I'm in a darn good mood. It's completely sunny. Seventy wonderful degrees. I started my short drive to work overlooking the beautiful ocean, saw snow-capped mountains in the distance, drove down a beautiful palm-lined street, and hit all green lights on the way to work: drive so fast that only a single song -- a guitar-riffing "Strangehold" -- had time to play on the radio. Life is awesome.
So you'd think, given those predicates, that when I started reading the opinions this morning from the California Court of Appeal, I'd be in a super-cheerful, readily agreeable mood.
And yet with the first opinion I read, I find myself in disagreement with every member of the panel.
Not on everything. I actually find the court's resolution of most of the case fairly persuasive. It's a pregnancy discrimination and retaliation case. Both sides have good positions. On the one hand, I totally see where the plaintiff's coming from. When you tell your boss you're pregnant, his reaction should not including saying (in writing, no less): "I need some honesty. How pregnant were you when you interviewed with me?" I don't care how small the office is or how important the position. That's not a legitimate inquiry. Neither at the interview stage or thereafter. "Honesty" has nothing to do with it. So, to me, plaintiff is quite right to be upset at the inquiry.
That said, people make mistakes, and in later communications, defendant seems to have a sincere change of heart, and really does (IMHO) try to correct his prior error. Not in a "CYA" way, I think, but rather in an honest understanding that what he did was wrong. Plus, on the legal side, there are tough standards for when a single incident consititutes an actionable hostile work environment, so I can see why the trial court granted summary judgment to the defendant, and why the panel affirms.
So I can understand that. Even though perhaps reasonable minds might differ. (Which, among other things, is why I wouldn't have described plaintiff's arguments, as Justice Scotland does, as "It appears [plaintiff] expects FEHA to be a civility code." That description is overly harsh, unnecessary and inaccurate, I think. But maybe my reaction is a product of the good weather, and perhaps Justice Scotland wrote his lines during the winter rain and floods.)
But what I can't get on board for -- even in my completely good mood -- is the court's discussion of the attorney-client privilege issue.
The plaintiff, upset at her interactions with her boss, writes an e-mail to an attorney from her work computer. Her computer is never monitored, and her e-mail is never inspected, and she even goes back and deletes this e-mail when her attorney tells her to. But the Court of Appeal holds that because the employer had issued a boilerblate directive -- never actually followed -- that says that work computers are only for work, that they have the right to inspect all e-mails, blah blah blah, plaintiff's communication isn't privileged. It's like, Justice Scotland asserts, "consulting [an] attorney in one of defendant's conference rooms, in a loud voice, with the door open."
Really?! Seriously?
To me, this holding just goes way too far. It might be one thing if everyone actually knew that someone was constantly looking at your e-mails. In that factual setting, I get it. But that wasn't the case here. Nor is it the case in most of corporate America. The mere fact that someone can look at your stuff doesn't necessarily mean you don't have a reasonable expectation of privacy. Especially when, as here, you in fact know that they don't.
This holding also seems troubling -- and exceptionally far-reaching -- from a practical perspective. Virtually every institution has the exact same internet/e-mail policy as the defendant here. Yet the common practice -- to which virtually every person in America can attest -- is that we do expect a certain level of privacy in our work e-mail. Go back and check your e-mails over the past year. You mean to tell me there's nothing you have sent in the last year that you'd prefer remain private? If so, you and I are definitely different. We all, or at least most of us, do expect -- and believe -- that our e-mails will typically remain private absent unusual circumstances. Even when our employer has a boilerplate, never-enforced policy. I think that those actual expectations, proven time and again in practice, speak volumes about what people's expectations are. And as a practical (as well as doctrinal) matter, I think those expectations are reasonable. Something that the law should enforce absent unusual circumstances.
Plus, Justice Scotland's analogy seems way off base. To me, the more accurate analogy would be to say that the communications here are like talking to your attorney in a whisper in an empty Costco owned by your boss when you know your boss is on vacation in Nigeria. Even if your boss tells you, in writing, that he has the right to hide behind shelves and in large Pampers packages anytime he wants and to eavesdrop on anything he can hear, when you talk to your attorney in such a setting, you still have a reasonable expectation of privacy.
So I'd have to dissent with respect to that part of the opinion. A part that I think is potentially really pernicious.
Thursday, January 13, 2011
People v. Avila (Cal. Ct. App. - Jan. 6, 2011)
I always like it when the Court of Appeal gives good advice. Particularly when it does so in the first paragraph of the opinion. Always good for any readers who might be in a rush.
So, for example, Justice Yegan begins this opinion with the following introduction: "A criminal defendant has a hard enough time defending the underlyign charge. He should not 'pick a new fight' with the prosecutor and yet another fight with this court appointed counsel [by] threatening to kill them[,] thereby creating two new cases to defend."
Really?! You don't say. Hmmm. Always thought that was a good strategy. Thanks for the head's up.
Seriously, though, I really did like that introduction. It brought a smile to my face. Particularly since that's exactly what the defendant did here, and it was indeed a very poor strategic decision.
It didn't especially surprise me, by the way, when I learned later in the opinion that the defendant was found mentally incompetent to stand trial. You have to be a little, well, "different" when you threaten to kill people in an open and obvious way. Particularly when you do so in a call from a jail cell that you know is being recorded. Even more so when -- because you're a nut job, quite frankly -- your second threat comes from a letter you sent from your jail cell (which you give to the jailer) in which you quite clearly print, on the outside of the envelope: "Death Threat, Via U.S. Mail, Title 18 U.S.C. Crime." Well, now. That's making it pretty easy for the authorities, isn't it? Even more so when you also write (again on the outside of the envelope) that if your letter isn't given to a particular judge, "When I get out, I will find you and murder you with a shotgun at point-blank." Adding, lest there be any doubt, that you had the "specific intent" that your letter be taken as a death threat and that "This time I am not joking, I'm serious!!"
Getting a conviction on that one's gonna really be tough, huh? That's for shortening the process, dude.
In the end, though, I find a glimmer of hope. Because guess what? This is not just some crazy guy. This was a guy who ran for a seat on the Thousand Oaks City Council. And who was initially charged with a crime when, during his 2004 campaign, he generated harassing text messages that were made to look as if they'd been sent by an opposing candidate.
Democracy, however, worked. The voters elected the other guy. So maybe we've got the right system after all. The electorate can see whack jobs even before the criminal justice system can.
A great, and happy lesson. Diminished only slightly by the realization that in the relevant election, out of seven candidates (the top two of whom won seats), this particular whack job came in fifth.
So imagine just how crazy the other two candidates must have been.
So, for example, Justice Yegan begins this opinion with the following introduction: "A criminal defendant has a hard enough time defending the underlyign charge. He should not 'pick a new fight' with the prosecutor and yet another fight with this court appointed counsel [by] threatening to kill them[,] thereby creating two new cases to defend."
Really?! You don't say. Hmmm. Always thought that was a good strategy. Thanks for the head's up.
Seriously, though, I really did like that introduction. It brought a smile to my face. Particularly since that's exactly what the defendant did here, and it was indeed a very poor strategic decision.
It didn't especially surprise me, by the way, when I learned later in the opinion that the defendant was found mentally incompetent to stand trial. You have to be a little, well, "different" when you threaten to kill people in an open and obvious way. Particularly when you do so in a call from a jail cell that you know is being recorded. Even more so when -- because you're a nut job, quite frankly -- your second threat comes from a letter you sent from your jail cell (which you give to the jailer) in which you quite clearly print, on the outside of the envelope: "Death Threat, Via U.S. Mail, Title 18 U.S.C. Crime." Well, now. That's making it pretty easy for the authorities, isn't it? Even more so when you also write (again on the outside of the envelope) that if your letter isn't given to a particular judge, "When I get out, I will find you and murder you with a shotgun at point-blank." Adding, lest there be any doubt, that you had the "specific intent" that your letter be taken as a death threat and that "This time I am not joking, I'm serious!!"
Getting a conviction on that one's gonna really be tough, huh? That's for shortening the process, dude.
In the end, though, I find a glimmer of hope. Because guess what? This is not just some crazy guy. This was a guy who ran for a seat on the Thousand Oaks City Council. And who was initially charged with a crime when, during his 2004 campaign, he generated harassing text messages that were made to look as if they'd been sent by an opposing candidate.
Democracy, however, worked. The voters elected the other guy. So maybe we've got the right system after all. The electorate can see whack jobs even before the criminal justice system can.
A great, and happy lesson. Diminished only slightly by the realization that in the relevant election, out of seven candidates (the top two of whom won seats), this particular whack job came in fifth.
So imagine just how crazy the other two candidates must have been.
Wednesday, January 12, 2011
In Re Marriage of Fernandez-Abin & Sanchez (Cal. Ct. App. - Jan. 11, 2011)
Custody cases sometimes get ugly. Real ugly. But rarely do they include something like this. Which occurred after a court order, no less:
"In mid-June 2008, husband, accompanied by about 10 armed men carrying assault weapons, went to wife's parents' house [], took the children and never returned them home."
Yikes.
This abduction took place in Tijuana, mind you. But the children were U.S. citizens, the mother eventually became a legal resident, and the custody case ultimately ends up getting heard -- after various (ineffectual) orders by the Mexican court -- in San Diego, after the Child Abduction Unit of the San Diego D.A.'s office gets the kids (who were in Chula Vista) and reunites them with their mother.
But there are ongoing proceedings in both the U.S. as well as in Mexico. Which makes for a procedural and jurisdictional nightmare. Read the whole thing to get a sense.
It's not pretty.
"In mid-June 2008, husband, accompanied by about 10 armed men carrying assault weapons, went to wife's parents' house [], took the children and never returned them home."
Yikes.
This abduction took place in Tijuana, mind you. But the children were U.S. citizens, the mother eventually became a legal resident, and the custody case ultimately ends up getting heard -- after various (ineffectual) orders by the Mexican court -- in San Diego, after the Child Abduction Unit of the San Diego D.A.'s office gets the kids (who were in Chula Vista) and reunites them with their mother.
But there are ongoing proceedings in both the U.S. as well as in Mexico. Which makes for a procedural and jurisdictional nightmare. Read the whole thing to get a sense.
It's not pretty.
Grewal v. Jammu (Cal. Ct. App. - Jan. 11, 2011)
When the Court of Appeal (or California Supreme Court) bothers to make some comments to the Legislature in a published opinion, I generally hope that people are listening. Because it takes a bit for the judiciary to reach out to another branch, and when it does so, it's usually regarding an area that the judiciary has a great deal of both experience and expertise. The judiciary speaks softly. But it's more like E.F. Hutton than T.R. Roosevelt. No stick. But people listen.
I hope that's the case in reaction to this opinion.
It's another SLAPP appeal. The resolution of which is less interesting than Justice Richman's comments to the Legislature. Where he suggests that the Legislature should seriously consider repealing the provisions that authorize an automatic appeal when a party files for but loses an anti-SLAPP motion.
I think Justice Richman describes pretty accurately the problems engendered by automatic appeals. Lots of these appeals are silly. All of them delay the lawsuit a fair piece. Sometimes substantially. Because appeals take time, and meanwhile, the case is stayed. Justice delayed is justice denied, and all. So I am somewhat sympathetic to his views, and hopefully the Legislature will be as well.
But I'd nonetheless like to modify what Justice Richman says a bit. As well as his suggestion.
It's true that some anti-SLAPP appeals are silly. But some are meritorious as well. Differentiating the two is not entirely easy. And I'm not sure you entirely want to throw out the baby with the bathwater here. There's a real problem -- the legitimate problem that motivated passage of the SLAPP statute in the first place -- of constitutional rights being potentially chilled by litigation. We want to put a stop to that, and having an appeal helps to ensure that if the trial court gets it wrong, the defendant doesn't have to spend lots of money on legal fees in the meantime. Because if they do, then we haven't taken away the chill on speech.
Justice Richman thinks that the possibility of filing a summary judgment motion or a writ solves this problem for cases in which an appeal might be meritorious. I'm not entirely persuaded. As for the former, filing such a motion costs a lot of money, takes a lot of time (including the required 75-day notice period), and often requires a boatload of discovery lest the motion be denied or continued. Those are real problems. As for the latter, given the number of denied writ petitions, and the short shrift they often (necessarily) receive, I'm not sure that's entirely adequate to solve the problem. I'm can see why some one on the Court of Appeal might think "Don't worry; we do a great job of solving this problem with discretionary review, since we're really awesome at separating the wheat from the chaff, and always step in when necessary." But outsiders, including myself, aren't so convinced. So neither solution seems entirely adequate to solve the chill.
But let me give an alternative. For consideration by Justice Richman and/or the Legislature.
Justice Richman notes -- correctly -- that the problem with an automatic appeal is that it delays the lawsuit, typically by almost two years. I agree that's too much. So what about still allowing appeals but expediting them. Opening brief due in 30 days; no stipulated or other extensions absent extraordinary circumstances. Responsive brief due 30 days thereafter; reply brief (if any) 15 days thereafter. All that's doable; the parties have already done the briefs below, and in these cases, that schedule is eminently feasible. Once briefed, the anti-SLAPP appeals have priority. The Court of Appeal has 30 days to schedule oral argument after briefs are filed. Then pounds out its decision either quickly (could easily be within a week) or on the regular (90-day) schedule. Whatever works.
Total time from start to finish: Four to six months. Sure, that's a delay in the underlying lawsuit. But not a massive one. Even a fraction of the discovery often takes up this period. We'll thereby provide an appeal -- with the resulting safeguards -- but without the resulting delay.
I think that'd be the best of all possible worlds, and is a reasonable middle ground between what we have now and the solution advanced by Justice Richman. It's a little bit of an administrative hassle, but eminently doable. It also has precedent. Both state and federal courts give certain appellate cases priority. And the timeline I've suggested for anti-SLAPP cases is certainly more generous than, say, the one that applies to appeals of district court denials of motions by crime victims. Which have to be decided by the Court of Appeals, soup to nuts, in seventy two hours. I'd give the parties and Court of Appeal twenty times as much time to brief and resolve appeals in anti-SLAPP cases. Call me generous.
So I think that Justice Richman is onto something here. Not surprisingly. I'd just suggest that his proposal to the Legislature be tweaked a little bit, and be a little more nuanced.
Maybe he'd in turn want to tinker with my proposal. Perhaps if the trial court thought it was a close case, for example, it could have the power to expressly declare that "reasonable judicial minds could easily differ" with respect to the proper resolution of the anti-SLAPP motion, at which point the expedited schedule would not apply and the matter would be briefed pursuant to the usual provisions. I'd be totally okay with that, and if a legislative committee wanted to add that, go right ahead. I'm a flexible guy.
So I agree with Justice Richman as to the problem. But the status quo has its advantages as well. And I'm fairly confident there's a middle ground that properly obtains the benefits of both.
I hope that's the case in reaction to this opinion.
It's another SLAPP appeal. The resolution of which is less interesting than Justice Richman's comments to the Legislature. Where he suggests that the Legislature should seriously consider repealing the provisions that authorize an automatic appeal when a party files for but loses an anti-SLAPP motion.
I think Justice Richman describes pretty accurately the problems engendered by automatic appeals. Lots of these appeals are silly. All of them delay the lawsuit a fair piece. Sometimes substantially. Because appeals take time, and meanwhile, the case is stayed. Justice delayed is justice denied, and all. So I am somewhat sympathetic to his views, and hopefully the Legislature will be as well.
But I'd nonetheless like to modify what Justice Richman says a bit. As well as his suggestion.
It's true that some anti-SLAPP appeals are silly. But some are meritorious as well. Differentiating the two is not entirely easy. And I'm not sure you entirely want to throw out the baby with the bathwater here. There's a real problem -- the legitimate problem that motivated passage of the SLAPP statute in the first place -- of constitutional rights being potentially chilled by litigation. We want to put a stop to that, and having an appeal helps to ensure that if the trial court gets it wrong, the defendant doesn't have to spend lots of money on legal fees in the meantime. Because if they do, then we haven't taken away the chill on speech.
Justice Richman thinks that the possibility of filing a summary judgment motion or a writ solves this problem for cases in which an appeal might be meritorious. I'm not entirely persuaded. As for the former, filing such a motion costs a lot of money, takes a lot of time (including the required 75-day notice period), and often requires a boatload of discovery lest the motion be denied or continued. Those are real problems. As for the latter, given the number of denied writ petitions, and the short shrift they often (necessarily) receive, I'm not sure that's entirely adequate to solve the problem. I'm can see why some one on the Court of Appeal might think "Don't worry; we do a great job of solving this problem with discretionary review, since we're really awesome at separating the wheat from the chaff, and always step in when necessary." But outsiders, including myself, aren't so convinced. So neither solution seems entirely adequate to solve the chill.
