fun when the plaintiff has complications (allegedly caused by you) from prostate cancer.
Plaintiff -- initially represented by counsel -- files a timely FTCA case against the United States for medical malpractice. Plaintiff's attorneys then withdraw, after which an AUSA representing the U.S. writes plaintiff and asks him whether he'd like to dismiss the case "without prejudice," and included a proposed stipulation. After that tactic didn't initially work -- plaintiff didn't even respond -- the AUSA tried again, and this time, plaintiff returned the stipulation.
When plaintiff, now represented by counsel, subsequently refiled, the U.S. responded: "Sorry. The dismissal was without prejudice, sure. Like we promised. But you missed that as a result of the dismissal, you're now time-barred. And the statute of limitations is jurisdictional, so don't even try arguing equitable estoppel based upon our misleading you. Ha! We win."
And the Ninth Circuit agrees.
Fooling the unwary. Especially fun when the plaintiff has complications (allegedly caused by you) from prostate cancer.
Friday, December 05, 2008
People v. Zavala (Cal. Ct. App. - Nov. 24, 2008)
Sometimes it takes a subtle legal mind to evaluate the complex doctrinal and policy implications of a particular legal principle on appeal in order to assess whether or not the Court of Appeal will reverse.
Sometimes, not so much.
Here's the opening paragraph of the opinion. Knowing nothing at all about the appeal other than this first paragraph, and (even then) knowing absolutely nothing at all about the relevant legal principles at issue, see if you nonetheless can accurately fill in the blank:
"Eric Jones was punched, knocked out, and tied by his hands and feet, and he was beaten beyond recognition, stripped of his clothing, and shocked with electricity, and he was sodomized with a tool handle, put into the trunk of a car, and driven to a remote area, and he was dragged into a field and shot 10 times at close range, and he bled to death. Gerardo Zavala admitted to a detective his involvement in some, but not all, of the acts of abuse. . . . [and] a [] jury found him guilty of second degree murder, torture, and kidnapping and found two firearm allegations true. The trial court sentenced him to 18 years to life. We will ______ the judgment."
Tough one, eh?
Sometimes, not so much.
Here's the opening paragraph of the opinion. Knowing nothing at all about the appeal other than this first paragraph, and (even then) knowing absolutely nothing at all about the relevant legal principles at issue, see if you nonetheless can accurately fill in the blank:
"Eric Jones was punched, knocked out, and tied by his hands and feet, and he was beaten beyond recognition, stripped of his clothing, and shocked with electricity, and he was sodomized with a tool handle, put into the trunk of a car, and driven to a remote area, and he was dragged into a field and shot 10 times at close range, and he bled to death. Gerardo Zavala admitted to a detective his involvement in some, but not all, of the acts of abuse. . . . [and] a [] jury found him guilty of second degree murder, torture, and kidnapping and found two firearm allegations true. The trial court sentenced him to 18 years to life. We will ______ the judgment."
Tough one, eh?
Thursday, December 04, 2008
Robinson v. Woods (Cal. Ct. App. - Dec. 4, 2008)
I like the strategy here.
Defendant files a motion for summary judgment. They file it more than the statutorily-required 75 days before the hearing date, but (1) forget to add 5 days for service by mail, and (2) impermissibly set the hearing for 18 days before trial (whereas the statute requires 30 absent a showing of good cause).
Plaintiff waits the full period to respond (rather than moving ex parte to take the motion off calendar) and then raises purely procedural/notice objections, and does not respond on the merits. At the scheduled hearing, the trial court concedes (as it must) that the mandatory notice wasn't given, so gives plaintiffs an extra four days to respond, on the theory that the 76 days they got plus the extra 4 then gives 'em 75 plus 5. And also finds "good cause" for a shortly-before-trial hearing date. Plaintiff again objects, and doesn't file an opposition on the merits. The trial court then grants summary judgment.
