This is an important opinion. That may well not get nearly the judicial attention that it deserves.
The question presented is whether you can have a consensual settlement conference with a magistrate judge in a federal criminal case. Those familiar with the criminal side may say: "How is that actually a question? There are settlement rules in tons of federal courts that expressly allow this practice, and the Ninth Circuit has repeatedly held that this practice is okay." And that's exactly right. Whereas the federal judge who's in charge of your case can't participate in plea negotiations (since there's too great of a risk of coercion), the Ninth Circuit has long held that it's perfectly okay for a different judge to act as a mediator and to try to see if the parties can't work out a mutually beneficial deal.
But today, the Ninth Circuit says that's no longer the rule. No judicial involvement in plea deals. Not even with "neutral" (non-involved) judges. Period.
Personally, I'm agnostic about whether settlement judges in federal criminal cases are a good idea. I am definitely against the involvement of the judge in the particular case being involved in negotiations -- that's way too dangerous, since the defendant (and/or prosecutor) might think that if she refuses a proposed deal that the judge says is a good one the judge might take it out on them at trial and/or at sentencing. But a "neutral" judge that's otherwise not involved at all in the underlying case? That's a different situation. Maybe it's a good idea, since those judges have expertise and can help the parties settle. But maybe it's still a bad idea, since there might still be the fear of coercion in other cases; e.g., in other cases the prosecutor or public defender may have in front of this judge.
In short, I'm not at all sure what the right rule should be. I can see very plausible arguments on both sides.
But the Ninth Circuit holds today that the rule is that judges categorically can't be involved. In an opinion that may well be subject to substantial doctrinal critique.
For one thing, there's this little thing called circuit precedent. The Ninth Circuit has repeatedly held that settlement conference precisely like the one that transpired here are perfectly okay; moreover, that such conferences don't violate Rule 11(c)'s command that the federal court not be involved in any plea negotiations. Judge Murguia's opinion says that these cases are inconsistent with the subsequent 2013 holding of the Supreme Court in Davila. When I first read today's opinion, Judge Murguia's interpretation of that case seemed right. But when I then actually went and read Davila, I'm not at all certain that Davila actually justifies the panel's non-en banc departure from circuit precedent. If only because Davila's discussion of the issue is not only way dicta, but is also world's apart from what's at issue here.
In the present situation, we're dealing with (1) a settlement conference, (2) that everyone attended, and (3) was conducted pursuant to a district court rule. By contrast, in Davila, the magistrate judge simply sua sponte pulled in the criminal defendant in an ex parte proceeding and essentially told him that he'd be better off pleading guilty than going to trial.
In that setting, the United States admitted that the judge's conduct was improper. And the Supreme Court accepted that (undisputed) concession, noting that "the prohibition [in FRCP 11] was included out of concern that a defendant might be
induced to plead guilty rather than risk displeasing the
judge who would preside at trial." (Remember: We're not talking in the present case about involving the judge who would preside at trial. We're talking about involving a totally unrelated judge.) And then the Supreme Court's opinion went on to discuss the only issue on which it actually granted certiorari: whether a violation of Rule 11 was structural error requiring automatic reversal. ("We granted certiorari to resolve a Circuit conflict concerning
the consequences of a Rule 11(c)(1) violation.")
That's what Davila was about. The introductory two paragraphs on page 7 of that opinion that discuss the history of Rule 11 and why we (rightly) don't allow the trial judge to participate in plea negotiations don't seem dispositive of whether we should allow some other judge to do so. Now, in Davila, it wasn't the trial judge who pulled in the defendant -- it was a magistrate judge. But the fact that the Supreme Court accepted an admission that this was improper, and then held that this did not require reversal, hardly to me seems to require that a panel in the Court of Appeals to invalidate circuit precedent that says that formal settlement conferences in front of neutral judges are okay. I could easily see a judge saying that one of these things was not okay whereas another was just fine. Particularly given the factual contexts in which these two issues presented themselves; e.g., the clearly non-coercive judicial conversation at issue in the present case versus the very different types of judicial statements at issue in Davila.
So, as a matter of precedent, I'm not sure that today's opinion is on incredibly solid footing. I think there's a very decent argument that the panel wasn't free to depart from what the Ninth Circuit has repeatedly said is the right rule.
Moreover, as a matter of text, I also don't think that Judge Murguia's opinion is entirely bulletproof. She says that the prior Ninth Circuit cases didn't "address, much less resolve, the conflict between the plain
language of Rule 11(c)(1)—which categorically prohibits
“[t]he court” from participating in plea negotiations—and the
local rule’s allowance of judge-led criminal settlement
conferences." Put to one side that these cases nonetheless approved the practice at issue as consistent with Rule 11 and drew the longstanding distinction (at issue here) between involvement of the trial/sentencing judge versus a "neutral" judge. Simply as a matter of textual interpretation, I'm not so sure that Rule 11 is nearly as "plain" as Judge Murguia reads it.
Today's opinion says that Rule 11(c)(1) is crystal clear since it prohibits "the court" from engaging in any plea negotiations. Judge Murguia then says that this phrase unambiguously applies to the judge here since Rule 1(b)(2) defines "court" as including a federal judge performing any judicial function and Rule 1(b)(3) says that includes magistrate judges.
Fair enough. But I'm not sure that the word "court" is really the one that's at issue. Rather, it seems to me that we're focusing on what Rule 11 means when it says that "the" court isn't allowed to be involved in plea negotiations. Does "the" court refer to the trial court (i.e., the trial/sentencing court), which is the distinction that prior circuit precedent draws, or does it merely mean "any" court (i.e., even the otherwise uninvolved magistrate judge)? That's the relevant textual issue. And there's no definition anywhere of the word "the".
(Oh, and for what it's worth, the Federal Rules of Criminal Procedure use the phrase "a court" rather than "the court" in about a dozen or so different rules, including Rules 12, 32.2, 49, and 56, making it at least plausible to argue that when the rule makers wanted to preclude any court from doing a certain thing, they knew perfectly well how to do so, and that there's a textual distinction been "the" court and "a" court doing a particular thing.)
Remember that we're talking about whether the panel was permitted to overrule circuit precedent here. That seems a very sticky wicket, especially since the proper resolution of this issue is (despite Judge Murguia's textual and precedential analysis) far from clear.
So why do I think this very important case -- one that'll strike down formal settlement programs in the Northern District of California and elsewhere -- might not get the judicial attention it may well deserve? Two reasons.
One, the composition of the panel. The opinion is unanimous. It's written by Judge Murguia and joined by Judges McKeown and Friedland. That's a credible bunch. As well as three votes of active judges presumptively against en banc review.
Second, and perhaps even more importantly, because the case here comes out against the defendant. The panel holds that the judicial involvement of the magistrate judge here was error -- and hence district courts will have to dismantle their criminal settlement programs -- but that the error here did not prejudice this defendant's substantial rights because he knowingly participated in the process and indeed benefited from it. Hence his conviction is affirmed.
Given this result, who's going to petition for rehearing en banc or seek of writ of certiorari? Sure, the defendant might, claiming that his rights were indeed violated, but that's going nowhere. By contrast, the United States might be seriously unhappy with the Rule 11 holding, but they won, so a petition by them may not get nearly the traction that one might otherwise receive were they actually to have lost the case.
Sort of a Marbury v. Madison type of thing. Effectively unreviewable notwithstanding the fact that review is possible.
A very important case. One that affects a ton of criminal cases.
We'll see what -- if anything -- happens to the opinion from here.
Monday, September 14, 2015
Wabakken v. California Dep't of Corrections (9th Cir. - Sept. 14, 2015)
Usually when the Ninth Circuit lists the counsel for the parties, it includes the lawyer's name followed by his or her firm. But here, counsel for appellant is listed simply as "Derek T. Anderson, Attorney at Law."
The unadorned name doesn't matter, though. He wins.
The unadorned name doesn't matter, though. He wins.
