Center for Biological Diversity v. Salazar (9th Cir. - Aug. 21, 2012)

Polar Bears in Alaska (there are only around 3500 left) versus Oil.  Who wins?

Oil.

(Not that the Ninth Circuit gets this one wrong.  It doesn't.  And not like polar bears in the wild are going to have it great anyway.  Global warming and all.  Thank you, human race.  Good luck to all the polar bears trying to find seals without any nice.  Better luck interbreeding with grizzlies as they extend into your range.  Feel the love.)

In Re Anthony T. (Cal. Ct. App. - Aug. 22, 2012)

I think we'd all agree that placing a kid in a foster home that would require the kid to be in a car ten hours a week in order to visit his natural parent(s) -- which is part of the unification plan here -- doesn't satisfy a statutory requirement that dictates that the child be placed in "reasonable proximity" to his parents.  It's not in the best interests of the child, and the two locations -- Northern San Diego County and Riverside -- are insufficiently close to satisfy the statute.

(I leave for another day whether it's really in the child's best interests to have anything to do with his mother.  She's not married to the kid's father, fights with him constantly, clearly has substance abuse problems, and the seven other children of the mother and father are all in the custody of others at this point.  Oh, yeah, and the mother constantly cancels appointments to visit the kid because she's "sick".)

Justice Huffman holds as much, reversing the trial court.

The only part of his opinion that might be a bit deficient is his linguistic analysis.  Justice Huffman argues that "reasonable proximity" essentially means "darn close" by relying on Webster's definition of "proximate" as "very near."  But "proximate" and "proximity" are two different words, and don't necessarily mean the same thing despite the fact that one's an adjective of the other.  One can use the word "proximity" to mean something other than "really close"; for example, we're in "proximity' to Alpha Centauri even though we're light-years apart.  Suffix words don't necessarily mean what the base word means; for example, "primity" means "the quality of being first," which is different from the meaning of its base word "primitive".  One can be "primitive" without being the most primitive.  They're both relative terms, but mean different things.  (For a more on-point example, we constantly talk about "proximate" cause even though some things that we legally call "proximate" hardly satisfy the requirement of being "very near" the resulting injury.)

The case is not really about the word "proximity" (or, even less, "proximate") and instead, in my view, revolves entirely around the word "reasonable."  It's not reasonable, in context, to require hours and hours of travel.  Justice Huffman cogently explains why.  That's the word -- the only word -- that's truly at issue.  That the statute uses the term "reasonable proximity" is no different than if it used the phrase "reasonable distance."  "Proximity" in this context is just a synonym for "distance."  It has no other independent meaning.  What matters is if the distance (and time it takes to traverse it) is, in this context, reasonable.  And it's not.

Peter-Palican v. CNMI (9th Cir. - Aug. 22, 2012)

The Ninth Circuit includes various outlying territories.  Guam.  The Commonwealth of the Northern Marianas Island ("CMNI").  Places like that.

They're beautiful.  Really.  But as far as their court systems go, you don't necessarily have the same quality control as you do in the traditional fifty states. To take but one example, filling a district court position in Guam was once very difficult because it was nearly impossible to find any candidate who had actually paid their federal taxes (or even file a tax return).  When your selection criteria essentially boils down to "Have you avoiding committing a federal felony every year for the past decade," that tells you something.

But that quality may be uneven doesn't mean that the justice system is uniformly bad.  Which is why I wanted to mention this case.

Judge Trott certified a question to the Supreme Court of the CMNI and attaches its dispositive answer to the resulting Ninth Circuit opinion.  Check out the underlying opinion.  It's pretty darn good.  The result it reaches seems eminently plausible, and it's reached in a manner that's indistinguishable from anything published in the "normal" fifty.

So good job Justice Castro.  Keep up the good work.

U.S. v. H.B. (9th Cir. - Aug. 22, 2012)

If I was H.B., and had done what he did, I'd be thanking my lucky stars that I received the sentence that was imposed here.  It's good for him, he more than deserves it, and I could easily justify a much, much more onerous sentence.

I certainly wouldn't have filed an appeal.  Which (rightfully) loses anyway.

Don't hold women down while they're unconscious and you're friend's having sex with them.  Much less call "dibs" to be the next rapist.

These are not lessons that should have to be taught.

People v. Robertson (Cal. Ct. App. - Aug. 21, 2012)

I get that Roger Wayne Robinson is a rapist.  I understand why the Court of Appeal affirms his conviction and multiple X to Life sentences.  Fine.

The only thing I don't understand is why Justice Levy includes the following, which is the first footnote of the opinion:

"Both parties refer to the garage [the location where the rapes occurred] as a church and appellant refers to himself as a pastor. These characterizations are not supported by the evidence adduced at trial. No documentary or testimonial evidence proved that a legally organized church met at the compound or that the garage had been legally converted into a worship space. Also, no documentary or testimonial evidence proved that appellant was a legally ordained minister or that he was recognized as a minister, pastor, preacher or missionary by any Christian denomination or sect."

Well, I have a pretty good guess why both the defense as well as the prosecution were willing to refer to the garage as a church; namely, because it was.  As the Court of Appeal's opinion itself reflects, the garage (1) had rows of pews in it, (2) had a pulpit at the front, (3) contained a prominent tub in which total immersion baptisms were routinely performed, and (4) was the site of regular church services attended by numerous people (including the victim).  Maybe the Court of Appeal thinks this is sort of a "weird" church -- the participants thought that the defendant performed miracles, he claimed to have turned a lizard into a snake, the parishioners (including the victim) believed in faith healing, etc. -- but that it's not a church of which we're all familiar doesn't make it any less of a church.

If I hold services in my garage and call myself the Latest Christ and rows of attendees agree with me, well, you know what, that's a church.  That this may not be a "legally recognized" church -- and I'm not exactly sure when the state got into the business of formally recognizing only certain types of churches -- or that my garage may not be "formally recognized" as a church (zoned?) doesn't matter in the slightest.  It's a church.  A place of worship.  It is indisputably what it is -- and what it was here -- and the state doesn't get to define (much less legitimate) what a church entails. 

Similarly, I'm pretty confident that one can legitimately call one's self a pastor even if you've not been "legally ordained;"; i.e., recognized by the state.  Legally ordaining yourself is one way to go, but so's not getting ordained.  If I recall from the history books, for example, Joseph Smith was just a farmer who thought he had a vision and found some plates while digging for treasure, so he and a bunch of other folks started worshiping in their own special way.  No one legally ordained the guy, and no one zoned his barn (or whatever) as a church.  But I'm pretty sure that Mormonism counts -- and counted -- as a religion, and that it's entirely proper to call where they regularly worshiped a "church".

Ditto here.  We're not in the business of distinguishing between "legitimate" and "illegitimate" churches by deciding how nutty (or unpopular) we view the underlying religion.  I think it might similarly might be wise not to take pains to declare that someone's place of worship isn't a "real" church.  Seems to me you might just want to leave that one alone.

(Much less would I say that the parties' characterization of the garage as a church was "not supported by the evidence adduced at trial."  Seems to me that the evidence about the pews, services, baptism tub, meetings, faith healings, etc. support precisely such a characterization.)

Sometimes extraneous, unnecessary comments liven up -- and may improve -- an opinion.  In my view, this one doesn't.

P.S. - It's not that I don't potentially understand, by the way, where the footnote comes from.  It may well be that the justices were disgusted by the defendant -- understandably so -- and were repulsed that he was able to rape someone through the use of his religious authority.  I get it.  But it happens.  Even in established churches.  Sadly.  But that a religion is abused doesn't make it any less of a religion.

U.S. v. McTiernan (9th Cir. - Aug. 20, 2012)

You're a famous Hollywood director.  John McTiernan.  Die Hard, Hunt for Red October, Thomas Crown Affair, Rollerball.  Stuff like that.  You're used to getting your way.

Your efforts unfortunately also including hiring the also-famous -- now infamous -- private investigator Anthony Pellicano to assist you.  Including illegal wiretaps.  So the FBI goes after you.

But you're used to getting out of sticky situations.  So you lie.

Except, unbeknownst to you, the FBI has you red-handed.  Because your buddy Pellicano also taped you discussing one of the illegal wiretaps.  And the FBI has that tape.  Oops.

So you're charged with a federal crime; in particular, lying to the FBI.  Your lawyer persuades you to plead guilty -- you're totally busted, after all -- and you're sentenced to four months in prison.

Now, for many, that'd be the end of it.  But I reiterate:  You're a famous Hollywood director.  You're important.  You can't go to prison.  Not you.

So you move to withdraw your plea.  The district court's not buying it, so you file an appeal with the Ninth Circuit.  And you win.  Yay!

Well, you partially win, anyway.  The Ninth Circuit just holds that you're entitled to an evidentiary hearing as to whether you can withdraw your plea.  But on remand, the government ultimately withdraws any objection to you withdrawing your plea.  Victory!

Except for one tiny thing.  That just permits you to withdraw your guilty plea.  Now you have to actually defend your conduct.

Oh, one more thing.  Once you withdraw your plea, the government then replaces the single charge against you with two charges.  Adding another false statement charge for good measure, as well as a count alleging that you lied to the district court at your guilty-plea hearing.