Plaintiff then appeals, raising (again) only the procedural points. And wins. Rightfully so. You can't do what the trial court did. Sorry, but you can't. It's mandatory 75 (+5) notice. Defendant didn't get it. Ergo the case gets reversed.
Now, mind you, you're still going to have to eventually oppose the summary judgment motion, since on remand, defendant will simply refile it, and give you the right amount of notice this time. So my first reaction was: why spend all the time (and money) to file procedural objections, and then have to file an appeal? What's the point? Aren't you being penny-wise and pound foolish?
Maybe. Indeed, here, that may well be the case. Since I get a sense that this is a tinier case with not that much money (or attorney's fees) able to be thrown at it.
But, in a different case (and perhaps even here), I can indeed see a legitimate reason for such a move. If you respond on the merits, of course, you risk the trial court saying -- as it surely would have here -- that you had 76 of the 80 necessary days, so can't so prejudice, and hence your objections are overruled. By contrast, if you limit yourself to the timing objection, sure, you may have to appeal, and thereafter have to respond to the merits upon remand.
So what do you gain besides (1) wasting your (and the other side's) time and money, and (2) just generally being a pain? What's the point?
Strategic answer: A new judge. Since you get to bounce the existing judge after the case comes back down from the Court of Appeal.
Again, I don't have a sense that this was actually motivating the parties here. (The fact that the defendant didn't even file a brief on appeal suggests, again, that what's really motivating these particular parties are economic constraints.) Nor does the Court of Appeal discuss what really may be going on. But procedural "sandbagging" in such a manner may nonetheless both be effective as well as worth it in a given case.
As Paul McGuire of the Bay Area post-hardcore band Karate High School famously proclaims: "Sometimes when you lose, you win."
Defendant files a motion for summary judgment. They file it more than the statutorily-required 75 days before the hearing date, but (1) forget to add 5 days for service by mail, and (2) impermissibly set the hearing for 18 days before trial (whereas the statute requires 30 absent a showing of good cause).
Plaintiff waits the full period to respond (rather than moving ex parte to take the motion off calendar) and then raises purely procedural/notice objections, and does not respond on the merits. At the scheduled hearing, the trial court concedes (as it must) that the mandatory notice wasn't given, so gives plaintiffs an extra four days to respond, on the theory that the 76 days they got plus the extra 4 then gives 'em 75 plus 5. And also finds "good cause" for a shortly-before-trial hearing date. Plaintiff again objects, and doesn't file an opposition on the merits. The trial court then grants summary judgment.
Plaintiff then appeals, raising (again) only the procedural points. And wins. Rightfully so. You can't do what the trial court did. Sorry, but you can't. It's mandatory 75 (+5) notice. Defendant didn't get it. Ergo the case gets reversed.
Now, mind you, you're still going to have to eventually oppose the summary judgment motion, since on remand, defendant will simply refile it, and give you the right amount of notice this time. So my first reaction was: why spend all the time (and money) to file procedural objections, and then have to file an appeal? What's the point? Aren't you being penny-wise and pound foolish?
Maybe. Indeed, here, that may well be the case. Since I get a sense that this is a tinier case with not that much money (or attorney's fees) able to be thrown at it.
But, in a different case (and perhaps even here), I can indeed see a legitimate reason for such a move. If you respond on the merits, of course, you risk the trial court saying -- as it surely would have here -- that you had 76 of the 80 necessary days, so can't so prejudice, and hence your objections are overruled. By contrast, if you limit yourself to the timing objection, sure, you may have to appeal, and thereafter have to respond to the merits upon remand.
So what do you gain besides (1) wasting your (and the other side's) time and money, and (2) just generally being a pain? What's the point?
Strategic answer: A new judge. Since you get to bounce the existing judge after the case comes back down from the Court of Appeal.