Friday, September 11, 2015
In Re Landmark Fence (9th Cir. - Sept. 11, 2015)
Judge McKeown is right in this bankruptcy appeal. There's no appellate jurisdiction here. The case isn't over. There's no final judgment. So the appeal is properly dismissed.
Judge McKeown is also a bit snarky about the inexplicable delay in being told by the parties that the underlying bankruptcy petition had been dismissed seven months prior to the scheduled oral argument in the Ninth Circuit. But this snark seems justified. I'd be snarky too. And do the same thing that she (and the rest of the panel) do: dismiss the appeal and leave the mootness issue for resolution by the lower courts. They can sort it out.
One more thing. Isn't it ironic that the first sentence of the legal analysis in Judge McKeown's opinion reads: "Although both parties urge us to decide this appeal on its merits, “[i]t needs no citation of authorities to show that the mere consent of parties cannot confer upon a court of the United States the jurisdiction to hear and decide a case.'" And then cites a case.
Judge McKeown is also a bit snarky about the inexplicable delay in being told by the parties that the underlying bankruptcy petition had been dismissed seven months prior to the scheduled oral argument in the Ninth Circuit. But this snark seems justified. I'd be snarky too. And do the same thing that she (and the rest of the panel) do: dismiss the appeal and leave the mootness issue for resolution by the lower courts. They can sort it out.
One more thing. Isn't it ironic that the first sentence of the legal analysis in Judge McKeown's opinion reads: "Although both parties urge us to decide this appeal on its merits, “[i]t needs no citation of authorities to show that the mere consent of parties cannot confer upon a court of the United States the jurisdiction to hear and decide a case.'" And then cites a case.
Grupp v. DHL Express (Cal. Ct. App. - Sept. 11, 2015)
Sometimes the California Supreme Court wants the Court of Appeal to reconsider its opinion. So it does.
And sometime this is what the Court of Appeal says:
"We filed our original opinion in this matter on April 11, 2014, and affirmed. Subsequently, the Relators petitioned our Supreme Court for review, and that petition was granted. On May 20, 2015, our Supreme Court transferred review of the matter to us under California Rules of Court, rule 8.528(d) with instructions that we reconsider our prior opinion in light of People ex rel. Harris v. PAC Anchor Transportation, Inc. (2014) 59 Cal.4th 772 (Pac Anchor). After considering Pac Anchor, we conclude it has no application here, and again affirm the trial court’s order."
Your turn, California Supreme Court.
And sometime this is what the Court of Appeal says:
"We filed our original opinion in this matter on April 11, 2014, and affirmed. Subsequently, the Relators petitioned our Supreme Court for review, and that petition was granted. On May 20, 2015, our Supreme Court transferred review of the matter to us under California Rules of Court, rule 8.528(d) with instructions that we reconsider our prior opinion in light of People ex rel. Harris v. PAC Anchor Transportation, Inc. (2014) 59 Cal.4th 772 (Pac Anchor). After considering Pac Anchor, we conclude it has no application here, and again affirm the trial court’s order."
Your turn, California Supreme Court.
Thursday, September 10, 2015
Shirley v. University of Idaho (9th Cir. - Sept. 10, 2015)
Plaintiff says X in his original complaint. Plaintiff subsequently amends his complaint to say Y.
The district court thinks that Y (the allegation in the amended complaint) is inconsistent with X (an allegation in the original pleading), so dismisses the lawsuit.
The Ninth Circuit summarily reverses. Holding that factual allegation Y is not, in fact, inconsistent with factual allegation X.
But what if it was?
On that -- admittedly irrelevant (at least here) issue -- both Judge Canby and Judge Kozinski want you to know their views. (While Judge Schroeder, who was also on the motions panel, exercises her right to remain silent.)
There's a prior Ninth Circuit opinion (PAE) that says you can't dismiss an amended complaint merely because it contradicts an earlier complaint. But there's a different prior Ninth Circuit opinion (Reddy) that says that a complaint can be dismissed with prejudice -- i.e., without leave to amend -- if any amended complaint would (impermissibly) contradict the allegations of the original complaint.
Judge Canby thinks those two cases are inconsistent. Judge Kozinski, by contrast, thinks those two authorities are consistent.
So both of 'em write a concurrence that explains their respective views of precedent.
Despite the fact that everyone agrees that this dispute doesn't matter in the slightest in the present case. In which the competing allegations in the various complaints do not, in fact, contradict each other.
It's an interesting dispute. And since Judges Canby and Kozinski think it's valuable to express their views, I'll tell you mine.
Judge Kozinski's a little bit right that the cases are doctrinally distinguishable. He says -- correctly -- that the PAE line of cases holds that you're not allowed to dismiss a complaint on the ground that it contradicts an earlier complaint because there's simply no rule that authorizes such a dismissal. On this point, he's right. You can look at every page of the FRCP and you're not going to find such an express provision. Sure, you might be sanctioned under Rule 11 or the like. But there's no rule that expressly authorizes the actual dismissal of a complaint on the grounds of a factual contradiction.
By contrast, Judge Kozinski says, there is a rule that says that you're not required to grant leave to amend when an amendment would be "futile". That rule, Judge Kozinski says, is why a court is not only allowed to, but must look at the prior complaint to see if any future amendment would plausibly articulate a claim. 'Cause leave to amend is required unless amendments are futile, and amendments are futile if they will contradict a prior allegation. That explains the Reddy line of precedent.
Hence, Judge Kozinski says, the two situations are distinguishable.
And he has a point.
Judge Canby, by contrast, thinks those two lines of precedent aren't rationally distinguishable. And he has a pretty darn good point as well.
Let me articulate Judge Canby's point in a way that's a bit more expansive than the way he puts it. (A feat that's necessary in part because Judge Canby's four-paragraph concurrence doesn't really explain his conclusion apart from pointing out -- correctly -- that the two lines of cases seem darn similar and are facially contradictory.) Here's how I'd put it:
The best argument for inconsistency, in my view, is that it makes absolutely no sense to say that a court must accept an amended complaint that contradicts the original complaint -- i.e., isn't allowed to dismiss the amended complaint on grounds of inconsistency -- and yet is simultaneously allowed to stop the amended complaint from ever being filed in the first place on precisely such inconsistency grounds. Judge Kozinski admits that Ninth Circuit precedent (Reddy) says that a district court can prevent a party from contradicting itself by finding that an amended complaint would contradict the original complaint and hence be "futile" -- thereby dismissing the original complaint without leave to amend and with prejudice. Well, if it's permissible to stop the filing of a contradictory complaint in the first place, then why can't you dismiss that same complaint once it's filed?! A regime that said (1) we can -- and affirmatively want to -- stop people from filing contradictory complaints in the first place, and a district court can permissibly do that, but (2) once a contradictory complaint is filed, we have to let it go forward; well, such a regime would make no sense. It'd be intellectually incoherent. The justification for (1) would be inconsistent with the justification for (2).
It'd be -- ironically enough, given the topic -- inconsistent for the judiciary to so hold.
Now, Judge Kozinski might perhaps respond: "Hey, dude, I just enforce the rules, I don't make 'em. The FRCP says you can dismiss a lawsuit in (1), but doesn't say you can do it in (2). I'm not saying that necessarily makes any sense. But that's what it says, so that's what I'm doing. Your beef is with the Supreme Court and Congress if you want the FRCP as a whole to make sense."
That's a plausible response. But it only goes so far. For two reasons.
First, there are lots of procedural rules that we routinely apply that aren't in the FRCP. Judicial estoppel, for one. Tons of others. So I'm not at all sure you can't say that just like you apply those common law rules to authorize dismissal of complaints, a similar common law rule doesn't authorize dismissal in cases where the amended complaint contradicts the original. See, e.g., dismissals based on judicial estoppel. Oh, and, by the way, among the other common law requirements that we impose is the rule that Judge Kozinski applies regarding futility. Look in the entire FRCP. You won't find the word "futility" once. It's a common law gloss on what it means for "justice" to either allow or disallow amendments. It's a judge-made rule. If that's a judge-made rule against inconsistency in proposed amendments, and you're fine with that, it seems like we can be equally fine with a similar judge made rule against inconsistency in actual amendments as well.
