Three Cases (Cal. App. Cts. - July 22, 2013)

Let's see what the California appellate courts have for us as we begin this fresh new week.

Three published opinions so far.  One is from the Court of Appeal and concerns the child of a child:  who's entitled to custody of someone who was born to his 14-year old mother who subsequently became homeless, pregnant again, and then incarcerated for strong arm robbery and motor vehicle theft.  The American Dream.

The second is from the California Supreme Court and addresses whether the trial of someone accused of molesting his eight-year old niece (for four years) can include evidence that the defendant allegedly previously molested his five-year old sister when he was thirteen.  The third is equally uplifting, and involves whether a defendant accused if molesting his girlfriend's six- and seven-year old sisters can introduce evidence that the victims were (1) both allegedly molested by other people previously, and (2) caught engaging in various age-inappropriate sexual conduct; e.g., masturbating with a toothbrush as a five-year old.

The background soundtrack to today's opinions would accordingly be this Whitney Houston song.

U.S. v. Board of Directors of Truckee-Carson (9th Cir. - July 22, 2013)

Pretty neat that the panel corrects an error that it forthrightly admits it made several years ago.  Notwithstanding the fact the mandate has long since issued.

Natalie D. v. State Dep't of Health Care Svcs. (Cal. Ct. App. - July 18, 2013)

I had never heard of "hippotherapy" before I read this opinion.  I suppose that even with my limited knowledge of Latin roots, I should have been able to figure out what it was before the third page of the opinion.  But I didn't.

I know now, though.  The clue being that it is not a type of physical therapy that involves putting the patient on a hippopotamus.

I also now know that California doesn't pay for it.  Just regular old PT.

POSTSCRIPT - A reader with an ancient tongue notes that "hippo" is actually a Greek root, not Latin.  My ignorance seems so much more justified!

Baughman v. Walt Disney World, Inc. (Cal. Ct. App. - July 18, 2013)

The saga regarding Segways at Disneyland continues.

Suffice it to say that the California Court of Appeal is not nearly as fond of the machine as the Ninth Circuit.

Today's opinion is published a year after the Ninth Circuit's opinion.  To the day.

Coincidentally enough.

U.S. v. Aguilar-Reyes (9th Cir. - July 18, 2013)

Everyone agrees that Aguilar-Reyes is entitled to resentencing.  The problem is that he has already been deported, so that cannot happen, since he's entitled to be there personally.  So whatchagonnado?

The Ninth Circuit decides to affirm the (improper) sentence "without prejudice to a later request by him" to be resentenced.  I am all for equity, and this seems about right.

But the proceduralist in me worries that there is no such thing as a "request" in federal court.  Especially in criminal cases.  There are habeas petitions.  There are motions to vacate.  There are various other procedures as well.  Each with their own preconditions.  I'm not sure where the Ninth Circuit's proposed "request" fits into this structure.  Or how it satisfies the underlying procedural requirements.

It should.  There should be some way to accomplish what the Ninth Circuit wants.  But I am by now quite familiar with the fact that federal criminal law often refuses to find a way to do what's right, and repeatedly places procedural roadblocks in the way that prevent such relief.  Especially when, as here, an appellate court has "affirmed" a sentence and it is thus final.

So I wonder precisely what procedure Judge O'Scannlain is thinking about here.  Other than saying simply "you can do it because we say you can."  Something that is clearly not good enough in other contexts.

Strong v. Valdez Fine Foods (9th Cir. - July 18, 2013)

Judge Silverman has a point.

Woods v. Cary (9th Cir. - July 17, 2013)

Judge Reinhardt writes an opinion holding that a statute that caps recoverable prisoner attorney fees at 150% of a monetary judgment does not apply to attorney fees on appeal.  Judge Murguia dissents.

Judge Reinhardt articulates lots of persuasive policy reasons why the cap should not apply on appeal. I think he's right.

But I think that the Congress that passed the statute would disagree.  And would be less nuanced than Judge Reinhardt in its distaste for lawsuits brought by prisoners.

I think that's also true of the Supreme Court.  Which I could easily see stepping in with an old-style summary per curium disposition that is the final word on this circuit split.  Putting -- for some of the justices -- Judge Reinhardt in his place.  Again.

That's a descriptive, not normative, judgment.  We'll see where this one goes.

Fortner v. Superior Court (Cal. Ct. Appp. - July 17, 2013)

You would think it would be fairly obvious that you cannot charge someone in California for a spontaneous assault that transpired in Hawaii.  But apparently it takes an opinion in the Court of Appeal.

For civil procedure folks, this result seems self-evident.  Surely you could not sue someone for this offense in California based merely on the fact that the assault might have an effect in California.

Criminal and civil jurisdiction are not the same.  (Though, ironically, it is only criminal venue that is expressly circumscribed in the Constitution.). But the result here is the same.

There are crimes that take place in multiple jurisdictions.  But this is not one of them.

Malin v. Singer (Cal. Ct. App. - July 16, 2013)

Naive.

Legal "pitbull" Marty Singer writes a demand letter to a restaurant owner on behalf of his client (a partner of the would-be defendant) and encloses a draft complaint.  Singer claims that the owner has been diverting funds from the restaurant, to the detriment of the client.  So far, a routine and entirely proper demand letter.

But then Singer ups the ante.

The demand letter (and draft complaint) then alleges that the defendant used some of the ill-gotten booty "to arrange sexual liaisons with older men, including Judge (X) a/k/a "Dad" (see enclosed photo)."

Hmmm.  I wonder why Singer included that part?  I don't recall that being an element of the tort.  Is it possible that portion of the letter and draft complaint was included for some other purpose?  Does the word "blackmail" (or the more technical legal word, "extortion") come to anyone's mind?

It certainly came to the mind of the defendant.  Which sued Singer, claiming precisely that.  (As well as illegally accessing his computer files and illegal wire tapping.)

By the way, to the degree it might help one judge Singer's intent, his letter also expressly says that while the draft complaint included blanks for the names of defendant's same-sex partners, "when the Complaint is filed with the Los Angeles Superior Court, there will be no blanks in the pleading."  Oh, and the draft complaint also alleges that the defendant liked to "live out fetish role play fantasies, while playing out (his) versions of a father/son and uncle/nephew relationship."  Another element of the crime of embezzlement, presumably.

Singer files an anti-SLAPP motion, which the trial court denies, holding that the letter constituted unprotected extortion under California Supreme Court precedent.

The Court of Appeal reverses.

Justice Suzukawa argues that there was nothing extortionate about threatening to reveal defendant's private sexual antics -- including a photo (!) of one of his partners -- unless he paid a substantial sum of money.  The Court of Appeal further claims that the exposure of these alleged incest fetishes would not "subject (defendant) to any more disgrace than the claim (by a business partner) that he was an embezzler."  Finally, the Court of Appeal holds that not only was the purported extortion protected by the anti-SLAPP statute, but is also immune from suit under the litigation privilege.

Wow.

Blackmail is an admittedly difficult doctrinal concept, and innumerable smart people have tried in vain to figure out why people can (1) demand money, and (2) voluntarily reveal private facts, and yet cannot do both simultaneously.  Nonetheless, the Court of Appeal's failure to see through the thin veneer here is fairly striking.  If this is protected speech, I'm going to make my own demand letters a LOT more vivid going forward.  Including whatever slim links to the defendant's sexual practices when my creative mind can come up with.

Singer's still potentially on the hook for wiretapping, which isn't protected.  But the alleged extortion gets a categorical pass.  As well as an award of attorney's fees.

Abers v. Rohrs (Cal. Ct. App. - July 15, 2013)

Some condo owners and the property owner get into a fight about how much rent is owed.  There's an initial declaratory relief action and then the case goes to arbitration.

After the arbitration is over -- with an award in favor of the property owners -- everyone knows there will be a fight about whether the award should be confirmed.  So the property owners run into court and file an ex parte request (in the technically "pending" declaratory relief action) asking the court to require that any confirmation fights be filed under a new case number.  The condo owners oppose the request, and the trial court says it doesn't feel like resolving this issue until someone actually files.

The condo owners indeed want to fight the arbitration award.  Rather than squander scare resources on the somewhat meaningless issue of whether such a petition should be filed under the "old" or a "new" case number, they decide to do it the way the property owners wanted, and file it under a new case number.  As the opposing party (the property owners) wanted.  They then serve the petition by mail on opposing counsel.

But there's an 100-day deadline to vacate an arbitration award.  And after the deadline expires, the other side then says:  "Sorry.  You filed it under a different case number.  Which means you can't serve things by mail.  That would have been fine under the old case number.  But since you did it the way we wanted -- by filing under a new number -- you had to serve us personally.  Which you didn't do within 100 days of the arbitration award.  So now you lose.  Gotcha!"

The Court of Appeal agrees.

Deadlines are harsh.  I'm sympathetic to the Court of Appeal's view that in a case like this, in which the condo owners are represented by counsel, a failure to understand how something has to get served within a particular deadline isn't something that gets a party relief.  The deadline's the deadline, and it was blown.  You can potentially sue your attorney, but you can't resurrect the deadline that's passed.