Again, I don't have a sense that this was actually motivating the parties here. (The fact that the defendant didn't even file a brief on appeal suggests, again, that what's really motivating these particular parties are economic constraints.) Nor does the Court of Appeal discuss what really may be going on. But procedural "sandbagging" in such a manner may nonetheless both be effective as well as worth it in a given case.
As Paul McGuire of the Bay Area post-hardcore band Karate High School famously proclaims: "Sometimes when you lose, you win."
Ekstrom v. Marquesa at Monarch Beach HOA (Cal. Ct. App. - Dec. 1, 2008)
I concede that I'm somewhat personally invested in this decision, since I own an ocean-view home and the case involves whether or not homeowners can enforce a CC&R that requires neighbors to trim any trees -- here, palm trees -- that exceed the height of the home and thereby obstruct the views of other homeowners. (That said, I both don't own one of these homes nor do I have any relevant CC&R's in my community. Plus, it'd be hard to obstruct my particular view with trees unless they somehow grew in the ocean itself.)
Regardless of my personal interest, however, I think that both Justice O'Leary and the trial court (Judge Margines in Orange County) got it exactly right. The CC&Rs here affirmatively require a homeowner to trim trees that grow above the house and obstruct views. Yes, fully developed palm trees look nice. And, yes, you can't actually trim them, because when you cut the tops off they die. So that's a bummer.
But that doesn't mean the HOA can simply refuse to enforce the CC&Rs by categorically exempting palm trees. Homeowners may permissibly rely upon the written CC&Rs when they buy a view home, and can assume that when the CC&Rs say that the view from their home won't ever be blocked by trees above other houses, that will in fact be the case, and those CC&Rs will be enforced -- either by the HOA or (as allowed by the CC&Rs here) through private litigation. Nor does the HOA get any deference when interpreting a straightforward and unambiguous CC&R. If it clearly says X, the HOA can't interpret it to mean "X except for Y". Sorry. Doesn't work.
I take no view on whether the palm trees in the area make the place generally look nicer. Regardless, when a covenant says you can rely on X, you can rely on X, even if X is a bad idea. (In that regard, can I mention that my home has a wide variety of totally absurd CC&Rs. Many of which expired in the early 1940s, but some of will operate forever to preclude me from, inter alia, brewing alcohol on the premises -- in short, from a wide variety of socially beneficial practices. I may or may not like 'em. But they're part of the deal.)
Regardless of my personal interest, however, I think that both Justice O'Leary and the trial court (Judge Margines in Orange County) got it exactly right. The CC&Rs here affirmatively require a homeowner to trim trees that grow above the house and obstruct views. Yes, fully developed palm trees look nice. And, yes, you can't actually trim them, because when you cut the tops off they die. So that's a bummer.
But that doesn't mean the HOA can simply refuse to enforce the CC&Rs by categorically exempting palm trees. Homeowners may permissibly rely upon the written CC&Rs when they buy a view home, and can assume that when the CC&Rs say that the view from their home won't ever be blocked by trees above other houses, that will in fact be the case, and those CC&Rs will be enforced -- either by the HOA or (as allowed by the CC&Rs here) through private litigation. Nor does the HOA get any deference when interpreting a straightforward and unambiguous CC&R. If it clearly says X, the HOA can't interpret it to mean "X except for Y". Sorry. Doesn't work.
I take no view on whether the palm trees in the area make the place generally look nicer. Regardless, when a covenant says you can rely on X, you can rely on X, even if X is a bad idea. (In that regard, can I mention that my home has a wide variety of totally absurd CC&Rs. Many of which expired in the early 1940s, but some of will operate forever to preclude me from, inter alia, brewing alcohol on the premises -- in short, from a wide variety of socially beneficial practices. I may or may not like 'em. But they're part of the deal.)
Wednesday, December 03, 2008
Andrzejewski v. FAA (9th Cir. - Dec. 3, 2008)
Melissa Andrzejewski may only be 22 years old (actually, 24 or 25 now), but she's a better pilot than you are. (Cuter, too, apparently.) Moreover, at least in a high-performance Zivco Edge 540, she may well be a better pilot than the people who watched her take off from the Butler County Airport in 2006. Two of whom thought she was hot-dogging it on takeoff, and the FAA on that basis revoked her license.