Second, we are interpreting words here. Namely, in situation (1), the meaning of the word "futile" (albeit in the context of what that means for a judge-made doctrine). Because if you really thought that parties were allowed to actually file amend pleadings that contradicted their original complaint -- e.g., that a court was not allowed to dismiss such pleadings -- then it wouldn't be "futile" to allow such an amendment, now would it? And yet Reddy says that it is "futile" to allow amendments that would contradict the original pleading. It's "futile" only if that contradictory amendment would be dismissed. Yet PAE says that such a contradictory amendment cannot, in fact, be dismissed.
Doesn't make sense.
Plus, wholly apart from the logical, doctrinal, and policy-based inconsistencies, there's a practical one as well. Which rule applies when?
Judge Kozinski would say that Reddy applies when a court dismisses an original complaint and is "thinking" about a "hypothetical" amended complaint. That's when you can permissibly reject those complaints that would contain contradictory allegations. Whereas, according to Judge Kozinski, when the amended (contradictory) complaint has already been filed, there's nothing you can do about it (or at least, even if you can sanction it, you can't dismiss it).
But what about when -- as in the present case -- there's an existing original complaint and the plaintiff asks permission to file an amended complaint. Hasn't yet. Is asking (as often required by Rule 15) to file it. What rule? Presumably now there's a text (Rule 15) that says that a court can refuse to allow such an amendment, so those things get bounced, right? Yet doesn't it seem totally bizarre to say that an allegation filed on Day 21 (e.g., as a matter of right) goes forward, even though totally belied by the original pleading, and yet that same allegation filed on Day 22 (e.g., when leave of court is required) gets categorically bounced. As well as that an allegation filed on Day 22 can't be bounced if the adverse party has stipulated to it (e.g., no permission is required).
Not that Judge Canby's view doesn't have distinction problems of its own. For example, let's say that the original complaint says that a tort transpired on December 7, 1941 (a date outside the limitations period), but the amended complaint says it instead transpired on December 7, 2014 (which would be inside it). Absent a darn good explanation (e.g., a typo), a consistent view of inconsistency would say that the amended complaint gets bounced because it contradicts the first.
But what if the situation was reversed; e.g., the original complaint says December 7, 2014 but the amended complaint says 1941? Are we really going to say that the guy can't amend his complaint because it contradicts the first? And what's the remedy: Do we bounce the entire dispute, or do we simply let the first complaint go forward? (Assume that the guy here has an absolute right to amend, so permission isn't required, and the second "automatically" displaces the first. Is there dismissal of the second complaint on inconsistency grounds and then that's it? Seems like it. Even though what we'd really want to do, if justice is our goal (and it is), is to go back to the first.)
So here's where I come out:
Judge Kozinski is right that you can ostensibly distinguish the two cases. In the same way that you could distinguish the two cases by saying: "Well, in one case, the plaintiff's name was an acronym, and in the other case, he had an actual spelled-out name." In short, yeah, you could distinguish the two cases, but that distinguishing characteristic would make no sense. It wouldn't create a good or principled rule. The principle that motivates the one set of cases is intellectually inconsistent from the result in the second group of cases."
Which is a bit more like Judge Canby's position.
So, in the end, we have an interesting -- albeit entirely unnecessary (in the context of the present case, anyway) -- dispute.
One that may well matter in a ton of cases. And that we'll eventually have to, or at least should, get right.
The district court thinks that Y (the allegation in the amended complaint) is inconsistent with X (an allegation in the original pleading), so dismisses the lawsuit.
The Ninth Circuit summarily reverses. Holding that factual allegation Y is not, in fact, inconsistent with factual allegation X.
But what if it was?
On that -- admittedly irrelevant (at least here) issue -- both Judge Canby and Judge Kozinski want you to know their views. (While Judge Schroeder, who was also on the motions panel, exercises her right to remain silent.)
There's a prior Ninth Circuit opinion (PAE) that says you can't dismiss an amended complaint merely because it contradicts an earlier complaint. But there's a different prior Ninth Circuit opinion (Reddy) that says that a complaint can be dismissed with prejudice -- i.e., without leave to amend -- if any amended complaint would (impermissibly) contradict the allegations of the original complaint.
Judge Canby thinks those two cases are inconsistent. Judge Kozinski, by contrast, thinks those two authorities are consistent.
So both of 'em write a concurrence that explains their respective views of precedent.
Despite the fact that everyone agrees that this dispute doesn't matter in the slightest in the present case. In which the competing allegations in the various complaints do not, in fact, contradict each other.
It's an interesting dispute. And since Judges Canby and Kozinski think it's valuable to express their views, I'll tell you mine.
Judge Kozinski's a little bit right that the cases are doctrinally distinguishable. He says -- correctly -- that the PAE line of cases holds that you're not allowed to dismiss a complaint on the ground that it contradicts an earlier complaint because there's simply no rule that authorizes such a dismissal. On this point, he's right. You can look at every page of the FRCP and you're not going to find such an express provision. Sure, you might be sanctioned under Rule 11 or the like. But there's no rule that expressly authorizes the actual dismissal of a complaint on the grounds of a factual contradiction.
By contrast, Judge Kozinski says, there is a rule that says that you're not required to grant leave to amend when an amendment would be "futile". That rule, Judge Kozinski says, is why a court is not only allowed to, but must look at the prior complaint to see if any future amendment would plausibly articulate a claim. 'Cause leave to amend is required unless amendments are futile, and amendments are futile if they will contradict a prior allegation. That explains the Reddy line of precedent.
Hence, Judge Kozinski says, the two situations are distinguishable.
And he has a point.
Judge Canby, by contrast, thinks those two lines of precedent aren't rationally distinguishable. And he has a pretty darn good point as well.
Let me articulate Judge Canby's point in a way that's a bit more expansive than the way he puts it. (A feat that's necessary in part because Judge Canby's four-paragraph concurrence doesn't really explain his conclusion apart from pointing out -- correctly -- that the two lines of cases seem darn similar and are facially contradictory.) Here's how I'd put it:
The best argument for inconsistency, in my view, is that it makes absolutely no sense to say that a court must accept an amended complaint that contradicts the original complaint -- i.e., isn't allowed to dismiss the amended complaint on grounds of inconsistency -- and yet is simultaneously allowed to stop the amended complaint from ever being filed in the first place on precisely such inconsistency grounds. Judge Kozinski admits that Ninth Circuit precedent (Reddy) says that a district court can prevent a party from contradicting itself by finding that an amended complaint would contradict the original complaint and hence be "futile" -- thereby dismissing the original complaint without leave to amend and with prejudice. Well, if it's permissible to stop the filing of a contradictory complaint in the first place, then why can't you dismiss that same complaint once it's filed?! A regime that said (1) we can -- and affirmatively want to -- stop people from filing contradictory complaints in the first place, and a district court can permissibly do that, but (2) once a contradictory complaint is filed, we have to let it go forward; well, such a regime would make no sense. It'd be intellectually incoherent. The justification for (1) would be inconsistent with the justification for (2).
It'd be -- ironically enough, given the topic -- inconsistent for the judiciary to so hold.
Now, Judge Kozinski might perhaps respond: "Hey, dude, I just enforce the rules, I don't make 'em. The FRCP says you can dismiss a lawsuit in (1), but doesn't say you can do it in (2). I'm not saying that necessarily makes any sense. But that's what it says, so that's what I'm doing. Your beef is with the Supreme Court and Congress if you want the FRCP as a whole to make sense."
That's a plausible response. But it only goes so far. For two reasons.
First, there are lots of procedural rules that we routinely apply that aren't in the FRCP. Judicial estoppel, for one. Tons of others. So I'm not at all sure you can't say that just like you apply those common law rules to authorize dismissal of complaints, a similar common law rule doesn't authorize dismissal in cases where the amended complaint contradicts the original. See, e.g., dismissals based on judicial estoppel. Oh, and, by the way, among the other common law requirements that we impose is the rule that Judge Kozinski applies regarding futility. Look in the entire FRCP. You won't find the word "futility" once. It's a common law gloss on what it means for "justice" to either allow or disallow amendments. It's a judge-made rule. If that's a judge-made rule against inconsistency in proposed amendments, and you're fine with that, it seems like we can be equally fine with a similar judge made rule against inconsistency in actual amendments as well.