But let me give an alternative. For consideration by Justice Richman and/or the Legislature.
Justice Richman notes -- correctly -- that the problem with an automatic appeal is that it delays the lawsuit, typically by almost two years. I agree that's too much. So what about still allowing appeals but expediting them. Opening brief due in 30 days; no stipulated or other extensions absent extraordinary circumstances. Responsive brief due 30 days thereafter; reply brief (if any) 15 days thereafter. All that's doable; the parties have already done the briefs below, and in these cases, that schedule is eminently feasible. Once briefed, the anti-SLAPP appeals have priority. The Court of Appeal has 30 days to schedule oral argument after briefs are filed. Then pounds out its decision either quickly (could easily be within a week) or on the regular (90-day) schedule. Whatever works.
Total time from start to finish: Four to six months. Sure, that's a delay in the underlying lawsuit. But not a massive one. Even a fraction of the discovery often takes up this period. We'll thereby provide an appeal -- with the resulting safeguards -- but without the resulting delay.
I think that'd be the best of all possible worlds, and is a reasonable middle ground between what we have now and the solution advanced by Justice Richman. It's a little bit of an administrative hassle, but eminently doable. It also has precedent. Both state and federal courts give certain appellate cases priority. And the timeline I've suggested for anti-SLAPP cases is certainly more generous than, say, the one that applies to appeals of district court denials of motions by crime victims. Which have to be decided by the Court of Appeals, soup to nuts, in seventy two hours. I'd give the parties and Court of Appeal twenty times as much time to brief and resolve appeals in anti-SLAPP cases. Call me generous.
So I think that Justice Richman is onto something here. Not surprisingly. I'd just suggest that his proposal to the Legislature be tweaked a little bit, and be a little more nuanced.
Maybe he'd in turn want to tinker with my proposal. Perhaps if the trial court thought it was a close case, for example, it could have the power to expressly declare that "reasonable judicial minds could easily differ" with respect to the proper resolution of the anti-SLAPP motion, at which point the expedited schedule would not apply and the matter would be briefed pursuant to the usual provisions. I'd be totally okay with that, and if a legislative committee wanted to add that, go right ahead. I'm a flexible guy.
So I agree with Justice Richman as to the problem. But the status quo has its advantages as well. And I'm fairly confident there's a middle ground that properly obtains the benefits of both.
Tuesday, January 11, 2011
Las Vegas Sands LLC v. Nehme (9th Cir. - Jan. 11, 2011)
Here's a potential moneymaking strategy:
Go to Vegas. Take out a credit application at a casino and a huge marker: say, half a million dollars. Gamble a tiny bit and then turn in the funds.
Go back home. Have your attorney write an unsigned letter telling the casino not to give you any more markers and to cancel your credit line. Make sure you get a return receipt. See what happens.
Go back to Vegas. If the marker's cancelled, no biggie. Have fun. If the marker's not cancelled, go ahead and take out another half million. Gamble away. If you win, you win. Victory! If you lose, make sure that the bank account that the marker's tied to is sufficiently empty to the marker bounces. And when the casino sues you, defend the lawsuit on the ground that the letter negated your credit application, so you don't owe them the money.
That scheme's not only not a felony, but as the Ninth Circuit held this morning, may actually work.
Viva Las Vegas!
Go to Vegas. Take out a credit application at a casino and a huge marker: say, half a million dollars. Gamble a tiny bit and then turn in the funds.
Go back home. Have your attorney write an unsigned letter telling the casino not to give you any more markers and to cancel your credit line. Make sure you get a return receipt. See what happens.
Go back to Vegas. If the marker's cancelled, no biggie. Have fun. If the marker's not cancelled, go ahead and take out another half million. Gamble away. If you win, you win. Victory! If you lose, make sure that the bank account that the marker's tied to is sufficiently empty to the marker bounces. And when the casino sues you, defend the lawsuit on the ground that the letter negated your credit application, so you don't owe them the money.
That scheme's not only not a felony, but as the Ninth Circuit held this morning, may actually work.
Viva Las Vegas!
Monday, January 10, 2011
People v. Sharret (Cal. Ct. App. - Jan. 10, 2011)
"Defendant, Tyrone Sharret, appeals from his conviction for possession for sale (count 1) and sale (count 2) of heroin. . . . Defendant gave heroin to another person. That person in turn handed the heroin to another individual. That individual handed the heroin to an undercover police officer."
Sort of like musical chairs. But with smack.
Sort of like musical chairs. But with smack.
Dawson v. Entek Int'l (9th Cir. - Jan. 10, 2011)
I know that Mr. Dawson wins the appeal. So he's assuredly happy. But I still found it somewhat strange that Judge Bury (sitting by designation from Arizona) begins the opinion with: "Shane Dawson (Dawson), a male homosexual, appeals the district court's grant of summary judgment . . . ."
I readily concede it may just be me. But it just seemed, I don't know, somewhat weird to personify a guy by his sexual orientation at the very outset of the case. It's undeniably relevant, since it's a case about hostile work environment based upon precisely that.
But still. For some reason, I had a slightly negative reaction. I'd have written it as "Shane Dawson appeals the district court's grant of summary judgment dismissing his claims that he was retaliated against and subjected to a hostile work environment based upon his sexual orientation." Then get into the details -- which Judge Bury describes at length -- later on.
I concede, however, that my reaction here might be idiosyncratic.
Not that that ever stops me from sharing. Particularly when, as here, it's the only Ninth Circuit opinion of the day.
I readily concede it may just be me. But it just seemed, I don't know, somewhat weird to personify a guy by his sexual orientation at the very outset of the case. It's undeniably relevant, since it's a case about hostile work environment based upon precisely that.
But still. For some reason, I had a slightly negative reaction. I'd have written it as "Shane Dawson appeals the district court's grant of summary judgment dismissing his claims that he was retaliated against and subjected to a hostile work environment based upon his sexual orientation." Then get into the details -- which Judge Bury describes at length -- later on.
I concede, however, that my reaction here might be idiosyncratic.
Not that that ever stops me from sharing. Particularly when, as here, it's the only Ninth Circuit opinion of the day.
Friday, January 07, 2011
People v. Wilkins (Cal. Ct. App. - Jan. 7, 2011)
This opinion is a classic example of the felony murder rule. It should be in every first-year textbook on criminal law.
That's not a compliment.
Cole Wilkins sneaks onto a deserted construction site late at night, piles some construction materials (light fixtures, applicances, a sink, etc.) into the back of his truck, and leaves. Four hours later, 60 miles from the scene of the deserted burglary, Wilkins is driving normally when one of the items accidentally falls off his truck. A tractor-trailer swerves to avoid it, jackknifes, and turns over, trapping and killing a man in a vehicle next to the big rig.
So Wilkins is tried and convicted. For first degree murder. Forwhich he's sentenced to 25 years to life in prison.
The Court of Appeals affirms.
If that's the law -- as indeed it is -- then the law is an ass.
There's no better example, in my view, of the absurdities of the felony murder rule than this one. Some may be equally absurd. None are more so.
Amazing.
That's not a compliment.
Cole Wilkins sneaks onto a deserted construction site late at night, piles some construction materials (light fixtures, applicances, a sink, etc.) into the back of his truck, and leaves. Four hours later, 60 miles from the scene of the deserted burglary, Wilkins is driving normally when one of the items accidentally falls off his truck. A tractor-trailer swerves to avoid it, jackknifes, and turns over, trapping and killing a man in a vehicle next to the big rig.
So Wilkins is tried and convicted. For first degree murder. Forwhich he's sentenced to 25 years to life in prison.
The Court of Appeals affirms.
If that's the law -- as indeed it is -- then the law is an ass.
There's no better example, in my view, of the absurdities of the felony murder rule than this one. Some may be equally absurd. None are more so.
Amazing.
People v. Sigala (Cal. Ct. App. - Jan. 6, 2011)
I had two reactions to this case. Both of which I thought entirely appropriate.
The first was visceral. Eeeewwww! How sick do you have to be to repeatedly molest your own granddaughter? How even more perverse do you have to be to repeatedly molest four of your own granddaughter? And how utterly, utterly twisted do you have to be to take a photograph of you molesting one of your granddaughters and with your penis in her twelve-year-old mouth. Disgusting. Disgusting disgusting disgusting.
Oh, yeah. And the guy's got two strikes against him already. So it should not come as a surprise to anyone that he gets three consecutive terms of 45 to life. This dude is not sympathetic. One iota.
So that's my first reaction. Entirely emotive. Bleeeeech! Emotive but, I might add, entirely validly. IMHO.
I nonetheless had a doctrinal reaction too. The legal question in the appeal is whether the jury was properly instructed as to what it means to engage in "lewd or lascivious conduct" with a child. That's surely something a jury needs instructions about, and the trial court told the jurors that this required the touching of a child with the intent to sexually arose either the child or the person doing the touching, but that "the touching need not be done in a lewd or sexual manner."
Now, the defendant here -- Jimmy Sigala -- totally touched his granddaughters in a lewd, sexual, gross and disgusting manner. So I couldn't agree more fully with Justice Kriegler's concluding statement that even if this instruction was somehow wrong, "A clearer case of harmless error is difficult to imagine." Right on.
But I'm somewhat less certain of Justice Kriegler's conclusion that the instruction is correct and that the touching doesn't at all need to be lewd or sexual, and that the only thing that matters is the defendant's intent. My reaction was: "Really?"
Let's test that hypothesis. Imagine that a guy, Footsie, gets aroused by children's feet. So he takes a job putting on children's shoes. He never touches the kids any differently than any other shoe salesman, and neither the kids nor anyone else ever notices that he's aroused. He's clearly guilty of a major felony, and massive prison time, under the Court of Appeal's holding.
But why? He's not done any touching that anyone else (or his replacement) wouldn't have done. He hasn't caused any actual harm. He touches a toe or someone else does. What's the difference? Is it really right to punish someone purely based upon their intent, without any care whatosever that the actual act that they're performing is the same as anyone else?
The law and economics part of me says: "Sure. Why not." We might rationally want to deter people like Footsie from becoming shoe salesmen on the fear that they might generally go too far, perhaps fondling the shoes more than is necessary. It's more efficient to prefer someone who's not aroused, and hence that's what we want. Moreover, we're concerned that someone might see Footsie's arousal, and if they do, that's a big downside, and can create psychological scars on the kids and/or their parents. Hence we're allowed to, and rationally should, prefer non-fetish shoe salesmen for children, and can punish those otherwise situated.
Now, I'm not really convinced that efficiency concerns actually motivate the Legislature in this area. In fact, I'm quite convinced of the opposite -- that it's almost entirely the "eewwww" factor that motivates these laws, as well as the fact that we could care less about being potentially unfair to anyone who gets aroused by kids. I have no doubt that the attitude is: "Screw the sickos."
What's true for shoes is true even for other beneficial practices. Let's say a parent tends to get aroused when he's holding his kid in the pool. He holds the kid just like any other parent does, it's just that he gets excited by it. We punish that. Not because we want him to let go of the kid, or not take him to the pool, which is a beneficial practice. But because we think he should get others to do that, rather than a guy who's aroused by the experience. It's purer. It's better. Plus, emotionally, we want to put anyone who gets an erection from his own child in prison.
So I understand all that. At both an intellectual as well as doctrinal level. So what Justice Kriegler's saying makes sense. It's the intent that matters, and even if the way you're touching them is no different than what anyone else does, your intent (and intended arousal) is what justifiably puts you in prison.
But all that leads to the following: If the act doesn't need to be a "lewd and lacivious" touching (i.e., touching in a particular, sexual way), why does the act having to be a "touching" at all. Putting on a shoe counts as a felony if you do it to get aroused. So presumably the same should be true for any act -- not just a touching -- that's done with that intent. Get aroused by watching children in a playground? Felony. Even if you simply look at them the same way anyone else does. Get an erection from watching "Eight Is Enough" alone in your squalid bedroom? Lifetime in prison. If an otherwise innocent touching is illegal due to intent, then it's hard to see why any other innocent act doesn't equally qualify as well. As long as you do any act with the intent to arose yourself vis-a-vis a child, you're guilty.
Yet no one -- not even California -- goes that far. Which seems to present problems for the adequacy of the instruction. Or at least the wisdom of the law.
Mind you, one could say: "Well, Shaun, you've just convinced me that any act, not just touching, should be a crime too." Fine with me. Realize that you've pretty much come darn close to criminalizing mere status. But maybe you're fine with that. They're perverts, after all.
But if not, it's somewhat hard to justify the "touching" restriction if the Court of Appeal is right that the "lewd" part doesn't really matter -- that what "makes" an act lewd is that it's done with an intent to arouse. Because then anything, not just touching, should count. Yet that's not what the statute says.
Again, to reiterate: Sigala's totally guilty. Harmless error: Totally true. This sort of stuff ain't okay in the books of anyone, anywhere. It is lewd touching. End of story.
But there's a deeper, and I think more complicated, doctrinal story to be told here. One that's perhaps overlooked because this particular case is so simple. One that relates to the Court of Appeal's first holding: that the instruction is itself correct.
So ponder that as we head into the weekend. As as, ironically enough, I return from co-oping in my four-year-old's preschool class. At which, I assure you, I touched children with only the most loving, blissfully good intent. 'Cause that's the way I roll.
As should we all.
The first was visceral. Eeeewwww! How sick do you have to be to repeatedly molest your own granddaughter? How even more perverse do you have to be to repeatedly molest four of your own granddaughter? And how utterly, utterly twisted do you have to be to take a photograph of you molesting one of your granddaughters and with your penis in her twelve-year-old mouth. Disgusting. Disgusting disgusting disgusting.
Oh, yeah. And the guy's got two strikes against him already. So it should not come as a surprise to anyone that he gets three consecutive terms of 45 to life. This dude is not sympathetic. One iota.
So that's my first reaction. Entirely emotive. Bleeeeech! Emotive but, I might add, entirely validly. IMHO.
I nonetheless had a doctrinal reaction too. The legal question in the appeal is whether the jury was properly instructed as to what it means to engage in "lewd or lascivious conduct" with a child. That's surely something a jury needs instructions about, and the trial court told the jurors that this required the touching of a child with the intent to sexually arose either the child or the person doing the touching, but that "the touching need not be done in a lewd or sexual manner."
Now, the defendant here -- Jimmy Sigala -- totally touched his granddaughters in a lewd, sexual, gross and disgusting manner. So I couldn't agree more fully with Justice Kriegler's concluding statement that even if this instruction was somehow wrong, "A clearer case of harmless error is difficult to imagine." Right on.
But I'm somewhat less certain of Justice Kriegler's conclusion that the instruction is correct and that the touching doesn't at all need to be lewd or sexual, and that the only thing that matters is the defendant's intent. My reaction was: "Really?"
Let's test that hypothesis. Imagine that a guy, Footsie, gets aroused by children's feet. So he takes a job putting on children's shoes. He never touches the kids any differently than any other shoe salesman, and neither the kids nor anyone else ever notices that he's aroused. He's clearly guilty of a major felony, and massive prison time, under the Court of Appeal's holding.
But why? He's not done any touching that anyone else (or his replacement) wouldn't have done. He hasn't caused any actual harm. He touches a toe or someone else does. What's the difference? Is it really right to punish someone purely based upon their intent, without any care whatosever that the actual act that they're performing is the same as anyone else?
The law and economics part of me says: "Sure. Why not." We might rationally want to deter people like Footsie from becoming shoe salesmen on the fear that they might generally go too far, perhaps fondling the shoes more than is necessary. It's more efficient to prefer someone who's not aroused, and hence that's what we want. Moreover, we're concerned that someone might see Footsie's arousal, and if they do, that's a big downside, and can create psychological scars on the kids and/or their parents. Hence we're allowed to, and rationally should, prefer non-fetish shoe salesmen for children, and can punish those otherwise situated.
Now, I'm not really convinced that efficiency concerns actually motivate the Legislature in this area. In fact, I'm quite convinced of the opposite -- that it's almost entirely the "eewwww" factor that motivates these laws, as well as the fact that we could care less about being potentially unfair to anyone who gets aroused by kids. I have no doubt that the attitude is: "Screw the sickos."
What's true for shoes is true even for other beneficial practices. Let's say a parent tends to get aroused when he's holding his kid in the pool. He holds the kid just like any other parent does, it's just that he gets excited by it. We punish that. Not because we want him to let go of the kid, or not take him to the pool, which is a beneficial practice. But because we think he should get others to do that, rather than a guy who's aroused by the experience. It's purer. It's better. Plus, emotionally, we want to put anyone who gets an erection from his own child in prison.