Oops.

Again, you're totally busted.  So you withdrew your plea, but -- as my father would say -- you're still up s**t creek without a paddle.

So, ultimately, you plead guilty again.  And this time, rather than four months, you get a year in prison.

Triple oops.

You appeal yet again to the Ninth Circuit.  But this time you lose.  The district court properly ruled on your suppression motion.  And, yes, the district judge (Dale Fischer) most assuredly didn't like you, but a judge not liking you because you're a liar -- and not being shy about saying so -- isn't a basis for recusal.  Especially when, as your guilty plea reflects, you are a liar.

Sometimes the sequel isn't as good as the original.  If anyone should have known that, it was John McTiernan.

But now he has an extra eight months in prison to reflect upon this reality.

Cook Inlet Region v. Rude (9th Cir. - Aug. 20, 2012)

Here's proof positive that it's not only first-year law students who get confused by fairly straightforward principles of federal question jurisdiction.  Actual attorneys get flummoxed as well.

But former Professor Fletcher sets 'em straight.

Headley v. Doe (9th Cir. - July 24, 2012)

I'll give you the statute and the facts of this case and you tell me what you think.

The statute first.  The relevant provisions of the federal Trafficking Victims Protection Act permits an individual to sue a defendant that "obtains the labor or services of a person . . . by means of a scheme, plan or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person [] would suffer serious harm."  The statute further defines "serious harm" as "any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm."

Now the facts.  Claire Headley performed certain "services" for Defendant since she was 17.  She was kept in a facility in California.  Her mail was censored, her phone calls were monitored, and she had to get permission to use the internet.  She worked over 100 hours every week for Defendant, and all of her income (except for $50/week) was given directly to Defendant.

When Defendant thought Claire misbehaved, it disciplined her severely.  For example, as punishment for one alleged transgression, for over six months in 2002, Defendant prohibited Claire from eating, and required her to subsist only on protein bars and water.  She lost 30 pounds.

Defendant did not permit Claire to become pregnant, as a pregnancy would (among other things) interfere with the services Claire provided.  She nonetheless twice became pregnant.  Defendant both times threatened Claire with punishment if she didn't have an abortion, so she had abortions.

Claire was forced to live in the same facility in which she worked.  Defendant posted guards and security cameras at that location.  Sometimes, when Claire was permitted to leave her workplace, Defendant assigned an escort to accompany her.

Those are the basic facts.  But before you think that Claire was a gymnast for the Soviet Union in 1970, I have to add one more fact.  Nothing physically stopped Claire from leaving.  There were no bars.  There was, however, one critical consequence.  Because this was the only life that Claire knew since she was 17 -- and she was now 31 -- she would be leaving behind everything.  No money.  No occupational skills.  No references.  No friends.  Indeed, Defendant made sure that if anyone left, the remaining workers would (1) refuse to interact with the departed worker, and (2) occasionally show up to remonstrate the worker from leaving and encourage her to return to providing services.

Claire kept working at the facility for 14 years because she could not believe that she could handle the emotional and financial consequences of leaving the only life she'd ever known as an adult.

Do the facts that I've described constitute something actionable under the statute?

There's no doubt that the Defendant "obtained labor" by means of a "scheme" under the statute.  But was it through the threat of "serious harm," which -- again -- the statute defines as "any harm, whether physical or nonphysical, including psychological, financial, or reputational harm," that would cause a reasonable person in these circumstances not to leave?

Whatcha think?

The Ninth Circuit holds that, no, that's not "serious harm" under the statute.  The statutory text, according to Judge O'Scannlain, is dispositive.

I wanted to give you the unvarnished facts to let you decide.  But let me add one additional fact as well.  One that's entirely irrelevant to the Ninth Circuit's holding, but one that might nonetheless potentially have colored your textual analysis if you knew it from the outset.  You might have figured it out already even from my carefully-crafted statement of the facts and the fact that I slightly edited the caption (and title of this post).

Defendant is the Church of Scientology.

I've got a pretty keen sense of how this case would come out if Claire was kept in a massage parlor in Guam under the same set of facts.  With respect to a church, the textual analysis is the same, though there's a potential "ministerial" exception that the Ninth Circuit doesn't reach because it thinks the text of the statute is dispositive.

How statutes like this are applied to organizations we care about (e.g., churches) -- or are at least worried about interfering with -- is a toughie.  This is an easy case if it's a massage parlor.  We are not worried about stopping those, even if the plaintiff initially "voluntarily" joined it and was in theory free to leave.  But when similar conduct is performed by religious organizations, we're very worried that we're in a very different situation.  Text notwithstanding.

This is, in my mind, a tough case.  Raising tons of issues that are difficult not only legally, but also socially.  Some religions -- "cults" -- are problems.  Either because of what they do to outsiders or to their own members (e.g., Jonestown).  Figuring out how to address these problems within the confines of statutes that address larger issues, but are potentially applicable to religious institutions as well, is a problem that's not going away anytime soon.

P.S. - I'm not sure, by the way, that Scientologists would at all agree with Judge O'Scannlain's opinion when it states that members of SeaOrg -- the hard-core wing of Scientology -- must "make[] a symbolic one-billion-year commitment to serve the Church" (emphasis added).  My admittedly uncertain understanding of Church beliefs is that this is a "symbolic" commitment by the member only in the same sense that, for example, many marriage ceremonies contain "symbolic" vows of fidelity.  Yeah, it's symbolic.  But it's literally true as well.  You're making a promise.  A promise that, in SeaOrg's case, lasts a billion years, and (given reincarnation) binds you throughout that entire time.  For real, not merely as a symbol.

Nemecek & Cole v. Horn (Cal. Ct. App. - Aug. 15, 2012)

Ouch.  Ouch, ouch, ouch.

Encino attorney Steven J. Horn gets retained to represent a husband and wife in a lot line dispute with their neighbors.  Simple little lawsuit.  Some fees, but nothing earth-shattering.  Not going to put your kids through college or anything like that.

Horn (and his clients lose).  Happens sometimes.

The clients hire a new attorney to represent them on appeal.  Again, stuff like that happens.  Sometimes the clients want a fresh view.  No biggie.  No more fees.

But then the clients obtain a reversal on appeal.  Which is nice.  Except the clients blame Horn for losing the case below.

Meanwhile, Horn's miffed that the clients haven't paid all his bills.  So he sues 'em for the $44,000 they still owe.

The clients respond as you might expect.  They counterclaim, alleging that Horn improperly billed them, misrepresented his experience in real estate matters and failed to timely tender the underlying case to their homeowners insurance company.

The parties can't (or won't) settle.  The case goes to trial.  The jury awards Horn his $44,000 in fees.  But they also award the clients an equal amount on their fraud claims against Horn.

So if you're Horn, you're miffed.  You're out your fees.  You've got a finding of fraud against you.  You're out the time (and money) you spent prosecuting your fee dispute.  Not good.

But you'll live.

But the clients then appeal, claiming that they were entitled to attorney's fees.  And they win.  On remand, the trial court orders Horn to pay $380,000.  Horn ends up settling by paying the clients $250,000.

Now, if you're Horn, you're hurting.  You're out your fees.  You're out what you shelled out to your attorneys.  And you're out another quarter million.  Ouch.

But the pain's not over.

Horn becomes convinced that the reason he lost is because his lawyer was terrible.  So he files a claim against his attorney, who then promptly counterclaims for unpaid fees.

Shades of the underlying lawsuit, eh?

But this one gets arbitrated by JAMS, as required by the retainer agreement.  The parties select Judge Schiavelli to arbitrate the thing.  Retired district court judge.  Good call for both sides, most would say.

The arbitration lasts five days.  Schiavelli finds that Horn lacks credibility, but orders that both sides take nothing.  He nonetheless invites either party to move for fees if they want.  Both do.  At which point, the arbitrator awards Horn's lawyer . . . over a quarter million dollars in costs and fees.

Deja vu.  All over again.

Horn hires a private investigator, claims that Schiavelli had undisclosed conflicts in an attempt to vacate the arbitrator's judgment, and loses in the trial court.  Horn appeals.

And loses in the Court of Appeal.  Which ends the opinion by awarding . . . wait for it . . . costs to Horn's lawyer.

Ouch.  Ouch, ouch, ouch.

In Re Marriage of Hofer (Cal. Ct. App. - Aug. 13, 2012)

I get why the Court of Appeal does what it does here.  John Hofer doesn't sound like a very nice guy.  I too am not pleased with how he's treated his ex-wife during their dissolution proceedings.  Nor how he's treated the judiciary and its orders.

Nonetheless, I still might not have stretched to dismiss his appeal under the disentitlement doctrine.  The appeal was easy enough to dismiss on the merits.  As the Court of Appeal indeed does, albeit in dicta.

There are downsides to dismissing appeals for disentitlement.  Sometimes litigants legitimately object to (and perhaps even disobey) judicial orders.  That may sound contemptuous.  Particularly when the judiciary is the one responsible for deciding whether that's in fact the case.

