People v. Cornett (Cal. Supreme Ct. - April 30, 2012)

English is a funny thing.

Let me start by saying that I think I know what it means to be "18 or older."  It means you're either age 18 or older.  In short, that you've had your eighteenth birthday.  We can all probably agree on that.

But what about when it's the reverse?  I still think I generally know, but it's harder.  Imagine that you can't do something if you are "age 18 or younger."  Well, I think that means that if you're 18, or 17, or 16, etc., you can't do it.  You've got to have had your nineteenth birthday.

But what if it's slightly different:  What if a statute applies only if someone is "18 years of age or younger?"  That might well mean the same thing.  But it might potentially mean something slightly different.  One might read such wording to mean that once you hit 18, you're free:  in other words, that you're only exactly "18 years of age" on your birthday, and so the statute only applies if it's on that day or before then.

Context may thus matter a lot.  At least when we're using conjunctive or disjunctive language.

Let's then talk about an actual case.  This one.  One in the California Supreme Court.  What does it mean when a statute says that a defendant gets punished more severely if the victim is "a child who is ten years of age or younger?"  If the kid's ten-and-a-half, does the statute apply?

The Califronia Supreme Court unanimously reverses the Court of Appeal and holds that, yeah, ten-and-a-half is ten years of age or younger.  It adopts a very simple interpretation of the words.  To phrase it differently than the court did (but equally accurately), the term "ten years of age or younger" is simply disjunctive.  You can be ten or younger.  We commonly call ten-and-a-half year olds "ten".  Simple.  End of story.  Staute applies.

That version has a lot of truth to it.  To be honest, when I read the words, that's what they mean to me too.  If a ride at Disneyland says to need to be "ten yeas of age or younger" to ride it -- think, Teacups -- then I'd be pissed if they didn't let my ten-year old daughter (let's call her "Sierra") ride it.  I'd think she was entitled to ride.

But I'm not sure that's entirely dispositive of the matter.  Let's go into a little bit more detail.

Because, as I said, context matters.

The California Supreme Court understood that the statute was ambiguous, so looked at the legislative history.  Several pieces of which said, essentially, that the victim had to be nine years old or younger.  Exactly what the defendant said.  But the California Supremes said that this language isn't dispositive, and that the context that matters instead was the fact that this was anti-molestation language and hence was probably intended broadly.

I agree with the former but not the latter.

I agree that the legislative history isn't conclusive.  Yes, some people said the victim had to be nine or younger.  But they could easily have been talking loosely.  Staffers often aren't precise.  Legislators often use shorthand.  We shouldn't be overly distracted by what they say when we have a sense -- as I do here -- that they may be subject to these imperfections.

At the same time, I think the court here puts far too much weight on the anti-molestation context in which the statute was passed.  Did I think the Legislature wanted to protect child molesters?  Uh, no.  Duh.  But that doesn't necessarily mean they intended the most anti-defendant version of words that we can imagine.  They might still have meant that a line be drawn in one place rather than another.  The fact that they -- like the court -- doesn't have a soft spot for child molesters doesn't answer the question.  Doesn't even necessarily shed much light on it.

So what context do I think might matter?  One that the court never mentions.  The fact that the number the Legislature chose was ten.

Why ten?  Why are you punished more when the child is "ten" or younger?  We're not talking about an age we're all used to -- sixteen for driving, eighteen for voting, twenty-one for drinking.  Indeed, ten is not even the age we typically refer to when we talk about a kid hitting puberty or being a "kid".  That's generally twelve -- the last age in which you're not a "teenager".  If the Legislature said (as it does in many statutes) that you can't do X if you're "twelve years of age or younger," I find it very plausible to think that what they meant is that you should only be able to do it once you're a teenager.

So what's so special about ten?  Easy.  It's the first number with double digits.

The Legislature wanted to really slam child molesters who touched really small kids.  Where should we draw the line?  Thirteen?  Twelve?  Eleven?  When is it really, really bad?

You can't answer that question precisely.  So we use shorthand.  And here's an easy one:  It's really, really bad when the kid doesn't even have double digits in his age.  If he's six.  Eight.  Nine.  Wow.  You get to spend forever in prison.  Whereas if he's eleven or she's thirteen or whatever, sure, you get to spend forever in prison too, but not forever and a day.

So it seems plausible to me that in this context, that's what the Legislature meant by "age 10 or younger."  What they really meant is that the statute doesn't apply after the victim has hit double digits.  But the Legislature being the Legislature, they used imprecise language, and we're left to figure out what they meant.  And what they might well have meant is to punish extra hard people who molest people younger than ten.  Victims with single digit ages.

Am I certain that I'm right?  Of course not.  But it does explain the year they chose.  Indeed, may well explains it better than any alternative explanation.  Under the interpretation adopted by the court here, the Legislature essentially set the cutoff date at 11:  lesser penalties once the victim has her eleventh birthday.  That seems a weird age, huh?  Eleven is not an age we usually choose.  Or which we view as a "dividing line" in any meaningful way.  Either in statutes or elsewhere.

So what should you do?  One way to resolve ambiguities like this is to apply the rule of lenity.  To resolve the interpretation in favor of the defendant.  But get real.  We're not going to do that when the beneficiary is a child molester.  Or, truth be told, virtually any criminal defendant.  So we almost never find this principle dispositive.  And the California Supreme Court certainly isn't going to start doing otherwise here.  And doesn't.

Let me reiterate for the nth time that molesting kids is bad.  Let me also remind everyone that I have four kids of my own.  At least three of whom are "age ten or younger" -- four, if you adopt the court's definition here.  So I'm sympathetic to what the court's done here.  In addition to the fact that, on first glance, I gotta admit that I thought they were probably right.

But I've thought more about it now.  And the more I think, the less sure I am.

Sometimes first impressions lead one astray.  I wonder if that's the case here.

People v. Vela (Cal. Ct. App. - April 30, 2012)

It's the end of the month, so let's review.  Some very basic math.

Four prior DUIs + Driving with a .21 at 70 m.p.h. = Hitting a motorcycle and killing someone = 15 years to life in prison.

Rebecca Vela learns this lesson the hard way.  (Though not nearly as hard as the victim, Stanley Spaeth, learned it.  They pulled him out of a tree, dead.)

Diago-Guiness USA v. State Bd. of Equalization (Cal. Ct. App. - April 30, 2012)

When I read this opinion, I thought:  "This is awesome.  I'm going to start a new business today.  It'll get people drunk faster and also sleaze California out of taxes.  What's not to like?"

But then I did a little research.  And discovered that the spirits manufacturers have already beaten me to it.  In spades.

Damn.

The question in the appeal is how you tax certain forms of liquor.  The statute in California distinguishes between "beer" and "spirits".  Beer is taxed at twenty cents per gallon, whereas spirits are taxed at either sixteen-and-a-half or thirty three times that rate.  On the theory, I imagine, that we prefer beer to bourbon.  Which is true for me, at least.

This taxation regime seems pretty straightforward.  But at issue is how you tax what are called in the appeal "flavored malt beverages."  There's another term for them as well that's more colloquially used.  "Alcopop."  These are the spirits that you're increasingly seeing all over the place, and that young kids find especially appealing.  Mike's Hard Lemonade.  Smirnoff Ice.  Bacardi Breezer.  Sky Blue.  You've seen 'em.  And if you're anything like me, you've also imbibed them.  Yummy.

Flavored malt beverages ("FMBs") can be made in one of two ways.  First, you can just mix vodka (or whatever other spirit you're using) with whatever juice or other flavoring you're using to mask the taste and, boom, you've got something that 16-year olds love.  Which works from a marketing perspective, but from a tax perspective, you're clearly a "spirit" with this product, so you get taxed at the higher rate.

But here's where the brilliant folks at our alcohol manufacturers come in.  You can also make FMBs another way.  You can brew some beer, and then take everything out of the beer -- all colorness, bitterness, and taste -- essentially leaving only water, and then add the juice as well as lots of alcohol.  You're essentially doing the same thing you're doing in the alternative procedure.  But now, since you started with beer, you can call it "beer" and be taxed at the substantially lower rate.  Ta-da!

And they say that lawyers don't add any value to society.  Pshaw.

The California State Board of Equalization gets wind of this and decides that, nope, FTBs are spirits if they have a spirit- (rather than beer-) like alcohol content.  But the alcohol manufacturers aren't taking this lying down.  They file suit.  Proclaiming that teenagers have a constitutional right to get drunk on candy cheaply.  Or, more accurately, that California's taxing authorities have no power to decide what gets taxed as "beer" under the statute, only the California Department of Alcoholic Beverage Control (the ABC).

Guiness loses in the trial court.  But the Court of Appeal reverses.  Cheap drinks for everyone!

The relevant statutes and regulations are complex, and you can read the entire 25-page opinion if you'd like.  But I must say that -- as my comments perhaps reflect -- I'm not entirely persuaded by the result.  It seems to me that the taxing authorities get to decide what gets taxed in the gray area that exists here, and that that's not inconsistent with letting the ABC decide how to substantively regulate this gray area.  And the Court of Appeal also expresses a conclusion on the merits that says that taxation of FMBs as "spirits" is substantively irrational regardless of which agency applies this principle.  That seems even less persuasive.  If it looks like a spirit and tastes like a spirit and has the wallop of a spirit, it makes total sense to me for a state to treat it like a spirit if it so chooses, notwithstanding the fact that this product started out as a beer that was turned into essentially water to be added to the spirit.  Sure, you could adopt a contrary regulation, but that's up to the state.  If it wants to tax these kiddie entrees into the hard-drinking world as spirits -- or at an even higher rate -- that's up to them.