The one thing I'm not as confident about is the Court of Appeal's argument in response to the condo owner's (understandable) focus on equity.  The condo owners say it would be inequitable to allow the property owners to sleaze them.  The Court of Appeal, however, responds that equity is categorically inapplicable whenever a party makes "deliberate" strategic decisions; e.g., the decision to file under a new case number here in order to avoid resulting disputes.  Having made a "deliberate" decision, the party is purportedly precluding from obtaining equitable relief.

That doesn't seem right.  Equity grants relief for lots of deliberate decisions. Indeed, I'd imagine that most affirmative decisions in equity involve deliberate decisions, in one form or another, on the part of the requesting party.  The fact that a decision is deliberate and/or "strategic" may well be a factor in whether to grant equity.  But I don't think that equity categorically excludes relief for a deliberate act.  Particularly, when, as here, that act seems well-motivated; e.g., to avoid unnecessary cost to both sides (as well as the judiciary).

Again, here, the result nonetheless seems defensible.  Counsel should have known better.

But the Court of Appeal's dicta might perhaps be less categorical as well.

In Re Marriage of Ficke (Cal. Ct. App. - July 11, 2013)

Let's reset the stage.  A former spouse can easily make a hefty (mid-six-figure year) salary, but decides to be minimally employed instead.  The other former spouse makes five figures.

Normally, in calculating support ("alimony"), the high-earner pays the lower-earner.  Even if the former elects not to work.  We "impute" the income the high-earner could earn.

The individuals here have a teenage child.  The first (high-earner) spouse has custody, so the low-earning spouse pays child support.  Should the low-earner get support/alimony from the high-earner, or should we instead refuse to impute income to the high-earner, and leave the parties as they are (with the low-earner paying the high-earner)?

The trial court imputed income.  The Court of Appeal reversed.  Holding that you're only allowed to impute income if it's affirmatively in the "best interests" of the child.

Yours truly supported an alternative rule.  Arguing that the low-earner should receive support as long as it wasn't inconsistent with the interests of the children.  Claiming that the transfer of wealth from a custodial parent to a non-custodial parent never benefits a child -- since it always reduces the amount of money that a custodial parent might potentially otherwise spend on the child --  but is nonetheless fair.

The Court of Appeal then modified its opinion.  Adding a footnote that says (in relevant part):  "Obviously, to reduce the amount of money a custodial parent receives will never be 'consistent with' the best interests of the children, all else being equal.  Accordingly, imputation to a custodial parent requires some offsetting benefit to the children, which can often be found in the benefit of the noncustodial parent being able to spend more time with the children."

I appreciate the caveat.  It makes the Court of Appeal's rule slightly better.  It also made me recognize that it was an overstatement when I said that imputation would "never" help children.  The Court of Appeal rightly articulates a potential exception to this purportedly categorical result.

But I still think my rule is better than the Court of Appeal's.

I should have said that almost never will imputation help the children.  Yes, in a small number of cases, it's possible that giving the low-earning spouse support will enhance her ability to spend time with the kids.  Maybe permit her to ditch a second job, or buy another plane ticket to visit the kids.  I can imagine such situations.

But they're rare.  Exceedingly rare.

The overwhelming majority of cases are exactly like the one here.  Keeping the poorer parent poor doesn't mean s/he'll spend less time with the kids.  It just means s/he'll be unfairly disadvantaged by the richer parent's unilateral decision to be underemployed.  Ergo the result here.  No support from the six-figure parent to the five-figure parent.  Even when paying such support wouldn't impact the two teenage kids here even in the slightest.

So I like the footnote.  But still prefer my alternative.

Shearin v. Brown (Cal. Ct. App. - July 11, 2013)

I'm sometimes a bit dubious about the creative ways that appellate courts occasionally come up with to justify the refusal to certify a class.

But not here.

California occasionally makes mistakes in calculating the release date of its prisoners.  This results in some individuals being incarcerated when they should be free.  (It also results in the erroneous early release of some inmates who should remain incarcerated.)

That's wrong.  Those adversely affected deserve a remedy.  California calculates that there are 594 such people.  My strong sense is that few of them are both aware of the error as well as able to navigate the relevant claim process.  As a result, many -- probably nearly all -- of them do not receive what they deserve.

Class actions are designed, in part, to solve this problem.

Class treatment is nonetheless not warranted here.  As the trial court and Court of Appeal held.  There are a variety of reasons -- a variety of different mistakes -- that result in erroneous calculations of the release date of individual prisoners.  The results may be the same:  erroneous incarceration.  But there is no uniform process that leads to this result.  The common questions do not predominate, and class treatment is not superior to individual actions.

In Re D.B. (Cal. Ct. App. - July 11, 2013)

I've never seen a child's gastrointestinal tract play as much of a role in child welfare determinations as it did in this case.

Here's a snippet.  With the warning that it's somewhat messy (as well as lengthy):

"Father and mother are the parents of six children together, with their three youngest, all boys, being the subject of this appeal. Father and mother also have two children each from other relationships. The case began when the Agency filed a dependency petition regarding all of the children in June 2008. In October 2008, the children were adjudged dependents of the court. In support of its order, the juvenile court made a number of findings, including the following: the parents had a relationship characterized by domestic violence that was witnessed and imitated by the children; a female child reported sexual abuse by her half brother; the children reported that the parents used excessive physical discipline; mother had mental health problems requiring therapy; father had a possible drinking problem requiring assessment; father physically abused his children from another relationship; and several children of one or both parents were former dependents of the court.

A reunification period of over a year and a half followed, and during it the boys were placed together in three different foster homes. Status reports filed during this time described worrisome behaviors by the boys. The younger brother suffered possible developmental delays, which may have been due to brain bleeding at birth. The middle brother showed aggression when he was two years old and engaged in 'head banging.' The older brother, according to his foster parents, 'play[ed] with his feces all the time' when he was first placed in their care but stopped by early 2009. . . .

The juvenile court renewed the boys' dependency status at post-permanency review hearings on January 13 and August 9, 2011, and on January 10, 2012, following the filing of status review reports describing the boys‟ progress in their aunt's care. According to these reports, the boys displayed a good deal of aggression when they were

first placed with their aunt, but they became less aggressive over time. The social worker reported at one point that the older brother had shown great improvement in his behavior and emotional regulation, although his preschool continued to work with him on his physical behaviors and socialization skills, and he still at times screamed uncontrollably and acted out sexually. The middle brother suffered from severe diarrhea early on in the placement that was attributed to anxiety. He was asked to leave his preschool because of violent behavior, and he was disruptive at a second preschool placement, where he hit and bit students and teachers. He was 'severely delayed' in his speech, scored 'very low' on an early childhood screening test, and suffered 'severe behavioral and emotional issues' related to anxiety and posttraumatic-stress disorder. The younger brother's behavior was reportedly normal, although he continued to experience developmental delays.

Mother was generally consistent in visiting the boys, but the boys were at times overwhelmed by the visits and experienced 'episodes [of] emotional dysregulation' when they were with mother and were hard to control. Father satisfied the court-imposed conditions to begin visitation. He visited with the boys in November 2010, and in January, February, and March 2011, but then did not visit with them again until August 2011. The two older brothers reacted negatively when father's visits resumed. The older brother (then about five-and-a-half years old) had a bowel movement in his pants during the first resumed visit, had one a few days later at school even though he was not ill, and acted defiantly at home. The middle brother (then about four-and-a-half years old and fully toilet trained) suffered diarrhea for three weeks following the visit. . . .

A new social worker was assigned to the case in early September 2011. Based on discussions she had with the boys' aunt, teachers, and therapists, the social worker became 'extremely concerned' about the boys' behavior and 'the constant re-exposure to the biological parents with whom they experienced extreme violence and neglect,' which led to a 'spike' in 'problematic behaviors,' including aggression, biting, and scratching. The older brother appeared to react the strongest to visits with his parents. He acted out aggressively after a visit with father in late August 2011, and as of late September (a few months shy of his sixth birthday, when he was otherwise a fully toilet-trained kindergartener), he had had a bowel movement in his pants three out of four visits with father. The middle brother reportedly had less ability to focus at school after visits with his parents and became more emotional and aggressive, while the younger brother's behavior could 'escalate very quickly at times.'

The new social worker consulted with the director of the early trauma treatment center at San Francisco General Hospital, who had served as a consultant for the Agency for 27 years and had conferred with a previous social worker assigned to the case. The consultant recommended that all visits between the boys and their parents be terminated. The consultant stated that the boys' behavior showed 'the classic characteristics of children whose brain development and emotional health has been derailed by their early experiences as they show emotional dysregulation, for example, in the form of the inability to control feces when under stress; severe aggression; lack of tolerance for frustration; fear of separation; chronic sleep problems and night terrors; violence towards teachers and peers; and food hoarding.' She believed that visits with the parents were 'a reminder of the traumatic experiences that they experienced when in their care,' and that 'their behaviors represent the trauma they suffered though they cannot articulate their pain.'