So there's at danger that, on occasion, the disentitlement doctrine may result in the dismissal of an appeal with merit.  An appeal by someone whose conduct may not have been perfect but who nonetheless should prevail on appeal.

I'm fairly certain that's not the case here.  And, again, I more than see where the Court of Appeal is coming from.  It wants to spank Mr. Hofer, and sticking the disentitlement doctrine in his face does exactly that.  It's a doctrinal way of saying "We don't like you.  At all."  An understandable sentiment.

But, in most cases, I'd nonetheless be inclined to sanction parties (and perhaps their counsel) before using the disentitlement doctrine.  It's a valid doctrine.  But one that should be applied sparingly.

Perhaps not even in fairly egregious cases.  Like this one.

People v. Sauceda-Contreras (Cal. Supreme Ct. - Aug. 13, 2012)

Deciding whether the invocation of the right to counsel is "equivocal" or not occasionally presents difficult questions.  As it does here.

But I agree with the California Supreme Court.  If a suspect's answer to whether he wants an attorney isn't clear, the police can follow up with questions to see what the suspect means.  Here, immediately after telling the suspect his Miranda rights, the officer asked the suspect:  "Having in mind these rights that I just read, the detective would like to know if he can speak with you right now?"  To which the suspect replied:

"If you can bring me a lawyer, that way I[,] I with who . . . that way I can tell you everything that I know and everything that I need to tell you and someone to represent me."

Is that sufficiently equivocal and/or unclear to permit the police to follow up by asking the suspect what he means by that?

Seems so to me.  I'm not really sure what the suspect's saying here.  Neither were the police.  He might well have been saying "Give me a lawyer and I'll talk."  But he might well have been saying something different.  A fact (coincidentally) confirmed by the officer's follow-up questions, which were:


“[Officer Trapp]: Okay, perhaps you didn't understand your rights. Um . . . what the detective wants to know right now is if you're willing to speak to him right now without a lawyer present?
“[Defendant]: Oh, okay that‟s fine.
“[Officer Trapp]: The decision is yours.
“[Defendant]: Yes.
“[Officer Trapp]: It's fine?
“[Defendant]: A huh, its fine.
“[Officer Trapp]: Do you want to speak to him right now?
“[Defendant]: Yes.”

So I agree with the result of this case, which reverses the contrary (unpublished) decision of the Court of Appeal.

The only thing I'd add to the California Supreme Court's discussion -- that perhaps cuts back a little bit on it (though, again, I still agree with it) -- is that all this stuff was spoken in Spanish.  So what we're reading is the transcript of the translation.  Mind you, there's no objection to the translation.  So it makes perfect sense to decide the case as if the translation is entirely accurate.

But when you're translating things, it's often very hard to decide whether something "makes sense" (i.e., is equivocal and/or unclear) or not.  Yes, if someone who spoke English said:  "If you can bring me a lawyer, that way I[,] I with who . . . that way I can tell you everything that I know and everything that I need to tell you and someone to represent me," I'd agree that that's sufficiently unclear to permit the officer to seek an elaboration.

Whether what the suspect said in Spanish was in fact unclear is harder to decide.  At least for people (like me) who neither speak Spanish nor have access to the untranslated version of what the suspect said.

To give an example, down here in San Diego, we have a variety of English-language radio stations that (for regulatory and/or tax reasons) are broadcast from Tijuana, and are hence subject to Mexican rules that make the stations occasionally broadcast English-language statements from the Mexican government; e.g., political, agency, anti-corruption, get-out-the-vote, and other government-sponsored messages.  I've probably heard a thousand or so of these things over the past decade.  Despite the fact that these messages are scripted and articulated by government spokespeople pursuant to a set translation, to "pure" English speakers like me, the translated statements are often very unclear and/or make little sense in English.  You constantly find yourself saying to yourself:  "Wait.  What exactly do you mean?"  You can understand the basic message, but given the different syntax and words used -- presumably because language doesn't often perfectly translate from Spanish to English -- the statements sometimes seem confused.

It's quite possible to me that that's what transpired here.  It's conceivable to me that the suspect here really was saying (in Spanish) that he wanted a lawyer, but that when translated to English, that message doesn't come out as clearly.  Hence the California Supreme Court's opinion.

No way to know, of course.  At least without hearing (and understanding) the original English.

But I wouldn't at all be surprised to see ambiguity arise from a translation.  Happens all the time.

U.S. v. Collins (9th Cir. - June 22, 2012)

This is the latest in a series of opinions that makes clear that the federal judiciary is starting to take a different attitude towards internet-only child pornography cases; e.g., being very dubious of lifetime residency restrictions that essentially require the defendant to live in a rural area for the rest of his life.

The only thing I'll add to the opinion is that the court might want to include an actual citation in footnote seven, which reads:  "The California Coalition on Sexual Offending’s website provides maps, produced by the Senate Office of Demographics, showing the exclusion zones pertaining to Cal. Penal Code § 3003.5(b), which prohibits a registered sex offender from residing “within 2000 feet of any public or private school,” or a subset of parks “where children regularly gather.” One exclusion zone map for Central California, for example, shows that only a few isolated areas remain in the Greater Los Angeles area for defendants to live when subject to the restriction."

There's no citation (or link) in the opinion, though I think the court was referring to something like this:  http://www.ccoso.org/library%20articles/Sex%20Offender%20Residency%20Maps.pdf

But it took me about thirty minutes to find the thing.  It's not at all prominent, nor is there a particular link in the CCSO's web page to this data.

I'll also add that, looking at the map for San Diego, the exclusion zones here only appear to be for public schools and (perhaps) larger parks.  The area around my house, for example, is listed as a permissible zone for sex offenders, but I'm positive that's not true:  we're very close to a private elementary school, right across the street from a park, etc.  So the areas in which sex offenders can reside are even fewer in number than the map might reflect (moreover, as the Ninth Circuit's opinion mentions, the conditions here are even broader than those imposed by California, and would effectively banish sex offenders from any large city).

Dahlia v. Rodriguez (9th Cir. - Aug. 7, 2012)

It doesn't take a crystal ball to see that there will be an en banc call in this one.  Or that, most likely, it'll prevail, and that the resulting opinion will (depending on the draw) probably reverse existing circuit precedent.

All one needs to do is to read Judge Wardlaw's opinion and count the likely votes.

It's a pretty damning indictment of Judge Tallman's opinion in 2009.

While that one didn't get taken en banc (and it doesn't even look like there was a vote) notwithstanding the dissent by Judge W. Fletcher, my bet is that this one will.

People v. Robinson (Cal. Ct. App. - Aug. 7, 2012)

The Court of Appeal holds in this case that it's only a "de minimus" search -- and hence okay under the Fourth Amendment -- for a police officer (without a warrant) to insert a key into a residence to see whether it unlocks the door.

You can see where the Court of Appeal's coming from.  Though you can certainly imagine the contrary arguments as well.

Imagine that this same case, however, came to the Court of Appeal in a different factual setting.  One in which a defendant was sentenced to six years in prison for "burglary" based upon his insertion of a key into another's residence, and the prosecution argued that he was guilty given the time-honored rule that any entry into a residence -- "however slight" and even by a tool (e.g., a key) -- resulted in criminal liability.  My strong sense is that, in such a case, this panel would not view the entry as de minimus but would instead uphold the imprisonment of the defendant for many years.

But what's illegal and unreasonable for individuals is perhaps legal and right for police officers.

Carlin v. Dairy America (9th Cir. - Aug. 7, 2012)

You likely already know about the highly publicized manipulation of LIBOR.  But did you know about the much-less published manipulation of milk prices?

You do now.

It was (allegedly) accomplished basically the same way:  By inputting fake ("erroneous") data into the reporting scheme.  With milk, this allegedly resulted in manipulation of the minimum prices set by the government.

Judge Wu's excellent opinion has all the details.  As well as a pretty persuasive result.

Everything you want to know about milk and more.

Gale v. First Franklin Loan Services (9th Cir. - July 12, 2012)

As you all probably know, real estate mortgages get issued by a particular bank, get "serviced" by different entities (e.g., the entities to whom you send your monthly payments), and then -- through MERS and other means -- get shuffled around through a plethora of different entities.

A federal statute, 15 U.S.C. sect. 1641(f)(2) expressly provides:  "Upon written request by the obligor, the servicer shall provide the obligor, to the best knowledge of the servicer, with the name, address, and telephone number of the owner of the obligation or the master servicer of the obligation."

You could see why this obligation might make sense.  You may well not know who owns your loan.  Your mortgage servicer does (since they have to give your monthly payments to them).  You should be allowed to ask 'em, and they should be required to tell you.  That way you can try to renegotiate your loan, arrange a short sale, or discuss other things about your mortgage.  Something that you can't do if you don't know who owns it.  So you can see why Section 1641(f)(2) might well mean exactly what it says.

But according to the Ninth Circuit, it actually doesn't mean that at all.

See if you could come up with a theory, based on the text of the statute quoted above, that this language means anything other than what it appears to say.  Then read the opinion and see if you think the Ninth Circuit has come up with the same theory and/or a more persuasive one.