So my idea to start up a new business with cheap alcohol apparently flounders against the reality that some of the brightest minds of our generation -- both legal and non-legal -- have already done so.

And have prevailed.

People v. Le (Cal. Ct. App. - April 27, 2012)

I'm glad that Justice Benke decided to publish this opinion.  Not because it involves anything doctrinally complicated, and certainly not because the legal issues were exciting enough to be worth wading through sixty-seven pages of text.  No, that's not it.

Rather, I was interested in the case because of the facts.  It's a murder case.  The opinion includes a bunch of wiretap transcripts and details about the relevant gangs in the area.

Which is not totally unusual.  Not surprisingly, I read lots of cases about murders.  Today's a day that ends in -y, after all.

But this particular case is interesting because the relevant gang is located in Linda Vista -- a particular community in San Diego.  A particular community that just so happens to also be the location of the University of San Diego, at which I am employed.

So I get to learn all about the gangs in the area and the murders committed therefor.  Which is nice.

So I didn't know, for the example, that I'm employed in an area controlled by the Tiny Oriental Crips.  Which means I probably shouldn't wear my "Tournament of Champions" t-shirt around campus, since it prominently displays the abbreviation "TOC."  Don't want anyone thinking that I'm advertising the wrong TOC.

Plus I know something about the TOC's rival, the Asian Crips.  Who are apparently derisively referred to by TOC members as "Ass Cracks."  Creative, those Tiny Oriental Crips.

I could go on.  But given my proximity to their turf, I'll probably keep my comments on this issue somewhat limited.

Suffice it to say that there are two TOC members who will not be coming around the University of San Diego anytime within the next 96 years to life.

People v. Villegas (Cal. Ct. App. - April 26, 2012)

When I saw that this case involved an appeal of a conviction of a sex offender for failing to update his address, I initially thought it'd be one of those innumerable cases where a person forgets or waits a couple of days too long after his birthday to reregister, and gets thrown back into jail for a decade as a result.

Nope.

Here the guy registers for eight straight years, but apparently gets sick of it.  Not only with registration, but also with reporting to his parole officer, because he's currently on parole for an unrelated offense.  So he cuts off his leg monitor, leaves it in a motel along with a note saying he doesn't think he has to report any more (he's on probation , and skips to Alabama.

He's caught and convicted, and sentenced to four years in prison.

Yep.  That's what happens when you cut off your leg monitor and skip town.

Another in a series of bad choices for Hector Villegas.

In Re Alejandro G. (Cal. Ct. App. - April 25, 2012)

Alejandro is under 18 years old and is caught with a gun.  You're not allowed to possess one when you're a minor.  So off to trial you go.  The only relevant question (on appeal, anyway) being whether he was competent to stand trial.

Justice Huffman's opinion says that Alejandro's of average intelligence, with no disabilities.  When I read the opinion and learn what Alejandro has to say about his understanding of the criminal justice system, it seems fairly general, but what he says is indeed consistent with potentially being competent to stand trial.

But what I really would like to know is how old Alejandro is.  Justice Huffman doesn't say.  It's very possible that Alejandro is 16 or so -- he was sitting in a car, near a pack of cigarettes -- and his answers when being examined for competence are probably what you'd typically get from a n'er do well of his age and disposition.  If so, I have no problem whatsoever finding that he was competent; indeed, my reaction to the opinion was generally:  "What's all the fuss about?  This guy is obviously competent.  I can't believe the experts says it's close."

But it's also possible that he's, like, 12.  Or even younger.  His answers are also consistent with that.

So if we're going to say that someone's of average intelligence, when you're evaluating competence, it seems pretty important to say how old that person is.  "Average" for whom.

So I'd add that to this opinion.  Just so we know all the relevant details.

J.M. v. Superior Court (Cal. Ct. App. - April 25, 2012)

You're not going to get a lot of sympathy from the Court of Appeal if you're a big Oxycontin user who lives in a crash pad in Ventura County and your five-year old child dies from overdosing on Oxy.  That's what happens when you leave pills lying around.

What also happens is that they take your seven- and four-year olds from you as well.  Quickly.  And the Court of Appeal refuses to intervene.  Denying your writ petition similarly quickly.  Taking less than a half-dozen pages to do so.

U.S. v. Apel (9th Cir. - April 25, 2012)

It'd be neat to get a case like this taken en banc.  And potentially thereafter to see it argued in the Supreme Court.

Panels disagree.  The circuits are split.

And law students are arguing the appeal.

U.S. v. Milovanovic (9th Cir. - April 24, 2012)

Judge Kleinfeld takes one view of "honest services" and publishes an opinion with his insights.  Judge Clifton signs on.  Judge Fernandez takes a different view, and dissents, both generally and as applied to this particular case.

The case gets taken en banc.  There's going to be a wide divergence of opinions, no?

No.

Judge Tallman writes the en banc opinion.  He takes a somewhat different view than Judge Kleinfeld.  And agrees with Judge Fernandez even less.  How many judges agree with Judge Tallman?

All of them.

All of them, that is, except Judge Clifton.  Who signed onto the earlier opinion and -- unlike Judges Kleinfeld and Fernandez -- were drawn for the en banc panel.  He sticks to his view.  Concurring in the judgment and saying that everyone else's opinion muddies the waters.

Anchor Pacifica Mgm't Co. v. Green (Cal. Ct. App. - April 23, 2012)

The next time that someone tells you that appellate jurisprudence has changed a lot during the past half-century, here's Exhibit A of your rebuttal.

Due process and state action requirements have changed a ton since the Warren Court.  But this same opinion could easily have been written back then.  Something I can almost never say when I read opinions from the California Court of Appeal.

That's either a good thing or a bad thing, depending on your view.  But it's definitely true.

The times they aren't (always) a-changin'.

Meras v. Sisto (9th Cir. - April 23, 2012)

Two quick points about this opinion by Judge Kozinski.  Identifying one part of the opinion I somewhat like and one I somewhat don't.

I like the introduction.  Which reads:  "Edward L. Meras, a California state prisoner, appeals the district court’s order denying his petition for a writ of habeas corpus. He claims that testimony introduced during his trial violated his Sixth Amendment right to confrontation. He’s probably right, but he loses anyway."  That's a somewhat funny way of putting it (though I doubt Mr. Meras will agree).  It's also accurate.  Judge Kozinski goes through AEDPA and correctly notes that you don't get relief unless it's clear, and here, it wasn't.  One could even change the word "probably" in the last sentence of the introduction to "virtually certainly" given the existence of recent precedent.  But it doesn't change things.  No habeas relief.

So that's the good part.  Not super good, but worthy of mention, I think.

The bad part's similar minor.  It's a matter of taste, I know, but I don't really like using the term "cert" in an opinion.  It's fine as a citation abbreviation -- "cert. denied" -- but Judge Kozinski repeatedly uses it in the text (e.g., "had Meras filed a cert petition after the California Supreme Court denied review . . .").  I know that Judge Kozinski likes to be informal, and I'm on board for that, but not on this end.  Abbreviating Latin words seems unnecessary.  Even if we all know what you mean.  Judge Kozinski spells out the term in this (and other) opinions.  I think that "certiorari" is a fine word.  No need to shorthand it.

Nor -- just to make clear -- is there any need for Judge Kozinski to make up a different word for it.  Stand pat with "dissental," Alex.  "Certiorariooni" need not appply.

Fleur du Lac Estates Ass'n v. Mansouri (Cal. Ct. App. - April 23, 2012)

All this litigation -- and massive attorney's fees -- over the request to remodel a condo's patio.

And it's not over yet.  Indeed, it's just started.

Makes you not want to own a condo in Lake Tahoe, eh?

Jamacia v. British Columbia (9th Cir. - April 20, 2012)

For the first time I can recall, the Ninth Circuit has apparently decided to take 4/20 as a holiday.

No published opinions today.

Bob Marley would be proud.

Bankhead v. ArvinMeritor (Cal. Ct. App. - April 20, 2012)

This is the most obviously correct published opinion in the history of mankind.

The defendant corporation (ArvinMeritor) contends that a punitive damages award of $4.5 million against it must be reversed because it had a negative net worth, so no -- or only relatively trivial -- punitive damages are allowed.

But the punitive damages award is only 2.4 times the compensatory damages.  And the corporation had $211 million in cash flow profits, and $3.59 billion of sales, in 2010.  It's financial solvency was strong enough such that banks allowed it to borrow almost a quarter billion dollars that same year.  It has $343 million in cash and cash equivalent investments.  It's market capitalization is multiple billions of dollars.

Given those facts, it's simply absurd -- bordering on the frivolous, even -- to say that a jury can't spank you for several million on the grounds that you're poor.

But in my view, one simple fact alone is sufficient refutation of defendant's claims.  In 2010, its CEO was paid $7.6 million.  And stood to receive over $20 million more after he left the company.

If you can afford to pay your CEO those sums of money, then you can afford to pay the person you killed in conscious disregard of his rights a fraction of that amount.  End of story.

Not a hard one in the slightest.

People v. Joseph (Cal. Ct. App. - April 18, 2012)

Individuals generally should not represent themselves at trial.  They even more strongly should not represent themselves on appeal.

And they definitely shouldn't do both when they're running a shop selling marijuana, psilocybin and hashish.  Particularly when the lawsuit involves a complex civil nuisance action and procedural matters (e.g., summary judgment, evidentiary rulings, etc.) that a nonlawyer probably won't know much about.