Second, we are interpreting words here. Namely, in situation (1), the meaning of the word "futile" (albeit in the context of what that means for a judge-made doctrine). Because if you really thought that parties were allowed to actually file amend pleadings that contradicted their original complaint -- e.g., that a court was not allowed to dismiss such pleadings -- then it wouldn't be "futile" to allow such an amendment, now would it? And yet Reddy says that it is "futile" to allow amendments that would contradict the original pleading. It's "futile" only if that contradictory amendment would be dismissed. Yet PAE says that such a contradictory amendment cannot, in fact, be dismissed.
Doesn't make sense.
Plus, wholly apart from the logical, doctrinal, and policy-based inconsistencies, there's a practical one as well. Which rule applies when?
Judge Kozinski would say that Reddy applies when a court dismisses an original complaint and is "thinking" about a "hypothetical" amended complaint. That's when you can permissibly reject those complaints that would contain contradictory allegations. Whereas, according to Judge Kozinski, when the amended (contradictory) complaint has already been filed, there's nothing you can do about it (or at least, even if you can sanction it, you can't dismiss it).
But what about when -- as in the present case -- there's an existing original complaint and the plaintiff asks permission to file an amended complaint. Hasn't yet. Is asking (as often required by Rule 15) to file it. What rule? Presumably now there's a text (Rule 15) that says that a court can refuse to allow such an amendment, so those things get bounced, right? Yet doesn't it seem totally bizarre to say that an allegation filed on Day 21 (e.g., as a matter of right) goes forward, even though totally belied by the original pleading, and yet that same allegation filed on Day 22 (e.g., when leave of court is required) gets categorically bounced. As well as that an allegation filed on Day 22 can't be bounced if the adverse party has stipulated to it (e.g., no permission is required).
Not that Judge Canby's view doesn't have distinction problems of its own. For example, let's say that the original complaint says that a tort transpired on December 7, 1941 (a date outside the limitations period), but the amended complaint says it instead transpired on December 7, 2014 (which would be inside it). Absent a darn good explanation (e.g., a typo), a consistent view of inconsistency would say that the amended complaint gets bounced because it contradicts the first.
But what if the situation was reversed; e.g., the original complaint says December 7, 2014 but the amended complaint says 1941? Are we really going to say that the guy can't amend his complaint because it contradicts the first? And what's the remedy: Do we bounce the entire dispute, or do we simply let the first complaint go forward? (Assume that the guy here has an absolute right to amend, so permission isn't required, and the second "automatically" displaces the first. Is there dismissal of the second complaint on inconsistency grounds and then that's it? Seems like it. Even though what we'd really want to do, if justice is our goal (and it is), is to go back to the first.)
So here's where I come out:
Judge Kozinski is right that you can ostensibly distinguish the two cases. In the same way that you could distinguish the two cases by saying: "Well, in one case, the plaintiff's name was an acronym, and in the other case, he had an actual spelled-out name." In short, yeah, you could distinguish the two cases, but that distinguishing characteristic would make no sense. It wouldn't create a good or principled rule. The principle that motivates the one set of cases is intellectually inconsistent from the result in the second group of cases."
Which is a bit more like Judge Canby's position.
So, in the end, we have an interesting -- albeit entirely unnecessary (in the context of the present case, anyway) -- dispute.
One that may well matter in a ton of cases. And that we'll eventually have to, or at least should, get right.
Wednesday, September 09, 2015
People v. Mendoza (Cal. Ct. App. - Sept. 2, 2015)
The evidence that Mr. Mendoza molested a kid is fairly overwhelming. So he's convicted of that.
The evidence that he "possessed child pornography," by contrast, is incredibly slim. The mother of the molested child says that she broke into his Facebook account (where images from his cell phone were, she says, automatically backed up) and saw two pictures of him molesting her child, which she says she immediately deleted. But Facebook can't find them anywhere (because deleted images are "forever deleted") and even a detailed forensic examination of Mr. Mendoza's phone and other records can't find any evidence whatsoever that such pictures were ever taken.
But the mother says she saw them, and the Court of Appeal says that alone is sufficient proof beyond a reasonable doubt. A jury can believe a witness if it wants even if we'd expect computer forensics to find deleted images but doesn't.
So Mr. Mendoza gets a total sentence of 67 years to life.
The Court of Appeal's right that you don't need direct evidence of a crime and that credibility questions are for a jury. Mr. Mendoza is right that it's incredibly unusual to be found guilty of child pornography when there are no actual pictures put into evidence, especially when the computer people say there's no physical evidence they were actually ever there either.
But, unfortunately for Mr. Mendoza, given the overwhelming evidence against him on the molestation counts, I'm fairly confident his plight does not create overwhelming sympathy for his legal position in the Court of Appeal. Or anywhere else, for that matter.
The evidence that he "possessed child pornography," by contrast, is incredibly slim. The mother of the molested child says that she broke into his Facebook account (where images from his cell phone were, she says, automatically backed up) and saw two pictures of him molesting her child, which she says she immediately deleted. But Facebook can't find them anywhere (because deleted images are "forever deleted") and even a detailed forensic examination of Mr. Mendoza's phone and other records can't find any evidence whatsoever that such pictures were ever taken.
But the mother says she saw them, and the Court of Appeal says that alone is sufficient proof beyond a reasonable doubt. A jury can believe a witness if it wants even if we'd expect computer forensics to find deleted images but doesn't.
So Mr. Mendoza gets a total sentence of 67 years to life.
The Court of Appeal's right that you don't need direct evidence of a crime and that credibility questions are for a jury. Mr. Mendoza is right that it's incredibly unusual to be found guilty of child pornography when there are no actual pictures put into evidence, especially when the computer people say there's no physical evidence they were actually ever there either.
But, unfortunately for Mr. Mendoza, given the overwhelming evidence against him on the molestation counts, I'm fairly confident his plight does not create overwhelming sympathy for his legal position in the Court of Appeal. Or anywhere else, for that matter.
Tuesday, September 08, 2015
Harkonen v. U.S. Dep't of Justice (9th Cir. - Sept. 8, 2015)
Here's a great example -- both doctrinally as well as normatively -- of how Chevron deference works.
The U.S. Department of Justice issues a press release about Dr. Harkonen. Dr. Harkonen asserts that the press release contains demonstrably false information about him. He finds a statute that says that federal agencies are required to develop effective administrative procedures "allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency." So he asks the DOJ to remove the false information about him, or at least allow him an administrative procedure to try to prove that the stuff is false.
But the DOJ says that its press releases are categorically exempt from the statute because they don't really count as "information . . . disseminated by the agency." So it tells Dr. Harkonen to pound sand.
The Ninth Circuit agrees.
The statute's ambiguous. An agency (OMB) is entrusted with interpreting it. It has done so. While perhaps erroneous, its construction is at least reasonable. End of story.
That's how Chevron deference works. A concise little opinion by Judge Noonan explains it.
The U.S. Department of Justice issues a press release about Dr. Harkonen. Dr. Harkonen asserts that the press release contains demonstrably false information about him. He finds a statute that says that federal agencies are required to develop effective administrative procedures "allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency." So he asks the DOJ to remove the false information about him, or at least allow him an administrative procedure to try to prove that the stuff is false.
But the DOJ says that its press releases are categorically exempt from the statute because they don't really count as "information . . . disseminated by the agency." So it tells Dr. Harkonen to pound sand.
The Ninth Circuit agrees.
The statute's ambiguous. An agency (OMB) is entrusted with interpreting it. It has done so. While perhaps erroneous, its construction is at least reasonable. End of story.
That's how Chevron deference works. A concise little opinion by Judge Noonan explains it.