Mind you, the Ninth Circuit says that, in 2010, the Dodd-Frank bill imposed in RESPA precisely the requirement that the plaintiff here alleged exists in TILA pursuant to Section 1641.  So, currently, you do indeed have the right to find out who owns your loan.

But not before 2010.  In TILA, the statute doesn't mean what you might think it means from just reading it.

See if you agree.

Kaahumanu v. State of Hawai'i (9th Cir. - June 6, 2012)

Can Hawai'i require a cheap, easily-obtained permit before commerical users can perform weddings on public beaches (and impose minimal regulations thereupon)?

Yes.  It can.

Very good opinion by Judge Willie Fletcher.

'Nuf said.

U.S. v. King (9th Cir. - Aug. 1, 2012)

You'll never see a speedier en banc process than this.

A panel opinion comes out in March.  A mere four weeks after oral argument.  Two months later, the case gets taken en banc.

Four weeks hence, the case is deemed submitted.  No need for oral argument.  Five weeks later, the en banc court issues its opinion.  Which consists, in its entirety, of three sentences.

That was easy, eh?

People v. Gonzales (Cal. Supreme Ct. - Aug. 2, 2012)

The California Supreme Court completes the trifecta.

Here's the third way you can get yourself killed by the state:  Murder (and essentially torture) a four-year old child.

Death sentence.  Unanimously affirmed.

People v. Houston (Cal. Supreme Ct. - Aug. 2, 2012)

Oh, yeah.  Here's another thing that's going to get you sentenced to death.  Even if you've got no criminal history and are otherwise seemingly a regular kid:

Going into your former high school with a shotgun and randomly killing numerous children.

That's what Eric Houston did in 1992.  (You can read more about this Columbine-like shooting in the opinion.  It's pretty detailed and graphic about what transpired.  Even better, in my uninformed view, than the movie, which starred Rick Schroeder, Freddy Prinze Jr. and Henry Winkler.)

He's sentenced -- not surprisingly -- to death.

And, again, another unanimous opinion -- again by Justice Liu -- affirming.

P.S. - I agree with Justice Liu that the trial court's attempt to "create levity" in this capital case was not exactly well-conceived.  But I'd have taken a little bit more seriously than Justice Liu does the fact that the trial court, in a capital case about sanity (at the guilt phase) and defendant's psychological problems (at the penalty phase) told the jury that "really, all the psychology stuff is mumbo jumbo stuff."  I agree that, in the context of this case, this isn't enough to reverse the judgment.  But, unlike Justice Liu, I'd have definitely mentioned that making comments like this one is (1) erroneous, and (2) a horribly stupid idea.  Albeit not one that requires reversal.

People v. McKinzie (Cal. Supreme Ct. - Aug. 2, 2012)

If you're broke and in need of Christmas presents for your kids -- in addition to crack cocaine -- please consider an income-producing strategy other than bludgeoning and strangling to death a 73-year old woman who lives near you.

Wholly apart from morality, although the "murder" approach may have relatively high short-term gains, it will ultimately lead to you being sentenced to death.

A sentence that the California Supreme Court -- in an opinion by Justice Liu -- will unanimously affirm.

Scott v. Ryan (9th Cir. - Aug. 1, 2012)

You may have an IQ of 88.  You may have chronic brain damage.  You may have a history of seizures.   Your brain -- at least according to the CTs -- may have weirdly shrunk.  Perhaps all of these due to (and certainly not helped by) being hit by a car when you were riding your bike in seventh grade, plus two motorcycle accidents, plus a car accident.  All of which knocked you unconscious.  Yes, all of these may well be true.

But you killed a four-year old kid.  For $250.  Which you negotiated up from $150.

That's going to get you sentenced to death by pretty much everyone.  In legal parlance:  No prejudice.

So holds the Ninth Circuit.

Lee v. West Coast Life Ins. Co. (9th Cir. - July 31, 2012)

Fortunately, the Ninth Circuit gets the result correct in this case.  But it unfortunately gets there in a way that makes civil procedure scholars (including yours truly) cringe.

It's an interpleader case.  A classic one:  Proceeds of a life insurance policy.  The insurance company faces conflicting claims and wants to deposit the fund and leave (as well as get its attorney's fees).  No particular problem there.  Done every day.

The complexity here is that some of the claimants -- the competing (alleged) beneficiaries -- claim that the life insurance company was negligent when it directed and/or participated in various acts relating to establishing the beneficiaries.  The trial court held, however, that the stakeholder's liability was limited to the fund, so dismissed the claimant's claims.

The Ninth Circuit holds that this was error, and that's exactly right.  The easiest way to get to this result is to note that, at common law, the right to interplead was denied when the stakeholder had independent liability to one of the claimants.  However, that's no longer true under the Federal Interpleader Act or federal common law pursuant to Rule 22, both of which (unlike the traditional common law doctrine) allow actions "in the nature of" interpleader and don't retain the traditional common law limitations.  But while interpleader itself is allowed, that doesn't shield the stakeholder from its substantive liability, which may indeed exceed the stake.

The Ninth Circuit gets that last point right.  But it doesn't mention the traditional common law doctrine, and doesn't mention the revisions adopted by the federal system, both of which are critical components of the correct answer.  But, again, it gets the policy right, so that's at least good.

The Ninth Circuit also thinks that its result is compelled by the Supreme Court's decision in Tashire, which in fact has nothing whatsoever to do with a stakeholder's independent liability.  Tashire deals instead with the permissible scope of injunctive relief under federal interpleader, and holds that in cases  in which "the tail wags the dog" -- i.e., when the interpled funds are a tiny portion of the underlying controversy (e.g., a huge auto accident with a tiny insurance policy issued to one of the participants) -- the court should exercise its discretion and not enter injunctive relief that encompasses the whole controversy, and should instead tailor the injunction so that it constrains only litigation against the tiny portion (the "tail") covered by the policy.  That holding about injunctive relief in tail-wagging cases really says nothing at all -- much less anything dispositive -- about a case (like this one) that nowhere requests for an injunction and in which there's only one "dog" (one insurance policy) and no tail.

So to say, as the Ninth Circuit does, that this case is controlled by Tashire -- and to devote pages and pages to that decision -- seems wrong.  Much more relevant are the legions of common law decisions about independent liability of stakeholders, which are directly on point and which aren't mentioned at all in the opinion.

One other thing.  A minor point, but indicative of why scholars in the area might cringe when they read the Ninth Circuit's opinion.  Plaintiffs brought the case in state court, and the defendant (the insurance company) removed it to federal court.  This was totally fine, since it was a diversity case, in which the plaintiffs were each from a different state than the insurance company.  Once in federal court, the insurer answered and interpled the funds.  This too was jurisdictionally and procedurally proper.

Judge Paez nonetheless understandably wants to make sure that the court has jurisdiction, and also wants to make sure that he's discussing the correct law of interpleader -- which varies depending on whether it's Rule 22 interpleader or statutory interpleader.  He mentions that the insurer's complaint (and, presumably, briefs) don't mention which interpleader is pled, but Judge Paez concludes that "the jurisdictional requirements of statutory interpleader were satisfied, as there was complete diversity between the parties and the amount in controversy far exceeded the jurisdictional minimum."

That's (again) the correct result, but for the wrong reason.  Even putting entirely aside supplemental jurisdiction (which is really the proper -- omitted -- basis for jurisdiction over the ancillary interpleader claims here), statutory interpleader (1) requires only minimal, not complete, diversity, and (2) does not look to diversity of the parties -- which is what Judge Paez is talking about (Ps vs. Ds), but rather cares only about diversity of the claimants (here, amongst the Ps).  I can't tell whether the Ps -- who were all from an extended family -- were themselves diverse.  But that's the relevant inquiry, not diversity across party lines.

The jurisdiction that does exist -- again, Judge Paez reaches the correct outcome -- is not jurisdiction under statutory interpleader, but under Rule 22 interpleader, which employs only the usual rules about jurisdiction (i.e., complete diversity and $75,000 rather than minimal diversity and $500).  That not only  the right jurisdictional statute -- since there's then independent jurisdiction over the interpleader claim -- but may also affect the substantive analysis, since we're now talking about purported immunity under common law Rule 22 interpleader rather than a statutory analysis of purported immunity under statutory interpleader.  (Truth be told, the answer is the same under either version of federal interpleader, but you at least want to be talking about the right one.)

I concede this isn't easy stuff.  It's not like you run across interpleader cases every day.  But when you do, you want to get it right.  Here:  Result right.  Reasoning wrong.

The former's much more important than the latter, but given that it's a published opinion, the latter's far from insignificant as well.

P.S. - Blogger tells me that that's officially my 3,000th post.  Three thousand different cases.  Clearly I talk way too much (and, as here, too long).  Sorry 'bout that.

Seltzer v. Paul Revere Life Ins. Co. (9th Cir. - July 18, 2012)

I wouldn't have certified this question to the Arizona Supreme Court.

It's a fact-bound issue in a diversity case:  Whether, in this particular context, the relevant state statute of limitations commenced in the 1980s or instead when the plaintiff turned 65 in 2009.  That's important to the parties, but not to many other people.