In late October 2011, the aunt reported that the older brother had a bowel movement during a visit (apparently with mother) that was so bad his clothes had to be thrown away. He was able to avoid an accident during a different visit (this one with father), but he then had diarrhea for the two days following it. The younger brother, who was almost four years old and fully toilet trained, also soiled his pants two days in a row after visits with father. The middle brother appeared withdrawn at school the day after an October visit with mother, and he pointed to 'angry and sad faces' when his therapist asked him to describe how he felt after the visit. Because of his behavior at preschool, he was on the verge of being expelled just three months after starting there. According to the social worker, all three boys acted out following parental visits, and this pattern continued through early 2012."

I'm no expert on this stuff.  I'm not saying anything about the merits.  But I've read a lot of these opinions.  Lots of different kinds of trauma.  But never before have I seen a case in which there was so much discussion of the kids' poo.

Elim Church of God v. Harris (9th Cir. - July 10, 2013)

The first sentence of this opinion by Judge Thomas -- which holds that the expiration of a regulatory time period was dispositive -- contains the quote "Time is the fire in which we burn."

It's a neat reference.  Even if that sentence also geekily refers to a Star Trek character who uttered the line.

Too bad the opinion wasn't published three months ago.  Since the line comes from Delmore Schwartz's poem, "Calmly We Walk Though This April Day."

Coincidentally enough, however, the opinion gets published on July 10.  The last full day of Schwartz's life.

Action Recycling, Inc. v. IRS (9th Cir. - July 9, 2013)

This is one of those opinions where I don't really see the other side.

It's not that I don't understand how one could argue the other way.  But that side nonetheless seems so obviously wrong that it seems weird that a party would find it beneficial to argue (and appeal) the point.

For example, here, there's an underlying -- understandable -- premise that the IRS can't undertake "unnecessary" audits.  Backed up by a statute that says so.  Fair.

Similarly, one might normally think that it's irrational for the IRS to examine the exact same set of records when it's auditing a company.  True enough.

But here, the IRS examined a set of company back records, and took some notes, but didn't copy the actual records.  Later, the IRS examiner who took the notes left the IRS.  So the later examiner had a desire to see the records the earlier one had already seen.  But the company refused.  So the IRS had to get a summons.

All this makes sense.  At least to me.  As well as to Judge McKeown.  Who writes a tight, nine-page opinion explaining why all this is proper.  And doesn't even require oral argument.

Exactly right.

Yes, it would have been "nice" (I guess) if the first IRS agent had copied the records rather than merely taking notes.  But that he did the latter doesn't mean that the IRS is categorically unable to reexamine the records.  They're allowed to.  End of appeal.

Nivo I LLC v. Antunez (Cal. App. Div. - July 8, 2013)

I remember back in my younger -- renting -- days routinely seeing (and signing) lease provisions that facially required me to have renter's insurance.  Which I never bought.

I understood at a general level why a landlord might want a tenant to have insurance.  Generally it benefits the renter; for example, if their stuff is stolen, there's some reimbursement.  But that might also marginally help the landlord.  It might make a lawsuit for inadequate security on the premises less likely, might mean the renter can still pay their rent, etc.

However, I also thought that the landlord's interest in this regard was incredibly low.  The real reason these provisions were in there, I thought, was simply because the landlord could insist upon them and the tenant wouldn't really object.  Instead, they'd simply sign and refrain from buying.  As I did.  The landlord wouldn't care at all, unless the tenant became a problem.  At which point the landlord might then seek to evict them on the basis of the alleged "breach" of the insurance provision.

My sense in this regard was heightened by the fact that no landlord of mine ever sought to verify that I had renter's insurance.  If they cared, they would have cared.  And they didn't.

The Appellate Division apparently has a similar sense.  Holding that the failure to procure renter's insurance isn't a "material" breach of the lease.

I can see situations in which the converse might be true; for example, when the insurance is broad and when the landlord uniformly checks to make sure the tenant maintains it.  But that's not the case here.  And, I imagine, it's not the case nearly anywhere else either.

John v. Alaska Fish & Wildlife Conservation Fund (9th Cir. - July 5, 2013)

There are lots of things I'm thinking about on July 5th.  Most of these thoughts, however, do not relate to the details of how one goes about subsistence living on federal land in Alaska.

But for those who have elected such a life, this opinion certainly gives their claims fair treatment.  It's super long.  Sixty-six single-spaced pages.  Describing at length the various rules that apply to how and to what extent the federal government allows rural subsistence existence in Alaska.

I think it'd take a major psychological break for me to ditch everything and live alone in the often-freezing depths of rural Alaska.  But were I to do so, Judge Kleinfeld tells me how it'd work.

Thanks.

P.S. - Am I mistaken, or are a large fraction of the big "Alaska" cases written by Judge Kleinfeld?  I know that panel assignments are supposedly (largely) random.  I would also not be surprised if Judge Kleinfeld wanted to take -- and write substantial opinions in -- big-ticket Alaska cases, and the other panel members were generally willing to let him to do.  So that may explain a big part of it.  But I swear that at least three-quarters of the Alaska-centric opinions that I recall offhand have Kleinfeld as the author. 

The guy has definitely made his impact on the state.

U.S. v. Huizar-Velazquez (9th Cir. - July 3, 2013)

It's another federal criminal case out of San Diego.  Arturo Huizar-Velazquez was a smuggler who slipped his ill-gotten booty across the border.

Drugs?  Immigrants?

Nope.  Coat hangers.

I know.  I was surprised as you.  Who smuggles coat hangers into the United States?!

It was actually fairly brilliant, I think.  As well as totally straightforward.

Apparently China was dumping wire hangers, so the U.S. hit 'em with retaliatory tariffs of 187.25 percent.  At which point Huizar-Velazquez bought a bunch of wire hangers from China, imported them into Mexico, put 'em into boxes labeled "Made in Mexico," and shipped them to the United States.  Making millions and millions of dollars in the process.  Easy peasy.  (The actual details were slightly more complex, and involved initially shipping them into the U.S. for resale in Mexico, then shipping them there and putting 'em into the "Made in Mexico" boxes and shipping them back.  But the basic principle was the same.)

Until, of course, he got caught.

Surprisingly, there were neat little sentencing issues that came up.  Which the Ninth Circuit persuades me that the district court in fact got wrong.  So the case gets remanded for resentencing.

None of which detracts from the fact that there are lots of things I might think about smuggling across the border.  Wire hangers were way at the bottom of the list.

Williams v. Johnson (9th Cir. - July 3, 2013)

Here's a case where a Ninth Circuit panel whose prior opinion was summarily reversed by the Supreme Court says it'd be just fine were the Court to do so again.

I was actually thinking last week about what a generally frivolous waste it is for litigants to file rehearing petitions in the United States Supreme Court.  Reading the Ninth Circuit's post-remand opinions here, however, it looks like this may well be one of those cases is which the Supreme Court did indeed get supremely sloppy.

U.S. v. Stoltz (9th Cir. - June 27, 2013)

Lots of Double Jeopardy Clause jurisprudence seems downright silly.  Including but limited to the whole "dual sovereign" thing that allows multiple prosecutions for the exact same offense.  Crazy.

So when I saw that this opinion was about someone who'd been prosecuted by the U.S. military, and then by the United States, I thought:  "Oh.  Is this going to be some absurd rule that says that's okay?"  And sure enough, that's what the Ninth Circuit holds.

But you know what?  It's right.

Judge Fisher gracefully points out that the defendant here wasn't subjected to a court martial by the U.S. Coast Guard.  If he had been, then, yes, the Double Jeopardy Clause would have barred his subsequent criminal prosecution by the United States for the same offense.

Defendant instead was subjected to something in the military called "nonjudicial punishment" -- NJP.  Something that's for "minor offenses" and in which the punishment is capped at 30 days confined to quarters (or in the brig), reduction in rank, loss of a month's of pay, and the like (e.g., KP duty).  For a non-military guy like me, it sounds sort of like a misdemeanor.  Or in military speak, like the sort of stuff your commanding officer can do to you when s/he thinks you've totally sucked.  Not as serious or judicial as a full-blown court martial, with a trial and all.  Just a way your superior can spank you when you're out of line.

So that's what happened to Chris Stoltz.  He gets busted when one of his crew mates sees him watching kiddie porn on the ship.  When it was docked in Nome, Alaska.  (I'll omit the various things I might say at this point.)  This is a big deal, so they wait to see if Stoltz gets prosecuted.  But when nothing happens for months, the captain of the ship thinks it's important for the rest of the crew to see that Stoltz hasn't just gotten off scot-free.  So they hold a Captain's Mast, Stoltz admits the offense, and he gets spanked with a one-step loss in rank, some extra duty and lost pay.  Stoltz is eventually discharged from the Coast Guard (not surprisingly), though I was somewhat surprised that it wasn't a dishonorable discharge, but instead a "General Under Honorable Conditions" separation.  (Seriously?!  "Under Honorable Conditions"?)