The ALJ reinstated the license, the NTSB reversed, and the Ninth Circuit reverses the reversal. In a decision that seems entirely right, and gives appropriate deference to the ALJ.
Mind you, do I think she was hot-dogging it? Honestly, probably yes. She was showing off her new high-performance aircraft to her family. Based purely upon what I've read, and upon what I might reasonably intuit about 22-year old pilots who perform in air shows and competitions and who are showing off a new airplane, I think it highly likely that she indeed did a couple of "wing wags" to her parents. Sure, she was able to muster a lot of friends and acrobatic pilots to testify "Well, no, in high-performance aircraft, what you thought you saw might actually be normal. You pedestrian plebes are simply not used to our fancy planes." But come on. I think I know full well what you did.
Still, I admit it seems harsh to revoke your license, albeit for a technically dangerous maneuver on takeoff. More importantly, Judge Bea is entirely right that you gotta give deference to the ALJ, who decided that the witnesses for Melissa were more persuasive than those of the FAA.
That's what factfinding is all about. Even when we think it's wrong, we defer. Maybe in particular cases that results in error, but that's the price of an otherwise good system.
So I agree with the reversal here. Though I hope Melissa is, at this point, a bit more circumspect. At least outside of air shows.
P.S. - Hot financee too!
P.P.S. - On a whim, I read the briefs. Which mention, inter alia, Melissa's prior license revocation (the year before this incident) for an illegal low-level flyby at a friend's wedding, the undisputed fact that she deployed air show smoke for her grandmother during the relevant events here, the testimony about the 80 degree (!) banking of the aircraft and rapid 45 degree ascention, etc. Sure, I read how Melissa's friends testified too. But oh my. (Again; nonetheless, Judge Bea gets it right.)
Java Oil Ltd. v. Sullivan (Cal. Ct. App. - Dec. 2, 2008)
December 2nd was a bad day for several people: (1) California attorney Andrew Dimitriou (see yesterday's post); (2) non-California attorney John Brown (albeit in 1859); and (3) California quasi-attorney Harold Sullivan.
The last of these three had a $3.1 million foreign judgment against him (issued by the Supreme Court of Gibraltar, no less) affirmed by the California Court of Appeal. Rightfully so, I might add.
And I say "quasi-attorney" not because Mr. Sullivan hasn't passed the bar -- he did, long ago -- but rather because he's not currently entitled to practice law in California. As his increasingly-colorful disciplinary record amply reveals.
Which, wholly apart from the merits (the issue in the CoA was simply whether the foreign judgment was entitled to recognition) makes you think that the Supreme Court of Gibraltar might not have been entirely wrong to enter the $3.1 million judgment against him in the first place.
The last of these three had a $3.1 million foreign judgment against him (issued by the Supreme Court of Gibraltar, no less) affirmed by the California Court of Appeal. Rightfully so, I might add.
And I say "quasi-attorney" not because Mr. Sullivan hasn't passed the bar -- he did, long ago -- but rather because he's not currently entitled to practice law in California. As his increasingly-colorful disciplinary record amply reveals.
Which, wholly apart from the merits (the issue in the CoA was simply whether the foreign judgment was entitled to recognition) makes you think that the Supreme Court of Gibraltar might not have been entirely wrong to enter the $3.1 million judgment against him in the first place.
Tuesday, December 02, 2008
Huschke v. Slater (Cal. Ct. App. - Dec. 2, 2008)
Oh, sure. Make me look bad, California Court of Appeal. Immediately after I take umbrage at nothing being published today by either you or the Ninth Circuit, go ahead and publish five different opinions. Geeze.