Especially if the pro se litigant is using too much of their own product.

No need to make things tougher on yourself than they are.  Get a lawyer.

People v. Borg (Cal. Ct. App. - April 18, 2012)

Resistance against the Borg is not futile.  At least when the Borg's name is James, and at least when the Borg in question repeatedly stalks you to say:  "I want to cunnilingus your pussy."

I must have missed that particular episode.

People v. Kurtenbach (Cal. Ct. App. - April 12, 2012)

I didn't know that if you burn down your own property (arson) and accidentally damage your neighbor's property as a result that counts as "vandalism" under California law.

I also didn't know that if you're facing criminal charges of arson, and realize that someone (not at your direction) filed an insurance claim for that arson, it doesn't count as a violation of your Fifth Amendment right against self-incrimination for the state to incarcerate you based upon your failure to confess to the arson.

But both of these are indeed the law of California.

In Re A.G. (Cal. Ct. App. - April 16, 2012)

I'm about to reveal my ignorance of dependency law.  But maybe the (somewhat) uninformed perspective of an outsider to this field may be helpful.

This case involves yet another ICWA appeal.  A five-year old child (and his two-year old sister) are removed from their parents' home (for good reasons) in 2008.  There are then over two years of services provided to the parents to try to reunify the family, but those fail.  Meanwhile, the children are doing fine in foster care, and although the parents file an appeal of the termination order, the foster family wants to adopt the two-year old (who's now five) and the five-year old (now eight) is fast-tracked to be adopted by the same family.  So the children will be together in a stable home with stable parents who love and care for them.

The only thing that stands in the way of the adoption is the pending appeal, but that gets dismissed on the merits in 2011.  But father's got another appeal pending in which he claims that a slightly different order that terminated his parental rights was improper because the notice provisions of the Indian Child Welfare Act (ICWA) weren't strictly followed.  It's not that notice wasn't provided, mind you.  Father said that he had "Creek heritage" somewhere and would get back to the agency when and if he found out more information, and the state accordingly provided notice to a plethora of Creek tribes, none of whom were interested in the case or the child.  But the form that the state sent out didn't provide information about Father's own parents, grandparents, etc., because the state didn't do the type of investigation required by ICWA.  So the form was incomplete.

Justice Siggins writes an opinion in which he is critical -- appropriately, in my view -- of the Alameda County Counsel's office for defending the appeal with arguments that are meritless.  He says that the office is making fanciful factual assertions and should have simply confessed error and made sure that notice was performed properly rather than delaying the case by defending it on appeal.  But that didn't happen, so the Court of Appeal holds that, on the merits, the Father is correct.  So the case gets sent back down for proper notice.  Which means, in the meantime, the children continue to get older without adoptive parents.  The inequity of which Justice Siggins recognizes, but blames on county counsel.

And there's a lot of that that's right.

But I wonder if there's a better way.

There's virtually no doubt in my mind that the tribes won't intervene.  Ever.  Even with the most exhaustive investigation and notice known to man.  I'll give anyone 100-1 odds who wants to take the other side.  The notice won't matter, there's not any substantial Creek heritage, and even after getting the right form, none of the tribes will do anything.  I know it, the Court of Appeal knows it, and so do all the lawyers.  So the only thing the appeal -- and the remand -- accomplishes is to keep the children in limbo.

That doesn't mean, of course, that the appeal lacks merit.  It does.  Notice wasn't followed.  So, yes, you have to reverse.  Because we can't say to a legal certainty that notice won't matter; absent notice, you don't actually know for sure what that notice will accomplish.  That's the whole point of notice.

But that results in the kids being materially harmed for what's virtually certain to be no good reason.  And that seems demonstrably wrong.  So I was initially inclined to say that the judiciary should create something akin to the doctrine of harmless error -- so prevalent and routinely applied in every other area of the law -- and to apply it in ICWA cases in order to stop meaningless reversals like these.

But, in the end, I'm not sure that it's doctrinally consistent to do that in notice cases.  I'm supremely confident that it would be a good idea as a practical matter.  It'd get kids where they belong faster and more equitably.  But, sadly, you can't always do what you'd like to do.  Notice errors make harmless error analysis virtually impossible to apply consistently, so as much as I might "know" as a practical matter (and I do) that the error here is harmless, I'm reluctantly forced to concede that I probably couldn't make such a holding.

But here's my second thought.  Which I think works.

No one has a right to a stay.  Stays are equitable.  Stays involve discretion.  Parental rights here -- and in all ICWA cases on appeal -- were terminated by a final judgment on the merits.  You had your shot, and you lost.  And we all know that you're likely to lose on appeal as well.  And that even in those cases in which the parents win, the likelihood of the appeal actually making a difference in where the child is placed is virtually nil.

So why wait?  Let the parents appeal.  But don't automatically stay the alternative placement.  The Court of Appeal can not only summarily decide appeals, but it can also decide whether or not to stay a final judgment below.  Similarly, it can decide to stay the mandate of its own decisions too.  That's all permissible.  And it's in the discretion of the court.  Discretion that we're entirely happy to exercise -- as we routinely do -- on grounds that we "know" (e.g., that an appeal will likely fail, that a stay or no stay would be equitable, etc.) despite the fact that we can't doctrinally "prove" them.  We're fine with that.

So take this case.  Yep, ICWA notice wasn't properly given.  So Father's appeal will succeed so we can give notice.  But that doesn't mean the kids should stay in limbo.  We don't have to stay the order terminating parental rights, and we're permitted to stay the mandate of the reversal of that order.  Let the adoptions go forward despite the error.  There's no reason the kids should suffer because the state did a crappy job and the Father's willing to harm the kids in order to obtain a meaningless procedural victory.

Is there a downside to what I've suggested?  Sure.  One time in a thousand (or million), a tribe will actually get notice as a result of a reinvestigation and actually successfully intervene.  That'd surely be bad for the kid, as well as for the adoptive parents.  Because we'd then take away the adoptive parents' rights.

But I'm exceptionally confident that the Court of Appeal can successfully exercise its discretion to exclude those cases in which this is a realistic possibility.  They can tell -- as can I -- the types of cases in which an eventual intervention is more than merely theoretical, and in those cases, you can keep the status quo.  But in the others, there's no reason for things not to go forward.  I'm pretty confident the Court of Appeal can get it right.

But more critically, even were I convinced that, as a result of the procedure I suggest, there's one child in a million that might be ripped apart from his adoptive parents, avoidance of that risk doesn't justify the definite certainty of a procedure that keeps thousands of children in limbo and prevents them from being adopted by loving parents while practically meaningless appeals (and remands) like this one are pending.  We're sure that those children are harmed.  That pervasive harm isn't justified by a desire to prevent harm in the exceptional outlier case.  Yes, it's possible that an adoption might one day be overturned, and the adoptive parents (and the child) might be informed of that theoretical possibility at the outset.  But it'd be worth it for the thousands or millions of kids who would benefit.

I'd take that chance.  As an adoptive parent.  As a kid.  As a society.

So I like that Justice Siggins ends his opinion by making his reversal of parental rights "conditional" on the provision of notice and the failure of a tribe to intervene.  That's a good start.  But it still leaves things in the limbo in which they now stand.

So I'd go further.  No reason not to let the adoption go forward.  And application of routine stay procedures would accomplish this result.

And we'll see if anyone in the Court of Appeal feels like taking up the mantle on this one.  I think it's the right call.  Even though it'd take guts to make it happen.

Because it's always easier to do what we've always done.  Even when it's demonstrably bad to innocent children who haven't harmed a soul in their lives.

U.S. v. Kelly (9th Cir. - April 13, 2012)

"On November 2, 2009, appellants Father Stephen Kelly, Lynne Greenwald, Father William Bichsel, Susan Crane, and Sister Anne Montgomery—in an act of symbolic protest against nuclear weapons—cut their way through two fences and into a secure area of United States Naval Base Kitsap-Bangor, near Seattle. All are longtime peace and disarmament activists. Two are Catholic priests, and one is an eighty-year old Catholic nun. Two others are grandmothers. Once inside, the group spread “simulated blood” on base fences and unfurled a banner reading, “Plowshares — Trident Illegal and Immoral.” (Although the government is tightlipped about Kitsap-Bangor’s mission, appellants say the base houses submarines carrying nuclear-warhead-tipped Trident missiles.) Shortly afterwards, Marines detained the protestors. The United States later initiated this criminal prosecution."

Okay, you had your day in court.  Several days, in fact.  You claimed (essentially) that the Hague Convention of 1909 outlawed nuclear weapons and that it doesn't count as "maliciously" destroying government property if you do it with a good reason.  The jury disagreed, and convicted you.  You filed an appeal, and the Ninth Circuit disagreed with you too.  Story done.

I'm not sure that history will judge this opinion incredibly favorably.  If it even remembers it.  It goes out of its way in places to rebuff the defendants' arguments and seems overly legalistic at times.  That is not to say it's wrong.  Because it isn't.  The Ninth Circuit's holding is indeed what current precedent requires.  But so were the convictions of people who sheltered fugitive slaves.  Not exactly opinions that you want to put on your bookshelves throughout history.  Especially when you're highlighting just how right the slaveholders were.

Brown v. Ahern (9th Cir. - April 12, 2012)

Back in 1980, the Ninth Circuit held that federal courts were required to abstain from (and hence not decide) habeas petitions in which the petitioner sought to preclude a pending state court criminal action on the ground that it violated his federal constitutional speedy trial rights.  Sorry, the Ninth Circuit held, but we'll review that -- if at all -- at the end of these proceedings, if and when you're convicted and if and when you exhaust your state remedies.