Perhaps the Arizona authorities aren't totally clear as to the correct answer to the question.  But that's life.  Lots of appeals are like that.  The Ninth Circuit is just as good as the Arizona Supreme Court -- or at least nearly as good -- at giving it its best shot.

This is the kind of fact-bound case that, if I were on the Arizona Supreme Court, I'd almost certainly say doesn't deserve review.  Regardless of how it came out below.  Both sides have plausible arguments, the resolution of the issue doesn't affect many people besides the parties, and we're not talking about grand principles.  Let the Court of Appeals decide that one.  The state supreme court (hopefully) has better things to do.  Similarly, even if the Ninth Circuit gets it wrong, this is not a case where forum-shopping is a critical problem (or concern).  You don't have dozens of these types of cases coming up every year.

I can imagine strategic reasons why you might want to certify the question.  But from the standpoint of judicial efficiency, this is case that should be put to bed.  It's already been briefed in the Ninth Circuit.  Just decide the thing.  Don't boot it to the Arizona Supreme Court.

Especially when the issue is what disability benefits the plaintiff should receive.  He's 68 already, and not getting any younger.  Just decide the appeal and finish it.  One way or the other.

I like comity as much as the next person.  But I'm fairly confident that the Arizona Supreme Court has better things to do than resolve this appeal.

People v. Tully (Cal. Supreme Ct. - July 30, 2012)

There are four lessons one can glean from this case:

(1)  Good police work is awesome to see.  Check out pages 19 to 21.  Wonderful work by Officer Scott Trudeau, then of the Livermore Police Department.  Caught a killer, essentially on a "hunch" (as well as careful listening), long after the official investigation into the killing had gone nowhere.

(2)  Bad stories can kill you.  Literally.  Check out pages 9 to 11.  Defendant's story as to why he was not involved in the killing was absurd.  Just made him look bad.  Certainly didn't help him avoid the death penalty, and might have even contributed to it.

(3)  Patently improper arguments can be made even in high-profile death penalty cases.  Check out Justice Kennard's concurring opinion.  Are you kidding me?!  During the closing argument of the penalty phase of defendant's trial, the prosecutor had a large chart -- entitled "The Bible Sanctions Capital Punishment" -- and went on a long religious discourse (complete with quotations from the Bible) arguing that God wanted murderers sentenced to death.  The impropriety of this extensive discussion is manifestly obvious to me.  Sure, defendant's lawyer did not object, and responded by using this same line of argument to maintain that Buddhists didn't kill, that Jews only killed every 40 or 160 years, etc.  But that hardly makes things okay.  A jury's job is not to resolve religious conflicts about whether God wants the death penalty.  Even if such a "resolution" by a human factfinder would  somehow be possible.  I agree with the Court that this doesn't require reversal here, since there was no objection.  But it's a darn good ineffectiveness claim on habeas.

(4)  Last lesson:  Death penalty cases take a lot of the California Supreme Court's time.  Check out page 160 (!) of the majority opinion.  Not only for the fact that 159 pages precede it.  But also for the Court's mention that the reporter's transcript contains over 3,900 pages, the clerk's transcript is over 15,000 pages, the opening brief is 745 pages (!) and the reply brief 522 pages, and even the Attorney General's brief is 375 pages.  All for a killing that occurred over a quarter-century ago.  In an appeal that is the first of many, many proceedings.  State habeas, another state habeas, federal habeas, appeal to the Ninth Circuit, successive habeas, etc.  Lots and lots (and lots) of resources.

Fortunately we've got money to burn.

Castaneda v. Department of Corrections (Cal. Ct. App. - July 26, 2012)

I'll end the week with a story.  A story based on this opinion from earlier today.  I'll enhance some of the dialogue a little bit.  It's a screenplay, after all.  But all the facts are true:

Act I, Scene I:  "The Troubles"

Prison Doctor:  "What's the trouble?"
Prison Inmate:  "Well, Doc, it's like this.  To be honest, my penis hurts.  Plus, there's something growing on it."
Doctor:  "Hmm.  Let's see.  Whoa!  That thing's the wrong color.  And I can't really pull back the foreskin.  You sure you're okay?
Inmate:  "That's why I came to see you, Doc.  Can you help me?"
Doctor:  "Well, I'm not really excited to see, much less touch, that thing.  Tell you what.  Why don't you try not to use it for a while -- you're in prison, after all -- and come back in three weeks.  We'll see if it's like a chameleon and changes color again."
Inmate:  "Seriously?"
Doctor:  "Yes.  Oh, yeah,  Maybe I'll eventually get you circumcised.  Never too late, you know.  Next patient, please."

Act I, Scene II:  "The Troubles (I'm Serious)"  Three weeks later:

Doctor:  "Ah, welcome back.  If it isn't Mr. Penis."
Inmate:  "I wish you'd give me a better nickname."
Doctor:  "Just having a little fun.  Let's take a look again and . . . . whoa!!  What the hell?  That thing smells!  Plus there's that gross discharge!  Yuk!"
Inmate:  "Yes.  I know.  I'm familiar with its problems.  It's attached, after all.  Help me, please."
Doctor:  "Okay.  But, to be honest, I'm a prison doctor.  I don't specialize in penises.  We call those special people urologists.  But I'm worried this might be cancer.  Of the penis."
Inmate:  "Oh my God!"
Doctor:  "Don't worry.  We can go ahead and order tests.  That way we can figure out what to do."
Inmate:  "God, yes.  Please.  This is one of my favorite body parts."
Doctor:  "I hear you.  Okay.  I just have to fill out this test request.  Let's see.  There are three boxes, and I've got to fill out one of 'em.  One says "Emergency."  One says "Urgent."  One says "Routine."  Hmmm.  Painful penis, discoloration, discharge, growth, potential cancer.  Got it!  I'll just check . . . 'Routine'.  Which means, under state policy, that we'll conduct the test in a couple of months or so.  No ore than three.  Cancer's not really that serious, after all.  Especially on . . . ."
Inmate:  "Ugh.  I assume a second opinion's out of the question."
Doctor:  "See these bars and guard towers?  That a good enough answer for you?  Next patient, please."

Act I, Scene III:  "Not My Problem"

The test request then gets routed to the Chief Medical Officer for the prison.  Who read the form and rules:  "Request for testing denied."  Why?  Because Prison Inmate's about to be transferred to a new prison.  It's their problem, now.  They can inspect the problem penis and deal with it.  Enjoy.

Act II:  "It Lives (Or At Least Moves)"

So now, several months later, Prison Inmate arrives in San Diego.  Albeit in prison.  Sunshine.  Nicer climate.  And slightly better medical care.  His penis gets the once-over from a nurse practitioner who says that, in her experience, "That ain't right."  Lesions.  Possible cancer.  Get it tested.

So the nurse orders him to go to a urology clinic.  In two months.

Okay.  Finally.  It's taken months, but this incredible growing penis problem is about to be solved.  At long last, an appointment with a prison urologist on March 29.

Three days before the appointment, however, the state transfers him to federal authorities -- ICE -- for deportation.  So they cancel his appointment.

Act III:  "Release (Not In A Good Way)"

I can't relay what happens in federal custody with ICE, but assume that the medical care there is stellar.  (*Sarcasm alert*)  Finally, around a year later, he's released from federal custody.  At which point he's finally -- finally -- free to choose a doctor and get his penis treated.

Nine days after being released, he gets diagnosed by Harbor-UCLA Medical Center.  Yep, it's cancer.  And it has spread.

They do the only thing they can do.  They cut off his penis.

Act IV:  "Bye, Bye, Birdy"

For naught.  He lives as a eunuch for a year, and then dies.  They say from cancer.  But I say from a broken heart as well.

Act V:  "The Lawsuit"

Days before he dies, Prison Inmate -- his name was Francisco Castaneda -- sues the Department of Corrections.  His wife also sues for loss of consortium.  He gets to trial.  The jury returns a verdict.  Awarding $1.5 million to Castaneda's estate and a quarter-million to his wife.

Act VI:  "The End"

The case gets to the Court of Appeal.  Judgments reversed.  Judgments entered for defendants.

Fin

Personally, I'm thinking Danny Trejo to play Castaneda.  Maybe Charlie Sheen plays the penis.

"We'd like to thank the Academy, and especially our incredible screenwriter, Professor Martin, for these Oscars.  Best Actor and Best Supporting Member.  Wow."

We can dream, can't we?

A dream with, at this point, just as much reality as the Castaneda's judgment.

Enjoy the weekend.

Latif v. Holder (9th Cir. - July 26, 2012)

What do you do if you're on the no-fly list but you think you shouldn't be?

That's a fairly substantial question.  Not for those of us off the list, obviously.  But for those on it, it's huge.  Imagine not being able to fly.  At all.  That's a big deal.

Congress has set up a procedure to deal with this problem.  Basically, after you're denied boarding, you write a letter saying that you don't think you should be on the list.  Then the FBI, through one of its many agencies, will check out your letter and the list and decide whether they feel like granting you relief.

If it's an obvious mistake, presumably, they'll correct the problem.  But lots of times -- including with every one of the plaintiffs in this case -- they just send you a letter.  A letter that says, essentially:  "We are not going to tell you whether you're on the list or off the list.  But we've done whatever we feel like doing.  Have a nice day."