Friday, September 04, 2015
Mak v. City of Berkeley Rent Stabilization Bd. (Cal. Ct. App. - Sept. 2, 2015)
Jason and Karen Mak own four apartment units in Berkeley. They want to raise the rent, but there's a problem. Their tenant, Elizabeth Burns, has lived in the unit for 28 years. So they want her out and a higher rent.
Not surprisingly, however, Berkeley's rent control ordinance doesn't allow that. So they figure out a workaround. They'll evict her and say that one of the owners (Jason) wants to live there. That's an okay reason to kick her out under the ordinance. So they give her a 60-day notice.
But there's one problem. Once you serve a 60-day notice, and kick the tenant out, you can't then raise the rent (for a period of time, anyway) if the owner does not, in fact, take over the unit.
But the Maks have a workaround for that as well. They strike a deal with the tenant. They'll give her some compensation (e.g., free rent) and she'll agree (1) to vacate the unit, and to (2) deem the 60-day notice withdrawn. Which will mean that, she's she's "voluntarily" left the thing, the Maks can raise the rent to where they want.
Good for everyone.
Except the Court of Appeal sees through this "transparent attempt to circumvent the provisions of local rent control provisions." Affirming the trial court's decision that these machinations don't work and that the rent remains controlled.
That's surely the right rule. But don't think that the Court of Appeal's holding here really solves all that much. It merely slightly moves the statutory inflection point.
All the Maks had to do (in my view) to make this scheme work was to strike a deal with the tenant before the 60-day notice went out. They just show up and say: "We want to kick you out and raise the rent, and you want money/free rent. So -- in the words of Monte Hall -- 'Let's Make a Deal.'"
If that happens, everyone wins. (Except the City and future tenants, of course.) The tenant leaves the apartment "voluntarily" and the rents effectively get raised.
The only thing it requires is slightly more sophisticated planning. Strike the deal before the 60-day notice rather than after.
Same result.
In academia, we all this "regulatory arbitrage". If there's a statute that obtains a certain public benefit, parties can usurp for themselves this benefit by arbitraging the statutory dictates. That strategy works in a number of regulatory settings.
Including here. At least if you're smart about it.
So good job Court of Appeal. Just remember that you haven't actually solved the problem. You've merely moved the strategy up in time a tiny bit.
Not surprisingly, however, Berkeley's rent control ordinance doesn't allow that. So they figure out a workaround. They'll evict her and say that one of the owners (Jason) wants to live there. That's an okay reason to kick her out under the ordinance. So they give her a 60-day notice.
But there's one problem. Once you serve a 60-day notice, and kick the tenant out, you can't then raise the rent (for a period of time, anyway) if the owner does not, in fact, take over the unit.
But the Maks have a workaround for that as well. They strike a deal with the tenant. They'll give her some compensation (e.g., free rent) and she'll agree (1) to vacate the unit, and to (2) deem the 60-day notice withdrawn. Which will mean that, she's she's "voluntarily" left the thing, the Maks can raise the rent to where they want.
Good for everyone.
Except the Court of Appeal sees through this "transparent attempt to circumvent the provisions of local rent control provisions." Affirming the trial court's decision that these machinations don't work and that the rent remains controlled.
That's surely the right rule. But don't think that the Court of Appeal's holding here really solves all that much. It merely slightly moves the statutory inflection point.
All the Maks had to do (in my view) to make this scheme work was to strike a deal with the tenant before the 60-day notice went out. They just show up and say: "We want to kick you out and raise the rent, and you want money/free rent. So -- in the words of Monte Hall -- 'Let's Make a Deal.'"
If that happens, everyone wins. (Except the City and future tenants, of course.) The tenant leaves the apartment "voluntarily" and the rents effectively get raised.
The only thing it requires is slightly more sophisticated planning. Strike the deal before the 60-day notice rather than after.
Same result.
In academia, we all this "regulatory arbitrage". If there's a statute that obtains a certain public benefit, parties can usurp for themselves this benefit by arbitraging the statutory dictates. That strategy works in a number of regulatory settings.
Including here. At least if you're smart about it.
So good job Court of Appeal. Just remember that you haven't actually solved the problem. You've merely moved the strategy up in time a tiny bit.
Thursday, September 03, 2015
National Council of La Raza v. Cegavske (9th Cir. - Sept. 3, 2015)
Is Judge Jones becoming the new Judge Real?
Three civil rights organizations claim that Nevada isn't following the National Voter Registration Act of 1993. That statute creates a private cause of action, and plaintiffs have some pretty good evidence that Nevada isn't, in fact, doing what the statute requires. (For example: Plaintiffs "showed that the number of voter registration applications submitted to Nevada public assistance offices “decreased precipitously”—by 95% from 2001–2002’s high point to 2009–2010’s low point—despite a four-fold increase in the number of food stamp applications during this period. Second, the letter cited U.S. Census Bureau data from 2010, which showed that only 47.6% of low-income Nevadans were registered to vote, compared to 72.4% of high-income Nevadans. Third, the letter presented the results of field investigations Plaintiffs conducted in December 2011, approximately five months before they sent the letter. Plaintiffs’ investigators visited Nevada public assistance offices and surveyed the clients and clerks of thoseo ffices. They discovered that clerks in seven of nine offices they visited provided voter registration application forms only to people who affirmatively requested them. Office staff indicated that this was “standard procedure.” Of the clients surveyed, only one out of the five who affirmatively requested a voter registration application form received one. Two of the nine offices did not have voter registration application forms at all. Only nine out of the 51 clients surveyed received voter registration application forms with their benefits applications or other forms. Only two of nine sites displayed the notifications required by state law.")
So plaintiffs sued. Following, as they were required to do, the various administrative prerequisites to such a lawsuit.
The district court nonetheless dismissed the lawsuit. Virtually sua sponte. Doing so in a series of maneuvers that, at a minimum, are unusual, and -- to some viewers, no doubt -- outright bizarre.
I shan't describe in detail all that transpired in Judge Jones' courtroom. For that, you'll have to read the entire opinion. But, in the end, the Ninth Circuit not only reverses Judge Jones, but assigns the case to a different judge on remand. Saying:
"The reasons for our conclusion are apparent from what we have written above, and we review them only briefly here. The judge sua sponte sought to limit the effectiveness of representation by insisting unreasonably that only two of Plaintiffs’ chosen out-of-state attorneys be given pro hac vice status. [Citation]. The judge did this despite the plea of Plaintiffs’ Nevada lawyer that he needed the expert assistance of out-of-state counsel who specialize in NVRA litigation, and over the objection of one of the would-be out-of-state counsel that the judge’s ruling would prevent depositions from being taken in Nevada by associates in his firm. The judge’s actions came very shortly after the Ninth Circuit had deemed “troubling” his comments regarding out-of-state counsel in another case involving a different Nevada agency. [Citation]. Based on this and other cases, a reasonable observer could conclude that the judge’s feelings against out-of-state attorneys are both well-established and inappropriately strong. See Great Basin Res. Watch v. United States Dep’t of the Interior, No. 3:13-CV- 00078-RCJ, 2014 WL3697107, at *3 (D. Nev. July 23, 2014) (this same judge expressly stated he would “presume[] that the out-of-state lawyers are unwilling to obey the ethical strictures that govern all other attorneys”). Further, the judge sua sponte and without notice dismissed Plaintiffs’ case based on a motion the State had previously withdrawn, pursuant to a joint stipulation by the parties. Still further, the judge misread the complaint when he concluded that Plaintiffs had failed to allege that they had changed their behavior and had thus suffered no injury, when Plaintiffs had alleged that they had expended additional resources on voter registration as a result of the State’s violation of Section 7. Finally, the judge dismissed the complaint without leave to amend despite Plaintiffs’ explicit request that they be allowed to amend their complaint if the judge found its allegations insufficient."
That's a pretty telling indictment of the district court's conduct. As is the assignment to a different judge.
And it's not the first time, either.