But in 2003, the Ninth Circuit did exactly the opposite, and granted precisely such a habeas petition, holding that the state court's failure to bring the defendant to trial speedily constituted a violation of his federal constitutional rights.

So, this morning, we have a case that's factually on all fours with the latter case.  What does the Ninth Circuit do?

Sorry.  We understand why you filed your habeas petition, because you're indeed exactly like the 2003 case.  But that panel made a mistake.  It should have followed the earlier authority and abstained.  Yes, it didn't, but that was its fault.  (Not entirely its own:  the state apparently never raised the abstention issue.)  That doesn't change circuit precedent, which requires us to abstain.

So that's what we're going to do.

So I know your claim is that the state has taken unconstitutionally long to prosecute you.  But we don't have a remedy for you.  They get to take even longer, and then -- after another lengthy period -- we'll maybe tell you whether it was indeed too long.

The panel in 2003 consisted of Judges Tashima (who wrote the opinion), Noonan and Wardlaw.  All of whom are still on the court despite the intervening decade or so.  So ordinarily you'd think that there would be a nontrivial chance of an en banc call given the facially conflicting circuit precedents.

But given both the composition of the current panel -- which consists of Judges Hug, Betty Fletcher, and Paez -- as well as their understandable resolution of the conflict, I think the matter ends here.  No habeas remedy for speedy trial claims in pending state court proceedings.

People v. Baker (Cal. Ct. App. - April 11, 2012)

The question is whether Lennett Baker is a mentally disordered offender.

The sole witness for the People is Dr. Kathi Studden, who interviewed Ms. Baker and reviewed her file.  "Dr. Studden testified that Baker was serving a three-year sentence for arson of an inhabited structure. . . . Dr. Studden testified that the reports indicated that Baker had first told her brother that a bomb had gone off in the house and later told investigators that demons had set the fire and that they would be able to see that because 'they' have cameras in the room watching her. . . . She testified that Baker had 'very prominent delusions' of grandeur and paranoia. About two months before the interview, Baker had typed a 10-page letter which contained a lot of paranoid ideation, including that she had patented cell phones and that China wanted her to be released so she could go work for them, that the 'White Lords of Bakersfield' were in charge, that people were watching her, and that someone had killed her son."

The sole witness for Ms. Baker was Ms. Baker herself.  She started out pretty good:  "She testified that she had received her real estate license at the age of 21 and got her broker‟s license at the age of 23. In 1982, she graduated from Bakersfield College with an AA degree in computer information systems and accounting. In 1984, she graduated from Cal Poly Pomona with an engineering degree. She also attended ITT Tech and graduated in 1983."  Sounds pretty normal.

And then:  "Baker denied that she had ever spoken to Dr. Studden. She said that when she arrived for her evaluation, her roommate was talking to Dr. Studden and pretending to be her. (Dr. Studden denied having spoken to Baker's roommate and identified Baker as the person she evaluated.) . . . . Defendant testified that she had not deliberately set a fire at her mother's house. . . . Baker said that the [] fire . . . was later that same day and that she had had nothing to do with it. She said that she had been arrested that day, and while she was in custody, she saw the house fire being reported on the 10:00 o'clock news. She also said when she was later contacted by the police, they said that someone wanted to harm her. They told her it would be best if she came in. . . .

Baker testified that she had invented some technology which, she had been told, was profound and would have global impact. She was not being acknowledged "because of my color and ownership of this technology." On the day of the fire, she was getting ready to go see someone about her technology. She was told that no one would be permitted to have ownership of such technology, especially a Black person, "because it would give other [B]lacks [the] idea that they have superior capabilities as of [W]hites; therefore, they are never going to let me out."

Baker testified that three days before the fire, some police officers came to her house. She had accessed the Bakersfield Police Department computer in reference to the White Lords of Bakersfield, a group that had written about how they were going to lock up colored people using the MDO program to incarcerate innocent people. She said she found out that inside the police department, there is a cult which states that they are children of Satan and worship demonistic things."

It's unclear which testimony was worse for Ms. Baker:  Dr. Studden's or her own testimony.

She stays inside.  Affirmed.

Samper v. Providence St. Vincent Medical Center (9th Cir. - April 11, 2012)

A plaintiff with fibromyalgia sues under the ADA, claiming that her employer fired her after refusing to provide her with a reasonable accommodation for her disability.  Judge McKeown says:  "This case tests the limits of an employer’s attendance policy. Just how essential is showing up for work on a predictable basis? In the case of a neo-natal intensive care nurse, we conclude that attendance really is essential."

That's a pretty persuasive way to frame the opinion.  And I say that despite the fact that (1) my sister is a pediatric nurse, and (2) has fibromyalgia.  So this is a case with particular interest to me.  And I think that Judge McKeown gets it right.  The employer tried reasonably hard, and there was no ADA violation here.

I'd just add one amendment to Judge McKeown's otherwise excellent opinion.  The intuitive sense that attendance is essential for a NICU nurse -- and that's the central thrust of her analysis -- isn't actually as strong as it might first appear.  It's true that someone has to show up, otherwise babies die.  But knowing exactly who will show up isn't intrinsically essential.  As long as an adequate number of employees show up for work, the NICU can work fine.  Even if any particular employee is allowed -- as an accommodation for her disability or otherwise -- to have any number of unplanned absences.

We know that's possible because there's already a federal law -- the Family Medical Leave Act -- that affirmatively allows people to miss work for unplanned reasons and not get fired.  Ditto for jury duty and other legitimized exceptions for missing work.  Plus, the hospital here allowed, in addition to all of these permissibly missed days, every employee to miss work for five periods on an unplanned basis.  So we know for certain that it's possible to run a business -- even a NICU -- by allowing employees to miss work for unplanned reasons.  We do it all the time.  We do it here.  Plaintiff's simply requesting an accommodation for her unique medical situation by asking that she be permitted more than the five excused absences provided to non-disabled employees.

Again, I think that Judge McKeown's right that the ADA doesn't require the type of open-ended, limitless accommodation requested by plaintiff here, at least in the context of critical health care professionals.  But that's not only due to the nature of the employment (which Judge McKeown mentions), but also because of something that Judge McKeown doesn't mention (but I think she has to):  the size of the staff.

Standard deviations solve absence problems with a large enough population.  Imagine, for example, a NICU with 1,000 nurses.  It'd be entirely feasible for such an institution to function effectively even under a policy of extreme non-attendance:  for example, with a rule that says "Employees can miss work whenever they're sick for as many times as they need whenever they want."  Or even "Employees can work if they want to and not work when they don't feel like it."  You might never know in advance which particular employee would elect to show up.  But the law of large numbers would mean that the total number of nurses who would in fact be there to staff the NICU would be relatively stable:  say, 850 to 870 every day.  Sure, there'd be exceptional ("three-plus standard deviations") days every once in a while.  Just like there are in regular workplaces where a flu bug's going around (or it's near Christmas, or an especially sunny day) where an especially large number of employees call in sick, leaving you shorthanded.  But you can deal with those by calling in temporary or part-time nurses or asking people to work overtime.  That's, again, what we already do.

So, to me, a reasonable accommodation analysis has to include an assessment of the size of the staff, not just the nature of the work. What'd be reasonable for a three-nurse NICU, for example, is far different than what would be reasonable in a twenty- or eighty-nurse NICU.  And it's not like the latter's totally unrealistic.  My daughter Sierra, for example, stayed in one for the first ten days of her life.

I'd still sign on to Judge McKeown's opinion, because I think it's likely that the staffing levels at Providence St. Vincent are sufficiently small to mean that, yeah, there's no ADA violation here.  But I think you have to include that factor as part of your analysis.  Otherwise the standard you're setting is wrong.

Sometimes, it's not just quality that matters.  It's also size.

U.S. v. Nosal (9th Cir. - April 10, 2012)

What's a good way to win a criminal appeal?  Convince the appellate judges that unless you win, they're defining their own conduct as criminal as well.

That's what happens here.

It's no surprise that Judge Kozinski writes this opinion.  Or that he writes it the way he does.  He's had his own troubles with computers in the past.  He's uniquely sensitive to concerns that defining "unauthorized access" broadly -- and making it criminal -- may well create serious problems.  And the vast majority of the judges on the en banc panel agree with him.

Which is not surprising.  Because he makes darn good points.

But I must say that Judge Silverman's dissent makes a decent point as well.  As do the facts of the case itself.  Footnote 7 of the opinion is its weakest link.  The best argument against Judge Kozinski's view of the statute is to respond that all of the things that he says would be criminal under the government's view of the statute aren't criminal at all since the statute requires the specific intent to defraud.  Which the defendant totally had here -- he (allegedly) stole his employer's trade secrets off its computers in order to create a competing business -- but which doesn't exist in the ordinary cases cited by Judge Kozinski in which you exceed a site's terms of service.

Judge Kozinski's response is to say that if you play Farmville at work for six hours you might well be "defrauding" your employer with your time.  But even if that particular example is true, the intent to defraud response still knocks out the overwhelming majority of the other scenarios that AK articulates in his opinion, which don't involve an intent to defraud.  And in even the Farmville at work example the fraud argument is pretty weak.  For one thing, it only even arguably works for hourly (not salaried) employees, because we're paid the same for even a second at work -- no fraud there.  And even for an hourly worker, the fraud argument seems incredibly weak, and we could respond to that problem in a particular case (or maybe, in an egregious one, in which the employee did indeed certify that he was working hard all day -- maybe on a government contract -- when he was instead playing Farmville all day, we would be fine imposing liability).