At least I don't look as bad as San Francisco attorney Andrew Dimitriou, though. Who's the principal subject of one of the published opinions today. Something that hardly made his day. Or week. Or probably year.
The problem is this: Dimitriou was the counsel for appellant in a tiny little appeal involving discovery sanctions of $6,382. Dimitriou filed the appeal and briefed the case, and since the case wasn't worth briefing, respondents elected not to respond. All of which is fine.
So the Court of Appeal asks if anyone wants oral argument, Dimitriou says he does, so it gets set for oral argument on September 16, 2008. Again, all okay.
The day before the oral argument, however, an associate for Dimitriou faxes the Court of Appeal a letter that says the parties settled the case back in 2007.
Oops. What about Rule 8.244, which requires the appellant to promptly let the court know if the case has settled? Or the reminder of that rule in the oral argument request the Court sent out?
The Court of Appeal wants answers to these questions as well. To which the parties respond in a manner that's worth reading about at length, but to summarize, the Court of Appeal is seriously -- seriously (and, IMHO, rightly) -- dubious of Dimitriou's veracity, and even if everything that Dimitriou says is correct, what he did was still a violation of the rules.
So spank him we shall. To the tune of $6,000 in sanctions, payable to the Court of Appeal. Plus reporting the thing to the State Bar. And, to boot, a published opinion.
Why? Because you violated the rules. And, on a personal level, because we don't want ourselves and/or our clerks to write complete opinions (ready-to-go at oral argument) for cases that settled long ago.
So more lessons for the day: When the case settles, tell the Court of Appeal. Like, immediately.
Or suffer the fate of Andrew Dimitriou.
P.S. - Check out the (ironic) last paragraph of his three-paragraph self-description on his web site. Which begins with the sentence "He has lectured extensively on legal ethics . . . ." My sense is that those many invitations to lecture on legal ethics may dry up a little bit at this point.
At least I don't look as bad as San Francisco attorney Andrew Dimitriou, though. Who's the principal subject of one of the published opinions today. Something that hardly made his day. Or week. Or probably year.
The problem is this: Dimitriou was the counsel for appellant in a tiny little appeal involving discovery sanctions of $6,382. Dimitriou filed the appeal and briefed the case, and since the case wasn't worth briefing, respondents elected not to respond. All of which is fine.
So the Court of Appeal asks if anyone wants oral argument, Dimitriou says he does, so it gets set for oral argument on September 16, 2008. Again, all okay.
The day before the oral argument, however, an associate for Dimitriou faxes the Court of Appeal a letter that says the parties settled the case back in 2007.
Oops. What about Rule 8.244, which requires the appellant to promptly let the court know if the case has settled? Or the reminder of that rule in the oral argument request the Court sent out?
The Court of Appeal wants answers to these questions as well. To which the parties respond in a manner that's worth reading about at length, but to summarize, the Court of Appeal is seriously -- seriously (and, IMHO, rightly) -- dubious of Dimitriou's veracity, and even if everything that Dimitriou says is correct, what he did was still a violation of the rules.
So spank him we shall. To the tune of $6,000 in sanctions, payable to the Court of Appeal. Plus reporting the thing to the State Bar. And, to boot, a published opinion.
Why? Because you violated the rules. And, on a personal level, because we don't want ourselves and/or our clerks to write complete opinions (ready-to-go at oral argument) for cases that settled long ago.
So more lessons for the day: When the case settles, tell the Court of Appeal. Like, immediately.
Or suffer the fate of Andrew Dimitriou.
P.S. - Check out the (ironic) last paragraph of his three-paragraph self-description on his web site. Which begins with the sentence "He has lectured extensively on legal ethics . . . ." My sense is that those many invitations to lecture on legal ethics may dry up a little bit at this point.
Lee v. An (Cal. Ct. App. - Nov. 19, 2008)
No published opinions today (at least thus far). What's the occasion? I know it's not Nevada Day. No opinions due to Special Education Day? Or the International Day for Abolition of Slavery? Or maybe we're celebrating the 185th anniversary of the enunciation of the Monroe Doctrine. Or the first controlled atomic reaction (in 1942)? The list is endless.