So I understand all that. At both an intellectual as well as doctrinal level. So what Justice Kriegler's saying makes sense. It's the intent that matters, and even if the way you're touching them is no different than what anyone else does, your intent (and intended arousal) is what justifiably puts you in prison.
But all that leads to the following: If the act doesn't need to be a "lewd and lacivious" touching (i.e., touching in a particular, sexual way), why does the act having to be a "touching" at all. Putting on a shoe counts as a felony if you do it to get aroused. So presumably the same should be true for any act -- not just a touching -- that's done with that intent. Get aroused by watching children in a playground? Felony. Even if you simply look at them the same way anyone else does. Get an erection from watching "Eight Is Enough" alone in your squalid bedroom? Lifetime in prison. If an otherwise innocent touching is illegal due to intent, then it's hard to see why any other innocent act doesn't equally qualify as well. As long as you do any act with the intent to arose yourself vis-a-vis a child, you're guilty.
Yet no one -- not even California -- goes that far. Which seems to present problems for the adequacy of the instruction. Or at least the wisdom of the law.
Mind you, one could say: "Well, Shaun, you've just convinced me that any act, not just touching, should be a crime too." Fine with me. Realize that you've pretty much come darn close to criminalizing mere status. But maybe you're fine with that. They're perverts, after all.
But if not, it's somewhat hard to justify the "touching" restriction if the Court of Appeal is right that the "lewd" part doesn't really matter -- that what "makes" an act lewd is that it's done with an intent to arouse. Because then anything, not just touching, should count. Yet that's not what the statute says.
Again, to reiterate: Sigala's totally guilty. Harmless error: Totally true. This sort of stuff ain't okay in the books of anyone, anywhere. It is lewd touching. End of story.
But there's a deeper, and I think more complicated, doctrinal story to be told here. One that's perhaps overlooked because this particular case is so simple. One that relates to the Court of Appeal's first holding: that the instruction is itself correct.
So ponder that as we head into the weekend. As as, ironically enough, I return from co-oping in my four-year-old's preschool class. At which, I assure you, I touched children with only the most loving, blissfully good intent. 'Cause that's the way I roll.
As should we all.
Thursday, January 06, 2011
U.S. v. Carona (9th Cir. - Jan. 6, 2011)
When I read an opinion, I typically look quickly at the caption and then start in on the text. I don't look at the district court or the lawyers or the author. I try to evaluate the argument on the merits, and then go back and see who wrote the thing, who the district court was, etc.
So after I read this opinion, which affirmed the conviction of former Orange County Sheriff Mike Carona, I was surprised to see that the opinion was written by Judge Clifton. Because I've seen better.
It's not that Judge Clifton necessarily gets this one wrong. He might be right. But the issues are close ones. First, the prosecutor faked a subpoena, used an informant, and recorded the informant talking to Carona -- a recording that was the core basis for Carona's ultimate conviction for witness tampering -- even though the prosecutor knew Carona was represented by counsel. Rule 2-100 of the California Rules of Professional Conduct generally prohibits communicating with a represented party, either directly or through someone else, and in the Second Circuit, I have no doubt that the conviction would be reversed. But Judge Clifton holds not only that we don't have to reverse the conviction, but that it's not a violation of Rule 2-100 in the first place.
Again, it's not that you can't make a decent argument for that result. But Judge Clifton's analysis is extremely one-sided, and is so categorical to not really be persuasive to anyone who's not already convinced he's right. As to whether it's an ethical violation, for example, the vast majority of Judge Clifton's arguments are also ones against the Rule itself: that it's okay to trick defendants, that questioning's okay as long as it's not at all coercive, that wrongdoers shouldn't escape justice, etc. Sure, you can believe all that, and they might also be entirely true. But then even the basic rule shouldn't exist -- and yet it does. So at least for me, these claims don't help evaluate what types of contacts are okay and what types of aren't. They're more results-oriented policy assessments designed to persuade the already-persuaded. Ditto for the subsequent slams on the exclusionary rule at the "remedy" stage of the opinion (saying that even if there was a violation, the court was fine to totally ignore it). I mean, okay. But that's hardly the kind of careful, neutral evaluation I like to see when the Court of Appeals deals with a difficult issue on which reasonable minds could -- and here, given the Second Circuit's opinion, clearly do -- disagree.
Ditto for the second issue -- whether the statutue under which Carona was convicted covers what he did -- albeit somewhat less so. Carona's got a tolerable argument here. What Carona did was to tamper with a witness and tell him to lie. But he got acquitted on that count. Thing is, he was also charged with a separate count of persuading someone to "withhold" testimony from the grand juy, and the jury convicted him of that one. Problem: He clearly never told the dude not to testify. He just told him to lie. So Carona says he can't be convicted on this count.
Maybe he's right, maybe he's wrong. Judge Clifton says that "withholding" testimony can include lying, since that's "withholding" the truth. (I'm paraphrasing several pages of holding, obviously, but work with me on the shorthand.) Which is kind of true. But that means there's monster overlap between the two statutes, and substantially -- or arguably entirely -- makes the more targeted statute meaningless. We generally don't like to do that, particularly with criminal statutes (rule of lenity, etc.), and especially when there's an alternative meaning that's (1) pretty straightforward -- e.g., that "withholding" means not testifying, which is what our usual sense of the term would mean -- and (2) makes both statutes make sense.
Judge Clifton responds that statutes often overlap because they're written by anal, risk-adverse lawyers. (My words, obviously: He uses the phrase "belt-and-suspenders" lawyers, showing just how worried attorneys are about their pants potentially falling down, and by implication, how worried they might be about a statutory gap and hence willing to suffer redundancy.) Okay, I can buy that. But there's still something to Carona's argument, and I wish I'd have come away from Judge Clifton's opinion thinking that this point was taken more seriously than it was. My reaction, as with the first part, was that there was a certain result we want to reach, and we'll say whatever is plausible that will help us get there. Damn the nuance, full speed ahead.
I don't especially like that, and while some judges routinely do it, it's not Judge Clifton's m.o. Hence my surprise at the author.
Overall, as you can probably tell, this is not my favorite opinion of the day. Even though it's the only one -- at least from the Ninth.
It's also, I'm sure, not Carona's. Who now gets to hang in prison with some of the people he helped put there. Which -- like administrative segregation -- is far from fun.
So after I read this opinion, which affirmed the conviction of former Orange County Sheriff Mike Carona, I was surprised to see that the opinion was written by Judge Clifton. Because I've seen better.
It's not that Judge Clifton necessarily gets this one wrong. He might be right. But the issues are close ones. First, the prosecutor faked a subpoena, used an informant, and recorded the informant talking to Carona -- a recording that was the core basis for Carona's ultimate conviction for witness tampering -- even though the prosecutor knew Carona was represented by counsel. Rule 2-100 of the California Rules of Professional Conduct generally prohibits communicating with a represented party, either directly or through someone else, and in the Second Circuit, I have no doubt that the conviction would be reversed. But Judge Clifton holds not only that we don't have to reverse the conviction, but that it's not a violation of Rule 2-100 in the first place.
Again, it's not that you can't make a decent argument for that result. But Judge Clifton's analysis is extremely one-sided, and is so categorical to not really be persuasive to anyone who's not already convinced he's right. As to whether it's an ethical violation, for example, the vast majority of Judge Clifton's arguments are also ones against the Rule itself: that it's okay to trick defendants, that questioning's okay as long as it's not at all coercive, that wrongdoers shouldn't escape justice, etc. Sure, you can believe all that, and they might also be entirely true. But then even the basic rule shouldn't exist -- and yet it does. So at least for me, these claims don't help evaluate what types of contacts are okay and what types of aren't. They're more results-oriented policy assessments designed to persuade the already-persuaded. Ditto for the subsequent slams on the exclusionary rule at the "remedy" stage of the opinion (saying that even if there was a violation, the court was fine to totally ignore it). I mean, okay. But that's hardly the kind of careful, neutral evaluation I like to see when the Court of Appeals deals with a difficult issue on which reasonable minds could -- and here, given the Second Circuit's opinion, clearly do -- disagree.
Ditto for the second issue -- whether the statutue under which Carona was convicted covers what he did -- albeit somewhat less so. Carona's got a tolerable argument here. What Carona did was to tamper with a witness and tell him to lie. But he got acquitted on that count. Thing is, he was also charged with a separate count of persuading someone to "withhold" testimony from the grand juy, and the jury convicted him of that one. Problem: He clearly never told the dude not to testify. He just told him to lie. So Carona says he can't be convicted on this count.
Maybe he's right, maybe he's wrong. Judge Clifton says that "withholding" testimony can include lying, since that's "withholding" the truth. (I'm paraphrasing several pages of holding, obviously, but work with me on the shorthand.) Which is kind of true. But that means there's monster overlap between the two statutes, and substantially -- or arguably entirely -- makes the more targeted statute meaningless. We generally don't like to do that, particularly with criminal statutes (rule of lenity, etc.), and especially when there's an alternative meaning that's (1) pretty straightforward -- e.g., that "withholding" means not testifying, which is what our usual sense of the term would mean -- and (2) makes both statutes make sense.
Judge Clifton responds that statutes often overlap because they're written by anal, risk-adverse lawyers. (My words, obviously: He uses the phrase "belt-and-suspenders" lawyers, showing just how worried attorneys are about their pants potentially falling down, and by implication, how worried they might be about a statutory gap and hence willing to suffer redundancy.) Okay, I can buy that. But there's still something to Carona's argument, and I wish I'd have come away from Judge Clifton's opinion thinking that this point was taken more seriously than it was. My reaction, as with the first part, was that there was a certain result we want to reach, and we'll say whatever is plausible that will help us get there. Damn the nuance, full speed ahead.
I don't especially like that, and while some judges routinely do it, it's not Judge Clifton's m.o. Hence my surprise at the author.
Overall, as you can probably tell, this is not my favorite opinion of the day. Even though it's the only one -- at least from the Ninth.
It's also, I'm sure, not Carona's. Who now gets to hang in prison with some of the people he helped put there. Which -- like administrative segregation -- is far from fun.
Wednesday, January 05, 2011
People v. Cua (Cal. Ct. App. - Jan 3, 2011)
Here's a guy I'm glad is in prison. Most likely for the rest of his life.
It's a double murder. Husband and wife. After (presumably) they found out that the defendant had been embezzling $200,000+ from them over the past several years.
Not even the most heinous murders in the world. But ones surely deserving of heavy punishment. In a situation in which there's little doubt as to who did it.
Trusting people: Usually very good. Occasionally very, very bad.
It's a double murder. Husband and wife. After (presumably) they found out that the defendant had been embezzling $200,000+ from them over the past several years.
Not even the most heinous murders in the world. But ones surely deserving of heavy punishment. In a situation in which there's little doubt as to who did it.
Trusting people: Usually very good. Occasionally very, very bad.
Byrd v. Maricopa County Sheriff's Dept. (9th Cir. - Jan. 5, 2011)
Let's do a brief quiz.
The question is whether it's okay for a woman to strip search a pretrial (unconvicted) detainee in a minimum security prison who's a man. It's not a cavity search or anything like that, but the guy does have to wear thin boxer shorts (and nothing else) as the woman pulls out his waistband. So less clothing than your typical TSA search, but no junk-touching. No exigent circumstances, either.
(Parenthetically, by the way, I got subjected to a pretty intensive search in week ago when one of my kid car seats tested positive for explosives. A full, heavy, "get to know you on the eleventh date" search. But I gotta say, the TSA agent was not only incredibly nice about the whole thing, but left my actual privates alone. So I was happy about that, and didn't feel violated at all. Now, whether that'd be different in airports other than in Kona, Hawaii -- where I imagine they're pretty mellow -- or with a passenger other a white guy who wasn't obviously on vacation with his four small kids, I can't say. But for me, at least this time, not bad at all.)
Getting back to the main point: Does that violate the Fourth Amendment as an unreasonable search? Or, more quiz-like, what will the en banc court decide?
Here's the panel: Judges Kozinski, Schroeder, Thomas, Graber, Fisher, Gould, Paez, Tallman, Rawlinson, Bea and Randy Smith. What's your thought?
I'll give you another data point. Not that it'll help. It's a 6-5. Who are the 5?
Got your guesses? Here are the answers.
The question is whether it's okay for a woman to strip search a pretrial (unconvicted) detainee in a minimum security prison who's a man. It's not a cavity search or anything like that, but the guy does have to wear thin boxer shorts (and nothing else) as the woman pulls out his waistband. So less clothing than your typical TSA search, but no junk-touching. No exigent circumstances, either.
(Parenthetically, by the way, I got subjected to a pretty intensive search in week ago when one of my kid car seats tested positive for explosives. A full, heavy, "get to know you on the eleventh date" search. But I gotta say, the TSA agent was not only incredibly nice about the whole thing, but left my actual privates alone. So I was happy about that, and didn't feel violated at all. Now, whether that'd be different in airports other than in Kona, Hawaii -- where I imagine they're pretty mellow -- or with a passenger other a white guy who wasn't obviously on vacation with his four small kids, I can't say. But for me, at least this time, not bad at all.)
Getting back to the main point: Does that violate the Fourth Amendment as an unreasonable search? Or, more quiz-like, what will the en banc court decide?
Here's the panel: Judges Kozinski, Schroeder, Thomas, Graber, Fisher, Gould, Paez, Tallman, Rawlinson, Bea and Randy Smith. What's your thought?
I'll give you another data point. Not that it'll help. It's a 6-5. Who are the 5?
Got your guesses? Here are the answers.
Tuesday, January 04, 2011
Jewish War Veterans v. City of San Diego (9th Cir. - Jan. 4, 2011)
There are about a million opinions about the constitutionality of the Mt. Soledad Cross in San Diego. I don't just mean in the minds of the many people who know about this litigation. There are also, like, a million actual opinions. The case has gone on for over twenty years. There's a federal district court opinion in 1989. A Ninth Circuit opinion in 1993. Both of which held the cross unconstitutional. Then there was another district court opinion in 1997, after the City "gave the cross away" in an effort to circumvent the district court's decision. Then more opinions, ultimately resulting in a 2002 Ninth Circuit en banc decision that invalidated yet another purported sale as unconstitutional. Then passage of federal legislation that allowed the City to give the Cross to the federal government (signed by President Bush), victory for a City referendum that elected to do so, and more opinions -- another district court opinion in 2006 telling the City to take the Cross down, a denial of a stay by the Ninth Circuit, and just when you thought the litigationwas finally concluded, Justice Kennedy came in and granted a stay, keeping everything going. Then passage of more federal legislation, this time "seizing" the Cross by eminent domain, again designed to get around the district court and Ninth Circuit's decisions. Then more litigation, and a district court opinion in 2008, this time holding that the Cross was actually constitutional.
Which ultimately leads to this opinion, issued as we usher in 2011. Holding the Cross again unconstitutional.
The opinion, written by Judge McKeown, is really well done. Which is saying a lot, because there are a lot of other opinions to compare this one to. It's moderate, balanced and nuanced. It centers on factual analysis and attempts to find consensus. It is far from polemic, and is clearly an attempt both to get people on board as well as to insulate the opinion from further review. Since you know there's going to be an en banc call, as well as a petition for certiorari. Both of which have non-trivial chances of succeeding. (Though I think the latter, given Justice Kennedy, has a higher likelihood than the former.) Hence the opinion's repeated statements that its analysis is limiting to the particular facts and particular cross here; we're not striking down crosses in cemetaries, we're not striking down all crosses, etc. This is an effort not only to find common ground in a tough factual as well as doctrinal setting, but also a practical attempt (IMHO) to make sure that all this hard work isn't swept away by a higher court.
I'll let you read the opinion for yourself, which (again) is very good, and I recommend. Just a few tangential points.
First, the timing's sort of cool, eh? Ring in a New Year with yet another opinion on the Cross. 22 years and counting. Plus, given that the oral argument was over a year ago, I'm quite confident that the opinion -- which undoubtedly took a long time to write, since it's a high-profile case and you want to do a good job -- was ready to go, say, 20 days ago. But no way you're going to issue this one right before Christmas. Wait 'til the holidays are over, people are back at work, and the new year is here. Then publish the thing.
Second, this is a Judge McKeown opinion. Which says many things, some of which I've referred to obliquely above (and others I'll leave unsaid). But in this particular context, let me add one unusual point. Judge McKeown is not, uh, entirely ignorant of the presence of the Cross, which stands prominently over La Jolla. If only because, well, she just so happens to live there. An interesting tidbit not only in the abstract, but also because it totally shows. There's stuff in her opinion -- relevant stuff, no less -- about the history of anti-Semitism in La Jolla. Even I didn't know that stuff, and I've been here for 15 years. And the citation to the American Jewish History article about housing discrimination in La Jolla?! Awesome. Loved it. Couldn't be more impressed. You can have arguments pro and con about whether you want your judges to actually know something about the factual underpinnings of a case. But here's a great example of a judge's particular knowledge being indisputably useful. It's an interesting aspect of various larger recusal-related debates. This one, in my view, falling heavily on one particular side.