It's not that I don't see where Judge Kozinski is coming from.  I do.  And I empathize.

We nonetheless need to recognize that the court's a bit results-oriented here.  And to understand where that orientation comes from.

Not that this means that the opinion is necessarily wrong.  But let's recognize that there's a reason why the majority's citing the rule of lenity here even though ninety-eight percent of the time they'd reject an identical argument in an analogous criminal case.

Because this one matters to us.  And we're not criminals.  Even if drug dealers and murderers are.

Williams v. PERB (Cal. Ct. App. - April 9, 2012)

I'm not really feeling it here.

Melanie Williams and Demontheses Halcoussis are professors at Cal State Northridge.  That's a place in which a union represents the employees, so Professors Williams and Halcoussis get the benefit of a union negotiating on their behalf.  But Professors Williams and Halcoussis probably don't like that fact, so they refuse to join the thing.

That's their right.  You're not required to associate with people you don't like.  Though that doesn't relieve you of your obligation to pay union dues, since you're materially benefitting from the representation.  That's what I learned in Labor Law twenty-some years ago.

All of this is fine.  But then budget cuts rear their ugly head and the University is thinking about instituting a furlough program.  So the union -- and its members -- have to decide whether they're going to accept the proposal or fight it.

Professors Williams and Halcoussis still don't want to join the union.  But they nonetheless want the right to vote on what the union's stance should be.  And claim that they have a constitutional right to do so.

No dice.

You can protest the union by not joining.  You can even speak at a meeting.  But you refused to join.  That has consequences.  One of which is that you're not entitled to vote on the stance that's taken by an institution with which you refuse to associate.

I can perhaps understand why Professor Halcoussis don't understand that.  He's an economics professor.  But Professor Williams has a J.D. from B.U., teaches business law and is a member of the California Bar.  She should know better.

Century Surety Co. v. Casino West (9th Cir. - April 6, 2012)

I agree with the Ninth Circuit that it makes sense to certify this question to the Nevada Supreme Court.  But were I on the latter, I also am confident which way I'd answer the question.

Four people who are staying at the Casino West Motel die of carbon monoxide poisoning when fumes from the motel's pool heater room seep into their individual rooms.  Casino West has an insurance policy, but the insurance company denies coverage.  It does so based on two exclusions in the policy.  One of these is a mold exclusion.  The other excludes coverage for pollution, though not pollution from equipment used to heat the building or from a fire.

The literal terms of either exception might well apply.  That's because, as with every insurance policy, the actual words that are used have a virtually limitless extension.  I nonetheless think that a reasonable insured would expect coverage for carbon monoxide poisoning notwithstanding the presence of exclusions that are clearly designed to bar claims for mold, asbestos and the like.  This may be one of those particular perils that you don't actually think much about when you sign the policy, just because it's relatively rare.  But if you did think about it, you'd definitely think you're covered, because stuff like that is precisely why you get insurance.

We'll see if the Nevada Supreme Court agrees.

People v. Self (Cal. Ct. App. - April 4, 2012)

I haven't conducted any empirical research on the point.  But -- for whatever reason -- I wouldn't be surprised if the most commonly reversed conviction in the Court of Appeal was for driving while intoxicated.

Like here.

Rice v. Eaton (Cal. Ct. App. - April 4, 2012)

I was somewhat surprised to see a pro per litigant in family law court hearing in Placer County use the words "moot," "adjudicated" and "precluded."  So looked up to see whether the petitioner, Lorain Rice, was an attorney.
Nope.  Just a litigant with a pretty sophisticated legal vocabulary.
And one who obtains a reversal on appeal.

Nordyke v. King (9th Cir. - April 4, 2012)

It's not that I don't like mediation.  Really.  It's a good thing.

Mind you, parties and lawyers have come to rely upon it too much.  I'm old enough to remember the days in which lawyers would negotiate most cases themselves and, acting reasonably, settle them.  Now that rarely happens without the assistance of an outsider engaging in shuttle diplomacy from room to room.  We've lost (at least collectively) the skill and art of being able to advance reasonable settlement proposals without the crutch of someone else to blame.

But I'm almost never going say that a case shouldn't be mediated.  Especially because lawyers and parties are so used to it by now, cases that I never thought would settle sometimes nonetheless settle at mediation.

That said, I must say, I'm somewhat sympathetic to what Judge Kozinski says here.

This case involves a dispute that has lasted what seems like an eternity.  The question is whether states are required to allow gun shows on their property.  It involves repeated Second Amendment plaintiffs Russell and Ann Sallie Nordyke versus Alameda County.

I won't recount the variety of opinions and amendments below.  Suffice it to say that the case is now en banc.  And, today, the Ninth Circuit entered the following order:

"The panel believes that the parties should attempt to settle this dispute by agreeing on the conditions for holding gun shows at the Alameda County fairgrounds, with the assistance of mediation. The case is referred to the Circuit Mediation Office for mediation, and its submission is deferred for 45 days or pending further order of the court."

Who can object to trying to get settled, after all?

Judge Kozinski.  Who (alongside Judge Gould) dissents from the order with the following statement:

"The parties have not asked for mediation; they have said nothing that suggests mediation would be fruitful; when asked about it in court, they displayed obvious distaste for the idea. We overstep our authority by forcing the parties to spend time and money engaging in a mediation charade. Our job is to decide the case, and do so promptly. This delay serves no useful purpose; it only makes us look foolish. I want no part of it."

I said I'm sympathetic with Judge Kozinski's thoughts.  But let me start by saying that there are parts of it I think are wrong (or misplaced).  For example, the fact that the parties didn't express any interest in mediation isn't necessarily dispositive.  I've seen lots of cases settle at mediation under identical circumstances.  Contemporary attorneys may have lost their collective ability to directly negotiate, but they've retained intact their ability to posture.  Similarly, I disagree that an appellate court oversteps its authority by asking parties to mediate.  Virtually every trial court does it.  Most every federal circuit (including the Ninth) has a mediation program that does precisely that.  Court-influenced alternative dispute resolution doesn't suddenly become improper once the trial court enters a judgment.  So I disagree that the Ninth Circuit's job is simply "to decide the case" and that anything else is improper.  The court's job is instead to resolve the case, and that can include settlement.  Of that I'm confident.

(Plus, the order doesn't "force" the parties to participate in mediation.  No one can compel mediation, which is definitionally voluntary, and no ethical mediator would participate in an involuntary process.  The order just vacates the submission for a limited period of time and suggests that mediation might be helpful.  The parties remain free to decline the offer and refuse to participate.)

So I disagree with Judges Kozinski and Gould about the role of the court.  But with respect to this particular case, I agree that the mediation will not be successful, and simply delays the case.  And I'll bet a fair amount of money on that with anyone willing to take me up on the offer.  I'm confident it won't be successful for two different reasons.  One is passion.  The other is money.

With respect to the former, on the one side, you've got plaintiffs and counsel who feel incredibly strongly about their right to carry and sell guns, and on the other side, you've got a county that daily witnesses gun violence and so feels strongly the other way.  People who are rabid tend not to compromise.  Especially when they've got lawyers who feel the same way they do.  Having a circuit mediator on the telephone isn't going to convince one side or the other that their views of the Second Amendment are erroneous.

With respect to the latter, even if the parties could see the handwriting on the wall, and could figure out in a general sense which way this case is going to come out, they still won't settle.  Because even in the unlikely event the parties could agree on allowing gun shows at the Alameda County fairgrounds and the conditions under which those shows could take place (and, to be clear, they won't), counsel for plaintiffs will condition settlement on payment of millions of dollars in attorney's fees for the resulting successful prosecution of this Section 1983 case, and defendants aren't going to be willing to pay it.  And they're especially not going to be willing to pay when the scope of any potential victory by the plaintiffs is unclear.  It's just not going to happen.

Judge Milan Smith writes an interesting concurrence that says, in its entirety:  "I concur with the Court’s order sending this case to mediation. However, I would have attached a copy of a proposed disposition in this case so that the parties would know what they would face in the event mediation fails."  Which makes some sense (though, sometimes, it's precisely uncertainty that creates settlement pressures.).

But, to tell you the truth, I already know how this case is coming out, so I don't think a draft opinion would make any difference.  (Plus, if that's your view, why not just issue the opinion, since mediation would be just as successful after reading the actual opinion as it would be upon reading a "tentative" opinion that everyone knows will be issued in the event mediation is unsuccessful.)  The order itself hints at what the resolution will be when it suggests that the parties agree on allowing gun shows at the fairgrounds, which tells you that the court's hardly going to the county was permitted to entirely ban such shows.  And the fact that Milan Smith wants the parties to see "what's in store for them" says a lot.  It's not Judge Reinhardt wanting to tell the parties what's in store for them.  It's Judge Smith.  Get a sense yet on which side's going to be happy?

But I could have told you how this case is coming out even before all of that.  All you have to do is look at the en banc draw.  Which should have created massive high-fives on plaintiffs' side, since you'd be hard-pressed to draw up a more favorable panel for them.  You've got Chief Judge Kozinski (of course), and Judges O'Scannlain, Callahan, Milan Smith, and Ikuta.  I consider those Republican appointees very solid pro-Second Amendment votes.  That's 5, so you only need one more.  You're definitely not getting Judges Pregerson and Reinhardt, who are on the panel, and Judges Graber and (likely) Hawkins aren't huge gun rights fans as well, so let's count those four Democratic appointees no votes.