Maybe it's just Judge Jones' distaste for out-of-state lawyers that's the problem. Or maybe there's a larger problem here as well.
But today's opinion suggests, at a minimum, that there's a problem.
One that hasn't -- and likely won't -- go away.
Three civil rights organizations claim that Nevada isn't following the National Voter Registration Act of 1993. That statute creates a private cause of action, and plaintiffs have some pretty good evidence that Nevada isn't, in fact, doing what the statute requires. (For example: Plaintiffs "showed that the number of voter registration applications submitted to Nevada public assistance offices “decreased precipitously”—by 95% from 2001–2002’s high point to 2009–2010’s low point—despite a four-fold increase in the number of food stamp applications during this period. Second, the letter cited U.S. Census Bureau data from 2010, which showed that only 47.6% of low-income Nevadans were registered to vote, compared to 72.4% of high-income Nevadans. Third, the letter presented the results of field investigations Plaintiffs conducted in December 2011, approximately five months before they sent the letter. Plaintiffs’ investigators visited Nevada public assistance offices and surveyed the clients and clerks of thoseo ffices. They discovered that clerks in seven of nine offices they visited provided voter registration application forms only to people who affirmatively requested them. Office staff indicated that this was “standard procedure.” Of the clients surveyed, only one out of the five who affirmatively requested a voter registration application form received one. Two of the nine offices did not have voter registration application forms at all. Only nine out of the 51 clients surveyed received voter registration application forms with their benefits applications or other forms. Only two of nine sites displayed the notifications required by state law.")
So plaintiffs sued. Following, as they were required to do, the various administrative prerequisites to such a lawsuit.
The district court nonetheless dismissed the lawsuit. Virtually sua sponte. Doing so in a series of maneuvers that, at a minimum, are unusual, and -- to some viewers, no doubt -- outright bizarre.
I shan't describe in detail all that transpired in Judge Jones' courtroom. For that, you'll have to read the entire opinion. But, in the end, the Ninth Circuit not only reverses Judge Jones, but assigns the case to a different judge on remand. Saying:
"The reasons for our conclusion are apparent from what we have written above, and we review them only briefly here. The judge sua sponte sought to limit the effectiveness of representation by insisting unreasonably that only two of Plaintiffs’ chosen out-of-state attorneys be given pro hac vice status. [Citation]. The judge did this despite the plea of Plaintiffs’ Nevada lawyer that he needed the expert assistance of out-of-state counsel who specialize in NVRA litigation, and over the objection of one of the would-be out-of-state counsel that the judge’s ruling would prevent depositions from being taken in Nevada by associates in his firm. The judge’s actions came very shortly after the Ninth Circuit had deemed “troubling” his comments regarding out-of-state counsel in another case involving a different Nevada agency. [Citation]. Based on this and other cases, a reasonable observer could conclude that the judge’s feelings against out-of-state attorneys are both well-established and inappropriately strong. See Great Basin Res. Watch v. United States Dep’t of the Interior, No. 3:13-CV- 00078-RCJ, 2014 WL3697107, at *3 (D. Nev. July 23, 2014) (this same judge expressly stated he would “presume[] that the out-of-state lawyers are unwilling to obey the ethical strictures that govern all other attorneys”). Further, the judge sua sponte and without notice dismissed Plaintiffs’ case based on a motion the State had previously withdrawn, pursuant to a joint stipulation by the parties. Still further, the judge misread the complaint when he concluded that Plaintiffs had failed to allege that they had changed their behavior and had thus suffered no injury, when Plaintiffs had alleged that they had expended additional resources on voter registration as a result of the State’s violation of Section 7. Finally, the judge dismissed the complaint without leave to amend despite Plaintiffs’ explicit request that they be allowed to amend their complaint if the judge found its allegations insufficient."
That's a pretty telling indictment of the district court's conduct. As is the assignment to a different judge.
And it's not the first time, either.
Maybe it's just Judge Jones' distaste for out-of-state lawyers that's the problem. Or maybe there's a larger problem here as well.
But today's opinion suggests, at a minimum, that there's a problem.
One that hasn't -- and likely won't -- go away.
Wednesday, September 02, 2015
Sequeira v. Lincoln National Life Ins. Co. (Cal. Ct. App. - Sept. 1, 2015)
There are plenty of people in this world who hate insurance companies. Absolutely hate 'em. Think they're abusive, sleazy, money-grubbing bastards.
I'm not one of those people. As a whole, I think the industry's no worse -- and no better -- than other business lines. Sure, companies want to constrain costs, so aren't looking to pay out money to others when they can avoid it. But that's true for pretty much everyone.
Admittedly, insurance companies often deal with people in vulnerable situations; their spouse has just died, they're in the hospital, etc. So we might want to them to be a bit more compassionate than your average business. But I'm not in the "Insurers Are Evil" camp. Far from it.
Except for here.
In my view, what the Lincoln National Life Insurance Company did here is classic example of why many people absolutely hate insurance companies. Because their decision here was intolerable and unacceptable.
Donald Sequeira was a long-time employee with the City of Vacaville. In the fall of 2009, the City changed its life insurance carrier to Lincoln National. So in October 2009, Mr. Sequeria filled out an enrollment form for $275,000 of basic life insurance and submitted it to Lincoln National. Lincoln National accepted the application and issued the policy. Moreover, during 2009, Mr. Sequeria made two premium payments on the policy, and Lincoln National happily cashed his checks.
Then 2010 arrives. January 1, 2010 was a holiday, so Mr. Sequeria didn't work that day. The next day, January 2, 2010, he suddenly became ill, and died on January 6, without ever returning to work.
That's sad. He leaves a widow, so the widow then seeks the $275,000 from the insurance policy that Mr. Sequeria purchased.
At which point Lincoln National tells her to go to hell.
It's not that Mr. Sequeria lied, or that his checks bounced, or anything like that. And it's not even that there's a ton of money at stake.
But in language only a lawyer could love, with multiple subclauses and optional ("the latest of") dates, the policy technically says that Mr. Sequeria was only covered on the day he "resume[d] Active Work, if you are not Actively at Work on the day you become eligible." And, in 2010, since Mr. Sequeria didn't work on January 1 -- since it was a holiday -- and didn't work on January 2 (since that's the day he became sick), and died promptly thereafter, ha! No money. The fact that the guy had worked two decades for the same company, was an active employee throughout the entire period, had paid multiple premiums for the policy, and didn't work in 2010 because the company wasn't open and then he was sick doesn't matter at all to Lincoln National. They've got an excuse not to pay his widow the money she's due -- or at least they've got an argument not to pay -- so she's going to either get stiffed or have to pay a lawyer, and wait, and hope the courts decide her way in order get paid. Oh, yeah, and in the meantime, she has to bury her dead husband.
Ultimately the Court of Appeal reverses the trial court and orders Lincoln National to pay. Despite its hypertechnical argument -- which the trial court bought -- that ostensibly excused it from paying the proceeds of the insurance policy to the grieving widow.
So, ultimately, Mrs. Sequeria gets paid the money to which she's entitled.
But here's the thing. She shouldn't have been forced to wait six years. She shouldn't have had to fight an insurance company. She shouldn't have been forced to pay a lawyer a healthy portion of the insurance proceeds at issue.
Lincoln National should have simply paid the $275,000. It's a tiny amount of money, in the scheme of things, to the insurer. It's for a long term employee who got sick on January 2, 2010, and died on January 6, 2010, for a life insurance policy designed to cover him in 2010. Only the most heartless and/or ruthless insurer would try to screw a widow out of the life insurance for which she paid in a context like this one.
But that's nonetheless the course that Lincoln National elected. From the claims adjuster at the bottom to the highest levels at Lincoln National at which this case was reviewed.
Okay. Fine. You can do that.
But when people hate you, and others like you, don't be surprised. At all.
And they'll have a point.
I'm not one of those people. As a whole, I think the industry's no worse -- and no better -- than other business lines. Sure, companies want to constrain costs, so aren't looking to pay out money to others when they can avoid it. But that's true for pretty much everyone.