Regardless, even if everyone important is off doing other things, the rest of us can still obtain knowledge. So here's something worth remembering:
Don't blow off a case management conference.
Or, at a minimum, don't wait two years to complain about the consequences of blowing it off.
Lesson learned.
Regardless, even if everyone important is off doing other things, the rest of us can still obtain knowledge. So here's something worth remembering:
Don't blow off a case management conference.
Or, at a minimum, don't wait two years to complain about the consequences of blowing it off.
Lesson learned.
People v. Rubin (Cal. Ct. App. - Dec. 1, 2008)
Dude, I know you like weed. A lot. Really a lot.
You are, indeed, the "Hollywood Wizard of Weed." At least according to the definitive source with respect to this issue; namely, High Times magazine.
However, my friend, attention begets attention. In this case, from the LAPD. So when you open the aptly-named "Temple 420" in Hollywood, please tell me that you were not surprised when an undercover cop came in to purchase some weed. A facility in which you (boldy) planned to sell marijuana, inter alia, in vending machines. An idea that I'm sure sounded really good when you were totally high.
Unfortunately, reality has a dangerous way of intruding sometimes. So you were busted. And your effort to claim that you were immune from prosecution under RFRA totally -- and predictably -- failed. Regardless of whether you have a personal religious right to use, you can't sell the stuff. Even if you sincerely believe that everyone would perhaps be a lot closer to God if they were thoroughly baked.
Sorry about that. Affirmed.
You are, indeed, the "Hollywood Wizard of Weed." At least according to the definitive source with respect to this issue; namely, High Times magazine.
However, my friend, attention begets attention. In this case, from the LAPD. So when you open the aptly-named "Temple 420" in Hollywood, please tell me that you were not surprised when an undercover cop came in to purchase some weed. A facility in which you (boldy) planned to sell marijuana, inter alia, in vending machines. An idea that I'm sure sounded really good when you were totally high.
Unfortunately, reality has a dangerous way of intruding sometimes. So you were busted. And your effort to claim that you were immune from prosecution under RFRA totally -- and predictably -- failed. Regardless of whether you have a personal religious right to use, you can't sell the stuff. Even if you sincerely believe that everyone would perhaps be a lot closer to God if they were thoroughly baked.
Sorry about that. Affirmed.
Monday, December 01, 2008
Dietrich v. John Ascuaga's Nugget (9th Cir. - Dec. 1, 2008)
It's a random point, but I just wanted to share how much I appreciated footnote 3.
The judgment in this case probably became final -- at least as to some of the defendants -- on September 27, 2006, and the notice of appeal was filed on Monday, October 30, 2006. Which predictably (and to its credit)made the court inquire whether the notice of appeal was late, since the thirty days to appeal would appear to have ended on Friday, October 27, 2006.
Judge Graber doesn't mention it in her opinion, but I listened to the oral argument, and Judge Graber made this point to appellant's counsel about eight minutes in. To which counsel, who hadn't prepared anything on (or even thought about) this point for oral argument, mumbled some inapplicable words in response. And the court didn't seem too sure about the point either. And when the court (around 15 minutes in) asked the same question to appellee's counsel, more words were again mumbled, none of which were especially relevant. (All of the participants seemed focused on the Monday issue, but if the 30-day period expired on Friday, you don't normally get until Monday).
What no one mentioned -- but eventually everyone figured out, albeit after oral argument -- were the following two dispositive magic words: "Nevada Day."
You heard me. Nevada Day. Nevada was admitted to the Union on October 31st, 1864. So every October 31st was traditionally a holiday. At least in Nevada. And, as you know, under Rule 6, if it's a holiday in the state in which the district court sits (here, Nevada), it doesn't count.