But then you've got Judge Tallman on the draw -- essentially, a Republican appointee (even though nominally appointed by Clinton) -- which means you've got a majority-conservative draw on a hot-button conservative topic notwithstanding the fact that Democratic appointees are in the majority on the Ninth Circuit.  Plus the en banc panel's rounded out by Judge Gould, a potential seventh vote as well.

So plaintiff's going to win.  Maybe the precise contours are unclear.  But I can say without researching any of the arguments or any of the particular judges which way this one's coming out based entirely on the draw.  A decision to issue the opinion thus doesn't really advance the settlement ball much, and certainly doesn't mean that mediation should (or should not) be ordered.

I'd write more if I didn't have to get to class.  But that's probably for the best, since this post is overly long already.  I'm sure that Judge Kozinski will keep his dissent the way it is, despite what I think are errors in it, because it's classic Kozinski.  And I'm sure the majority will retain the order despite the fact that I'm virtually certain it'll be fruitless.

What's another 45 days of delay in a case that's already gone on for five years (and longer, if you count the numerous Nordyke companion cases)?  Not much.

But not much benefit either.

Arbid v. Holder (9th Cir. - April 3, 2012)

I've got little problem with a rule that says that when you steal $650,000, you get deported.  Which is what the Ninth Circuit holds here.

That's a pretty serious crime.  Even if you only get less than a year and a half in prison.  So I agree with the panel that it's not an abuse of discretion for the BIA to so hold.

Which means Arbid goes back to Lebanon.

Diaz v. Brewer (9th Cir. - April 3, 2012)

The Ninth Circuit held that it was unconstitutional for Arizona to take away benefits from domestic partners.  A judge requested an en banc vote, and the vote failed.  So there was the usual filing of a dissent from the denial of rehearing en banc.  To vent and/or to hint that the Supreme Court should grant certiorari.

But only two judges sign on.  Judge O'Scannlain authors the dissent.  Judge Bea joins him.  No one else.

Which shows you how quickly jurisprudence can change sometimes.  Thirty years ago, you'd have had a hard time finding two judges to join an opinion that made the ruling that the panel did.  Nowadays we see only a couple of judges dissenting from the refusal to take it en banc.

For better or worse -- and, to be clear, I think it's for the better -- it's a different world these days.  At least on this topic.

Coalition to Defend Aff. Action v. Brown (9th Cir. - April 2, 2012)

There are a lot of amici in this case.  But it doesn't matter.

Back in 1997, the Ninth Circuit reversed the grant of a preliminary injunction against Proposition 209 -- which bars affirmative action in (among other places) public California universities -- holding that it didn't violate the Equal Protection Clause.  It was a controversial decision, with substantial dissent, but it stood.

In 2010, plaintiffs brought a new lawsuit.  Alleging that, as applied, Proposition 209 violates the Equal Protection Clause.

The district court dismissed the lawsuit.  The Ninth Circuit affirms, holding -- like the district court -- that the Ninth Circuit's resolution of the previous lawsuit is dispositive, and requires that this lawsuit be dismissed as well.

And even Judge Tashima, who disagrees with the prior resolution, is forced to agree.

Wanting things doesn't always make them so.

Brantley v. NBC Universal (9th Cir. - March 30, 2012)

Although I'm not ridiculously old, I remember an era in which Blecher & Collins -- run by Max Blecher -- was a scary law firm.  They had big cases, settled for big money, and were big players.  Or at least that was the impression that I had as a young lawyer working in Los Angeles.

That was perhaps a bygone era.  Now they litigate cases like this one.

It's not that they're not still trying to hit home runs.  They are.  In cases like these as well as in others I've read during the past decade.

They're just whiffing.  In a way that's pretty expected.

This litigation is a classic example.  The lawsuit is about the fact that cable companies tie the purchase of channels that people like (e.g., ESPN) with channels that no one wants.  Blecher sues, claiming that this practice violates the Sherman Act.

But the district court dismisses the lawsuit at the pleading stage, and the Ninth Circuit unanimously affirms.  And, trust me, the case is neither going en banc nor getting reviewed by the Supreme Court.  Even people with only a glancing familiarity with antitrust law would understand that this case was a loser from the outset.

It's possible that Blecher is simply "fighting the good fight" with a full understanding that they'll almost certainly lose.  If that's the case, I get it.  That's not exactly a practice that's designed to make a ton of money, but one of the nice things about making tons of money early is that you can afford to take a flyer.  For one lawsuit or -- given enough money -- for a decade or so.  So as long as you're going into cases with your eyes open, I'm more than okay with that.  Good job.  You may know that the judiciary is radically more conservative than you are, so you're going to lose, but you're going to continue to prosecute cases that you think should be legally cognizable.  Cool.  Rock on.

It's only sad if it's something else.  If winning big cases in the past has blinded you to the changes that have happened during the past thirty years in a way that's embarrassing.

It basically depends on if you know you're Don Quixote or if, instead, you're actually Don Quixote.

One of these is Max Blecher.

In Re Morganti (Cal. Ct. App. - March 28, 2012)

Here's the introductory paragraph to this opinion, which accurately summarizes what it's all about:

"The People appeal from an order granting Christopher Morganti's petition for a writ of habeas corpus and directing the Board of Parole Hearings (the Board) to hold a new hearing to determine whether to fix a release date for Morganti. Like the trial court, we conclude that, even applying the ultra-lenient 'some evidence' standard, the Board's decision that Morganti is unsuitable for parole cannot be upheld. Accordingly, we affirm the superior court's decision granting habeas corpus relief."

I liked Justice Richman's use of the phrase "ultra-lenient."  That's an adjective that I've never seen before, at least in legal writing.  So I decided to look it up.

This is indeed the first time a California case has ever used this term.  Moreover, as far as I can tell, this word has only been used twice before:  both times in Pennsylvania cases, with one of these occasions in 1970 (and another in 2005).

By contrast, the Clockwork Orange term "ultra-violent" has been used approximately twenty times.  Mostly to describe video games.  And, weirdly enough, around half the times, this term is erroneously used in place of "ultraviolet."

But now we've got a new phrase.  Ultra-lenient.  That I'm going to try to use often.

U.S. v. Major (9th Cir. - March 27, 2012)

I'm intrigued.

I'd have liked to hear more from Judge Noonan.  But as it is, his opinion leaves me unsatisfied.

Judge Wallace writes the majority opinion.  He explains that "[b]etween December 24, 2005, and July 24, 2006, retail establishments in Fresno and Madera, California, were plagued by a string of armed robberies."  Two individuals, Marcus Major and Jordan Huff, were convicted of committing a number of these crimes.

So what's the appropriate sentence?  Let's see.  Several robberies.  Guns.  Certainly not people we want on the street any time in the next several years.  Remember that we're in federal court, so it's (substantially) the guidelines.  What do you think they get?

Here's a hint:  Luffs the lucky one.  He gets a year and two months less than Major.

Maybe I should have put "lucky" in quotes.  Luff gets 8,941 months.  Which is 745+ years for regular folks.  Major gets over 746.

The Ninth Circuit affirms their convictions.  The biggest questions are about their sentences.  Judge Wallace rejects their Eighth Amendment claim.  "We upheld a 95-year sentence" in a prior case, Judge Wallace says.  What's another 650 years?  At least amongst friends.  Same result.

The majority does conclude that some minor tinkering would perhaps be required to the sentence, for technical reasons that seem right.  So it remands.  To have the district court decide whether the correct sentence shouldn't be 600 or 700 years or so rather than 745.  'Cause that's going to matter.  A lot.

Judge Noonan writes an extremely brief concurrence/dissent.  Which says, in its entirety:

"I concur in the opinion of the court except as to the sentences of over 700 years. The court says, 'No one could dispute that a sentence of almost 750 years is harsh.' No one would bother to characterize such a sentence as 'harsh.' It is simply incapable of execution. No known human being has the capacity to live 700 years. No living human being is likely to live 700 years. On its face, the sentence is impossible to execute. The United States asks us to affirm this sentence. It asks us to affirm a sentence that cannot be carried out. I do not believe that we should participate in this utterly empty gesture."

I'm just not sure what to make of this.

On the one hand, I share the sentiment.  What's the point?  200 years, 500 years, 700 years.  There's no difference.  Not in a universe (like our federal system) without parole, and probably outside of it.  Why go through the effort?

Plus, this emotional reaction might have practical -- and political -- significance as well.  I can't help but wonder, for example, what effect sentences like these might ultimately have.  Imagine that you're a hard core 'banger like Mssrs. Huff & Major, and realize that your retail crime spree will likely net you several hundred years in prison:  effectively a death sentence.  Why not kill people?  Why not take shots at the police once (as here) they confront you?  Why not cap any potential witnesses after you've cleaned the cash register?  We're talking about the guidelines and mandatory minimums, after all.  Do you really think that sentencing regimes like this stay secret forever?  Or don't affect anyone at all once they're known?

Sure, the possibility of a death penalty might deter you.  In theory.  Though in reality that just means 20 years of appeals and habeas petitions.  And you die in prison either way.

But I'm not sure that's really Judge Noonan's point.  Does he really think these sentences constitute cruel and unusual punishment?  Or are otherwise illegal?  If so, I'd like to hear why.  Because Judge Wallace has made an argument from (and analogy to) precedent, so if he's wrong, that'll require an argument.  But I don't see one.