Three years later Stoltz gets charged criminally for this same offense.  Why'd it take so long?  Not a clue.  Seems crazy.  But there you have it.  At which point Stoltz raises his defense under the Double Jeopardy Clause.  Which the district court guys, dismissing the indictment on that basis.

But the Ninth Circuit reverses.  Yes, Stoltz could have been court martialed.  But he wasn't.  And, yes, Stoltz could have insisted upon a court martial rather than NJP (or, more accurately, could have rejected the NJP and forced the military to go the court martial route if it wanted to, since no one can make the military court martial you).  But he didn't.  That Stoltz could have essentially been charged criminally doesn't make a Double Jeopardy Clause violation when that's not what in fact transpired.  Seems right to me.  (Ditto for Judge Fisher's analysis about it not being a constitutional violation requiring dismissal of the indictment when the military neglected to inform Stoltz of his right to force the court martial route if he wanted.  Similar deal.)

So in the end, notwithstanding the fact that I'm constantly suspicious of double jeopardy cases, I think this is the right outcome.  Stoltz gets a criminal trial.

Mind you, as a non- (or only partially-) legal matter, I will note the sharp contrast between the type of punishment the military thought was appropriate and what Stoltz is facing in federal court.  He's facing years and years in federal prison -- a long time -- for an offense the military only gave him a loss of one rank and an honorable discharge.  The divergence between the two is pretty striking.

Which is not to say that one's right and the other's not.  Perhaps the truth (or "justice") lies in the middle.

Though that's not likely what Stoltz will actually receive.  It's a binary choice here.  We've come a ways in recent years with respect to kiddie porn sentences.  But there's still a monster difference between the slap on the wrist Stoltz received from the military and what he's looking at in federal court.

Huge.

SFPP, LP v. PUC (Cal. Ct. App. - July 1, 2013)

What?!  You mean to tell me that utility companies have created an incredibly complicated system of limited partnerships and the Public Utilities Commission had the audacity to (1) not reimburse them for taxes their downstream owners may or may not pay, and (2) only granted them a return on equity of 12.61% instead of the 15.86% the utilities wanted?!

Cry me a river.

M.J. v. USA (9th Cir. - July 1, 2013)

I had never really thought deeply before about the difficulties of law enforcement in incredibly rural communities.  When I think of "rural" places, I generally think of locations in central Nebraska and the like.  You've got a very small police force, to be sure, and perhaps it's located dozens of miles (or even more) away.  But I'm still thinking Andy Griffith.  The general structure still works.

But we're in the Ninth Circuit.  Which includes Alaska.  What do you do when the rural community of 650 or so is located really far from the next community?  Hundreds of miles.  With no roads to even get there.  How do you conduct law enforcement?

It gets even more complicated when the rural community is essentially coextensive with an Indian tribe.  Then difficult jurisdictional stuff makes it especially complex.

There's no easy answer.  As this case demonstrates.

Alaska has a special attraction to many in the Lower 48.  "The Last Frontier" and all.  The prospect of lawlessness and lack of medical care may perhaps may it less so.  Though, at the same time, the need to rely on one's community perhaps simultaneously makes the place all the more special.

It's a different place, Alaska.  Especially in the bush.

In Re Marshall (9th Cir. - June 28, 2013)

Who knew that a marriage between a stripper and an octogenerian would create so much litigation?  Three trips to the Ninth Circuit and one in the United States Supreme Court.  Not to mention all of the various -- incredibly expensive -- proceedings in trial and bankruptcy courts throughout the nation.  A series of litigations that, as the Ninth Circuit artfully noted, "pitt[ed] wife against son and brothers against each other, has defied resolution for nearly two decades, and has survived almost all of its original players."

This the latest, and hopefully last, installment of the Howard/Vicki Lynn Marshall saga.  Yet another bankruptcy filing by one of the participants.  In which the sordid details again play themselves out.

The Ninth Circuit affirms.  Here's hoping that the litigations, as well as the participants who have now passed, rest in peace.

People v. Linton (Cal. Supreme Ct. - June 27, 2013)

On the one hand, we have a severely emotionally disturbed 20-year old.  A loner.  Unable to really handle high school.  Who inexplicably strangles his next-door neighbor, and promptly confesses.  Someone without any criminal history whatsoever.  Someone who, while in prison, seems to be a model inmate.  A kid who profoundly regrets what he's inexplicably done.

On the other hand, we have the victim.  A twelve-year old girl.  Murdered in her home, in her bed.

For the judge and jury, the second hand outweighs the first.  Daniel Linton gets sentenced to death.  The California Supreme Court unanimously affirms.

The case highlights for me the incredible difficulty of determining who lives and who dies.  How to separate the monsters from those who have committed monstrous acts.  As well as how much rides on that determination.

A depressing case on every level.

POSTSCRIPT - I'll add that, as with every case, there are additional details on both sides.  On the victim's side, there's the impact of the girl's death on her family, the fact that the defendant had likely been in the house (and attempted to molest the little girl as she slept) previously, and semen from the defendant found on a discarded pair of the victim's underpants.  For me, those circumstances are less relevant than the actual killing -- which is incredibly bad enough -- and don't change my perception that it's incredibly hard to tell who deserves to live and who deserves to die.  Particularly when, as here, the murder seems out of character, and hence potentially the product less of an irredeemably bad heart than something else.  But an informed (and superemely intelligent) reader thought the various grusome details of the case might matter to him or her (or others), and that seemed a more than fair point, so I thought I'd include a little bit more of a description.

Three Writs (9th Cir. - June 27, 2013)

It's not a good morning for Littler Mendelson.  Rarely have I seen a day from the Ninth Circuit that made me so strongly wince.

Here's the first thing I read this morning.  With a reminder that it's a published order, for everyone to see:

(1)  [No. 13-71162]  [From San Diego]  "The court has considered the 'amici curiae' letters submitted in support of this petition for writ of mandamus. Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. [Cite]. Indeed, we find the petition to be frivolous and wholly without merit. Accordingly, the petition, including the request for an immediate stay of district court proceedings, is denied.

Within 21 days after the date of this order, counsel Julie A. Dunne, Lara K. Strauss, and Joshua D. Levine of Littler Mendelson P.C. shall show cause in writing why monetary sanctions should not be imposed against counsel individually for filing a frivolous petition for writ of mandamus. [Cites]  Counsel’s failure to file a timely response to this order will result in the imposition of sanctions without further notice.

Counsel’s response to the order to show cause is referred to the Appellate Commissioner, who shall conduct whatever proceedings he deems appropriate and shall have authority to enter an order, including an order imposing monetary sanctions."

The pain is palpable.  Just imagine getting called out like that.  Not to mention the likely hit in your wallet.  Add to all that the fact that the whole firm (and legal world) sees it, the firm has to mobilize to respond to the OSC(and so you have to repeat again and again what you've done and why), the fact that you're essentially compelled to grovel -- or at least should -- at this point, etc. etc.  The pain.  The huge, massive pain.

Then I read another opinion.  Same morning:

(2) [No. 13-71160]  [From San Francisco]  "The court has considered the 'amicus curiae' letter submitted in support of this petition for writ of mandamus by Downtown LA Motors LP.  The motion of American Trucking Associations, Inc. and California Trucking Association for leave to file a brief amici curiae is granted. The Clerk shall amend the docket to reflect this status and shall file the amicus brief submitted on April 9, 2013. Petitioner’s request for judicial notice is granted.

Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. [Cite]  Indeed, we find the petition to be frivolous and wholly without merit.  Accordingly, the petition is denied.

Within 21 days after the date of this order, counsel Barrett Green, Richard H. Rahm, and Angela J. Rafoth of Littler Mendelson P.C. shall show cause in writing why monetary sanctions should not be imposed against counsel individually for filing a frivolous petition for writ of mandamus. [Cites] Counsel’s failure to file a timely response will result in the imposition of sanctions without further notice.
Counsel’s response to the order to show cause is referred to the Appellate Commissioner, who shall conduct whatever proceedings he deems appropriate and shall have authority to enter an order, including an order imposing monetary sanctions."

OUCH!  Two different cases.  Two published opinions.  Two sanction OSCs.  Different lawyers, but same firm.  Talk about hacking off the Ninth Circuit!

Then Littler hits the trifecta:

(3)  [No. 13-71163]  [From San Diego, again]  "The court has considered the 'amici curiae' letters submitted in support of this petition for writ of mandamus.  Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. [Cite]  Indeed, we find the petition to be frivolous and wholly without merit. Accordingly, the petition, including the request for an immediate stay of district court proceedings, is denied.

Within 21 days after the date of this order, counsel Julie A. Dunne, Lara K. Strauss, and Joshua D. Levine of Littler Mendelson P.C. shall show cause in writing why monetary sanctions should not be imposed against counsel individually for filing a frivolous petition for writ of mandamus.  [Cites] Counsel’s failure to file a timely response to this order will result in the imposition of sanctions without further notice.