Admittedly, insurance companies often deal with people in vulnerable situations; their spouse has just died, they're in the hospital, etc. So we might want to them to be a bit more compassionate than your average business. But I'm not in the "Insurers Are Evil" camp. Far from it.
Except for here.
In my view, what the Lincoln National Life Insurance Company did here is classic example of why many people absolutely hate insurance companies. Because their decision here was intolerable and unacceptable.
Donald Sequeira was a long-time employee with the City of Vacaville. In the fall of 2009, the City changed its life insurance carrier to Lincoln National. So in October 2009, Mr. Sequeria filled out an enrollment form for $275,000 of basic life insurance and submitted it to Lincoln National. Lincoln National accepted the application and issued the policy. Moreover, during 2009, Mr. Sequeria made two premium payments on the policy, and Lincoln National happily cashed his checks.
Then 2010 arrives. January 1, 2010 was a holiday, so Mr. Sequeria didn't work that day. The next day, January 2, 2010, he suddenly became ill, and died on January 6, without ever returning to work.
That's sad. He leaves a widow, so the widow then seeks the $275,000 from the insurance policy that Mr. Sequeria purchased.
At which point Lincoln National tells her to go to hell.
It's not that Mr. Sequeria lied, or that his checks bounced, or anything like that. And it's not even that there's a ton of money at stake.
But in language only a lawyer could love, with multiple subclauses and optional ("the latest of") dates, the policy technically says that Mr. Sequeria was only covered on the day he "resume[d] Active Work, if you are not Actively at Work on the day you become eligible." And, in 2010, since Mr. Sequeria didn't work on January 1 -- since it was a holiday -- and didn't work on January 2 (since that's the day he became sick), and died promptly thereafter, ha! No money. The fact that the guy had worked two decades for the same company, was an active employee throughout the entire period, had paid multiple premiums for the policy, and didn't work in 2010 because the company wasn't open and then he was sick doesn't matter at all to Lincoln National. They've got an excuse not to pay his widow the money she's due -- or at least they've got an argument not to pay -- so she's going to either get stiffed or have to pay a lawyer, and wait, and hope the courts decide her way in order get paid. Oh, yeah, and in the meantime, she has to bury her dead husband.
Ultimately the Court of Appeal reverses the trial court and orders Lincoln National to pay. Despite its hypertechnical argument -- which the trial court bought -- that ostensibly excused it from paying the proceeds of the insurance policy to the grieving widow.
So, ultimately, Mrs. Sequeria gets paid the money to which she's entitled.
But here's the thing. She shouldn't have been forced to wait six years. She shouldn't have had to fight an insurance company. She shouldn't have been forced to pay a lawyer a healthy portion of the insurance proceeds at issue.
Lincoln National should have simply paid the $275,000. It's a tiny amount of money, in the scheme of things, to the insurer. It's for a long term employee who got sick on January 2, 2010, and died on January 6, 2010, for a life insurance policy designed to cover him in 2010. Only the most heartless and/or ruthless insurer would try to screw a widow out of the life insurance for which she paid in a context like this one.
But that's nonetheless the course that Lincoln National elected. From the claims adjuster at the bottom to the highest levels at Lincoln National at which this case was reviewed.
Okay. Fine. You can do that.
But when people hate you, and others like you, don't be surprised. At all.
And they'll have a point.
People v. Vasquez (Cal. Ct. App. - Aug. 31, 2015)
Who needs me when you have Justice Gilbert, who write the following as the first two sentences of this opinion:
"The new owner of a house prepares to move in. She transfers utilities to
her name, installs locks, leaves personal items in the house, paints an interior wall of the
garage, and comes and goes during daytime hours narrowly missing defendant's two
intrusions. Here we hold these facts are sufficient to establish her house is an inhabited
dwelling for purposes of first degree burglary."
Pretty darn informative, eh? Concise, too.
Tuesday, September 01, 2015
Michaels v. Turk (Cal. Ct. App. - Aug. 31, 2015)
I can tell you why the Court of Appeal decided to publish this opinion. Indeed, I'll be blunt about the Court of Appeal's intended message:
"Trial courts: PUT THE STIPULATION TO A COMMISSIONER ON THE RECORD. We don't care that pretty much every family law case is, in fact, resolved by a commissioner, and that pretty much every single litigant is practically forced to stipulate thereto. We also don't care that in both Riverside County and pretty much everywhere else, there are signs everywhere that say that your case will be heard by a commissioner unless you object. YOU'VE GOT TO PUT IT ON THE RECORD. Or else we're required to reverse."
Sage counsel. Worthy of publication, even.
"Trial courts: PUT THE STIPULATION TO A COMMISSIONER ON THE RECORD. We don't care that pretty much every family law case is, in fact, resolved by a commissioner, and that pretty much every single litigant is practically forced to stipulate thereto. We also don't care that in both Riverside County and pretty much everywhere else, there are signs everywhere that say that your case will be heard by a commissioner unless you object. YOU'VE GOT TO PUT IT ON THE RECORD. Or else we're required to reverse."
Sage counsel. Worthy of publication, even.
Monday, August 31, 2015
Creech v. Frauenheim (9th Cir. - Aug. 31, 2015)
It's a state habeas case, with all the usual deference regalia. Judge Paez agrees that the petition should be dismissed, and his opinion makes sense. The guy clearly did stuff he shouldn't have done, and his Apprendi challenge to California's low-mid-high sentencing scheme faces a serious uphill battle.
I mention the case only because I wanted to get your take on his offenses.
Here's what the guy did:
"Creech and his wife, Reanna, have a four-year-old daughter, Sofia, and a three-year-old son, Zachary. 2 One evening in September 2007, Creech and Reanna had an argument because Creech told Reanna he had obtained a shotgun. Reanna decided to leave him that night. A few weeks later, she took the kids to her father’s house in Napa. Several days later, Creech and Reanna spoke on the phone. She told him the kids were at her father’s and suggested that they talk another time to arrange for Creech to see them.
Later that night, Creech went to Reanna’s father’s house and asked him if he could see the children. Creech’s fatherin-law said “no.” When Reanna returned to her father’s home later that night, she saw Creech waiting there and drove away. He followed her. A highway patrol officer stopped Reanna for “driving 15 miles an hour in a 45.” Reanna, who had been crying, explained to the officer the circumstances with Creech and their kids. At the time she was pulled over, Reanna was on the phone with the sheriff’s department. Creech had contacted the police department and explained that he was trying to get in contact with his children, and that he had been “threatened off [his father-in-law’s] property.” The patrol officer told Reanna that, because Creech was the only custodial parent at her father’s house, she had to go back to her father’s, otherwise Creech would be allowed to take the children. Reanna decided to return to her father’s house.
Creech testified at trial that he was angry with his fatherin-law for not allowing him to see his children. So, he decided to return the following morning to shoot at and damage his house. He grabbed bird shot ammunition because “shooting through things. . . wasn’t [his] intent.”
Late that morning, Reanna, who was at her father’s house, heard a “solid thud.” She looked outside and saw Creech holding a shotgun about fifteen to twenty feet away from the house. Reanna shouted to her stepsister, Jennifer Curry, to grab Sofia. Jennifer saw glass flying everywhere. Jennifer also looked out of a window and saw Creech standing about fifteen to thirty feet away, aiming his shotgun and tracking her and Sofia with the barrel of the gun. Reanna grabbed Zachary and went to the downstairs bathroom, and Jennifer and Sofia joined them. Juliane Rush, Reanna’s stepmother, heard a “very loud pop” from the front of the house. She saw Creech standing about fifteen feet away from the front door. . . .
Officers arrived at the Napa house minutes after the shooting, but Creech had left. They found three shells in front of the house. There were many very small perforations in the front door, and the outer pane of the double-paned window in the upper portion of the door was broken. Both layers of a double-paned window in the study were also broken. . . .