Maybe, instead, Judge Noonan is simply frustrated by the government's decision to defend the appeal.  But what's the alternative?  Confess error?  Even when there isn't any?  Or maybe Judge Noonan thinks it's silly, as he said, to engage in a "pointless task" of resolving an appeal over a 600- versus 700-year sentence.  But is it a judge's role to decide what tactical decisions are silly?  It's possible that Judge Noonan is hinting that the appeal is really moot in light of practical realities.  And I agree, at least as a practical matter.  But not as one under existing legal doctrine.  It's possible, after all, that all of the sentences but one will be reversed by the Supreme Court, or pardoned, or whatever, and so we have to decide now on the proper result.  Sure, we all know that none of that will actually happen, but it might, so the case isn't moot, so we have to decide it.

Or am I wrong?  Judge Noonan doesn't say.

Or maybe Judge Noonan means something else entirely.  In 1994, less than two months before announcing his retirement, Justice Blackmun wrote a dissent in which he declared:  "From this day forward, I no longer shall tinker with the machinery of death."  Is something like that what Judge Noonan's saying?  Only with respect to super-long sentences rather than the death penalty?  Is this the start of something more general?  Does a judge on the Court of Appeals (rather than a justice on the Supreme Court) have the freedom to so depart from precedent?

Judge Noonan again doesn't say.  We're instead left largely to speculate as to both his message as well as its validity.

Whatever his message, it's intriguing.  There may well be lots to say there.  I just wish I could hear it.

U.S. v. Rodrigues (9th Cir. - March 27, 2012)

Judge Trott begins this opinion with a snippet from a poem by Sir Walter Scott:  "Oh what a tangled web we weave when first we practice to deceive."  It's a "theft of honest services" -- i.e., fraud -- case.

I'm a lot less sophisticated than Judge Trott.  So my reaction was similarly less erudite.  It's a case involving a union official in Hawaii who shook down the union's dental and medical plan providers and convinced them to pay "consultant" fees to his relatives in return for getting the union contracts.  To which my reaction arose less from Marmion and more from Casablanca:  "I'm shocked, shocked to find that [corruption in union contracts] is going on here."

The district court the jury the wrong instruction for these kinds of cases because the model Ninth Circuit jury instruction at issue was created before the Supreme Court's decision in Skilling, which -- in a case involving a much more sophisticated theft of assets -- changed the law regarding what counts as the theft of honest services.  But no matter.  The Ninth Circuit holds that the error was harmless.  As indeed it seems to be.  The appeal here involves a classic case of corruption.  A "no pay" job; essentially, a bribe.  Given that fact, as long as the jury found -- as it did -- the underlying facts, it doesn't matter what instruction was given.  The defendant was guilty.

There's a much, much larger problem underneath the surface here that exists with respect to both legal and illegal transactions alike.  A vast amount of economic activity nowadays involves agents attaching themselves -- like lampreys to a shark or barnacles to a ship -- to an underlying monetary circumstance and sucking a tiny piece of this much larger pie.  Corrupt union officials.  CEOs.  Underwriters.  Real estate agents.  In many cases, lawyers.

Given the size of the relevant transaction, the "tiny" piece taken by each individual agent is overlooked and/or justified without much trouble.  Even when, as here, the size of that piece is perhaps not reasonable.  There are upsides and downsides of (essentially) variable compensation, but one downside is that you're rarely sure you're getting what you pay for.  Unlike an hourly wage, in which it's fairly easy to see that you've obtained (say) $20 of work when an employee works two hours at $10/hour.

The line between legal and illegal economic activity isn't as clear as many believe it to be.  But it's nonetheless clear which side of the line this one falls.  Conviction affirmed.

Bagdasarian Productions LLC v. Twentieth Century Fox Film Corp. (9th Cir. - March 26, 2012)

It's true that my kids love everything relating to Alvin and the Chipmunks.  They watched the sequel -- a.k.a., "The Squeakquel" (gotta love Hollywood) -- just last week.

But I doubt that I could persuade even lawyers with a similar passion for high-pitched animal movies to read this opinion.  It's about referee references and appellate jurisdiction.  Which I'm hoping will be the topic of the next installment of the series.

Alvin and the Chipmunks Visit the Ninth Circuit.  Starring Judge Betty Fletcher as Alvin.

People v. Maharaj (Cal. Ct. App. - March 23, 2012)

The second paragraph of this case begins:  "Defendant contends (1) the trial court erred in denying his motion to remove a juror who expressed animosity toward defense counsel and fell asleep during the first day of trial . . . ."  The third paragraph begins by saying:  "For the following reasons, we affirm the judgment. First, with regard to the juror removal issue, the record supports the trial court's conclusion that the juror did not need to be removed for bias or inability to perform the functions of a juror."

When I read this, I was initially skeptical.  I've seen far too many criminal cases in which the Court of Appeal goes out of its way to overlook real problems with the jury and/or particular jurors.

But then I read the rest of the opinion.  The Court of Appeal is exactly right.  It may well be that the juror was not happy with the defense counsel.  But the juror said all the right things when examined by the trial court and defense counsel.  Given those responses, there was no basis for a dismissal.  I'd have done the exact same thing as the Court of Appeal.

Thomas v. Westlake (Cal. Ct. App. - March 23, 2012)

Here's one reason not to put boilerplate allegations of agency -- e.g., "At all times relevant herein, Defendants, and each of them, acted as an agent of each other Defendant in connection with the acts and omissions alleged herein." -- into your complaint.

It may well come back to bite you.

Plaintiff would likely have been able to avoid arbitration if his lawyer had omitted that common pleading mantra.  But he instead did what most other lawyers do.  And, today, his client pays for it.

Word to the wise.

People v. Int'l Fid. Ins. Co. (Cal. Ct. App. - March 21, 2012)

I'm not someone who's unconcerned about doctrine.  I care about what the law says.  My view is that it's insufficient to analyze a case simply by saying:  "But that's unfair!"  Results assuredly matter.  But it also makes a difference how a court reaches that result.  Sometimes neutral principles create consequences that in a particular case seem inequitable, but that effect is nonetheless required for the stability of an advantageous principle.  I think of doctrine as something like rule utilitarianism.  Yeah, occasionally, we see a bad result.  But I'm willing to defend it because the underlying principle is a valid one.

Then there's this case.

It's not that I don't understand where Justice Dawson is coming from.  I do.  But, my goodness, this is just wrong.  Wrong.  Moreover, it's unnecessarily so.  This is not a case where we have to reach a bad result given larger principles.  We're just reaching a bad result.

Admittedly, in the scheme of things, we're not talking about something critical.  The case is not about someone's life.  Or liberty.  Or even distribution of assets amongst alleged tortfeasors and victims.  It's instead about a bail bond.  An insurance company posted a $65,000 bond, the bonded suspect didn't show up, and the bond was forfeited.  Is that okay?

It seems a straightforward case.  Of course it is.  With only one tiny little wrinkle.  When the defendant was brought to court, he was already out on bail on a different offense, so he already had an outstanding bond for $35,000.  The court wanted to set a $100,000 bond, but also wanted to allow the defendant to get credit for the existing $35,000 bond.  So the trial court said he could apply the existing $35,000 to the $100,000 that was required.  Which left $65,000.  So the defendant did precisely that, and got a bond for the remaining $65,000.

The problem is that, technically, the court couldn't "re-up" the existing $35,000 bond without notice to the first bonding company (since the defendant had not appeared), which didn't happen.  Which is fine.  If the first insurance company wanted its $35,000, I'd give it to 'em.  And that's not even necessary, since the court has already given it back to them.  They issued a bond for a party who showed up, even though he later skipped.  They get their money.

But the Court of Appeal says the second bonding company also is entitled to its $65,000 back.  With all due respect, that's just wrong.  Yes, the trial court "ordered" a $100,000 bond (with a $35,000 "credit") based upon a mistake about the validity of the credit.  But that's not dispositive.  The bonding party submitted a $65,000 bond to secure the defendant's appearance.  He didn't show.  End of story.  That a different bond, by a different party, might not be forfeited for lack of notice doesn't matter to this bond, which was noticed and which was indeed for this offense.  That someone else may get off doesn't matter for your liability, which is independent of the other bonding company.  You ponied up for this defendant on this offense.  If he does not show, you're on the hook.  Not for the entire $100,000, admittedly.  But definitely for the amount that you voluntarily put up.

The Court of Appeal says, well, the $100,000 bond was "void".  No it wasn't.  The total might have been wrong.  But not the $65,000.  A definite and enforceable promise was made with respect to that sum, and on certain conditions.  Those conditions didn't happen, which means the bond is forfeit.  That's all she wrote.

Can I imagine a situation in which the second bonding company would be prejudiced by the error sufficient to require a different result.  Probably.  Maybe when the two bonds were inextricably tied, an error in the first would in fact negate the second.  For example, if the first bond was for $2,000,000, and then a bonding company relied on the fact that the first company was headed by a successful bounty hunter who had a huge incentive to catch the defendant if he skipped decided on that basis to put up an additional $10,000 bond -- well, maybe there I'd hold that the invalidity of the first bond would negate the second, at least if the invalidity of the first bond meant the company never even tried to catch the defendant.  Maybe then there'd be some showing of prejudice.