Counsel’s response to the order to show cause is referred to the Appellate Commissioner, who shall conduct whatever proceedings he deems appropriate and shall have authority to enter an order, including an order imposing monetary sanctions."

Dude!!  Exact same lawyers as the first one.  Exact same language.  Exact same order.  But a different mandamus petition.  Wow.

I don't recall seeing a single published sanction OSC arising out of a mandamus petition to the motions panel during the past decade.  To see three on the same day -- issued against the same firm, no less -- is nothing short of shocking.

It makes me wonder what the petitions were about.  Unfortunately, I can't find them online.  I can only imagine, however, that the Ninth Circuit simply got fed up with repeated, meritless mandamus petitions filed by the same firm.  Sufficiently fed up that it decided that enough was enough.

Which I can understand.  Mandamus petitions are truly for extraordinary relief.  My guess is that these were run-of-the-mill complaints styled as mandamus petitions by attorneys who were way too riled up and accordingly thought a mandamus petition was the way to go.

They've learned otherwise now.   As should others.

Calm down.  Take your lumps -- if necessary -- in the district court.  Don't waste your time, as well as your client's money, on petitions that essentially serve to merely vent and waste judicial resources.

One other unsolicited piece of advice.  When you're called out like this, fall on your sword.  Don't try to justify what you've done.  It so ain't gonna work.  Just say that you got caught up by the perceived error and your zealous advocacy and accordingly made a mistake.  Apologize.  Sincerely.  Offer to pay.

Anything else will just make things worse.

The trifecta today offers some lessons.  Learn 'em.  Take something away from Littler's pain.  Without -- thankfully -- having to incur it yourself.

Ouch.

POSTSCRIPT - A reader helpfully e-mailed me a copy of one of the petitions for mandamus, which I read.  It's exactly as -- albeit even longer than -- I expected.  Defendant thinks it should have obtained summary judgment, which was denied.  Doesn't want to go to trial (or fight class certification), so on that basis files a writ of mandamus.  Does defendant have a somewhat tolerable story on the merits?  Sure.  They've got a claim.  But notwithstanding that fact, the Ninth Circuit's right that it's clear that it's not an appropriate case for mandamus case.  Indeed, were it otherwise, pretty much every class case with a reasonable dispute on the merits would be subject to mandamus.  That's clearly not the law.  So I agree that it's overboard to seek mandamus here.

At the same time, my initial impression was that Littler was filing a flood of mandamus petitions, and that the Ninth Circuit was -- entirely appropriately -- responding accordingly.  At least from the one petitions, however, it may be that two (or three) of the petitions were "coordinated" in an attempt to get a single-(ish) issue before the Court of Appeals.  If true, that's less sanction-worthy, in my mind, than reflexively filing writs whenever you lose below.  It's still worthy of sanction if you file a clearly meritless petition a single time.  But the number of times you do it is nonetheless relevant.  And here, it's possible that I might treat these as a single "group" were I to think about the appropriate penalty.

My advice nonetheless remains the same.  Indeed, may be even more relevant.  Even if you're totally convinced you're right, stay away from mandamus petitions.  Or at least get careful consideration by an uninterested outsider; one who's entirely separate from the emotions of the case (as well as willing to tell you the truth).  Because otherwise you risk suffering the same fate as here.

In Re S.E. (Cal. Ct. App. - June 26, 2013)

I'm a bit fearful that I may well be perceived as completely lazy if all I do today is quote some opinions.  But I'm going to do it anyway.  Because the things really speak for themselves.

Like this one.

"On April 16, 2008, DCFS received a referral alleging neglect of S.E. (born Oct. 2005)by Mother. The list of medical concerns for the boy included: failure to thrive/oral aversion, delayed speech, anemia, eczema, undescended testes, severe tooth decay, and asthma. Mother signed a voluntary family maintenance contract but, over the ensuing months, she repeatedly failed to adequately care for him and told social workers that her religious beliefs were not compatible with conventional medicine. . . .

On April 25, 2009, the parents abducted S.E. from the site of a monitored visit. The court issued a protective custody warrant for S.E. and arrest warrants for the parents. . . . On February 20, 2011, Father was arrested in New Orleans and provided information as to the whereabouts of Mother and S.E. On March 4, Mother and S.E. were located in the New Orleans area and Mother was arrested. DCFS picked up S.E. and transported him back to Los Angeles, again placing him with the maternal grandparents.

In its disposition report, DCFS recommended that no reunification services be provided to the parents pursuant to section 361.5, subdivision (b)(15), which states that reunification services may be denied when a parent abducts the child from his or her placement and refuses to disclose the child‟s whereabouts or return the child to his or her placement or the social worker. DCFS noted that the physical problems S.E. had at the time of his initial detention were not addressed during the two years following his abduction. The child continued to be at risk for failure to thrive, as he had gained only five pounds in two years. DCFS informed the court that S.E. was in therapy to address issues related to past trauma and separation from his parents. The therapist told the social worker, 'There has been no progress in meeting the goals. He continues to be mute in all environments outside his home and immediate family.' The child was extremely fearful, which the therapist attributed to mental health issues and lack of trust."

Crikey.

In Re Griffin (9th Cir. - June 26, 2013)

I've just finished reading this morning's marriage opinions from the United States Supreme Court.   Fascinating stuff.  On multiple levels.  I won't say anything about them, since others will already do so.  In spades.  But I encourage people to read the opinions.  The competing positions are laid out nicely.

Meanwhile, for a little contrast, here's a one-and-a-half page opinon that's obviously, unquestionably right.  To hold otherwise would have been incredibly -- incredibly -- silly.

Good to see that some appeals can still be dealt with fairly and efficiently.

U.S. v. Hernandez-Meza (9th Cir. - June 21, 2013)

The Ninth Circuit didn't publish anything today.  Or yesterday.  So I thought I'd write something lengthy -- and somewhat digressive -- about an opinion that it rendered on Friday.  Something about which I had an initial reaction when it was published and I then thought about on and off over the weekend.

But I'll start off with an observation.

One of the downsides of writing commentary about published opinions is that you're necessarily going to offend people.  Maybe that's not the case were one to simply write gushing prose about how each and every opinion ever rendered is absolutely wonderful.  But that'd both be boring as well as not particularly helpful to anyone.

By contrast, whenever you take sides, the losing party -- as well as anyone who agrees with them -- may well take offense.  Particularly when you express your agreement with one side or the other strongly.  As I occasionally (but by no means always) do.

The result is a non-trivial amount of hate mail.  Generally from lawyers and litigants.  More often from the latter, as litigants tend to take their cases extremely personally.  But occasionally the former as well.  Sometimes lawyers have really strong positions about the merits of their case.  A view that is sometimes quite different from the view that might be reached by a neutral outside observer.  So when confronted by the latter, the former sometimes feels aggrieved.  Really, really, really aggrieved.

Not always, of course.  Some attorneys and litigants send e-mails that are quite informed and polite.  I appreciate those.  It occasionally gives me additional insight into the dynamics of the case.  It doesn't always change my opinion, of course.  But it's additional information, and that's often good.

But it'd be quite an exaggeration to say that everyone is calm and dispassionate.  It would put things mildly to say that people occasionally have strong -- and strongly articulated -- views about my take on particular cases.
It's not just lawyers, litigants, and interested observers who occasionally get hacked off, however.  A substantial downside of taking positions on particular opinions is that, on occasion, an expression of disagreement with that opinion may evoke a reaction by its author.  Understandably so.  When someone publicly disagrees with you, you can react in one of two ways.  You can view the disagreement as part of a (potentially) vibrant and productive debate.  Or you can perceive the views of the dissenter as utter crap written by an ignorant hack.  Sometimes both.

I take some solace in the belief -- one which I readily concede may be erroneous (either generally or in particular cases) -- that the reaction of judges tends to fall into the former category.  Judges not only author a ton of different opinions, but also tend to have quite healthy egos.  When someone outside the system says the judge got something wrong, hey, that's part of the process.  Happens every day.  No big deal.  A reaction with which I'm eminently familiar on the academic side.  We write law review articles all the time that other academics then trash.  That's the way things work.  Better to be noticed and then slammed than not to be noticed at all.  That's the theory, anyway.

So why this lengthy introduction?

Well, initially, because it in part sets up one of the exceptions to the rule.  Despite the healthy egos of those involved, when something becomes "personal," people occasionally get riled up.  There's a fine line between an intellectual critique and a personal slam.  Moreover, that line is almost exclusively in the eye of the beholder.  What's honestly intended by the author as entirely conceptual comments on a published opinion may nonetheless be perceived by the recipient as a personal attack.  That's a result that is, quite unfortunately, unavoidable.  It's the nature of the beast.  Whenever someone perceives comments to be about not just the opinion, but also about the person who wrote it, tempers sometimes flare.
Why bother saying that?  Well, for one thing, merely as an expression of what's in fact true.  It describes one of the consequences of making almost a decade now of comments on literally thousands of different opinions.