Finally, I understand why Judge McKeown ends the opinion as she does -- with a penultimate paragraph that essentially says: "We're not necessarily saying the Cross has to come down." Seriously, I do. It's doctrinally correct (who knows what the future will bring?), it's part and parcel of the deliberately moderate tone, it helps to try to insulate the case from review, etc.
But when you've got a litigation that's gone on for over two decades, it's sort of a bummer of a way to end a great opinion. To essentially say: "Our Ruling In Round 13 is: Bring On Round 14." Couldn't think of a better way to spend yet another decade.
Still, I give this one two thumb's up. And await, with bated breath, the inevitable next moves.
Which ultimately leads to this opinion, issued as we usher in 2011. Holding the Cross again unconstitutional.
The opinion, written by Judge McKeown, is really well done. Which is saying a lot, because there are a lot of other opinions to compare this one to. It's moderate, balanced and nuanced. It centers on factual analysis and attempts to find consensus. It is far from polemic, and is clearly an attempt both to get people on board as well as to insulate the opinion from further review. Since you know there's going to be an en banc call, as well as a petition for certiorari. Both of which have non-trivial chances of succeeding. (Though I think the latter, given Justice Kennedy, has a higher likelihood than the former.) Hence the opinion's repeated statements that its analysis is limiting to the particular facts and particular cross here; we're not striking down crosses in cemetaries, we're not striking down all crosses, etc. This is an effort not only to find common ground in a tough factual as well as doctrinal setting, but also a practical attempt (IMHO) to make sure that all this hard work isn't swept away by a higher court.
I'll let you read the opinion for yourself, which (again) is very good, and I recommend. Just a few tangential points.
First, the timing's sort of cool, eh? Ring in a New Year with yet another opinion on the Cross. 22 years and counting. Plus, given that the oral argument was over a year ago, I'm quite confident that the opinion -- which undoubtedly took a long time to write, since it's a high-profile case and you want to do a good job -- was ready to go, say, 20 days ago. But no way you're going to issue this one right before Christmas. Wait 'til the holidays are over, people are back at work, and the new year is here. Then publish the thing.
Second, this is a Judge McKeown opinion. Which says many things, some of which I've referred to obliquely above (and others I'll leave unsaid). But in this particular context, let me add one unusual point. Judge McKeown is not, uh, entirely ignorant of the presence of the Cross, which stands prominently over La Jolla. If only because, well, she just so happens to live there. An interesting tidbit not only in the abstract, but also because it totally shows. There's stuff in her opinion -- relevant stuff, no less -- about the history of anti-Semitism in La Jolla. Even I didn't know that stuff, and I've been here for 15 years. And the citation to the American Jewish History article about housing discrimination in La Jolla?! Awesome. Loved it. Couldn't be more impressed. You can have arguments pro and con about whether you want your judges to actually know something about the factual underpinnings of a case. But here's a great example of a judge's particular knowledge being indisputably useful. It's an interesting aspect of various larger recusal-related debates. This one, in my view, falling heavily on one particular side.
Finally, I understand why Judge McKeown ends the opinion as she does -- with a penultimate paragraph that essentially says: "We're not necessarily saying the Cross has to come down." Seriously, I do. It's doctrinally correct (who knows what the future will bring?), it's part and parcel of the deliberately moderate tone, it helps to try to insulate the case from review, etc.
But when you've got a litigation that's gone on for over two decades, it's sort of a bummer of a way to end a great opinion. To essentially say: "Our Ruling In Round 13 is: Bring On Round 14." Couldn't think of a better way to spend yet another decade.
Still, I give this one two thumb's up. And await, with bated breath, the inevitable next moves.
Monday, January 03, 2011
People v. Lieng (Cal. Ct. App. - Dec. 14, 2010)
When I booted up this opinion, all that was in my field of vision was the right hand side of the caption. Which said: "Mendocino County Superior Ct. No. XXXXXX."
To which I immediately involuntarily said -- out loud, even -- "Marijuana case."
Then I scroll down to the first paragraph. Yep. "In these consolidated criminal appeals, appellant Richard Lieng appeals from his plea of no contest to one felony count of cultivation of marijuana . . . ."
Too funny.
I mean, I'm sure that Mendocino County has some other appellate cases other than marijuana busts. I just can't think of any. At all.
Sometimes the mind's initial impressions are spot on. Good to know that 2011 isn't any different than 2010.
To which I immediately involuntarily said -- out loud, even -- "Marijuana case."
Then I scroll down to the first paragraph. Yep. "In these consolidated criminal appeals, appellant Richard Lieng appeals from his plea of no contest to one felony count of cultivation of marijuana . . . ."
Too funny.
I mean, I'm sure that Mendocino County has some other appellate cases other than marijuana busts. I just can't think of any. At all.
Sometimes the mind's initial impressions are spot on. Good to know that 2011 isn't any different than 2010.
Thursday, December 30, 2010
People v. Martin (Cal. Supreme Ct. - Dec. 30, 2010)
Martin wins in the California Supreme Court! No, wait. Martin loses in the California Supreme Court! Oh. Martin wins!
It's confusing. Plus, it's not our favorite Martin (yours truly). Rather, the defendant here is Louis Martin. He pled guilty to resisting a police officer and, in return, got a dismissal of a domestic violence charge. But the trial court imposed probation conditions related to the dismissed d.v. charge. Martin appealed, claiming this violated the plea bargain.
The California Supreme Court initially agreed with Martin. Holding that even in the probation context -- where trial courts ordinarily have broad discretion -- a trial court can't impose probation conditions that arise out of charges dismissed pursuant to a plea agreement unless the dismissed charge has a transactional relationship to the charge to which the defendant pled guilty. So Martin wins on this point.
But he also loses. Because, in this particular case, when the trial court said it was going to impose the domestic violence conditions, defendant objected, to which the trial court essentially said: "Fine. Then I'm going to reject the plea bargain." At which point the defendant relented, and said he still wanted the plea and was willing to accept the conditions.
Well then. Martin loses. The trial court had the power to reject the plea. You accepted the conditions, thereby waiving your right to object.
But, in a larger sense, Martin still wins. Just not this Martin. I'm talking now about the trial judge. Judge John Martin. Coincidentally enough.
It's confusing. Plus, it's not our favorite Martin (yours truly). Rather, the defendant here is Louis Martin. He pled guilty to resisting a police officer and, in return, got a dismissal of a domestic violence charge. But the trial court imposed probation conditions related to the dismissed d.v. charge. Martin appealed, claiming this violated the plea bargain.
The California Supreme Court initially agreed with Martin. Holding that even in the probation context -- where trial courts ordinarily have broad discretion -- a trial court can't impose probation conditions that arise out of charges dismissed pursuant to a plea agreement unless the dismissed charge has a transactional relationship to the charge to which the defendant pled guilty. So Martin wins on this point.
But he also loses. Because, in this particular case, when the trial court said it was going to impose the domestic violence conditions, defendant objected, to which the trial court essentially said: "Fine. Then I'm going to reject the plea bargain." At which point the defendant relented, and said he still wanted the plea and was willing to accept the conditions.
Well then. Martin loses. The trial court had the power to reject the plea. You accepted the conditions, thereby waiving your right to object.
But, in a larger sense, Martin still wins. Just not this Martin. I'm talking now about the trial judge. Judge John Martin. Coincidentally enough.
Wednesday, December 29, 2010
Olsen v. Harbison (Cal. Ct. App. - Dec. 28, 2010)
I wish this one had remained unpublished. Or, better yet, had been decided the other way.
It's not that Justice Hull necessarily analyzes precedent inaccurately. Mind you, the cases don't require a decision one way or the other, so it's really up to the court.
But the Court of Appeal holds that when Lawyers A and B jointly represent a client agree on a fee-split (here, in a typical referral situation), and comply with the formalities of getting valid client consent, A can't get his agreed-upon fees from B -- on any basis -- as long as Client fires A and stays with B.
This is incredibly bad policy, and I think the wrong rule to adopt.
Justice Hull concludes -- and precedent is clear -- that if A and B agree upon a fee split and don't get the required consent, A can sue B in quantum merit for the work. The California Supreme Court has held as much. But according to the Court of Appeal, if the lawyers actually comply with their ethical duties and get the client's consent, A is suddenly out of luck: now he can't sue B. This creates exactly the opposite incentive from what we want. It doesn't work for me.
Justice Hull also leaves open the possibility of A suing the client. But why should we want that? It's B who refused to give the agreed-upon money to A, not the client. Why bring the client into it? Plus, the client has a right to fire whoever she wants. It isn't obvious to me that the client has done anything wrong -- and hence A might be totally out of luck and unable to sue anyone, which is clearly the wrong result -- and even if she has, it seems to me that the principal (or at least partial) wrongdoer is B.
B got brought into the case by A. B agreed that A would get 40%. Then B shoves A out of the picture by having the client fire A and gets to keep 100%? That's wrong. It's inequitable. It shouldn't be the result.
Look, one can have various takes on California's referral rules. I could easily see tightening them up. But given what our rules are, once lawyers comply with them, they shouldn't be screwed. They especially should not be worse off for complying with them -- e.g., by getting client consent -- than had they simply ingored them.
So I was sad to see this result. Which is also a stark warning to all you co-counsel out there.
Watch out for your colleagues stabbling you in the back. 'Cause the Court of Appeal is fine with it.
It's not that Justice Hull necessarily analyzes precedent inaccurately. Mind you, the cases don't require a decision one way or the other, so it's really up to the court.
But the Court of Appeal holds that when Lawyers A and B jointly represent a client agree on a fee-split (here, in a typical referral situation), and comply with the formalities of getting valid client consent, A can't get his agreed-upon fees from B -- on any basis -- as long as Client fires A and stays with B.
This is incredibly bad policy, and I think the wrong rule to adopt.
Justice Hull concludes -- and precedent is clear -- that if A and B agree upon a fee split and don't get the required consent, A can sue B in quantum merit for the work. The California Supreme Court has held as much. But according to the Court of Appeal, if the lawyers actually comply with their ethical duties and get the client's consent, A is suddenly out of luck: now he can't sue B. This creates exactly the opposite incentive from what we want. It doesn't work for me.
Justice Hull also leaves open the possibility of A suing the client. But why should we want that? It's B who refused to give the agreed-upon money to A, not the client. Why bring the client into it? Plus, the client has a right to fire whoever she wants. It isn't obvious to me that the client has done anything wrong -- and hence A might be totally out of luck and unable to sue anyone, which is clearly the wrong result -- and even if she has, it seems to me that the principal (or at least partial) wrongdoer is B.
B got brought into the case by A. B agreed that A would get 40%. Then B shoves A out of the picture by having the client fire A and gets to keep 100%? That's wrong. It's inequitable. It shouldn't be the result.
Look, one can have various takes on California's referral rules. I could easily see tightening them up. But given what our rules are, once lawyers comply with them, they shouldn't be screwed. They especially should not be worse off for complying with them -- e.g., by getting client consent -- than had they simply ingored them.
So I was sad to see this result. Which is also a stark warning to all you co-counsel out there.
Watch out for your colleagues stabbling you in the back. 'Cause the Court of Appeal is fine with it.
Rezner v. Bayerische Hypo-Und Vereinsbank (9th Cir. - Dec. 28, 2010)
It's hard to know who to root for it this one.
Do you root for the plainitiff, John Rezner? He's a rich co-founder of Yahoo! (who created Geocities) who didn't have enough money already, so he decided to enter into a tax scam with fake transactions to diminish the portion going to the United States. Sounds pretty sympathetic.
Do you root for the defendants, Bayerische Hypo-Und Vereinsbank AG and HVB Structured Finance, Inc.? They've both got pretty cool names, and they made up the tax scams, recruited rich investors (like Rezner), and pocketed tons of fees -- skimming just a small part of the millions ripped off from the government. I'm totally sympathetic to them as well.
Tough to figure out who to root for when the one sues the others for RICO violations for inducing him to enter into the tax scam. Which plaintiff would have been totally happy with except that the IRS caught wind of the scam and disallowed his deductions.
Hold on. I've figured out who the heroes are. They're the lawyers at Sidley Austin and LeBoeuf Lamb. They're the one's who blew the whistle on the scam, ignoring their self-interest and doing the right thing.
Oh. Wait a minute. They didn't blow the whistle. No, they provided tax and other legal advice claiming that the whole thing was legitimate -- and pocketed (like everyone else) healthy fees for doing so.
The only people or entity that I really like in this whole thing is . . . the IRS. Which has got to make you wonder.
At least the good guys eventually got their due. Referring, of course, to the taxpayers. Oh yeah. And the attorneys at Howard Rice and Gibson Dunn. Who represented the parties on appeal. For, obviously, yet another boatload of fees.
Merry Christmas!
Do you root for the plainitiff, John Rezner? He's a rich co-founder of Yahoo! (who created Geocities) who didn't have enough money already, so he decided to enter into a tax scam with fake transactions to diminish the portion going to the United States. Sounds pretty sympathetic.
Do you root for the defendants, Bayerische Hypo-Und Vereinsbank AG and HVB Structured Finance, Inc.? They've both got pretty cool names, and they made up the tax scams, recruited rich investors (like Rezner), and pocketed tons of fees -- skimming just a small part of the millions ripped off from the government. I'm totally sympathetic to them as well.
Tough to figure out who to root for when the one sues the others for RICO violations for inducing him to enter into the tax scam. Which plaintiff would have been totally happy with except that the IRS caught wind of the scam and disallowed his deductions.
Hold on. I've figured out who the heroes are. They're the lawyers at Sidley Austin and LeBoeuf Lamb. They're the one's who blew the whistle on the scam, ignoring their self-interest and doing the right thing.
Oh. Wait a minute. They didn't blow the whistle. No, they provided tax and other legal advice claiming that the whole thing was legitimate -- and pocketed (like everyone else) healthy fees for doing so.
The only people or entity that I really like in this whole thing is . . . the IRS. Which has got to make you wonder.
At least the good guys eventually got their due. Referring, of course, to the taxpayers. Oh yeah. And the attorneys at Howard Rice and Gibson Dunn. Who represented the parties on appeal. For, obviously, yet another boatload of fees.
Merry Christmas!
Tuesday, December 28, 2010
In Re Murguia (9th Cir. - Dec. 24, 2010)
Let's ring in the holiday with a welcome to the newest member of the Ninth Circuit: Judge Mary Murguia, who was confirmed last week. Welcome.
I don't know if anyone else actually noticed (as no one I've read has ever mentioned this fact), but by my calculation, we're not just welcoming the newest member. At least if things go as I'd anticipate, we may also be welcoming the future Chief Judge of the Ninth Circuit. Assuming that Chief Judge Kozinski stays on until his term expires 2014 (as I have every reason to anticipate he shall), then it'll be Sid Thomas' turn as Chief. Since Judge Thomas will be a spry 61 at the time, he can serve all seven years if he'd like. Which, if it happens, will take us to 2021. At which point the judge with the highest seniority who's not yet 65 will be . . . Judge Murguia.
Now, Goodwin Liu was nominated first, and would have taken this spot had he been confirmed first, but we all know what's transpired on that front. So one consequence of Liu's stalled nomination is that Murguia gets the nod as Chief.
This assumes, of course, that Judge Thomas' term runs its course. Maybe he goes senior. Or gets elevated. Or feels like handing it off early. If anything like that happens, depending on the timing, lots of people are in the running for the next Chief.
But don't be surprised if the newest, and youngest, member of the Ninth Circuit eventually moves from the extreme side of the en banc panel seating chart to occupy that center chair. And, unless procedures change, to be on every en banc panel.
So welcome, Judge Murguia. As they say: Your future's so bright, you ought to wear shades.
I don't know if anyone else actually noticed (as no one I've read has ever mentioned this fact), but by my calculation, we're not just welcoming the newest member. At least if things go as I'd anticipate, we may also be welcoming the future Chief Judge of the Ninth Circuit. Assuming that Chief Judge Kozinski stays on until his term expires 2014 (as I have every reason to anticipate he shall), then it'll be Sid Thomas' turn as Chief. Since Judge Thomas will be a spry 61 at the time, he can serve all seven years if he'd like. Which, if it happens, will take us to 2021. At which point the judge with the highest seniority who's not yet 65 will be . . . Judge Murguia.
Now, Goodwin Liu was nominated first, and would have taken this spot had he been confirmed first, but we all know what's transpired on that front. So one consequence of Liu's stalled nomination is that Murguia gets the nod as Chief.