So plaintiffs here sue.  Raising procedural challenges -- e.g.,"Come on, you've got to let us at least challenge our inclusion on the list, including at least telling us whether we're in fact on it or not" -- as well as (most likely) substantive ones (i.e., "Remove us from the list.").

The resulting fight in the Ninth Circuit largely revolves around procedural questions.  First, did the plaintiffs make a substantive challenge?  Footnote five of the opinion calls the complaint "far from a model pleading" on this point.  But to get a true tenor of what the panel means by this, listen to the oral argument.  To say that both sides -- especially the government -- get beat up by the panel is to radically understate the case.  Whew.  Glad that wasn't me.  Brutal.

But the larger issue is whether, under the statute, the case belongs in the district court or must be brought directly in the Court of Appeals.  The court below held the latter, thereby dismissing the case for want of jurisdiction, and the Ninth Circuit reverses.

The most interesting substantive portion of the Ninth Circuit's opinion is the first sentence of its final paragraph, in which the panel says:  "At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No-Fly List?"  When I read this, I too was shocked by this preparatory oversight.  How could the DOJ attorney not have a ready answer to such an obvious question?

But I got to tell you:  I'm not sure this is a completely fair recitation of the oral argument.  The DOJ attorney did indeed get beat up on a ton of points.  Especially with respect to questions about the operative complaint.  Ouch.  On that, the DOJ lawyer was clearly fighting a losing battle, and not only did it show, but Judge Kozinski (in particular) wasn't shy about saying so in particularly unreserved language.

But as to the proper procedure, I thought that the DOJ lawyer did indeed answer the question, and did so in a straightforward fashion.  He said:  "Under the statute, you get your letter, and within 60 days you file an action in the Court of Appeal.  Just like you do so to challenge many other administrative decisions."

That's an answer.  Maybe it's right.  Maybe it's wrong.  But it's not symptomatic of being "stymied" by the question.  Could the DOJ lawyer have perhaps gotten their a bit more clearly?  Maybe.  But truth be told, it came out pretty quickly and forthrightly.  Especially since the procedural nature of this case doesn't really raise this precise issue.

Now, at oral argument, the panel did a pretty good job of identifying some of the problems with that answer.  For example, what's the record, beyond the mere letter that (essentially) says nothing.  The DOJ attorney (Joshua Waldman) doesn't have great answers to that question -- he says that maybe there will be in camera submissions or something like that -- and those answers aren't especially strong.

But the truth of the matter is, if he was honest, Mr. Waldman's most accurate response might well be:  "I know you don't have witness boxes and the like, Judge Kozinski, so I'm sure it will be a hassle for you to have original jurisdiction, but that's what Congress wants.  Even if its a stupid idea, Congress is entitled to pass stupid jurisdictional rules (and often does)."  You could see why he might not want to make such a statement, however accurate.  (Were I the DOJ lawyer, by the way, I would have something like said:  "This is the same problem the United States Supreme Court faces in analogous cases in which Congress has granted them original jurisdiction.  Maybe you appoint a special master, like they do.  It's as workable in the Court of Appeals -- perhaps even more so -- than in the Supreme Court.").

Nonetheless, you see where the panel's coming from.  We can all imagine ourselves, in a parallel universe, on the no-fly list.  And it just doesn't seem like a tenable situation to have the United States say:  "If you're on the list, even if we're wrong, there's nothing you can do about it.  We're in charge."

Some people might effectively support such a position.  But you can see why lawyers and judges, especially those concerned about individual liberties -- even in a time of (unending) war -- might perhaps find such an answer unconvincing.

California Communities Against Toxics v. EPA (9th Cir. - July 26, 2012)

Count me as someone who agrees with the Ninth Circuit in this case that the appropriate remedy is to remand the case (as both parties recognize) but not vacate the EPA's rule in the interim.  Exactly right.

I'm not, however, similarly on board for the panel's blithe statement in the final paragraph of the opinion that saving an endangered animal species is morally equivalent to helping a new power plant come online a couple of years earlier.  The former is a species, and is irreversible.  Forever.  Whereas the latter is a machine, and while such a machine may well be important, the "risk of blackouts" for a brief period -- even if it exists -- simply lacks the gravity of the destruction of an entire species.

I'll hand it to the panel -- Judges Kozinski, Trott and Thomas -- for being honest and forthright about their policy preferences.  I just don't share them.

Doesn't matter in the present case.  Except attitudinally.

In Re Tapia (Cal. Ct. App. - July 18, 2012)

This seems right to me.

There may well be some people who think that Alex Tapia has served his time -- almost twenty years in prison -- for attempting to kill Salvador Vega, and so deserves parole.  And Tapia has indeed done great things in prison, and with only a minor disciplinary infraction (possession of alcohol) back in 1999.  So you can see why some people might think he's not a danger; indeed, everyone seems to concede that he's on the low end of that scale.

But I agree with the Court of Appeal that there's at least "some" evidence to support the Board of Parole Hearing's decision to deny parole.  It's a rational choice.  Within very loose bounds, its the Board's call.  And this one doesn't exceed their discretion.  So the trial court's decision to the contrary gets reversed.

Someday Tapia will get out of prison.  But not today.

Pacific Ship Repair v. OWCP (9th Cir. - July 24, 2012)

Judge McKeown begins this opinon by saying:

"The meaning of 'permanent' appears, at first blush, to be clear. But just as a museum’s permanent collection does not mean the works will stay in the collection for posterity and a permanent hair wave does not last a lifetime, neither does the term permanent necessarily mean forever. The word permanent takes on meaning in context and, in this case, within a statutory framework."

As we used to say in the 80s, using a phrase that seems quite well-suited to this textual analysis:

Word.

People v. McKee (Cal. Ct. App. - June 24, 2012)

When you read old cases -- and I mean, really old cases, like from the early 1800s -- you're often struck by how oddness of the reasoning.  This is especially true when the opinion concerns issues that have seen a sea change in the intervening years.

Read a cases about slavery, women, children or the mentally ill from the 1800s and you'll easily see what I mean.  It's not that the reasoning is internally inconsistent.  It's instead that the predicate assumptions, as well as the mode of analysis, is just so obviously antiquated to contemporary, more informed readers.  Yeah, everything the author says is "right," from a certain point of view as expressed by those living in the relevant era.  But, for future readers, the analysis and reasoning is just bizarre.  You sometimes leave those cases thinking:  "How could anyone think that?"  Even though,at the time the opinion was written, the vast majority of everyone thought precisely that.  So it was a "good" opinion for the time, despite the fact that it was (to modern eyes) clearly absurd.

I had these thoughts when I read this opinion by Justice McDonald.  Everything he says is right.  His analysis is spot on to contemporary eyes.

But I have a sneaking suspicion -- based on nothing more than history and intuition -- that we'll at some point view opinions like this one in a very unfavorable way.

I feel confident that our opinions about mental health, and sexually violent offenders, will change over time.  These views have changed a lot over the past century.  I have a strong feeling they'll continue to change.  And that the type of psychological and social analysis displayed here will not survive the test of time.  Or be viewed charitably thereafter.

Which is, again, not to say that the opinion is wrong.  It is what it is.

As with many things, ultimately, history is the final arbiter.

Chula Vista v. Gutierrez (Cal. Ct. App. - July 3, 2012)

Who's going to agree to serve as a receiver when you're (not) paid like this?

Not me, that's for sure.

(And don't think that the hypothetical prospect for being paid by the City -- as opposed by the Bank [which indisputably benefited from the receiver's services] -- will be sufficient.  Good luck with that.)

Baughman v. Walt Disney World Co. (9th Cir. - July 18, 2012)

Chief Judge Kozinski begins this opinion with:  "Segways at Disneyland?  Could happen."  And then proceeds, in classic Kozinski fashion, to (1) compliment (Roy) Disney, and (2) repeatedly insult Disney's lawyer.  See, e.g., Opinion at 8 ("We are disappointed to see such a retrograde position taken by a company whose reputation is built on service to the public.") & 13 ("Disney's other arguments that the regulation is invalid border on the absurd.").

Couldn't be written by anyone else.

P.S. - Personally, I might not second Judge Kozinski's assertion that Roy (and Disneyland) were innovators in service to the public and way ahead of the social curve.  Don't forget that this was the same place that didn't allow its employees to have any facial hair for decades -- too "hippy" (not even mustaches like Roy himself!) -- and still doesn't allow soul patches, beards longer than a quarter of an inch, visible tattoos, "extreme" hairstyles or colors, or body piercings (other than pierced ears for women).  Maybe one could call enforced conformity amongst employees "service" -- in the same way that Hooters employs the term -- but I'm not really sure that Disney "leads the way" in the manner we usually think about when we use that term.

People v. Lara (Cal. Supreme Ct. - July 19, 2012)

I figure that I must be in a good mood today.  I reach that conclusion based upon wholly objective indicia.  In particular, earlier today, I read this opinion by Justice Willhite, and thought:  "Wow.  That's a wonderfully written opinion.  It's not only correct, but the sentences are crisp, concise and clear.  Well done."