But it also has a more discrete purpose.  Because I'm about to make some personal observations about one particular author of one particular opinion.  Chief Judge Kozinski.  So before I did so, I wanted to get out at the outset that what follows may not be viewed especially kindly.

With this caveat.  As regular readers may know, I'm generally a big fan of AK.  Always have been.  I first met him in law school during one of his "recruiting" poker games, got to interact with his chambers more during my clerkship (since my judge, Judge Reinhardt, and he were -- and are -- both buds and did various things together), and have often interacted with the Chief since then.  Moreover, on the merits, I not only like the way the guy writes, but also very much appreciate his take on things.  Judge K's not a guy you can invariably predict.  He has -- as everyone knows -- a distinct judicial philosophy and ideology.  But he's not an ideologue.  He can surprise you.  I like that.  That makes for more interesting opinions than some other judges -- on both sides of the spectrum -- whose opinions can instantly (and accurately) be predicted based purely on ideology.  When someone gives you surprising results on occasion, that tends to suggest that "reason" may be motivating them to a substantial degree.  That's good.  I'm a big fan of that.  And Judge Kozinski fits that bill.

So that's my overall take on the guy.  One that's sincerely held.

Now let me get to the caveat.  As well as the opinion on Friday that prompts its expression.

We all know that AK's smart, funny, informal, and -- for lack of a better word -- a "character."  Love it or hate it, that's him.  I can't imagine he'd disagree.

But I'll add one more thing into the mix.  Something I also think will (or at least should) be largely undisputed.

Judge Kozinski feels things strongly.  He's far from the only judge on the Ninth for whom that could be accurately said.  But it's nonetheless true.  There are, moreover, particular things about which he is more likely to feel strongly than some other judges.

Since AK likes to make up words (see, e.g., "dissental"), it's probably appropriate to describe one of his attributes accordingly.  Judge Kozinski possesses, in my view, a healthy dose of "jusmeanger."   He is a keen fan of justice.  He can get mean -- really mean -- when he perceives that justice has not been done.  An emotion that in part derives from anger at the resulting injustice.  Jusmeanger.

I think that's an accurate description of a portion of Judge Kozinski's personality.  I'll add one final attribute as well.  Judge Kozinski's justmeanger has increased over time.  He had a healthy dose of it when he was first on the court.  He's got even more of it now.

You see it in oral arguments and in written opinions.  My view -- right or wrong -- is that AK has a streak of jusmeanger in him.  A mile long.

Lots of that I like.  I like justice.  I like striving for it.  I like not accepting injustice.  I too get angry (at least on occasion) when I perceive continuing injustice.

But perhaps, on occasion, Yoda was right.  Jusmeanger can potentially lead one astray.

As in this opinion.

Judge Kozinski's opinion takes a particular view of what transpired here.  A view that's consistent, in my view, with a jusmeanger philosophy.  The AUSA in this otherwise routine border case says that the defendant was an alien who illegally reentered the U.S.  The AUSA's almost certainly right.  He was found in the U.S. and he's not a citizen.  Done deal.  True, his parents eventually became citizens, and if that happens when you're a minor (i.e., under 18), you can sometimes obtain derivative citizenship.  But that didn't happen.  The AUSA knew that the defendant's parents only became citizens when defendant was like 38 or so.  So the guy's an alien.  Hence his criminal prosecution for illegal reentry after being deported.  Relatively straightforward.

The problem, however, arose because the federal public defender here was pretty darn smart.  Since it came out in the government's case-in-chief that defendant's parents may have at some point become U.S. citizens, once the government rested, she moved for a judgment of acquittal, arguing it had not been established beyond a reasonable doubt that the defendant was an alien, since his parents might have become citizens before he turned 18.  Now, we all know, that wasn't, in fact, the case.  He was actually 38.  But what matters is the evidence.  And there was no evidence introduced about when the parents became naturalized.  So, the argument went, the defendant's entitled to an acquittal.

The AUSA didn't anticipate this argument.  Most likely because he knew the defendant was in fact 38 when his parents were naturalized, so "of course" he wasn't 18.  But now realizing that, yeah, I get it, the AUSA moved to reopen the evidence so he could introduce the parent's naturalization certificate that conclusively showed that, yep, the defendant was way over 18 when his parents finally became citizens.

The district court didn't anticipate the public defender's argument either.  He said that he, like the AUSA, was totally surprised by it.  So he indeed let the AUSA reopen the evidence and introduce the certificate, and thereafter, the defendant was convicted.  Hence the appeal.

The Ninth Circuit ultimately decides that the government brought Hendandez-Meza to trial two days late, thereby violating the Speedy Trial Act.  As a result, his conviction gets reversed and remanded.  So that's what happens to the conviction here.  The district court thought a couple of days got excluded when the parties were close to (or had struck) a plea deal.  But it was wrong.  Fair enough.  Seems right to me.

But it's possible that the speedy trial violation might just merely result in a dismissal of the indictment without prejudice.  So the panel goes on to decide whether anything that transpired at trial might result in a dismissal with prejudice.  Hence the opinion's lengthy discussion of the naturalization dispute.

Judge Kozinski decides that even though the trial court has discretion to reopen the evidence, that should nonetheless not have transpired here.  The AUSA and district court said they were surprised by the claim that defendant might have had derivative citizenship.  Judge Kozinski's opinion does a really good job of demonstrating that given the defendant's arguments at trial, no one should have been surprised.  So I'm on board for this result.

Mind you, it's often much easier for an outsider to say -- especially in retrospect -- that a particular defense had been "clearly" set up than it is for a contemporaneous participant to come to a similar conclusion in the midst of a trial.  Especially when one's mind may potentially be clouded by the underlying knowledge that any such defense would be a crock.  When you know that something is demonstrably untrue, it's sometimes harder to pick up on the fact that someone else might be attempting to implicitly claim that the thing's actually true.  That's a flaw, to be sure.  One that lawyers should be both aware of and used to dealing with.  But human nature nonetheless.

But okay.  The AUSA and district court should not have been surprised at the defense.  So reopening the evidence was an abuse of discretion.  I'm fine with this result.  So far, so good.

Again, all this is moot anyway, since the panel's already decided to reverse the conviction on the speedy trial ground.  But okay.  Error on this basis as well.

But it's at this point in the opinion that things start to go sideways.  And jusmeanger rears its head.

Because Judge Kozinski doesn't just stop at saying that the AUSA should have been more attentive.  Or with making the slam that "[n]o competent prosecutor" would have been surprised.  Or even with saying -- without support, in my view -- that "the record is clear that the government was not surprised" by the defense.  (Emphasis in original).  That factual claim -- essentially, calling the prosecutor a liar -- was based solely on statements by the defense counsel that Judge Kozinski thought made the defense clear.  I'm again on board with the concept that the defense likely should have been anticipated.  But the truth of that statement doesn't demonstrate that the AUSA was fibbing when he said that he was in fact totally surprised.  The two are not the same thing.  You can be telling the truth that you were surprised even if your surprise was unreasonable.  In fact, here, I find it totally plausible.  Especially since the district judge said that he too was surprised.  Are they both lying?  Or, instead, is it that both of them are in fact telling the truth, but simply should have been more attentive.  Seems to me that the latter is exceedingly more likely than the former.  Or that the AUSA was lying but the district court was merely mistaken in having the exact same response.

But Judge Kozinski doesn't stop there.  He argues that the government should have known that the mother's naturalization certificate was material and turned it over prior to trial, which it didn't.  That seems plausible.  With the caveat, however, that the defendant almost certainly knew full well that his mother didn't become a citizen until he was 38, two decades after the relevant cutoff date.  So I can see why the AUSA might not have thought it was relevant, and hence didn't disclose it.  Again, he didn't think it was an actual defense.  But okay.  He should have nonetheless turned it over.  I can get on board for that conclusion as well.  As a legal matter, maybe it was, in fact, Rule 16 material.

But Judge Kozinski says not only that it was erroneously not turned over, but that the AUSA might have deliberately refused to comply with his pretrial discovery obligations in an effort to unjustifably convict the defendant.  Here's what he says:  "The record suggests that the government may have deliberately withheld the naturalization certificate from Hernandez-Meza, perhaps hoping to lock him into a defense he couldn't win."  On Judge Kozinski's theory, then, not only was the AUSA lying when he said he didn't realize that the defendant was trying to claim derivative citizenship, but this was his whole plan from the outset.  Trick the defendant into claiming he might be a citizen and then, bam, sock him with evidence the AUSA deliberately withheld during discovery.

Wow.

Judge Kozinski says that he's not making such a finding.  That's a factual matter that only the trial court can decide.  But the court reaches the inference of deliberate misconduct "from the record as a whole." And if the trial court agrees on remand that that's what in fact transpired -- that "the government willfully withheld the certificate" -- "then it should be precluded from introducing the document at any retrial of Hernandez-Meza, or perhaps even suffer a dismissal of the indictment with prejudice."