This assumes, of course, that Judge Thomas' term runs its course. Maybe he goes senior. Or gets elevated. Or feels like handing it off early. If anything like that happens, depending on the timing, lots of people are in the running for the next Chief.
But don't be surprised if the newest, and youngest, member of the Ninth Circuit eventually moves from the extreme side of the en banc panel seating chart to occupy that center chair. And, unless procedures change, to be on every en banc panel.
So welcome, Judge Murguia. As they say: Your future's so bright, you ought to wear shades.
Thursday, December 23, 2010
U.S. v. Newhoff (9th Cir. - Dec. 16, 2010)
Judges don't have to be unnecessarily harsh. Or even harsh at all. Here's a case in point. In which Judge Kleinfeld says:
"As for whether the error of reading back Officer Cochran’s testimony without an admonition was plain, we conclude that it was. We need not explore the reasons why, because the district judge expressly decided that he should give the admonition against undue emphasis. His exercise of discretion to give the admonition was sound. The only explanation we can see on this record for not giving the admonition was that the judge forgot. That is an easy thing to do in a trial. And it is a reason why judges do, and this judge did, ask counsel for objections. They are called “counsel,” in part, because they counsel the court. It is incumbent on defense counsel to protect his client and the court from judicial error, including forgetting something, and incumbent on the prosecutor to protect the court from error, even where the error might, at least before appeal and possible reversal, benefit the prosecution. The only explanation for why both attorneys said they had no objection to failure to give the admonition is that they too forgot, again an easy thing to do in a trial. But error it was."
Pretty nice way of saying it. Guess it's the holiday spirit, eh?
"As for whether the error of reading back Officer Cochran’s testimony without an admonition was plain, we conclude that it was. We need not explore the reasons why, because the district judge expressly decided that he should give the admonition against undue emphasis. His exercise of discretion to give the admonition was sound. The only explanation we can see on this record for not giving the admonition was that the judge forgot. That is an easy thing to do in a trial. And it is a reason why judges do, and this judge did, ask counsel for objections. They are called “counsel,” in part, because they counsel the court. It is incumbent on defense counsel to protect his client and the court from judicial error, including forgetting something, and incumbent on the prosecutor to protect the court from error, even where the error might, at least before appeal and possible reversal, benefit the prosecution. The only explanation for why both attorneys said they had no objection to failure to give the admonition is that they too forgot, again an easy thing to do in a trial. But error it was."
Pretty nice way of saying it. Guess it's the holiday spirit, eh?
Tuesday, December 21, 2010
People v. Puentes (Cal. Ct. App. - Dec. 20, 2010)
I'm not going to claim that I totally understand California's vindictive prosecution jurisprudence. I know a little bit about the U.S. Supreme Court's precedent in the area, which I generally find pretty lame. But when it comes to California, well, I am quite confident that there are lots and lots of people who know lots more about it than I do. Lots and lots and lots.
But let me reason from first principles.
When a prosecutor first files a misdemeanor charge against someone -- on the theory that's the right charge -- and then, after an appeal (or an acquittal), files a felony charge, well, that seems vindictive to me. Can't do that. We don't want to have prosecutors punish people for exercising their rights.
(Except, of course, for their right to go to trial. We punish people for that all the time. Plea bargaining wouldn't work otherwise. But that's a whole other story.)
So I definitely understand why we don't allow vindictive charges, and how that works in a classic example like the one above.
But let's take this case. There, the prosecutor charges the defendant with a felony (statutory rape) as well as a misdemeanor (contributing to the delinquency of a minor). At the first trial, the jury hangs on both counts. So the prosecutor retries both charges. Clearly not a problem there. At the second trial, the jury hangs on the felony but convicts on the misdemeanor. Defendant is then sentenced pretty heavily on the misdemeanor count -- a year in prison (the maximum) and registration as a sex offender. Having obtained that sentence, the prosecution elects not to retry the felony count, and dismisses it. Fair enough.
But thereafter, the Court of Appeal reverses the misdemeanor conviction, and on remand, the trial court dismisses it for insufficient evidence. So now there's no misdemeanor. At which point the prosecutor refiles the felony charge. The trial court thinks that's okay, but the Court of Appeal reverses. That's vindictive prosecution, the Court of Appeal holds. You thought the felony was too much, and so you dismissed it. You changed your mind only because the defendant was successful. Can't do that.
Which makes internal sense. In a way.
But wait a minute. The reason the prosecutor dismissed the felony was because the dude had already been sentenced to a year in prison and registration as a sex offender. At that point, this was punishment enough. Or at least punishment sufficient not to make it worth it to try a third time on the felony charge (with the consequent resource drain) and putting the victim through yet another trial.
But I totally understand the prosecutor's thought process here, and don't think I understand (or at least don't appreciate) why it's not legitimate. Once the defendant's conviction gets reversed, and he's going to be totally unpunished for his offense, the calculus now radically changes. It's not that we hate the guy for beating us in the Court of Appeal. It's just that a third trial wasn't worth it compared to the then-preexisting punishment. An extra year or two in prison on a felony count wasn't worth a speculative third trial. But once that sentence goes away, well, at that point, it's totally worth it. Because otherwise, absent the felony charge, you've got a dude with no record, no requirement to register as a sex offender, and who can potentially do it again to another victim. That matters, and none of it existed prior to the reversal of the sentence.
To express it mathematically -- not that this necessarily helps anyone except hard-core geeks such as myself -- the first decision only reflects that (PF * DF) - TCF < DF - DM, where PF is the probability of a felony conviction, DF is the deterrent effect of a felony conviction, TCF are the transaction costs of a felony conviction, and DM is the deterrent effect of a misdemeanor conviction. The fact that this condition exists -- which is why the prosecutor drops the felony charge after the misdemeanor conviction -- doesn't mean that once DM goes away, (PF * DF) - TCF < DF. You've dropped out the DM.
It'd be one thing if the prosecutor never charged the defendant with a felony -- and instead only charged him with a misdemeanor -- in the first place. Because that decision reflects that the prosecutor indeed thought that (PF * DF) - TCF < DF. So if the dude gets convicted of a misdemeanor, then gets off on appeal, the decision to then file a felony charge is indeed presumptively vindictive, since we already established that a felony charge wasn't worth it.
But if, as here, the guy was charged with a felony initially, and the decision to drop that charge was made only after the guy was found gulity of and given a particular sentence for a misdemeanor, then the fact that marginal deterrent effect of a continued felony charge was not justified in such a setting doesn't mean that the decision to refile that charge when that margin radically changes (i.e., because the existing conviction is reversed) is vindictive. We're not punishing a guy for beating us. It simply means that the margin is now different. Not because we're angry -- after all, we charged him with a felony in the first place. But rather because, objectively, the consequences are now different than when we made the decision to drop the charges.
So I think I come out the other way on this one. My gut tells me what what the prosecutor did here was okay. Indeed, that I -- or any other neutral person -- might have done the exact same thing. Not for illegitimate reasons. But for entirely legitimate ones.
But let me reason from first principles.
When a prosecutor first files a misdemeanor charge against someone -- on the theory that's the right charge -- and then, after an appeal (or an acquittal), files a felony charge, well, that seems vindictive to me. Can't do that. We don't want to have prosecutors punish people for exercising their rights.
(Except, of course, for their right to go to trial. We punish people for that all the time. Plea bargaining wouldn't work otherwise. But that's a whole other story.)
So I definitely understand why we don't allow vindictive charges, and how that works in a classic example like the one above.
But let's take this case. There, the prosecutor charges the defendant with a felony (statutory rape) as well as a misdemeanor (contributing to the delinquency of a minor). At the first trial, the jury hangs on both counts. So the prosecutor retries both charges. Clearly not a problem there. At the second trial, the jury hangs on the felony but convicts on the misdemeanor. Defendant is then sentenced pretty heavily on the misdemeanor count -- a year in prison (the maximum) and registration as a sex offender. Having obtained that sentence, the prosecution elects not to retry the felony count, and dismisses it. Fair enough.
But thereafter, the Court of Appeal reverses the misdemeanor conviction, and on remand, the trial court dismisses it for insufficient evidence. So now there's no misdemeanor. At which point the prosecutor refiles the felony charge. The trial court thinks that's okay, but the Court of Appeal reverses. That's vindictive prosecution, the Court of Appeal holds. You thought the felony was too much, and so you dismissed it. You changed your mind only because the defendant was successful. Can't do that.
Which makes internal sense. In a way.
But wait a minute. The reason the prosecutor dismissed the felony was because the dude had already been sentenced to a year in prison and registration as a sex offender. At that point, this was punishment enough. Or at least punishment sufficient not to make it worth it to try a third time on the felony charge (with the consequent resource drain) and putting the victim through yet another trial.
But I totally understand the prosecutor's thought process here, and don't think I understand (or at least don't appreciate) why it's not legitimate. Once the defendant's conviction gets reversed, and he's going to be totally unpunished for his offense, the calculus now radically changes. It's not that we hate the guy for beating us in the Court of Appeal. It's just that a third trial wasn't worth it compared to the then-preexisting punishment. An extra year or two in prison on a felony count wasn't worth a speculative third trial. But once that sentence goes away, well, at that point, it's totally worth it. Because otherwise, absent the felony charge, you've got a dude with no record, no requirement to register as a sex offender, and who can potentially do it again to another victim. That matters, and none of it existed prior to the reversal of the sentence.
To express it mathematically -- not that this necessarily helps anyone except hard-core geeks such as myself -- the first decision only reflects that (PF * DF) - TCF < DF - DM, where PF is the probability of a felony conviction, DF is the deterrent effect of a felony conviction, TCF are the transaction costs of a felony conviction, and DM is the deterrent effect of a misdemeanor conviction. The fact that this condition exists -- which is why the prosecutor drops the felony charge after the misdemeanor conviction -- doesn't mean that once DM goes away, (PF * DF) - TCF < DF. You've dropped out the DM.
It'd be one thing if the prosecutor never charged the defendant with a felony -- and instead only charged him with a misdemeanor -- in the first place. Because that decision reflects that the prosecutor indeed thought that (PF * DF) - TCF < DF. So if the dude gets convicted of a misdemeanor, then gets off on appeal, the decision to then file a felony charge is indeed presumptively vindictive, since we already established that a felony charge wasn't worth it.
But if, as here, the guy was charged with a felony initially, and the decision to drop that charge was made only after the guy was found gulity of and given a particular sentence for a misdemeanor, then the fact that marginal deterrent effect of a continued felony charge was not justified in such a setting doesn't mean that the decision to refile that charge when that margin radically changes (i.e., because the existing conviction is reversed) is vindictive. We're not punishing a guy for beating us. It simply means that the margin is now different. Not because we're angry -- after all, we charged him with a felony in the first place. But rather because, objectively, the consequences are now different than when we made the decision to drop the charges.
So I think I come out the other way on this one. My gut tells me what what the prosecutor did here was okay. Indeed, that I -- or any other neutral person -- might have done the exact same thing. Not for illegitimate reasons. But for entirely legitimate ones.
Monday, December 20, 2010
People v. Albillar (Cal. Supreme Ct. - Dec. 20, 2010)
Can a rape be committed "for the benefit of" a street gang? I wouldn't have normally thought so. Nor do Justices Werdegar and Moreno, who dissent.
But Justice Baxter makes a nonfrivolous argument to the contrary, and persuades the remainder of the California Supreme Court.
It's a tough call. On the one hand, clearly the conduct here -- both during and after the rape -- was "related" to the defendants' status as gang members. On the other hand, unless you're going to call any crime collectively committed by gang members as "for the benefit of" the gang" -- so they can giggle and taunt others about it, and feel collectively more brazen about their violations of the law -- it seems a pretty big stretch to say that was transpired here was designed to benefit the gang.
So both the majority and the dissent have a point. Not an easy case.
But Justice Baxter makes a nonfrivolous argument to the contrary, and persuades the remainder of the California Supreme Court.
It's a tough call. On the one hand, clearly the conduct here -- both during and after the rape -- was "related" to the defendants' status as gang members. On the other hand, unless you're going to call any crime collectively committed by gang members as "for the benefit of" the gang" -- so they can giggle and taunt others about it, and feel collectively more brazen about their violations of the law -- it seems a pretty big stretch to say that was transpired here was designed to benefit the gang.
So both the majority and the dissent have a point. Not an easy case.
Friday, December 17, 2010
Chino Commercial Bank v. Peters (Cal. Ct. App. - Dec. 13, 2010)
Never, ever, ever -- ever -- respond to an e-mail about some purported moneymaking scheme. Never send money overseas to someone you don't personally know. Never assume that just because the bank said that a check has cleared that means that it has actually "cleared" in the sense that it's not forged and the bank won't come back to you for the money. Never do any of the above, much less all of them.
Ignore the above at your half-million dollar peril.
Good advice heading into the weekend, I figure. Going to need some savings to pay those credit card bills in January.
Ignore the above at your half-million dollar peril.
Good advice heading into the weekend, I figure. Going to need some savings to pay those credit card bills in January.
Thursday, December 16, 2010
Balsam v. Tucows, Inc. (9th Cir. - Dec. 16, 2010)
I guess if you're going to lose your million-dollar-plus default judgment, it's at least nice that Judge McKeown lets you down easily, saying:
"There is no simple remedy for the vast number of unsolicited emails, popularly known as 'spam,' that fill our electronic inboxes daily. Even though federal and state legislatures have adopted various laws to combat this problem, 'spammers' continue to find new ways to advertise. Daniel Balsam, a victim of spam, seeks an alternative method of enforcement by bringing claims against the registrar of a domain site that bombarded him with more than 1,000 unwanted emails advertising a pornographic website. He claims that the registrar utilizes a system to hide the identity of spammers, making it difficult to identify the spammer. We consider Balsam’s claim that he is an intended third-party beneficiary of an agreement between the registrar and the Internet Corporation for Assigned Names and Numbers(“ICANN”). Under Balsam’s theory, the agreement’s provisions on wrongful use of domain names inure to his benefit. Although his approach is novel and creative, it cannot survive a motion to dismiss."
So no prize for you, contestant. But we do have some nice parting gifts.
"There is no simple remedy for the vast number of unsolicited emails, popularly known as 'spam,' that fill our electronic inboxes daily. Even though federal and state legislatures have adopted various laws to combat this problem, 'spammers' continue to find new ways to advertise. Daniel Balsam, a victim of spam, seeks an alternative method of enforcement by bringing claims against the registrar of a domain site that bombarded him with more than 1,000 unwanted emails advertising a pornographic website. He claims that the registrar utilizes a system to hide the identity of spammers, making it difficult to identify the spammer. We consider Balsam’s claim that he is an intended third-party beneficiary of an agreement between the registrar and the Internet Corporation for Assigned Names and Numbers(“ICANN”). Under Balsam’s theory, the agreement’s provisions on wrongful use of domain names inure to his benefit. Although his approach is novel and creative, it cannot survive a motion to dismiss."
So no prize for you, contestant. But we do have some nice parting gifts.
Overhill Farms v. Lopez (Cal. Ct. App. - Dec. 14, 2010)
Assume that I call you a racist. Is that defamatory? Remember: Truth is a defense.
Let's be more concrete. Assume you run a company that employs a lot of low-skilled laborers. Assume further that the IRS contacts you in connection with an audit and tells you that 231 of your current employees have invalid social security numbers -- which is common for undocumented/illegal immigrants -- and that you could be penalized a substantial amount for employing such individuals. You then tell each of these employees that they better give you a right social security number within 30 days. Only one does so, with several others admitting that they were in the country illegally. For everyone who can't (or doesn't) give you a valid social security number, you send 'em another letter giving them another 30 days, and when they can't (or don't) provide the required information, you fire them.
The fired employees, and other activists, then take to the streets. Calling your company "racist" for its acts, which disproportionally affected -- as you might imagine would be in the case -- Hispanics. The company then sues for defamation. Defendants file an anti-SLAPP motion -- as, again, you might expect -- arguing that their speech is protected and that their assertions are opinion and are not demonstrably false.
Who's right?
On the one hand, I'm pretty convinced that the company didn't fire the employees on account of their race. Or gender, or anything else that's protected. They fired them because they couldn't provide valid social security numbers, and were probably undocumented/illegal immigrants. Either way, they were someone who the company could get in trouble for employing. So I'm confident that any inference that the company fired people on account of their race is demonstrably false. As indeed the employer would undeniably prove, even on summary judgment, were any of the fired employees to sue for race discrimination.