This does not mean that I must be in a good mood because everything that Justice Willhite writes is, in fact, utter crap.  Far from it.  But I usually don't have that reaction to someone's writing, so it's somewhat unusual.

Still, that wouldn't be sufficient to convince me that I was in a state of 46-year old euphoria.  But right after I read Justice Willhite's opinion, I read this one -- which also came out earlier today -- from Justice Werdegar and had the very same reaction.  What are the odds that two incredibly well-written opinions would just so happen to be issued on the same day?  Surely, it can't be the California judiciary.  It must be me.

But then I got to footnote 9 of Justice Werdegar's opinion.  At which point I realized that, no, it wasn't me.  I'm my usual self.  Because that's when the following thought crossed my mind:  "This sucks."

Not the overall opinion, mind you.  That's still really good.  Just the footnote.  Inexplicably, in the middle of an otherwise very good (and, again, correct) opinion, there's this huge stinker of an argument.  Something that's just flatly wrong.

The central issue in the case involves a straightforward statutory construction issue.  The Legislature passed a statute -- designed to cut down on prison overcrowding (and save $) -- that says that most prisoners are entitled to good conduct credits while in prison if they behave themselves, but that various inmates (e.g., sex offenders) can't.  Simple enough.  The complexity is that there's a different statute -- one that we use all the time -- that allows courts to "strike" various counts and/or allegations of a criminal complaint "in the interest of justice."  Courts use that latter statute all the time to avoid the Three Strikes laws, enhancements, etc.

So the simple question is:  Can courts do the same thing with respect to the good conduct provisions?  For example, here, the defendant had been previously convicted of burglary.  But when it sentenced him, the Court struck that provision (pursuant to its discretion) "in the interests of justice," which it was indisputably entitled to do.  That same prior conviction, however, bars the defendant from getting good time credits.  Is the court empowered to strike that prior conviction for good time credit purposes as well?

The California Supreme Court unanimously holds that the two situations are different.  And I think that's right.  Sentencing is different than good time credits.  There's lots of judicial involvement in the former, and little in the latter.  When the Legislature says that people with X can't get good time credits, courts don't have the power "in the interests of justice" to say that a defendant doesn't have X when he really does.  Is there a tolerable argument to the contrary?  Sure.  But I think the better view, consistent with principles of statutory construction as well as institutional responsibility, is the one articulated by Justice Werdegar.

So given that I pretty much agree with everything Justice Werdegar says, what's my problem with footnote nine?

Rather than describe what she says there, I'll just quote it in full:

"Today local prisoners may earn day-for-day credit without regard to their prior convictions. (See § 4019, subds. (b), (c) & (f), as amended by Stats. 2011, ch. 15, § 482.) This favorable change in the law does not benefit defendant because it expressly applies only to prisoners who are confined to a local custodial facility 'for a crime committed on or after October 1, 2011.' (§ 4019, subd. (h), italics added.)

Defendant argues the Legislature denied equal protection (see U.S. Const., 14th Amend.; Cal. Const., art. I, § 7) by making this change in the law expressly prospective. We recently rejected a similar argument in People v. Brown (2012) 54 Cal.4th 314, 328-330 (Brown).) As we there explained, 'the obvious purpose' of a law increasing conduct credits 'is to affect the behavior of inmates by providing them with incentives to engage in productive work and maintain good conduct while they are in prison.' This incentive purpose has no meaning if an inmate is unaware of it. The very concept demands prospective application.' (Brown, at p. 329, quoting In re Strick (1983) 148 Cal.App.3d 906, 913.) Accordingly, prisoners who serve their pretrial detention before such a law's effective date, and those who serve their detention thereafter, are not similarly situated with respect to the law's purpose. (Brown, at pp. 328-329.)"

On first glance, I thought that footnote made sense.  But something about it struck me as funny, so I read it again.  At which point I concluded that it couldn't be more wrong.

It's not that the result is wrong.  It isn't.  Any date limitation is inherently arbitrary.  The Legislature wanted to further ease overcrowding (and, again, save $), but it only wanted to free so many people.  So it decided to free those who committed future crimes rather than those serving time for past crimes.  Some decisions in this regard would violate equal protection; e.g., releasing only people with last names starting with A through L.  But the time limitation imposed by the statute isn't like that.  It satisfies the rational basis test -- a test that is not very onerous at all.

So I agree with where the Court comes out.  But not for the reason it provides.  A reason that is flatly inapplicable.

It's true that it giving good conduct credits for people who had already served their time wouldn't serve the legislative purpose of encouraging good conduct for precisely the reason that Justice Werdegar identifies; i.e., they didn't know about the statute when they decided to be good.  But that's not what the statute does.  The statute doesn't say you don't get good conduct credits for time you already served.  It instead says that even if you're still in prison, and even if giving you future good conduct credits for time you spend in prison in the future would encourage you to be good, we're not going to give them to you if you committed your crime prior to October 1, 2011.  That's the potential equal protection violation.  That's why the statute is arguably irrational:  because it makes no sense to say that the guy in the next cell --who was convicted of the exact same offense as you were -- is entitled to get credit for being good but you are not.  Contrary to Justice Werdegar's assertion, the incentive effects apply equally in both cases, to people committing offenses prior as well as subsequent to October 1, 2011.  So say otherwise -- that people still in prison can't have their conduct influenced by the statute -- is simply wrong.

Now, again, I think that the equal protection challenge likely fails on other grounds.  The Legislature might conceivably think, for example, that applying the statute only prospectively is a good idea not for incentive reasons, but rather to enable judges and prosecutors to know at the outset how much time the defendant will actually serve when deciding sentences and pleas.  That's at least a possible basis for deciding to do what the statute does, and that's enough under rational basis.  (I might add that, as a policy matter, it's somewhat bizarre to give people who commit future crimes good conduct credit but not those who committed past crimes; that seems to incentivize future crimes and diminish deterrence.  But that's up to the Legislature.  A potentially stupid statute is not an unconstitutional one.)

I still like this opinion.  But how something like the argument in footnote 9 garners the assent of all of the justices -- and presumably the chambers staff as well -- is beyond me.  Especially when its flaws seem so obvious (at least to me) even after only thirty seconds of reading it.

So I really think the court needs to revise footnote nine if it wants to be intellectually honest.  We'll see if that in fact matters.

I was worried that I was getting irrationally exuberant.  It's good to know that I'm instead as cranky at 46 as I was at 45.

Hester v. Vision Airlines (9th Cir. - July 18, 2012)

It's the summertime.  Few academic responsibilities apart from writing.  Living in San Diego, where the weather is perfect.  Staring at the wide Pacific Ocean.  Beautiful.  It's even my birthday -- and my son, Henry, turned three yesterday -- so life is wonderful.  That's my day today.

By contrast, let's see how the morning went for Vision Airlines and its Las Vegas attorney, Harold Gewerter.  Here's how the Ninth Circuit describes the case:

"Appellant Gerald Hester, a former pilot for Vision Airlines, sued Vision on behalf of a Class of other pilots and flight crew employees to recover “hazard pay,” which Hester and the Class alleged Vision had accepted on their behalf and never paid to them. After nearly two years of discovery disputes between Vision and the Class, the district court sanctioned Vision by striking its Answer, entered default judgment against Vision, and held a jury trial to determine damages.

Vision appeals, arguing (1) that the district court abused its discretion by striking Vision’s Answer, (2) that the claims in the Complaint are legally insufficient to support the default judgment, and (3) that the district court abused its discretion by certifying the Class. We reject Vision’s arguments and affirm those orders. The Class cross-appeals, arguing that the district court erred in dismissing, on the morning of trial, the Class’s claim for punitive damages. We agree and reverse the order dismissing the Class’s claim for punitive damages.

During the U.S. military occupation of Iraq and Afghanistan, the United States established an “air bridge” to deliver supplies through war zones to U.S. posts in Baghdad, Iraq, and Kabul, Afghanistan. The United States contracted with private airlines to deliver supplies to those posts, and it provided “hazard pay” for the pilots and crew members of those airlines.

In 2004, the United States contracted with Capital Aviation to provide bi-weekly flights to Baghdad and Kabul. The contract provided one set of funds for the flight services by Capital Aviation and another set of funds for the hazard pay for the pilots and crew members.

Pursuant to the contract, every pilot, first officer, and international relief officer was to receive $5000 in hazard pay per round-trip flight. Every other crew member on the flights, including attendants and mechanics, was to receive $3000 in hazard pay per round trip. The contract contained a “pass-through” provision to ensure that the hazard pay actually made it to the pilots and crew members who were risking their lives by transporting supplies through war zones. The pass-through provision required Capital Aviation to pass the hazard pay through to any subcontractors, who were also required to pass the hazard pay through to their employees without taking a cut for themselves.

Capital Aviation subcontracted with Vision Airlines to provide the flights to and from Baghdad and Kabul. For the average round-trip flight, Capital Aviation received from the United States $27,000 in hazard pay on behalf of the pilots and crew members. Capital Aviation then paid that full amount to Vision.