But there's no evidence -- none, nada, zilch -- of anything like that here.  The second company here wrote the bond not because of the existing bond for a lower amount, but rather because they thought defendant wasn't a real flight risk.  They were wrong.  They should pay.  Not only were they not harmed by the first bond, but in truth, they probably benefited.  I know full well what would almost certainly have happened if the trial court hadn't made its mistake and had instead said that the first bond couldn't be a credit.  Defendant would have then gone (as he did) to the second company and instead of getting a $65,000 bond would have gotten one for $100,000.  And the bonding company would have been out an additional $35,000, with only an additional premium of $3500 to show for it.  Being better off to the tune of $30,000-plus does not, in my mind, constitute anything near the showing of prejudice required before I'd link the two separate bonds.

There are lots of amorphous statements in the 3500s portion of the Civil Code that have remained unchanged since they were passed in 1872, and are very rarely cited by parties.  But one seems especially relevant here.  Section 3533:  "The law disregards trifles."  As applied to the second bond, the problems with the first are indeed trifles.  Nothing here caused them harm.  So no relief.

It's sad that this one is so fact-specific and (relatively) unimportant that the chances for further review are low, and hence that we're at the end of the line.  Because this one's wrong.

Emeldi v. Univ. of Oregon (9th Cir. - March 21, 2012)

A female PhD student is combative and makes waves about (among other things) the lack of female professors in her department.  The faculty advisor for her dissertation doesn't think much about the student's work, and when she doesn't respond to his constructive criticism by attempting to solve the problems, resigns from being her advisor.  Not many other people want to be her advisor either, which may tell you something.  She sues, claiming gender discrimination.  The district court grants summary judgment to the University of Oregon.

The Ninth Circuit reverses.

Judge Gould writes an opinion that -- reading between the lines -- hints that his own view is that there probably wasn't actionable discrimination, but nonetheless holds that the evidence from the student was sufficient to get to a jury.  Judge Fisher dissents, articulating a contrary view and also stating that "We need to be cautious when transporting the doctrines that govern the workplace into the university setting, where the roles of student and teacher, especially in a Ph.D. program, are so bound up in personal interactions and subjective judgments."

Maybe it's because I'm in academia, but Judge Fisher's position strikes a chord with me.  I certainly know that I'd be hesitant to take on a faculty role in a student's dissertation if I thought I might be sued if I ultimately thought her work sucked or she refused to do any of the work I suggested.  This would be especially the case if we were different genders (or races, or sexual preference):  I wonder if the net effect of this holding will be to somewhat homogenize and segregate faculty dissertation advisors.

So I'm tugged towards Judge Fisher's dissent.  Though at the same time, Judge Gould has a nontrivial point as well.  At least if the analogy to the workplace holds, here, the student has alleged what seems to be a prima facie case.  And I could indeed see someone dropping a student simply because she was a "rabble rouser" rather than on the merits.

Mind you, at least reviewing the paper record, I'm pretty confident that didn't happen here.  But who knows what a jury would conclude at trial?  (Though that realization too somewhat scares me.)

So what do you think?  A sea change in the PhD world?  Or simply a straightforward application of existing law?

People v. Abel (Cal. Supreme Ct. - March 19, 2012)

The first murder was (allegedly) committed by Cain, who killed his brother Abel.  The Bible says that God punished Cain by placing a mark upon him "lest anyone finding him shall kill him," and Cain was banished to the land of Nod.

Now Abel gets into the act.  And the penalty for the murder he commits is death.

Imposed by the State this time.  And unanimously affirmed.

That's your California biblical reference for the day.  Thanks, Cal Supremes.

Otay Land Co. United Enterprises (9th Cir. - March 14, 2012)

I can very easily agree with this opinion by Judge McKeown.  I can also make it even shorter.

"When a statute allows recovery of 'just costs', as 28 U.S.C. s 1919 does, that allows the district court a lot of discretion, so on remand, the court should decide whether an award of costs here would indeed be just."

That's basically what Judge McKeown (rightly) says.  As well as specifying various factors which may or may not support an award of costs and that the district judge might well want to consider.

Let me tell you something else.  Judge Benitez awarded almost $272,000 in costs to defendants, and the case is now going back to him.

Dollars to donuts he makes nearly an identical award on remand.  And it gets affirmed.

Scharer v. San Luis Rey Equine Hosp. (Cal. Ct. App. - March 16, 2012)

You've got to read this opinion from this morning.  Not because it says anything especially doctrinally important (it's a statute of limitations case).  But because it's a veterinary malpractice case.  And how many of those have you read in your lifetime?

Not many, I'll bet.

Even fewer that involve horse ovaries, I imagine.

The Ninth Circuit The Day After Pi Day (9th Cir. - March 15, 2012)

There are some days in which you can't put lipstick on a pig.  Or, more accurately, you can, but it's still just bacon with a little red around the mouth.  Or, perhaps even more accurately, you can draw analogies, but that turkey just don't shoot.

Today's one of those days.

The Ninth Circuit publishes two opinions.  Here's what the first one's about:

"This case arises out of a dispute between two telecommunications carriers over their interconnection agreement (“ICA”1) under the Telecommunications Act of 1996. Plaintiff-Appellant Western Radio Services Company (“Western”) is a commercial mobile radio service (“CMRS”) provider. Defendant-Appellee Qwest Corporation (“Qwest”) is a local exchange carrier (“LEC”). Western appeals two decisions of the district court: first, its decision dismissing Western’s claim against Qwest for Qwest’s alleged violation of its statutory duty to negotiate the ICA in good faith; and second, its decision affirming the orders of Defendant-Appellee the Oregon Public Utility Commission (“PUC”), which adopted the results of the arbitration leading to the ICA and approved the ICA."

You're kidding me!  Finally!  A dispute between a CMRS and an LEC regarding ICAs as interpreted by the PUC!  OMFG!  Let me at it!  I want to read all 35 nasty, sexy pages!  Especially the last page, in which the author includes an appendix in which he describes all the various abbreviations he's using in the opinion!  I'm about to DTMF in my pants!  Or at least Wink-Start MF!  (That's Dual-Tone Multi-Frequency signaling, or Wink-Start Multi-Frequency signaling, for the uninitiated.  Depends on whether I can control my bladder.)

But at least there's a second opinion the same day, right?  Here's what that one's about:

"Two non-Indian entities brought this action to enjoin Navajo Nation tribal officials from applying tribal law to them intribal courts. They claim that both their contract with the tribe and federal law deprive tribal officials of authority to regulate them. This appeal presents the question whether the Navajo Nation itself — which enjoys sovereign immunity and cannot be sued — is a necessary (and if so, indispensable) party under Federal Rule of Civil Procedure 19."

Look, I'm a Civil Procedure professor who really digs Indian law.  And even I somewhat snoozed through Judge Silverman's opinion.  I can only imagine how regular people must feel.

Don't worry, though.  I can cut to the chase.  Here are the answers to both questions.  Because I know your day will not be complete unless I satisfy your cravings on both issues.

"Regarding the challenge to the approval of the ICA, we conclude that the ICA’s provisions (1) requiring Western to interconnect with Qwest’s network via at least one point per Local Access and Transport Area (“LATA”); and (2) providing Western with the signaling systems of its choice only where such systems are available, do not violate the Act. However, we also conclude that the ICA, as approved, does violate the Act insofar as it applies access charges, rather than reciprocal compensation, to calls exchanged between a CMRS provider and a LEC, originating and terminating in the same LATA, when those calls are carried by an interexchange carrier (“IXC”)."

Yeah, that was my intuition when I read the first two paragraphs of the opinion also.  It's all about whether the LATA's connected to an IXC.

And the indispensible party issue?  Fear not.  "The tribe is not a necessary party because the tribal officials can be expected to adequately represent the tribe’s interests in this action and because complete relief can be accorded among the existing parties without the tribe," at least (as here) in an Ex Parte Young action.

Whew.  What a relief.

Now back to trying yet again to memorize the first 500 digits of pi.  An equally exciting task.  And one with roughly equivalent practical utility for the average reader.

Palomar Medical Center v. Sebelius (9th Cir. - March 14, 2012)

Look, I'll do my part.  I'll publicize the thing.  I'll tell people the Ninth Circuit wants their input.  I'll tell people it's a neat little way to affect the world.  I'll convince people that they can turn their amicus brief into a law review article.

But there's only so much you can do when this is what the panel wants (and needs):
"The panel invites amicus briefs addressing the following questions:
(1) Do the regulations at 42 C.F.R. §§ 405.926(l) and 405.980(a)(5) bar administrative review of a contractor’s decision to reopen a Medicare claim, including the contractor’s compliance with the good cause
standard for reopening set forth at 42 C.F.R. §§ 405.980(b)(2) and 405.986?
(2) If the regulations bar administrative review of a contractor’s decision to reopen, do federal courts have jurisdiction to enforce the agency’s compliance with the good cause standard for reopening?"
Wow.  Sure, I know some law geeks.  I even know some administrative law geeks.  But I'm not sure even I know someone wonky enough to want to submit something on this topic.

But if you are that wonk:  More power to you.  Here you go:  "Any person or entity wishing to file a brief as an amicus curiae in response to this order is granted leave to do so pursuant to Federal Rule of Appellate Procedure 29(a). Briefs responding to this order shall be filed within 30 days of the date of this order and shall not exceed 15 pages."

Party on.

Scott S. v. Superior Court (Cal. Ct. App. - March 14, 2012)

You can't decide to cut off someone's toe based on the papers.  You instead are required to have the doctor actually there to testify.  No hearsay.

So holds the Court of Appeal.

Which makes sense.  Though I'm telling you:  That toe's coming off.  One way or another.  In truth, as a practical matter, this is much ado about nothing.