On the other hand, what does it mean to be a "racist," or to be called such during a labor dispute? After all, your act did indeed have a disproportionate effect on a particular racial group. Maybe what we're saying is that you engaged in a "racist" act because it had such an effect. Or, more accurately, that you were insufficiently sensitive to such consequences, and were all-too-willing to engage in such an activity -- that you should (and would) have borne the risk of IRS scrutiny if the affected workers had been of another race. Or maybe calling someone a "racist" is simply an inherently subjective assessment, and not "demonstrably false" for purposes of defamation law.
So see who you think's right in this one. I've slightly changed (and added to) each side's arguments. But you've got both a majority opinion and a dissent. Who comes out the winner?
P.S. - I can't believe the Court of Appeal didn't initially publish this one. It not only meets the standards for publication, but is also thought-provoking. Good call to publish it. Albeit belatedly.
Let's be more concrete. Assume you run a company that employs a lot of low-skilled laborers. Assume further that the IRS contacts you in connection with an audit and tells you that 231 of your current employees have invalid social security numbers -- which is common for undocumented/illegal immigrants -- and that you could be penalized a substantial amount for employing such individuals. You then tell each of these employees that they better give you a right social security number within 30 days. Only one does so, with several others admitting that they were in the country illegally. For everyone who can't (or doesn't) give you a valid social security number, you send 'em another letter giving them another 30 days, and when they can't (or don't) provide the required information, you fire them.
The fired employees, and other activists, then take to the streets. Calling your company "racist" for its acts, which disproportionally affected -- as you might imagine would be in the case -- Hispanics. The company then sues for defamation. Defendants file an anti-SLAPP motion -- as, again, you might expect -- arguing that their speech is protected and that their assertions are opinion and are not demonstrably false.
Who's right?
On the one hand, I'm pretty convinced that the company didn't fire the employees on account of their race. Or gender, or anything else that's protected. They fired them because they couldn't provide valid social security numbers, and were probably undocumented/illegal immigrants. Either way, they were someone who the company could get in trouble for employing. So I'm confident that any inference that the company fired people on account of their race is demonstrably false. As indeed the employer would undeniably prove, even on summary judgment, were any of the fired employees to sue for race discrimination.
On the other hand, what does it mean to be a "racist," or to be called such during a labor dispute? After all, your act did indeed have a disproportionate effect on a particular racial group. Maybe what we're saying is that you engaged in a "racist" act because it had such an effect. Or, more accurately, that you were insufficiently sensitive to such consequences, and were all-too-willing to engage in such an activity -- that you should (and would) have borne the risk of IRS scrutiny if the affected workers had been of another race. Or maybe calling someone a "racist" is simply an inherently subjective assessment, and not "demonstrably false" for purposes of defamation law.
So see who you think's right in this one. I've slightly changed (and added to) each side's arguments. But you've got both a majority opinion and a dissent. Who comes out the winner?
P.S. - I can't believe the Court of Appeal didn't initially publish this one. It not only meets the standards for publication, but is also thought-provoking. Good call to publish it. Albeit belatedly.
Tuesday, December 14, 2010
County of Los Angeles v. LA County Employee Relations Comm. (Cal. Ct. App. - Dec. 15, 2010)
I was on a plane and out-and-about nearly all day, but when I returned to the intertube this evening, I saw this case. Which made me feel just fine, and seems to strike an entirely appropriate balance.
Some LA County employees are represented by the SIEU, but don't have to pay certain portions of union dues if they don't want to, even though the union is required to represent them. Fair enough. The SIEU wants contact information for these quasi-members so it can properly represent their interests. Fair enough as well. But L.A. County doesn't feel like giving it out, reasoning that some of these members might not want the union to have this information. Fair enough as well.
So the Court of Appeal holds that, as a matter of state constitutional law, the members have a protected privacy right in their information, and that before disclosure, they should receive notice and an opportunity to opt out. That seems like a pretty fine balance. Especially, in my view, since these individuals get an annual Hudson notice anyway, and it's easy to supplement that information with notice that the union wants their contact information and an opportunity to object if they don't want that to happen. Seems reasonable.
Two quick points. First, here's an example of a state court using state constitutional provisions that are more expansive than federal law. I like that. It doesn't happen much. Or as often as it should.
Second, in this particular case, I couldn't help wondering about preemption. The Court of Appeal doesn't talk about it, so I assume that federal labor law doesn't apply (even though at least one of the lower tribunals relied upon federal law in ordering disclosure). At least for those uneducated readers such as myself, my curiosity would have been satiated by a single footnote or something reminding me why state law wasn't preempted. Maybe it was there and I missed it. Entirely possible. But it was a lingering question for me.
But, all in all, I thought this one was pretty fair and balanced. Like Fox News.
(Just kidding about the reference. Obviously.)
Some LA County employees are represented by the SIEU, but don't have to pay certain portions of union dues if they don't want to, even though the union is required to represent them. Fair enough. The SIEU wants contact information for these quasi-members so it can properly represent their interests. Fair enough as well. But L.A. County doesn't feel like giving it out, reasoning that some of these members might not want the union to have this information. Fair enough as well.
So the Court of Appeal holds that, as a matter of state constitutional law, the members have a protected privacy right in their information, and that before disclosure, they should receive notice and an opportunity to opt out. That seems like a pretty fine balance. Especially, in my view, since these individuals get an annual Hudson notice anyway, and it's easy to supplement that information with notice that the union wants their contact information and an opportunity to object if they don't want that to happen. Seems reasonable.
Two quick points. First, here's an example of a state court using state constitutional provisions that are more expansive than federal law. I like that. It doesn't happen much. Or as often as it should.
Second, in this particular case, I couldn't help wondering about preemption. The Court of Appeal doesn't talk about it, so I assume that federal labor law doesn't apply (even though at least one of the lower tribunals relied upon federal law in ordering disclosure). At least for those uneducated readers such as myself, my curiosity would have been satiated by a single footnote or something reminding me why state law wasn't preempted. Maybe it was there and I missed it. Entirely possible. But it was a lingering question for me.
But, all in all, I thought this one was pretty fair and balanced. Like Fox News.
(Just kidding about the reference. Obviously.)
Monday, December 13, 2010
U.S. v. Goyal (9th Cir. - Dec. 10, 2010)
Look, Alex, I'm with you. Seriously. I too don't like it when the government files criminal charges against someone who's not guilty of anything. It's an abuse (and waste) of government power. It destroys people's lives. It's normatively wrong.
So when you write a long concurrence -- with flourish and outrage -- about the impropriety of the government doing so, please don't think I'm not sympathetic. Because I am. Truly.
But is this really the best case in which to get up on that horse?
I'll take the panel's word that the evidence against the defendant was insufficient because the government didn't introduce enough proof that the altered revenue in this criminal securities case was material. I'm not at all sure about that. The heightened revenue consisted of huge deals, worth millions of dollars -- almost a full quarter of the company's annual revenue -- and this is no small company: it's McAfee (now known at Network Associates). If you're frontloading fake revenue in that amount, I think it's at least plausible that that's material.
But let's assume you're right; and, again, I think that's plausible. Is this really the best case to write a lengthy concurrence that bemoans the injustice of erroneously charging a criminal defendant, the harm to someone that results from criminal charges, and the alleged adequacy of alternative civil suits?
I mean, let's face the facts. Yes, the evidence might not have been sufficient, but it sounds like that's only because the AUSA thought that either the stipulation or the undisputed size of the transactions would be sufficient. So Goyal's perhaps "innocent" not primarily because of what he did, but rather from an erroneous tactical decision by the government. Hardly the best case in which to raise the banner of actual innocence and government overreaching.
But let's ignore all that. Judge Kozinski's concurrence cries for Goyal, and says: "Although we now vindicate Mr. Goyal, much damage has been done. One can only hope that he and his family will recover from the ordeal."
I feel extremely badly for people unjustly convicted. But in the pantheon of those people -- of whom there are no shortage -- Mr. Goyal is pretty low on mylist. For one thing, he did something wrong. Maybe it wasn't criminal, but it was wrong. He manipulated revenue by doing deceptive (and essentially fake) quarter-end deals. He did it deliberately: to deceive others into buying (or holding) his company's stock. He did it for personal gain: he benefitted reputationally and through his stock options, and to a significant degree. His conduct was "illegal" in that it was, at a minimum, a civil tort. As well as morally inexcusable. It distorted the market and harmed both the company and its investors. The fact that lots of companies do the same thing -- and I assure you they do -- only makes it worse, not better. These shenanigans are hardly morally praiseworthy. They're bad things.
So this is not, for example, a woman who's unjustly convicted of shaking her baby to death and spends a decade in prison as a result. For cases like that, I'd definitely write (or, better yet, sign onto) Judge Kozinski's powerful concurrence. But here's a guy who does something demonstrably wrong and at least arguably gets off on a technicality due to a prosecutor's mistake. That's really the best case for something like this?
Plus, is this really the best case for Judge Kozinski to argue that we should leave stuff like this to civil courts? Sure, they'll be a lawsuit. Several. And you know what will happen? They'll be settled. For pennies on the dollar. With the money coming from an insurance company, most likely. The actual wrongdoer will pay not a cent. Boy, that really deters misconduct. I can't see at all why anyone would maybe want to add some potential criminal responsibility as well.
So it's not that I didn't like Judge Kozinski's concurrence. I did. A lot. But I'd have written it in an entirely different case. And, at best, would have referred to that concurrence in this case obliquely: e.g., by saying: "I have previously expressed my distaste for criminal charges brought against innocent defendants. See [Citation]. I reiterate those comments here." 'Cause I've seen far, far worse cases than this one. So has Judge Kozinski. And given the facts of this case, and the underlying conduct, to me, the presentation of these arguments here detracts, rather than adds, to the power of what Judge Kozinski says.
Which is too bad. 'Cause there's really great stuff here. Which I'd be praising effusively, and without reservation, if said in a different type of case.
In short: I'd have picked a different horse.
So when you write a long concurrence -- with flourish and outrage -- about the impropriety of the government doing so, please don't think I'm not sympathetic. Because I am. Truly.
But is this really the best case in which to get up on that horse?
I'll take the panel's word that the evidence against the defendant was insufficient because the government didn't introduce enough proof that the altered revenue in this criminal securities case was material. I'm not at all sure about that. The heightened revenue consisted of huge deals, worth millions of dollars -- almost a full quarter of the company's annual revenue -- and this is no small company: it's McAfee (now known at Network Associates). If you're frontloading fake revenue in that amount, I think it's at least plausible that that's material.
But let's assume you're right; and, again, I think that's plausible. Is this really the best case to write a lengthy concurrence that bemoans the injustice of erroneously charging a criminal defendant, the harm to someone that results from criminal charges, and the alleged adequacy of alternative civil suits?
I mean, let's face the facts. Yes, the evidence might not have been sufficient, but it sounds like that's only because the AUSA thought that either the stipulation or the undisputed size of the transactions would be sufficient. So Goyal's perhaps "innocent" not primarily because of what he did, but rather from an erroneous tactical decision by the government. Hardly the best case in which to raise the banner of actual innocence and government overreaching.
But let's ignore all that. Judge Kozinski's concurrence cries for Goyal, and says: "Although we now vindicate Mr. Goyal, much damage has been done. One can only hope that he and his family will recover from the ordeal."
I feel extremely badly for people unjustly convicted. But in the pantheon of those people -- of whom there are no shortage -- Mr. Goyal is pretty low on mylist. For one thing, he did something wrong. Maybe it wasn't criminal, but it was wrong. He manipulated revenue by doing deceptive (and essentially fake) quarter-end deals. He did it deliberately: to deceive others into buying (or holding) his company's stock. He did it for personal gain: he benefitted reputationally and through his stock options, and to a significant degree. His conduct was "illegal" in that it was, at a minimum, a civil tort. As well as morally inexcusable. It distorted the market and harmed both the company and its investors. The fact that lots of companies do the same thing -- and I assure you they do -- only makes it worse, not better. These shenanigans are hardly morally praiseworthy. They're bad things.
So this is not, for example, a woman who's unjustly convicted of shaking her baby to death and spends a decade in prison as a result. For cases like that, I'd definitely write (or, better yet, sign onto) Judge Kozinski's powerful concurrence. But here's a guy who does something demonstrably wrong and at least arguably gets off on a technicality due to a prosecutor's mistake. That's really the best case for something like this?
Plus, is this really the best case for Judge Kozinski to argue that we should leave stuff like this to civil courts? Sure, they'll be a lawsuit. Several. And you know what will happen? They'll be settled. For pennies on the dollar. With the money coming from an insurance company, most likely. The actual wrongdoer will pay not a cent. Boy, that really deters misconduct. I can't see at all why anyone would maybe want to add some potential criminal responsibility as well.
So it's not that I didn't like Judge Kozinski's concurrence. I did. A lot. But I'd have written it in an entirely different case. And, at best, would have referred to that concurrence in this case obliquely: e.g., by saying: "I have previously expressed my distaste for criminal charges brought against innocent defendants. See [Citation]. I reiterate those comments here." 'Cause I've seen far, far worse cases than this one. So has Judge Kozinski. And given the facts of this case, and the underlying conduct, to me, the presentation of these arguments here detracts, rather than adds, to the power of what Judge Kozinski says.
Which is too bad. 'Cause there's really great stuff here. Which I'd be praising effusively, and without reservation, if said in a different type of case.
In short: I'd have picked a different horse.
Friday, December 10, 2010
Pollard v. The GEO Group (9th Cir. - Dec. 10, 2010)
Judge Bea understands how difficult it is sometimes to come up with the first paragraph of a petition for certiorari. So he helps the defendants through their anticipated writer's block by writing it for them in this dissent from the denial of a rehearing en banc. The first paragraph of which reads:
"The panel majority—over a vigorous dissent by Chief Judge Restani of the Court of International Trade—extends and grants a Bivens claim to a prisoner against private company prison guards who are unprotected by notions of qualified immunity, available only to government employees. It does so for personal injury claims between California litigants, for acts and omissions which took place in California, and for which California tort law provides adequate remedies through compensatory and punitive damages. In doing so, the panel majority frankly admits its opinion creates an irreconcilable conflict with the decisions of two federal circuits, the Fourth and Eleventh. Further, it disregards the Supreme Court’s narrowing instructions on Bivens, which have limited recognition of new Bivens actions to those situations where, for one reason or another, damages were unavailable under both state and federal law. [S]uch an unprecedented opinion demands further review. . . ."
Don't be surprised if you see that same first paragraph as the first paragraph of defendant's petition for certiorari. It'd be mine.
"The panel majority—over a vigorous dissent by Chief Judge Restani of the Court of International Trade—extends and grants a Bivens claim to a prisoner against private company prison guards who are unprotected by notions of qualified immunity, available only to government employees. It does so for personal injury claims between California litigants, for acts and omissions which took place in California, and for which California tort law provides adequate remedies through compensatory and punitive damages. In doing so, the panel majority frankly admits its opinion creates an irreconcilable conflict with the decisions of two federal circuits, the Fourth and Eleventh. Further, it disregards the Supreme Court’s narrowing instructions on Bivens, which have limited recognition of new Bivens actions to those situations where, for one reason or another, damages were unavailable under both state and federal law. [S]uch an unprecedented opinion demands further review. . . ."
Don't be surprised if you see that same first paragraph as the first paragraph of defendant's petition for certiorari. It'd be mine.
Thursday, December 09, 2010
U.S. v. Johnson (9th Cir. - Nov. 29, 2010)
I just stepped off a plane at SFO, am giving a talk today (alongside Gerald Uelmen and Justice Grodin) on the legacy of Chief Justice George (feel free to check it out), and am flying back this afternoon, so I won't have the ability to read opinions today. Sadly.
But I can still talk about opinions from a little bit ago that struck my fancy. For example, in an otherwise nonremarkable opinion, the Ninth Circuit recites the following plea colloquy in a case in which the deal was that defendant would plea guilty and waive his right to appeal. Discourse that anyone who's spent some time in a federal district court will immediately recognize as something that happens all the time:
"THE COURT: Sir, do you understand that by entering into this agreement and pleading guilty you’ve agreed to give up your right to appeal any sentence you receive in accordance with the terms of this agreement?
JOHNSON: Yes.
THE COURT: Did you discuss waiving your right to appeal with your lawyer?
JOHNSON: Yes.
THE COURT: And based on that conversation, having considered the matter, do you wish to give up your right to appeal on the terms and conditions set forth in the plea agreement?
JOHNSON: No."
Oopsies. Wrong answer. So do we engage in extensive conversation with the defendant to make sure he really and truly knows what's going on? Let's see. Immediately after the "No," here's what happens:
"THE COURT: Okay. Why don’t we try that again. Okay. As part of this plea agreement there are certain conditions that he just recited that you’ve agreed to waive that pertain to your right to appeal. Do you understand that?