Oh, and it doesn't stop there.  I was stunned when, at the end of the decision, the panel takes the case away from the district judge on remand, and reassigns it to a different judge.  It's true that the district judge didn't necessarily give a ton of reasons for his decision, and perhaps should have.  But if that's a basis for reassignment, I'll respectfully suggest that around half of reversals should result in similar reassignments.  District court judges during trial don't necessarily articulate at length their reasons.  Especially when, as here, they think that something (e.g., surprise) is "obvious" to everyone.

For an academic conference last year, I went back and read every Ninth Circuit case during the past thrity years that resulted in a reassignment to a district judge on remand.  There aren't many of them.  And quite a large portion of them are what I call "Judge Real" reassignments; i.e., reassignments that are ordered on the de facto (albeit not de jure) ground that the district judge is crazy.

Not one of them involved a reassignment for anything like the error made here.  It's almost as if Judge Kozinski thinks that Judge Anello is as out of control as Judge Real.  Which simply ain't the case.  By a long shot.

How, if at all, does jusmeanger play into this?  I think a lot.

Judge Kozinski cares deeply that the US Attorney's Office play by the rules.  That it uphold the high standards of integrity that we rightfully expect from prosecutors.  He expects similar performance by attorneys in general.  But understandably holds AUSAs to an even higher standard.  He also gets angry -- extremely angry -- when he thinks that they have fallen short of this goal.

He's also suspicious.  Suspicious of the government.  Suspicious of motivations  Suspicious of incompetence.  Suspicious when something that seems so clearly and utterly obvious to someone of his intellectual caliber is alleged to be not so obvious at all.

Lots of this is good.  Many of these attributes I share.

But they can go overboard.  They can result in jusmeanger taking over, and clouding one's judgment.  And that's what I think transpired here.

Is it possible that the AUSA in this cadse is a lying, unethical, manipulative bastard?  Perhaps.  That's within the realm of the possible, anyway.

But in my worldview, at least, that's exceptionally -- exceptionally -- unlikely.

This is a seemingly straightforward border case in an overworked judicial district that sees hundreds of identical cases every single week.  Border crimes get prosecuted by entry-level AUSAs; in other words, kids fresh out of law school.  The AUSA here had been an attorney for less than six years.  Hadn't even gotten out of border crimes yet.  Was, in short, entirely wet behind the ears.

Do we expect even young AUSAs to know and follow the rules?  Of course we do.  But there are two very different versions of what went on here.  Under the first version, you've got a young kid who's doing  a routine case who's inattentive to a possible defense and who's just as surprised as the district judge, a jurist who's been an attorney for four decades and on the state and federal benches for fifteen years.  The competing version is that the AUSA instead deliberately withheld evidence and lied about it, all in order to "trap" a defendant who was crystal clearly guilty anyway.

I find the first version eminently likely.  So much so that I place the odds of the second as not only insubstantial, but perhaps not worth even mention.

Maybe I read the opinion erroneously.  Maybe Judge Kozinski only thinks the "misconduct" version is only 20% likely, rather than 70-80% likely (as the opinion seems to read).  Regardless, that's still twenty or more times more likely than I think is plausible.  Things simply don't work that way in the real world.  At least in my worldview.  Which I readily concede may be different than the panel's.

None of this is to say that the values Judge Kozinski expresses aren't important.  They are.  A ton.

There's just a time and place for jusmeanger.  And when it arises in a case like this one, I have the firm sense that it's overboard.  Leading, as here, to erroneous results.

So that's my overly long, armchair psychoanalysis of Chief Judge Kozinski and its implications for Ninth Circuit doctrine.  Take it for what it's worth.

POSTSCRIPT - A wise reader reminded me of the opportunity to listen to the oral argument.  So I went back and did so.  It was one of those oral arguments where you just cringe.  What Judge Kozinski (along with Judge Wardlaw) said at oral argument was -- not surprisingly -- entirely consistent with what's in the final opinion.  As well as, I might add, with much of what I wrote above.  Indeed, Judge Kozinski was (to his credit) repeatedly forthright about his feelings and reactions to the case.  The AUSA arguing the case in the Ninth Circuit was capable, but was (I think) simply not ready for the attack that came.  As a result, he just didn't have good answers to the panel's questions.  Which in turn led the panel not only to often be frustrated -- and to express that frustration -- with the answers given, but to also (on Judge Kozinski's part) to expressly question whether the AUSA at oral argument was "in on it".   Ouch.  So the argument essentially went exactly as I would have expected from the opinion.  Perhaps even more so.

Cann v. Stefanec (Cal. Ct. App. - June 24, 2013)

When you go to a weight room to do pushups, you assume the risk that someone will drop a set of weights on your head.

So holds the Court of Appeal.

In Re John M. (Cal. Ct. App. - June 21, 2013)

Here's a depressing set of facts to begin the weekend:

"On February 21, 2012, DCFS filed a petition alleging that Toni R. (mother) had bipolar disorder, a 25-year history of substance abuse, and was a current daily abuser of heroin, alcohol, and prescription medication. . . . The detention report stated that John was placed in foster care, and that John‘s older sibling, J.R., had been removed from mother‘s care in 1998 and adopted as a result of mother‘s substance abuse in 2002. At the time of J.R.‘s detention, mother and father had custody of John, but father was in prison. John‘s parents‘ home was in an unsanitary and unsafe condition, with no utilities and no bed for the minor to sleep on. Mother, in addition to a history of substance abuse, had a history of arrests and convictions for drug related offenses, including possession of a controlled substance."

Hopefully it can at least make us all thankful for what we have.

As well as what we lack.

Henry v. Ryan (9th Cir. - June 19, 2013)

Graham Henry is going to die.

Upon reflection, that's not really much of a statement.  We're all going to die, after all.

It's perhaps more accurate to say that Henry's going to be killed.  By the state.

That puts him into a much smaller class.

One might respond that Henry's presumably already in a much smaller class; namely, the class of people who've killed another person.  It probably bears mention that this class is somewhat larger than one might initially conceive, given pervasive wars and the like.  But I take the point.  "Unlawful" killing.  (For now, I'll leave to one side the fact that different eras tend to take very different approaches to the concept of lawful versus unlawful killing, and what conduct falls into which category.  This reality might suggest that our contemporary thoughts on this topic might not be as self-evidently correct as we perhaps perceive.  But let's leave that thought for another day.)

So Henry's in that small group of people who killed someone and who's going to in turn be killed for it.  It's probably worth mention that it's unclear that Henry actually did kill anyone, since there's some reason to believe that his confederate actually pulled the trigger (or, more accurately here, stabbed the knife).  I nonetheless again appreciate the response.  Henry's nonetheless in the small group of people who took part in the taking of another human life.

(I'll mention again that this class of people is also not nearly as small as one might initially conceive.  Think about it.)

Regardless.  Since Henry's going to die at our hands, we take his appeals seriously.  We both (generally) do and definitely should.

I could tell that Henry was going to die when I saw (1) that it was a death penalty case, (2) that there was no dissent, and (3) the panel.  Maybe there's a case in which Judge Fisher, Tallman and Callahan were a panel that unanimously reversed a death penalty.  But I doubt it.

(This is not unique to these particular three judges.  There are lots of three judge Ninth Circuit panels about which I could say the same thing.  Nor is it a one-way ratchet.  There are also three judge death penalty cases where I could figure out that the defendant would prevail by composition of the panel.  I merely note that this is one of those cases where you can almost certainly figure out the result merely by reading the tea leaves.)

Okay, so I know the result in advance.  That doesn't necessarily mean the panel gets it right (or wrong).  How's the analysis?  Again, we want to take these things seriously.

I won't go through the entire thing.  For some reason, I've been writing especially lengthy posts lately.  I can already feel this one won't be an exception.  But I'll at least try to not make it worse.  So I'll just talk about one portion of the opinion.

It's a habeas case.  Arizona.  Roy Estes got stabbed to death in the desert.  Estes gave Henry and a man named Foote a ride from Henderson, Nevada to Arizona.  On that everyone agrees.

The question is whether Henry killed Estes, Foote killed Estes, or both of them killed him.

Henry says that during the ride he was "sleeping it off" in the trailer of Estes' truck when he heard Foote and Estes argue, and that when the truck stopped, Foote killed Estes -- to the total surprise of Henry, who wasn't at all involved.  Arizona says that's not true; that it was either Henry or (more likely) both Henry and Foote that did the killing.

That's why we have a trial.  At trial, the two sides presented their respective theories.  The jury sentenced Henry to death.

There's some interesting parts of the opinion about the state allegedly deliberately fabricating evidence and some other stuff.  But, again, I'm leaving that all to the side, and just focusing on one (short) portion of the opinion.