But why does that matter? How does a traditional state holiday on October 31st affect the timeliness of an appeal that was due on October 27th?
More Nevada history for you. Sure, October 31st seemed the right day for a holiday. And so it was for a century or so. But what a bummer to have a holiday on Halloween, right? Don't you want two holidays? Or one holiday day and another celebratory night? What about a day just for Nevada, without a confusing -- if accurate -- reference to All Souls?
Or at least that persuaded the voters of Nevada, who in November 1998 voted to ask the Legislature to please change the day. And, after much heated debate, apparently, the Nevada Legislature eventually complied. In an act that changed the date of Nevada Day to the last Friday in October.
So what about Friday, October 27, 2006? You guessed it. Nevada Day. Hence the appeal is timely.
A neat little story. Regarding a holiday (and the consequences thereof) I couldn't have otherwise named for (as they say) all the tea in China.
P.S. - This is also a reminder that, prior to oral argument on appeal, to always spend three or four minutes making sure you're prepared on jurisdictional stuff like the timeliness of the appeal. It's a tiny issue. But one about which appellate courts often care. It's worth the marginal investment. Trust me.
The judgment in this case probably became final -- at least as to some of the defendants -- on September 27, 2006, and the notice of appeal was filed on Monday, October 30, 2006. Which predictably (and to its credit)made the court inquire whether the notice of appeal was late, since the thirty days to appeal would appear to have ended on Friday, October 27, 2006.
Judge Graber doesn't mention it in her opinion, but I listened to the oral argument, and Judge Graber made this point to appellant's counsel about eight minutes in. To which counsel, who hadn't prepared anything on (or even thought about) this point for oral argument, mumbled some inapplicable words in response. And the court didn't seem too sure about the point either. And when the court (around 15 minutes in) asked the same question to appellee's counsel, more words were again mumbled, none of which were especially relevant. (All of the participants seemed focused on the Monday issue, but if the 30-day period expired on Friday, you don't normally get until Monday).
What no one mentioned -- but eventually everyone figured out, albeit after oral argument -- were the following two dispositive magic words: "Nevada Day."
You heard me. Nevada Day. Nevada was admitted to the Union on October 31st, 1864. So every October 31st was traditionally a holiday. At least in Nevada. And, as you know, under Rule 6, if it's a holiday in the state in which the district court sits (here, Nevada), it doesn't count.
But why does that matter? How does a traditional state holiday on October 31st affect the timeliness of an appeal that was due on October 27th?
More Nevada history for you. Sure, October 31st seemed the right day for a holiday. And so it was for a century or so. But what a bummer to have a holiday on Halloween, right? Don't you want two holidays? Or one holiday day and another celebratory night? What about a day just for Nevada, without a confusing -- if accurate -- reference to All Souls?
Or at least that persuaded the voters of Nevada, who in November 1998 voted to ask the Legislature to please change the day. And, after much heated debate, apparently, the Nevada Legislature eventually complied. In an act that changed the date of Nevada Day to the last Friday in October.
So what about Friday, October 27, 2006? You guessed it. Nevada Day. Hence the appeal is timely.
A neat little story. Regarding a holiday (and the consequences thereof) I couldn't have otherwise named for (as they say) all the tea in China.
P.S. - This is also a reminder that, prior to oral argument on appeal, to always spend three or four minutes making sure you're prepared on jurisdictional stuff like the timeliness of the appeal. It's a tiny issue. But one about which appellate courts often care. It's worth the marginal investment. Trust me.
U.S. v. Murillo (9th Cir. - Dec. 1, 2008)
You want to know how you can tell when the Ninth Circuit doesn't like you? When it, inter alia, starts issuing published opinions that (1) reverse your judgments, (2) without the need for oral argument, (3) in two brief paragraphs, and (4) that further remand the case to a different judge.
Such is the fate of Judge Real.
Yet again: Feel the love.
Such is the fate of Judge Real.
Yet again: Feel the love.
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