JOHNSON: Yes.
THE COURT: Okay. Now, do you still wish to go forward with the plea agreement and agree to waive your right to appeal on the terms and conditions set forth in the plea agreement?
JOHNSON: Yes."
Ah. The Magical "Yes." That's what we were looking for. Glad we got the kabuki play back on track.
But I can still talk about opinions from a little bit ago that struck my fancy. For example, in an otherwise nonremarkable opinion, the Ninth Circuit recites the following plea colloquy in a case in which the deal was that defendant would plea guilty and waive his right to appeal. Discourse that anyone who's spent some time in a federal district court will immediately recognize as something that happens all the time:
"THE COURT: Sir, do you understand that by entering into this agreement and pleading guilty you’ve agreed to give up your right to appeal any sentence you receive in accordance with the terms of this agreement?
JOHNSON: Yes.
THE COURT: Did you discuss waiving your right to appeal with your lawyer?
JOHNSON: Yes.
THE COURT: And based on that conversation, having considered the matter, do you wish to give up your right to appeal on the terms and conditions set forth in the plea agreement?
JOHNSON: No."
Oopsies. Wrong answer. So do we engage in extensive conversation with the defendant to make sure he really and truly knows what's going on? Let's see. Immediately after the "No," here's what happens:
"THE COURT: Okay. Why don’t we try that again. Okay. As part of this plea agreement there are certain conditions that he just recited that you’ve agreed to waive that pertain to your right to appeal. Do you understand that?
JOHNSON: Yes.
THE COURT: Okay. Now, do you still wish to go forward with the plea agreement and agree to waive your right to appeal on the terms and conditions set forth in the plea agreement?
JOHNSON: Yes."
Ah. The Magical "Yes." That's what we were looking for. Glad we got the kabuki play back on track.
Wednesday, December 08, 2010
Stahl v. U.S. (9th Cir. - Nov. 29, 2010)
I'm utterly fascinated by this one.
It's a tax opinion. So you wouldn't initially think it likely to result even in interest, much less total fascination. But fascinating it is.
Because it's basically about how the U.S. tax laws treat communists. In particular, religious communists engaged in capitalism. Or, more specifically, how we tax (or don't tax) people who eschew private property and live in a religious commune in which all income and expenses are owned and distributed collectively.
I admit that I didn't know much about Hutterite communities before I read the opinion. But now I do. They seem pretty similar to other utopian communities like the Oneida colony. The one at issue here runs a huge (30,000 acre) farm in Washington and has 65 members. It's incorporated as a religious corporation, all of the members eschew private property, every member works on the farm, and the corporation provides all of the members' food, clothing, medical care, etc. Your basic communist organization working in a captialist society.
Fair enough. Everyone gets to organize their private lives how they want. All we care about is this: How do we tax 'em?
Well, there's a special provision in the tax code that basically says that since the organization is a nonprofit religious corporation that doesn't pay taxes, income is imputed to the individual members based upon their pro rata share of the corporation's net income. Makes sense, right? We don't want such entities to be entirely untaxed, including whatever profits they make. That'd be unfair, since we tax profits for everyone else. At least when, as here, they get used to benefit the standard of living of their constituent members.
But here's the problem: Can the members essentially deduct their living expenses -- food, clothing, etc.? The corporation paid for these things, after all. It's a "ordinary" business expense in the sense that that's the basic purpose of the corporation, and as the owner of all the property with the responsibility for paying these things, that's the whole point of the enterprise. So doesn't that reduce the corporation's "profit" and hence the pro-rata tax liability of the members.
But why should members of these organizations get to deduct such expenses when no one else gets to? For example, Person A works on a regular non-profit collective farm, gets $30,000 as his pro-rata share of the net profits of this enterprise, and subsequently spends $30,000 on food, shelter, and clothing. He's taxed on the entire $30,000 he received. No deduction for food or (unmortgaged) housing. Should the result change if the enterprise is structured in the way that Hutterite communities are structured?
Every court to have considered the issue thus far has said "No" -- holding that the individual members of such communities don't get to deduct their living expenses. But the Ninth Circuit holds otherwise, and reverses the grant of summary judgment to the United States. So it may end up that the members get to deduct their living expenses.
Judge Fernandez's opinion makes some doctrinal sense, and he limits the opinion to discussing the particular "employee" issue on which the district court granted summary judgment. Though I still have a lingering and somewhat uneasy opinion about the net result. This from someone who's pretty pro-Utopia.
The one thing that I thought Judge Fernandez might have explored a bit more is the nature of "control," as he concedes that this is a pretty decisive tax factor. In a broader utopian community, I have little doubt that the corporation "controls" its employees/members, and this control is exercised in an ordinary fashion that's fairly typical and understandable by tax law.
But this particular Hutterite community -- as well as many others -- is somewhat special in a way that might be highly relevant to the control issue; in particular, the fact that all of its 65 members are part of one family. The Stahl family is the community at issue, and consists of eight brothers, two sisters, their spouses, and their children. So what the Stahls have basically done is to incorporate their family (and family business) and are using that entity to provide food, shelter, and other living expenses for the family. Do they get to deduct that stuff?
Now, I have no doubt whatsoever about the sincerity of the Stahl's family's beliefs. I'm positive that they are true believers, and profoundly respect their decision. But I can't help but wonder whether the definition of "control" that's normally used in tax law for typical employer/employee relations doesn't get distorted a bit when we're talking about a communal family. When my mother tells me what to do, and I obey -- either as an adult or a child -- I'm not sure that I'm doing so because I'm an "employee" of hers, or are subject to the same control dynamics and are typically at work in a corporate setting. It seems qualitiatively different to me.
Moreover, when an organization consists entirely of a single family, I just get nervous -- at least potentially -- about the potential results elsewhere. Imagine that I truly believe, for example, that my own family, consisting of myself, my spouse, and my four children, should all live communally. As we in fact do. With no individual "owning" any particular piece of property, but with me (like John Stahl) as the "President" who's in charge of making decisions about the community. With input and direction, of course, from my fellow members.
I sincerely believe this. God wants us to be a family. Undiluted by individual ownership. Do I now get to deduct all of our living expenses; food, clothing, shelter, etc.? If so, I'm definitely going to check out the Bible in more detail this weekend. With a sympathetic view about anything that God might say about the unity of the family. With more than casual references, if necessary, to the Koran, Book of Mormon, and anything else that might be helpful. The end of the tax year is coming up, after all.
I've got additional thoughts on this, and it's a really complicated issue (and not one that's definitively resolved by this particular Ninth Circuit opinion anyway), but this post is already too long.
My short take: It's clearly a topic worth thinking about. Maybe even worth someone's time (not mine) to write a law review article about. It'll definitely get read more than a lot of law review articles about tax.
It's a tax opinion. So you wouldn't initially think it likely to result even in interest, much less total fascination. But fascinating it is.
Because it's basically about how the U.S. tax laws treat communists. In particular, religious communists engaged in capitalism. Or, more specifically, how we tax (or don't tax) people who eschew private property and live in a religious commune in which all income and expenses are owned and distributed collectively.
I admit that I didn't know much about Hutterite communities before I read the opinion. But now I do. They seem pretty similar to other utopian communities like the Oneida colony. The one at issue here runs a huge (30,000 acre) farm in Washington and has 65 members. It's incorporated as a religious corporation, all of the members eschew private property, every member works on the farm, and the corporation provides all of the members' food, clothing, medical care, etc. Your basic communist organization working in a captialist society.
Fair enough. Everyone gets to organize their private lives how they want. All we care about is this: How do we tax 'em?
Well, there's a special provision in the tax code that basically says that since the organization is a nonprofit religious corporation that doesn't pay taxes, income is imputed to the individual members based upon their pro rata share of the corporation's net income. Makes sense, right? We don't want such entities to be entirely untaxed, including whatever profits they make. That'd be unfair, since we tax profits for everyone else. At least when, as here, they get used to benefit the standard of living of their constituent members.
But here's the problem: Can the members essentially deduct their living expenses -- food, clothing, etc.? The corporation paid for these things, after all. It's a "ordinary" business expense in the sense that that's the basic purpose of the corporation, and as the owner of all the property with the responsibility for paying these things, that's the whole point of the enterprise. So doesn't that reduce the corporation's "profit" and hence the pro-rata tax liability of the members.
But why should members of these organizations get to deduct such expenses when no one else gets to? For example, Person A works on a regular non-profit collective farm, gets $30,000 as his pro-rata share of the net profits of this enterprise, and subsequently spends $30,000 on food, shelter, and clothing. He's taxed on the entire $30,000 he received. No deduction for food or (unmortgaged) housing. Should the result change if the enterprise is structured in the way that Hutterite communities are structured?
Every court to have considered the issue thus far has said "No" -- holding that the individual members of such communities don't get to deduct their living expenses. But the Ninth Circuit holds otherwise, and reverses the grant of summary judgment to the United States. So it may end up that the members get to deduct their living expenses.
Judge Fernandez's opinion makes some doctrinal sense, and he limits the opinion to discussing the particular "employee" issue on which the district court granted summary judgment. Though I still have a lingering and somewhat uneasy opinion about the net result. This from someone who's pretty pro-Utopia.
The one thing that I thought Judge Fernandez might have explored a bit more is the nature of "control," as he concedes that this is a pretty decisive tax factor. In a broader utopian community, I have little doubt that the corporation "controls" its employees/members, and this control is exercised in an ordinary fashion that's fairly typical and understandable by tax law.
But this particular Hutterite community -- as well as many others -- is somewhat special in a way that might be highly relevant to the control issue; in particular, the fact that all of its 65 members are part of one family. The Stahl family is the community at issue, and consists of eight brothers, two sisters, their spouses, and their children. So what the Stahls have basically done is to incorporate their family (and family business) and are using that entity to provide food, shelter, and other living expenses for the family. Do they get to deduct that stuff?
Now, I have no doubt whatsoever about the sincerity of the Stahl's family's beliefs. I'm positive that they are true believers, and profoundly respect their decision. But I can't help but wonder whether the definition of "control" that's normally used in tax law for typical employer/employee relations doesn't get distorted a bit when we're talking about a communal family. When my mother tells me what to do, and I obey -- either as an adult or a child -- I'm not sure that I'm doing so because I'm an "employee" of hers, or are subject to the same control dynamics and are typically at work in a corporate setting. It seems qualitiatively different to me.
Moreover, when an organization consists entirely of a single family, I just get nervous -- at least potentially -- about the potential results elsewhere. Imagine that I truly believe, for example, that my own family, consisting of myself, my spouse, and my four children, should all live communally. As we in fact do. With no individual "owning" any particular piece of property, but with me (like John Stahl) as the "President" who's in charge of making decisions about the community. With input and direction, of course, from my fellow members.
I sincerely believe this. God wants us to be a family. Undiluted by individual ownership. Do I now get to deduct all of our living expenses; food, clothing, shelter, etc.? If so, I'm definitely going to check out the Bible in more detail this weekend. With a sympathetic view about anything that God might say about the unity of the family. With more than casual references, if necessary, to the Koran, Book of Mormon, and anything else that might be helpful. The end of the tax year is coming up, after all.
I've got additional thoughts on this, and it's a really complicated issue (and not one that's definitively resolved by this particular Ninth Circuit opinion anyway), but this post is already too long.
My short take: It's clearly a topic worth thinking about. Maybe even worth someone's time (not mine) to write a law review article about. It'll definitely get read more than a lot of law review articles about tax.
Tuesday, December 07, 2010
Doe v. Albany USD (Cal. Ct. App. - Nov. 30, 2010)
You've gotta have phys ed. At least for 20 minutes a day.
That's what the statute says. That's what the Court of Appeal rightly holds.
The law couldn't be clearer. Justice Hull writes a direct and cogent opinion.
Some cases are easy. I don't know how the trial court got this one wrong.
That's what the statute says. That's what the Court of Appeal rightly holds.
The law couldn't be clearer. Justice Hull writes a direct and cogent opinion.
Some cases are easy. I don't know how the trial court got this one wrong.
U.S. v. Lopez-Velasquez (9th Cir. - Dec. 7, 2010)
You'd think it was an easy case.
Eduardo Lopez-Velasquez gets deported in 1994 at a group proceeding in which he wasn't advised of the potential availability of discretionary relief from deportation. He was married to a U.S. citizen at the time, and had two young U.S. citizen children, so it was at least possible that he was eligible for such relief. Then, in 2006, he gets indicted for illegal reentry after being deported. The question is whether the prior failure to advise him of his rights meant that the indictment should be quashed.
The answer seems pretty clear. The district court said: "Yes." The case then went up to the Ninth Circuit. Which also said "Yes." Without dissent.
So there you have it. A pretty easy case, huh?
Yep. Totally. Mind you, the case gets taken en banc. But even there, the vote's unanimous. 11-0.
The other way.
It's pretty rare for the en banc panel to be unanimous. I'm sure that there are other cases in which that's happened when the district court and panel below were unanimously the other way. But I'm confident it's darn rare.
But we get to see it today.
Eduardo Lopez-Velasquez gets deported in 1994 at a group proceeding in which he wasn't advised of the potential availability of discretionary relief from deportation. He was married to a U.S. citizen at the time, and had two young U.S. citizen children, so it was at least possible that he was eligible for such relief. Then, in 2006, he gets indicted for illegal reentry after being deported. The question is whether the prior failure to advise him of his rights meant that the indictment should be quashed.
The answer seems pretty clear. The district court said: "Yes." The case then went up to the Ninth Circuit. Which also said "Yes." Without dissent.
So there you have it. A pretty easy case, huh?
Yep. Totally. Mind you, the case gets taken en banc. But even there, the vote's unanimous. 11-0.
The other way.
It's pretty rare for the en banc panel to be unanimous. I'm sure that there are other cases in which that's happened when the district court and panel below were unanimously the other way. But I'm confident it's darn rare.
But we get to see it today.
Monday, December 06, 2010
Goldberg v. Pacific Indemnity Co. (9th Cir. - Dec. 6, 2010)
I'm writing my Civil Procedure exam today. Or at least I'm supposed to be writing it. It was due on Friday. Instead, I'm reading the eight Ninth Circuit opinions that were published today. Those couple hundred pages have somewhat gotten in the way of my "academic" productivity today. Not to mention the California Court of Appeal opinions, which continue to roll in.
Fortunately, my various functions somewhat overlap today. Amongst the various Ninth Circuit opinions was this one. Which raises a classic Erie question: Whether a federal court is required to follow Arizona Rule 68 and allow recovery of expert witness fees and double costs when a defendant makes a federal Rule 68 offer, it is rejected, and plaintiff's ultimate recovery is less than the offer.
It's such a classic Erie question that I might be willing to make this fact pattern part of my exam, but the fact that there's an actual opinion out there (and that the essay portion open-book) probably means I won't do so. Probably. If I can't get my exam written pretty soon, taking a ready-made hypothetical and retyping it as my exam might start looking pretty good. The Dark Side. It's seductive.
The First Circuit held, in an analogous context, that the federal court was required to follow the state rule. The Ninth Circuit concludes otherwise, holding that Federal Rule of Civil Procedure 68 is sufficiently broad to cover the matter and hence a federal court is not required (or allowed) to follow the state rule.
Were I to give this question as my exam, the Ninth Circuit's opinion would receive an A. Maybe even an A+ -- though I have to somewhat adjust my grading scale, as the panel had several months to write the opinion, whereas the most my students would have is three hours or so. To get an A++, the Ninth Circuit might have wanted to write a little bit more about potential conflicts between even plaintiff offers and Rule 68; there is, in my view, a decent argument that federal courts cannot impose post-offer penalties even when plaintiffs make an offer, on the theory that Rule 68 deliberately omits plaintiff offers from coverage and hence involves a policy decision that sufficiently covers the area. But I admit that's somewhat of a tangent, so I wouldn't give that topic many points. I'd just be a bit more skeptical about that than the Ninth Circuit's opinion is.
The First Circuit's opinion, by contrast, would receive a D. It doesn't discuss the Erie question virtually at all. It's takes a ton of things virtually for granted. It's simply not good at all. So, seriously, it'd receive a D if one of my students wrote it as an exam answer.
Which is somewhat ironic. Since the author of that First Circuit opinion was a former professor of mine -- to whom I once turned in a exam. A guy you may have heard of. Whose last name is Breyer.
Oh, Stephen. You know you can do better work than this. The Ninth Circuit crushed you. And we grade on a curve.
Fortunately, my various functions somewhat overlap today. Amongst the various Ninth Circuit opinions was this one. Which raises a classic Erie question: Whether a federal court is required to follow Arizona Rule 68 and allow recovery of expert witness fees and double costs when a defendant makes a federal Rule 68 offer, it is rejected, and plaintiff's ultimate recovery is less than the offer.