One of the other things that's undisputed that, at trial, it was unclear whether Estes could really hear (as he claimed) an argument between Foote and Estes when he was sitting in the back of the truck (i.e., in the camper shell) and they were in the cab.  It's also undisputed -- at least on this procedural posture -- that during the trial, two of the jurors conducted an "experiment" on their own in which they drove down a similar gravel road in a similar car to try to ascertain whether Henry was telling the truth and could really hear something like that taking place in the front.  Everyone agrees -- and it's crystal clear -- that's totally improper.  Jurors can't do "experiments" like that.  You've got to decide cases on the evidence at trial, not on stuff that's not introduced and that none of the parties knows about or has any opportunity to refute.  Totally clear.

This seems like a pretty serious claim.  Particularly since a juror testifies that not only did the jurors conduct this experiment, but shared the results with the jury in an attempt to convince them that Henry was lying and should be found guilty and sentenced to death.  Should we be worried about that?

Not according to the Ninth Circuit.  The panel rejects this claim incredibly concisely.  Here's what it says.  Helpfully labelling its arguments "First," "Second," "Third," and "Fourth," with a paragraph devoted to each.

The panel "first" says that many juror misconduct cases that result in reversal involve introduction of evidence that was expressly deemed inadmissible; e.g., prior convictions, inflammatory photographs, etc.  Okay.  I'll accept that as a descriptive matter.  But so what?  I bet lots of these cases also involved defendants without a "y" in their last name, or in states other than Arizona, or where the victim was shot rather than stabbed.  That doesn't matter.  Yes, juror misconduct can take a lot of forms.  Maybe there are cases in which the jury was paid cash -- or plied with alcohol -- in return for returning a death sentence.  I readily concede those would be even worse cases than this one.  Who cares?  That doesn't answer at all whether what transpired here was proper, or constitutes reversible error.  To put it differently, that's an entirely descriptive, rather than normative, assertion.  Moreover, even as a descriptive matter, there are reversals in lots of juror misconduct cases where the misconduct does not involve evidence that was expressly excluded or inflammatory.   Again, that the claims here are in category X or Y don't matter.  Imagine that the jury had collectively gone to the scene and reenacted the murder and concluded, yep, given the topography of the area, it'd have taken two people to drag someone up the hill and kill them, despite the fact that there was no evidence at trial at all about whether the area had hills, and convicted the defendant accordingly.  That'd clearly be reversible error despite the fact that this evidence was not expressly excluded (rather than simply not introduced) or inflammatory.  The argument that the claim here isn't the same as that raised in some other cases simply holds no water.  It's either reversible error or it's not, and the fact that other cases on other facts have reversed for other errors is irrelevant.

The panel "second" says that "whether a person lying in the camper of a truck could hear an argument occurring in the cab fell within the common knowledge of most jurors."  Seriously?  I've been a juror.  I've got some common knowledge.  I have no freaking idea whether you can hear an argument in the front from the back.  Indeed, to the extent I have an idea, based upon my own (quite limited) experience in a camper shell, I'd have thought you totally could hear an argument in the front -- the exact opposite of what the juror's "experiment" purportedly established.  The argument that "everyone already knows that you can't hear an argument in the front when you're in the camper shell" just seems flatly, demonstrably wrong.  Moreover, it's clearly not just me.  If it was so totally obvious, why'd the two jurors feel the need to conduct the experiment in the first place, and/or share it with the others?!  You violate your sworn oath as a juror so you can confirm what everyone already clearly knows?  Seriously?  If somone says something says something obvious, you don't go out and conduct an experiment to prove it.  That the jurors felt the need to prove something -- to themselves and/or other jurors -- seems to me pretty strong (indeed, virtually irrefutable) evidence that it wasn't "within the common knowledge" of most jurors.  A conclusion only supported by my preexisting belief that I'm not the only one who couldn't tell you off the top of my head -- without any evidence introduced at trial on the subject -- whether you can hear an argument from the cab when you're in the shell.

So the first argument the panel makes seems entirely irrelvant, and the second one seems totally wrong.

The "third" argument the panel makes, fortunately, isn't nearly as absurd.  The opinion says that the illegal experiment probably didn't matter because Henry wasn't very credible anyway.  This is an argument that I can potentially buy.  Based largely on the fact that the trial judge thought Henry was "one of the most inherently incredible witnesses [the court] has ever seen testify in a courtroom."  There's no prejudice if Henry's clearly a liar, and the jury already knows it.

But even though this is a potentially plausible story, it's belied to a large extent by what we already know.  That at least some jurors didn't already think that Henry was a big, fat liar since they bothered to go out and conduct an illegal experiment to see if he was lying.  You don't do that if you already know they're a liar.  If I'm a juror and the defendant says "I was in the desert and lifted a 800 pound rock with a twig," and that's in addition to a ton of other things the defendant says about how he has x-ray vision and can predict the future, I don't go out in the desert and try to lift the rock.  That one bothers to investigate is darn good reason to believe that the result is not preordained and that credibility is still at issue.  Moreover, each of the reasons the panel gives for finding Henry totally uncredible seem exceptionally weak to me.  "He left the scene of a murder without reporting it to the police, provided false information to the police and agreed not to tell the police about a murder and then reneged on that agreement once it was advantageous for him to do so."  Really?  Innocent people who have just seen their friend suddenly kill someone could never possibly do that?  Everyone would stay at the scene and turn in their friend?  No one would simply hope the friend wouldn't get caught, and would only rat out their friend once they themselves were told they'd be charged with the murder?  That you don't report a crime and provide a false i.d. to the police necessarily means that you're the murderer?  All I'll say is that that's a very different vision of human nature than the one that I have, anyway.

The panel concludes with its "fourth" argument that the jury could have convicted Henry anyway "under a felony-murder or accomplice theory even if it believed Henry's story that he was in the camper."  That's somewhat true, I guess.  Yes, if Henry's in the camper shell, then gets woken up and starts helping to kill the victim, sure, he's guilty.  But that's not what either side said went down.  Was Henry was sleeping it off in the back (as he said) or was an active participant at the outset (as the state said) is a pretty relevant fact, no?  Some of the jurors certainly thought so.  So much so that two of them bothered to conduct a clearly improper experiment to try to figure out which version was the truth.  Why do so if you're already going to convict someone on a felony murder theory anyway?  Plus, isn't it exceedingly relevant to the appropriate sentence whether Henry's involved at the outset and/or the actual stabber, as opposed merely someone who drags a lifeless (or dying) body up a hill?  You're telling me that couldn't possibly matter at all?  The fact that a jury could have found Henry guilty even if we was sleeping it off in the back doesn't tell us much at all about whether it would have done so.  That's the prejudice inquiry, and the panel's final argument doesn't address that dispositive point at all.

This is all a long-winded way of saying that the panel's analysis on this point seems incredibly weak.  As well as doesn't exactly display the sort of incredibly serious, deliberate inquiry that one would hope and expect when we're dealing with whether someone lives or dies.  Casual, specious arguments thrown out in one-sentence paragraphs -- which is what exists here -- is certainly not what I would hope for were my life the one at issue.

One final point.  Whether or not you think the arguments above have merit, do you really think that every reasonable person would uniformly agree that the panel's arguments here are clearly right?  That there's no legitimate ground for debate about whether the jurors' illegal experiments might have influenced the verdict?  That the issues are simply not "debatable among jurists of reason?"

Because that's the standard.  The panel denies even a certificate of appealability on this point.  Because the answer's so crystal clear that no reasonably objective person could possibly disagree.  You'd have to be, oh, I don't know, so academic nutjob from the southern portion of some fruity state to fail to get that this one's a total no-brainer.  Someone absurd like that.  No actual jurist could find the issue even subject to legitimate debate.

That's the panel's holding.

I guess I can sum up my quite-extended thoughts on that point fairly simply.  I'm going to have to pretty clearly disagree about that.

Flores v. Chevron USA (Cal. Ct. App. - June 20, 2013)

There are several meritorious class action out there.  Then there are ones like this.

There's a reason it only takes the Court of Appeal six double-spaced pages to dispose of the matter.  It's true that retailers generally can't obtain ZIP code information from customers unless it's for a special purpose.  But one of those legitimate special purposes is to make sure there's no fraud.  Which is why, here, gas stations can't require that you enter your ZIP code when you make a purchase.  Particularly when -- again, as here -- they don't use that information for any other purpose, and then delete it after the transactions are verified.

Entirely reasonable.

In Re Stake Center Locating (9th Cir. - June 19, 2013)

This one brought a smile to my face. 

Everyone on the panel agrees that the petition is meritless.  They just disagree about how meritless it is; whether it's unripe/premature, or manifestly silly on the merits as well.

On the upside, it didn't take much effort to resolve.  The whole petition gets decided within three weeks or so, soup to nuts.  Those Crime Victim Rights Act cases definitely get cranked out! 

That's admittedly what the underlying statute requires.  But I'm happy to see that the time pressure doesn't really affect quality much.  Sure, the opinions are shorter.  But they're no less right.

Lopez-Valenzuela v. County of Maricopa (9th Cir. - June 18, 2013)

Arizona is probably happy that, after losing in the Supreme Court yesterday, it won in the Ninth Circuit today.

But its celebration should be tempered.  Because my sense is that this one's going en banc.