In the summer of 2005, at the beginning of Vision’s performance under the contract, Vision did pay some of the hazard pay to its pilots, but by August of that year, Vision stopped paying hazard pay to any of its employees, and it kept the money for its own benefit. In addition to ceasing its intermittent distribution of hazard pay, Vision also fired all pilots and crew members who knew about or had previously received hazard pay, and it replaced them with employees who were unaware that they were entitled to it."

Now, I'm no lawyer -- actually, I am -- but that seems like a darn good class action to me.  And from the way the Ninth Circuit's describing the case, I'm thinking that they may have the same reaction.  One that is not exactly in Vision's favor.  The Company seems . . . well, is "evil" too strong a word?

I need not describe the resulting years of discovery disputes in detail.  Which essentially amount to plaintiffs saying things like "Can I please have any documents that relate to hazard pay?" and defendants saying "I do not know what you're talking about."  Even though documents totally exist, the district judge starts realizing what's going on, and the result's exactly as the Ninth Circuit describes:  entry of default.  Read the opinion for more.  It's a study in how discovery should not be conducted.

Suffice it to say that the opinion holds not only the the entry of default was proper, but that the class was entitled to seek punitive damages, so it keeps its $5 million-plus judgment and gets to go after some more money in punitives on remand.

And then the Ninth Circuit ends the opinion with this paragraph:

"As a final note, based on the record before us, Harold Gewerter appears to have committed numerous ethical violations. We recommend that the district court, in the exercise of its discretion, report Mr. Gewerter to the state bar to determine whether disbarment or some other sanction is merited."

When the Ninth Circuit ends its opinion by suggesting not only sanctions, but your potential "disbarment," I think we can all agree that's not exactly a banner day.

For you, anyway.  Meanwhile, in San Diego, life is good.  Turning 46 is a lot better than watching a client get spanked for millions, face getting spanked for millions more, and contemplating being disbarred.

In Re Guardianship of Vaughn (Cal. Ct. App. - July 18, 2012)

Wouldn't it be cool if we could just live off the grid?  No job, no electricity, sleeping in tents in forests up in Humboldt County.  Living hand-to-mouth, smoking weed when we want/need it, just living life freely.  Isn't that awesome?

No.  Certainly not for our kids.

It's a tough case.  What do you do when the parents have made certain choices -- and are also constrained by circumstances -- that are really bad for their children, but nonetheless love them?  There's nothing that we would label classic "abuse" by the parents, but the kids are having a very rough go of it.  Moreover, there's an alternative:  the grandparents, in whose care the children thrive.

But that's not what their mother wants.  She's their parent.  She loves them.  She's not perfect, but then again, none of us are.  (Moreover, many of her imperfections are not her fault, though I think "fault" has little to do with the right choices in this area.)  What should we do with the kids?

A toughie for sure.

Goldstone v. County of Santa Cruz (Cal. Ct. App. - July 17, 2012)

Owner of mobilehome park:  "I know that the vote of the mobilehome owners in my park was 119 to 2 against converting the place, but really, the majority of people were actually in favor of converting, and besides, you're not allowed to consider what the residents want any way."

California Court of Appeal:  "Wrong."

U.S. v. Pariseau (9th Cir. - July 16, 2012)

Alaska's a beautiful place.  Cold.  But beautiful.

So there are definitely upsides of living there.  Cash, too:  No income tax and money from the state every year (from oil royalties).  Nice.

But there are some downsides too.  Even beyond the cold.  Lots of stuff is hard to get.  Needs to be imported into Alaska from other states.  Strawberries.  Peaches.  Things like that.

Oh, yeah.  And methamphetamine.

Poor Alaskans.  They have to get a portion of their methamphetamine imported from Arizona.  Including meth that's taped to the legs of a guy who has to change planes in Seattle and gets busted there.

Come on now, Alaskans.  There's got to be enough vacant (and/or government) land in Alaska to support a vibrant domestic meth manufacturing facility, no?

Something to work on in the future.  Let's apply that frontier spirit, eh?

People v. Riccardi (Cal. Supreme Ct. - July 16, 2012)

The unanimous opinion in this one is correct.  So is Chief Justice Cantil-Sakauye's concurrence (joined by three other justices).  So is Justice Liu's.  Everyone's right, even though they have starkly different things to say.

If I tell you that the opinions total 124 pages (!), you'll know what the opinion concerns.  That's right.  It's a death penalty case.  So we're talking about automatic review, over 15 years of delay -- the murder here occurred in over a quarter century ago (in 1983) and the death penalty was imposed in 1996 -- and a very high investment of resources.  Plus a horrible killing, this one involving a domestic violence victim who was terrorized by the defendant for a substantial period before he murdered her.  Terrible stuff.

But the underlying dispute is a relatively straightforward one, and one that's not unique to death penalty cases.  The Supreme Court holds X in a 5-4 opinion.  One year later, one of the justices that was in the majority in X has been replaced, and the Court takes and decides a new case, Y.  The facts of Y are slightly different than X, but the logic and rationale of X fairly clearly dictates that Y be decided the same way.  But we've got a new justice.  One who, quite frankly, would have joined the dissent in X.

The Court in Y does not feel like overruling X -- stare decisis and all -- but instead criticizes it and "limits it to its facts," holding that Y involves a different factual setting.  The four justices who were in the majority in X and who remain on the Court stridently dissent.  But the new five-justice majority holds that the rule in X only applies when the facts of X exist.

Fast-forward twenty-five years.  X and Y are still good law, though they're clearly in doctrinal tension.  In short, the distinction doesn't make sense.  But it nonetheless exists.  And the California Supreme Court gets a case that's pretty much identical to X.

The unanimous majority opinion holds that since the Supreme Court has decided X, and that's still good law, that's the relevant rule, and the court has to follow it.  That's right.

Chief Justice Cantil-Sakauye writes the majority opinion, but also authors a short concurrence as well -- one that's joined by the other conservative justices -- that says that X and Y don't make doctrinal sense; i.e., that they're inconsistent.  That's true too.  But that's what you get when you have a 5-4 decision and a Supreme Court that's (1) too concerned about stare decisis to forthrightly overrule the earlier case based solely on the replacement of one justice in the majority, but (2) not concerned about stare decisis enough to actually follow the earlier case in a new one.  And that hypothetical Supreme Court was exactly what we had when Justice Powell was replaced by Justice Kennedy.  It's also what we had in a ton of other situations as well, I might add.  In short:  That's the world in which we live.  But Chief Justice Cantil-Sakauye is correct that it doesn't make any sense.  (I'll leave for another day her implicit claim that the United States Supreme Court should grant certiorari in this case and overrule X.)

But Justice Liu is also correct.  He says that the courts have been able to easily deal with the cases that have arisen over the past twenty-five years, notwithstanding this doctrinal tension, by granting relief in X situations and denying relief in Y situations.  True true.  The dividing line between X and Y is fairly clear.  So we're not talking about big transaction costs (unlike some situations involving different precedent).  We're just dealing with a situation in which the distinction between X and Y doesn't make sense.  Which is bad, but we knew that when the Court first created the (silly) distinction when it decided Y.  No reason to take it up now.  (I'll again leave for another day Justice Liu's implicit claim that it'd be preferable to leave the rule as it is because if the conflict between X and Y were resolved by the current Supreme Court, it would almost certainly be resolved by overruling X, thereby resulting in a bad rule.)

Today's opinion involves the intersection of two flawed rules.  Both of which are motivated by good reasons but which nonetheless serve to make judicial resolution -- and justice -- suboptimal.  The first involves the application of stare decisis in a manner that facially preserves precedent but that "limits it to its facts."  The second involves the automatic direct review of death penalty cases by the California Supreme Court.

Everyone understands why those things happen.  But the result is far from pretty.

In Re O.P. (Cal. Ct. App. - July 13, 2012)

Wow.

You'll rarely read a more strongly worded -- and powerful -- opinion than this one.

There are only a few opinions that make me think that I'm terrible as a writer.  This is one of them.

Well done, Justice Raye.

Dennis v. Berg (9th Cir. - July 13, 2012)

Here's a wide-ranging opinion that disapproves a class action settlement -- alongside the award of attorney's fees therein.  It should (and will) strike fear in the heart of class action attorneys who litigate in federal court.

It's not that Judge Trott's concerns are misdirected.  It's not that they're unprecedented.  But the truth is that the class action settlement here was better -- indeed, a lot better -- than many class action settlements that are routinely approved.  And still failed.  On appeal, no less.

If you're a consumer class action plaintiff's lawyer, that's scary.

Even in this particular case, the Ninth Circuit's holding isn't fatal.  The parties will have to rework their agreement, and be more specific in places.  But that's doable.  Plus, Judge Trott catches only some of the tricks used in these types of agreements; others get let go.  So, in the future, those will become even more pervasively employed.

The real losers here are plaintiffs' counsel.  They may well have to take a lower fee.  But, in the future, they'll just know that they'll have to churn the case.  Something that's hardly unprecedented anyway.  It's inefficient, to be sure, but it largely avoids the problem here.

I actually appreciate Judge Trott's inquiry here.  It's refreshing.  I'm not sure it gets to the heart of the problem, to be honest.  And it's got its downsides.

But it's a start.