It's such a classic Erie question that I might be willing to make this fact pattern part of my exam, but the fact that there's an actual opinion out there (and that the essay portion open-book) probably means I won't do so. Probably. If I can't get my exam written pretty soon, taking a ready-made hypothetical and retyping it as my exam might start looking pretty good. The Dark Side. It's seductive.
The First Circuit held, in an analogous context, that the federal court was required to follow the state rule. The Ninth Circuit concludes otherwise, holding that Federal Rule of Civil Procedure 68 is sufficiently broad to cover the matter and hence a federal court is not required (or allowed) to follow the state rule.
Were I to give this question as my exam, the Ninth Circuit's opinion would receive an A. Maybe even an A+ -- though I have to somewhat adjust my grading scale, as the panel had several months to write the opinion, whereas the most my students would have is three hours or so. To get an A++, the Ninth Circuit might have wanted to write a little bit more about potential conflicts between even plaintiff offers and Rule 68; there is, in my view, a decent argument that federal courts cannot impose post-offer penalties even when plaintiffs make an offer, on the theory that Rule 68 deliberately omits plaintiff offers from coverage and hence involves a policy decision that sufficiently covers the area. But I admit that's somewhat of a tangent, so I wouldn't give that topic many points. I'd just be a bit more skeptical about that than the Ninth Circuit's opinion is.
The First Circuit's opinion, by contrast, would receive a D. It doesn't discuss the Erie question virtually at all. It's takes a ton of things virtually for granted. It's simply not good at all. So, seriously, it'd receive a D if one of my students wrote it as an exam answer.
Which is somewhat ironic. Since the author of that First Circuit opinion was a former professor of mine -- to whom I once turned in a exam. A guy you may have heard of. Whose last name is Breyer.
Oh, Stephen. You know you can do better work than this. The Ninth Circuit crushed you. And we grade on a curve.
Tijani v. Holder (9th Cir. - Dec. 6, 2010)
Here's a neat little puzzle.
It's a three-judge panel, and all of its members are Ninth Circuit judges. An opinion gets written, and the inevitable post-opinion petitions are filed. One judge votes to grant the petition for panel rehearing. Another judge would vote to grant the petition for rehearing en banc.
But the petition for rehearing en banc is denied, with no judge requesting a vote. How does that happen?
Here's one way. Check out the panel composition, and how they vote. Pretty neat.
It's a three-judge panel, and all of its members are Ninth Circuit judges. An opinion gets written, and the inevitable post-opinion petitions are filed. One judge votes to grant the petition for panel rehearing. Another judge would vote to grant the petition for rehearing en banc.
But the petition for rehearing en banc is denied, with no judge requesting a vote. How does that happen?
Here's one way. Check out the panel composition, and how they vote. Pretty neat.
U.S. v. Bush (9th Cir. - Dec. 3, 2010)
It was true in the twentieth century. It's true in the twenty-first. Barring an economic castastophe, it's always going to be true. It nonetheless bears repeating, if only because so many people fail to understand it. So I'll do my public service message for the day:
When someone promises you a 25% return on your investment every month, it's a scam. They're lying. It's not true. Run -- don't walk -- from the guy. (It's almost invariable a dude.)
Here's the latest Ponzi scheme to reach the Ninth Circuit. In which (1) the guy gets sentenced to 30 years, (2) his convictions get affirmed, and (3) I couldn't be happier.
When someone promises you a 25% return on your investment every month, it's a scam. They're lying. It's not true. Run -- don't walk -- from the guy. (It's almost invariable a dude.)
Here's the latest Ponzi scheme to reach the Ninth Circuit. In which (1) the guy gets sentenced to 30 years, (2) his convictions get affirmed, and (3) I couldn't be happier.
Friday, December 03, 2010
Javhlan v. Holder (9th Cir. - Dec. 3, 2010)
It's "Dissent Friday" today on the Ninth Circuit. A day in which each of the last three published opinions involves a 2-1 decision. Each with a dissent by the most conservative member of the panel.
Judge Ikuta dissents in this case, an immigration opinion (asylum) authored by Judge Pregerson and joined by Judge Dorothy Nelson. The second case is the one I mentioned earlier today -- Peterson -- in which Judge Randy Smith dissents from an opinion authored by Judge Betty Fletcher and joined by Judge Thomas. The third is Milovanovic -- the latest installment in the avalanche of recent "honest services" cases -- in which Judge Fernandez dissents to an opinion by Judge Kleinfeld joined by Judge Clifton.
Feel the love.
Judge Ikuta dissents in this case, an immigration opinion (asylum) authored by Judge Pregerson and joined by Judge Dorothy Nelson. The second case is the one I mentioned earlier today -- Peterson -- in which Judge Randy Smith dissents from an opinion authored by Judge Betty Fletcher and joined by Judge Thomas. The third is Milovanovic -- the latest installment in the avalanche of recent "honest services" cases -- in which Judge Fernandez dissents to an opinion by Judge Kleinfeld joined by Judge Clifton.
Feel the love.
Peterson v. Iran (9th Cir. - Dec. 3, 2010)
We just went over affirmative defenses in my Civil Procedure I class. What counts as one, as well as what the consequences are of not raising it.
Think it matters? It does here. To the tune of over two billion dollars.
This is admittedly a somewhat unusual case, and involves plaintiffs who sued Iran -- successfully -- for sponsoring the 1983 bombing of the U.S. Marine barracks in Beruit. Plaintiffs got their $2.6 billion-plus judgment by default and then moved to enforce it -- no easy task -- by attempting to seize Iran's right to obtain payments from a French shipping company that does business in Iran.
The district court raised the issue of Iran's sovereign immunity sua sponte and denied the requested seizure. The Ninth Circuit, in an opinion by Judge Betty Fletcher, affirms. Judge Randy Smith dissents, arguing that sovereign immunity is an affirmative defense that Iran waived by failing to defend the action.
It's a good discussion on both sides. The Ninth Circuit joins the Fifth Circuit in so holding, but the Seventh Circuit has a pending appeal that raises the same issue. Particularly given the stakes involved, Judge Smith's dissent gives plaintiffs a tolerable (but by no means certain) shot at certiorari. Though it's possible that the Supreme Court would wait until the Seventh Circuit decides to see if there's a circuit split. Plus may not want to get into troubling foreign affairs issues like this one unless it absolutely needs to.
But for now, plaintiffs are out of luck. Sorry about that. Congratulations -- I guess -- to Iran. Not the most sympathetic defendant, but it wins this one.
Think it matters? It does here. To the tune of over two billion dollars.
This is admittedly a somewhat unusual case, and involves plaintiffs who sued Iran -- successfully -- for sponsoring the 1983 bombing of the U.S. Marine barracks in Beruit. Plaintiffs got their $2.6 billion-plus judgment by default and then moved to enforce it -- no easy task -- by attempting to seize Iran's right to obtain payments from a French shipping company that does business in Iran.
The district court raised the issue of Iran's sovereign immunity sua sponte and denied the requested seizure. The Ninth Circuit, in an opinion by Judge Betty Fletcher, affirms. Judge Randy Smith dissents, arguing that sovereign immunity is an affirmative defense that Iran waived by failing to defend the action.
It's a good discussion on both sides. The Ninth Circuit joins the Fifth Circuit in so holding, but the Seventh Circuit has a pending appeal that raises the same issue. Particularly given the stakes involved, Judge Smith's dissent gives plaintiffs a tolerable (but by no means certain) shot at certiorari. Though it's possible that the Supreme Court would wait until the Seventh Circuit decides to see if there's a circuit split. Plus may not want to get into troubling foreign affairs issues like this one unless it absolutely needs to.
But for now, plaintiffs are out of luck. Sorry about that. Congratulations -- I guess -- to Iran. Not the most sympathetic defendant, but it wins this one.
Thursday, December 02, 2010
Golin v. Allenby (Cal. Ct. App. - Nov. 30, 2010)
This opinon seems entirely correct. As far as it goes.
Jeffrey Golin and Elise Golin are surely vexatious litigants. Of that there can be little doubt. But defendants didn't show that their claims had no reasonable probability of success. So the trial court's imposition of a half-million dollar bond requirement gets reversed. Makes sense.
But I wonder if the Court of Appeal might have done a little more. For example, among their other frivolous acts, the Court of Appeal notes that it's pretty clear that the Golins forged various proofs of service. What about referring the matter to the District Attorney? Moreover, the Golins also apparently ghost-wrote a large number of their attorney's filings in the trial court, and the Court of Appeal found that the attorney had little to no control over what was failed. How about referring that attorney to the relevant Bar?
None of this is required, of course. But I'm left with the impression that, to a degree, the Golins have "gotten away" with making the case a nightmare for the defendants below. Which don't seem right.
Jeffrey Golin and Elise Golin are surely vexatious litigants. Of that there can be little doubt. But defendants didn't show that their claims had no reasonable probability of success. So the trial court's imposition of a half-million dollar bond requirement gets reversed. Makes sense.
But I wonder if the Court of Appeal might have done a little more. For example, among their other frivolous acts, the Court of Appeal notes that it's pretty clear that the Golins forged various proofs of service. What about referring the matter to the District Attorney? Moreover, the Golins also apparently ghost-wrote a large number of their attorney's filings in the trial court, and the Court of Appeal found that the attorney had little to no control over what was failed. How about referring that attorney to the relevant Bar?
None of this is required, of course. But I'm left with the impression that, to a degree, the Golins have "gotten away" with making the case a nightmare for the defendants below. Which don't seem right.
Wednesday, December 01, 2010
People v. Smith (Cal. Ct. App. - Nov. 29, 2010)
Police officers perform a valuable and socially beneficial function. They're not the enemy. We should help them when we can.
We should even be willing to offer our assistance when it comes at some cost to us. For example, were a police officer to come to my home and ask for my help -- for a glass of water, to make a phone call, to let him check out my back yard for a suspected burglar, etc. -- my very strong instinct would be to say "Yes." That's what being a member of a society is all about.
Cases like this one, however, push me the other way. Sending, in my view, exactly the wrong message.
There, police officers were doing probation/parole checks. They thought that a particicular parolee lived at a certain house. So they went there and knocked on the door. No problem.
It's early, mind you -- 6:00 a.m. -- and before knocking, they peek through the window of the apartment and see a woman sleeping on a couch. She wakes up when the police talk to her through the window, at which point the police say they're there to do a compliance check on a parolee (Mr. Jones). The woman says that there's no Mr. Jones there, and that no one by that name lives there. The police officers say that they'd like to come in anyway to check. At which point the woman -- consistent with my admonition that we should try to help the police when we can -- agrees, saying: "Hold on. Let me get dressed."
She then (understandably) goes into a back room, presumably to get dressed, but the officers also hear her doing something quickly in the kitchen and then hear her start the dryer, which starts "clunking" around like it has some metal in it. She then returns and opens the door and steps aside. The officers again say that they are there to check for Mr. Jones, telling her "Look, we're just here to check, [to] make sure [Mr. Jones] isn't here."
She again says: "You can check, but [Mr. Jones is] not here. . . . Just me and my kids and my brother." A statement that, again, is fine. Go ahead and check. It invades my privacy a bit. But I'm happy to help.
The police, however, are suspicious. Not of Mr. Jones, who's indeed not there. But of Ms. Smith. She put something in the dryer, probably. And there's a marijuana smell in the apartment as well. Which may explain why Ms. Smith was crashed on the couch.
So the police "check" for Mr. Jones. Where do they "check" for him? In the dryer. Which they open up outside of the sight of Ms. Smith. And which, predictably, contains some marijuana. At which point they arrest Ms. Smith.
Ms. Smith says that she only consented to the police looking for Mr. Jones, and that since he clearly was not in the spinning dryer, that search violated the Fourth Amendment. The police, by contrast, say that the only reason they opened the dryer was because it was "loud" (and they wanted to turn it off) and, in any event, it was legitimate to look inside for weapons or anything else that might be used against them.
Which is a total crock, of course. They looked inside (rather than just opening the door a crack and shutting it to turn of the dryer) to see if anything illegal was inside. And they had no reason whatsoever to think that a person who had just invited them inside her home was planning on killing them with a weapon that she hid in her dryer -- a dryer in an entirely different room than she was.
Nonetheless, the Court of Appeal holds that it's a legitimate search. No Fourth Amendment violation.
Which, in turn, makes me much more reluctant to help. You've got a citizen here who would have been entirely within her rights to say "Mr. Jones doesn't live here. I don't give consent. Go to hell." But instead tries to accommodate the police. And, for her help, ends up getting burned. By officers who expand her consent to start searching for evidence against her. And by a judiciary that says that's entirely okay.
Which perhaps doctrine allows. Indeed, at this point, given the Court of Appeal's holding, undeniably does.
But it makes me that much less likely to help out officers. This case will unquestionably enter my mind if the police ever come to my home and ask to enter. Before, I'd have clearly let them in. After, I'm not at all so sure. Because if letting them in means they can -- and might well -- rummage through my dryer, drawers, etc., looking for evidence against me or even just invading my privacy, well, that's something very different. Personally, it makes it much less likely for me to say "Yes." Which is a bad thing. But a direct consequence of opinions like this one.
We should even be willing to offer our assistance when it comes at some cost to us. For example, were a police officer to come to my home and ask for my help -- for a glass of water, to make a phone call, to let him check out my back yard for a suspected burglar, etc. -- my very strong instinct would be to say "Yes." That's what being a member of a society is all about.
Cases like this one, however, push me the other way. Sending, in my view, exactly the wrong message.
There, police officers were doing probation/parole checks. They thought that a particicular parolee lived at a certain house. So they went there and knocked on the door. No problem.
It's early, mind you -- 6:00 a.m. -- and before knocking, they peek through the window of the apartment and see a woman sleeping on a couch. She wakes up when the police talk to her through the window, at which point the police say they're there to do a compliance check on a parolee (Mr. Jones). The woman says that there's no Mr. Jones there, and that no one by that name lives there. The police officers say that they'd like to come in anyway to check. At which point the woman -- consistent with my admonition that we should try to help the police when we can -- agrees, saying: "Hold on. Let me get dressed."
She then (understandably) goes into a back room, presumably to get dressed, but the officers also hear her doing something quickly in the kitchen and then hear her start the dryer, which starts "clunking" around like it has some metal in it. She then returns and opens the door and steps aside. The officers again say that they are there to check for Mr. Jones, telling her "Look, we're just here to check, [to] make sure [Mr. Jones] isn't here."
She again says: "You can check, but [Mr. Jones is] not here. . . . Just me and my kids and my brother." A statement that, again, is fine. Go ahead and check. It invades my privacy a bit. But I'm happy to help.
The police, however, are suspicious. Not of Mr. Jones, who's indeed not there. But of Ms. Smith. She put something in the dryer, probably. And there's a marijuana smell in the apartment as well. Which may explain why Ms. Smith was crashed on the couch.
So the police "check" for Mr. Jones. Where do they "check" for him? In the dryer. Which they open up outside of the sight of Ms. Smith. And which, predictably, contains some marijuana. At which point they arrest Ms. Smith.
Ms. Smith says that she only consented to the police looking for Mr. Jones, and that since he clearly was not in the spinning dryer, that search violated the Fourth Amendment. The police, by contrast, say that the only reason they opened the dryer was because it was "loud" (and they wanted to turn it off) and, in any event, it was legitimate to look inside for weapons or anything else that might be used against them.
Which is a total crock, of course. They looked inside (rather than just opening the door a crack and shutting it to turn of the dryer) to see if anything illegal was inside. And they had no reason whatsoever to think that a person who had just invited them inside her home was planning on killing them with a weapon that she hid in her dryer -- a dryer in an entirely different room than she was.
Nonetheless, the Court of Appeal holds that it's a legitimate search. No Fourth Amendment violation.
Which, in turn, makes me much more reluctant to help. You've got a citizen here who would have been entirely within her rights to say "Mr. Jones doesn't live here. I don't give consent. Go to hell." But instead tries to accommodate the police. And, for her help, ends up getting burned. By officers who expand her consent to start searching for evidence against her. And by a judiciary that says that's entirely okay.
Which perhaps doctrine allows. Indeed, at this point, given the Court of Appeal's holding, undeniably does.
But it makes me that much less likely to help out officers. This case will unquestionably enter my mind if the police ever come to my home and ask to enter. Before, I'd have clearly let them in. After, I'm not at all so sure. Because if letting them in means they can -- and might well -- rummage through my dryer, drawers, etc., looking for evidence against me or even just invading my privacy, well, that's something very different. Personally, it makes it much less likely for me to say "Yes." Which is a bad thing. But a direct consequence of opinions like this one.
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