A forensic expert, Dr. John Thornton testified at trial. Among other tests, he performed ballistic gelatin testing “to mimic the behavior expected from human flesh . . . if a human body was shot with that projectile.” He performed these tests “without glass at a distance of 45 feet . . . [his] best approximation of the distance between the cluster of shotgun shells in front of the door and the door.” From this test, he opined that “there would be a minimum of an inch and a half of penetration into flesh.” With dual-paned glass, no pellets permeated the gel from 45 feet. Dr. Thornton did not perform tests at any other distance.
In addition to the gelatin testing results, Dr. Thornton also stated other opinions based on the location of the shell casings and particle dispersion. First, he opined that the shots to the door were fired from between forty and fifty feet away, while the shot to the window was fired from twenty feet away. Second, he opined that there were lead pellets in the debris collected from the study. Third, he explained that the bullet 'we’re speaking of is on the small side. It’s intended for small birds.'"
To be clear: It is not cool to shoot at an occupied house. Not cool at all. Even if you're only firing birdshot. Even if you're just pissed off. (And even if, as here, "[a]fter the shooting, he went to his parents’ house, ingested a bottle of pills, and was taken to the hospital." That shows some regret, at least. But still doesn't excuse your conduct. In the slightest.)
Okay. So we're all on board that this guy should be punished. The case is in California state court. He illegally discharged a firearm, he shot at an inhabited dwelling, what he did qualifies as assault (even if he didn't actually intend to hit anyone with the birdshot), and it might even qualify as conduct that endangers the welfare of a child since there was a little kid in the house. All that I get.
So what's the appropriate sentence?
Different people may well have different takes on this. But I must admit that I was surprised -- very surprised -- to see that the guy got thirty one years in prison for the thing. Perhaps I wouldn't have been shocked to see him get a decade in the joint. Though I wouldn't have been surprised to see him get three or four years either. But thirty one years? Wow.
Maybe I just have failed to abandon all hope in concepts like rehabilitation and the like, whereas the state has elected to entirely jettison the concept. But the idea that a person who -- incredibly stupidly and wrongly -- fires some birdshot at a house in an irrational rage is essentially irredeemable, and thus much spend essentially the remainder of his life in prison, conflicts with my gut intuition.
Maybe there was more here I don't know about. Maybe there was a lot more stuff that the opinion leaves out (though I doubt it).
All I can say is that I was very surprised when I got to that portion of the opinion that mentioned that he was sentenced to thirty one years in prison.
I mention the case only because I wanted to get your take on his offenses.
Here's what the guy did:
"Creech and his wife, Reanna, have a four-year-old daughter, Sofia, and a three-year-old son, Zachary. 2 One evening in September 2007, Creech and Reanna had an argument because Creech told Reanna he had obtained a shotgun. Reanna decided to leave him that night. A few weeks later, she took the kids to her father’s house in Napa. Several days later, Creech and Reanna spoke on the phone. She told him the kids were at her father’s and suggested that they talk another time to arrange for Creech to see them.
Later that night, Creech went to Reanna’s father’s house and asked him if he could see the children. Creech’s fatherin-law said “no.” When Reanna returned to her father’s home later that night, she saw Creech waiting there and drove away. He followed her. A highway patrol officer stopped Reanna for “driving 15 miles an hour in a 45.” Reanna, who had been crying, explained to the officer the circumstances with Creech and their kids. At the time she was pulled over, Reanna was on the phone with the sheriff’s department. Creech had contacted the police department and explained that he was trying to get in contact with his children, and that he had been “threatened off [his father-in-law’s] property.” The patrol officer told Reanna that, because Creech was the only custodial parent at her father’s house, she had to go back to her father’s, otherwise Creech would be allowed to take the children. Reanna decided to return to her father’s house.
Creech testified at trial that he was angry with his fatherin-law for not allowing him to see his children. So, he decided to return the following morning to shoot at and damage his house. He grabbed bird shot ammunition because “shooting through things. . . wasn’t [his] intent.”
Late that morning, Reanna, who was at her father’s house, heard a “solid thud.” She looked outside and saw Creech holding a shotgun about fifteen to twenty feet away from the house. Reanna shouted to her stepsister, Jennifer Curry, to grab Sofia. Jennifer saw glass flying everywhere. Jennifer also looked out of a window and saw Creech standing about fifteen to thirty feet away, aiming his shotgun and tracking her and Sofia with the barrel of the gun. Reanna grabbed Zachary and went to the downstairs bathroom, and Jennifer and Sofia joined them. Juliane Rush, Reanna’s stepmother, heard a “very loud pop” from the front of the house. She saw Creech standing about fifteen feet away from the front door. . . .
Officers arrived at the Napa house minutes after the shooting, but Creech had left. They found three shells in front of the house. There were many very small perforations in the front door, and the outer pane of the double-paned window in the upper portion of the door was broken. Both layers of a double-paned window in the study were also broken. . . .
A forensic expert, Dr. John Thornton testified at trial. Among other tests, he performed ballistic gelatin testing “to mimic the behavior expected from human flesh . . . if a human body was shot with that projectile.” He performed these tests “without glass at a distance of 45 feet . . . [his] best approximation of the distance between the cluster of shotgun shells in front of the door and the door.” From this test, he opined that “there would be a minimum of an inch and a half of penetration into flesh.” With dual-paned glass, no pellets permeated the gel from 45 feet. Dr. Thornton did not perform tests at any other distance.
In addition to the gelatin testing results, Dr. Thornton also stated other opinions based on the location of the shell casings and particle dispersion. First, he opined that the shots to the door were fired from between forty and fifty feet away, while the shot to the window was fired from twenty feet away. Second, he opined that there were lead pellets in the debris collected from the study. Third, he explained that the bullet 'we’re speaking of is on the small side. It’s intended for small birds.'"
To be clear: It is not cool to shoot at an occupied house. Not cool at all. Even if you're only firing birdshot. Even if you're just pissed off. (And even if, as here, "[a]fter the shooting, he went to his parents’ house, ingested a bottle of pills, and was taken to the hospital." That shows some regret, at least. But still doesn't excuse your conduct. In the slightest.)
Okay. So we're all on board that this guy should be punished. The case is in California state court. He illegally discharged a firearm, he shot at an inhabited dwelling, what he did qualifies as assault (even if he didn't actually intend to hit anyone with the birdshot), and it might even qualify as conduct that endangers the welfare of a child since there was a little kid in the house. All that I get.
So what's the appropriate sentence?
Different people may well have different takes on this. But I must admit that I was surprised -- very surprised -- to see that the guy got thirty one years in prison for the thing. Perhaps I wouldn't have been shocked to see him get a decade in the joint. Though I wouldn't have been surprised to see him get three or four years either. But thirty one years? Wow.
Maybe I just have failed to abandon all hope in concepts like rehabilitation and the like, whereas the state has elected to entirely jettison the concept. But the idea that a person who -- incredibly stupidly and wrongly -- fires some birdshot at a house in an irrational rage is essentially irredeemable, and thus much spend essentially the remainder of his life in prison, conflicts with my gut intuition.
Maybe there was more here I don't know about. Maybe there was a lot more stuff that the opinion leaves out (though I doubt it).
All I can say is that I was very surprised when I got to that portion of the opinion that mentioned that he was sentenced to thirty one years in prison.
U.S. v. Katakis (9th Cir. - Aug. 31, 2015)
Feel free to hit the "delete" button on your incriminating Microsoft Exchange e-mails. Even if you do so with the intent of keeping those e-mails from the Feds, the Ninth Circuit says that doesn't count as obstruction of justice. Because you haven't "concealed" them; you've simply moved them from one folder (e.g., your inbox) to another (e.g., the "deleted items" folder). That's no different from, say, moving an incriminating document from the top of you desk to a desk drawer.
You may not be entirely off the hook, however. The Ninth Circuit doesn't decide whether hitting the delete button (or moving the e-mails to the "deleted items" folder, which is the same thing) counts as attempted obstruction of justice. The Ninth Circuit similarly doesn't decide whether "double deleting" e-mails -- i.e., moving them to the "deleted items" folder and then "emptying" that folder -- counts as obstruction of justice. So you've still got look out for that.
But if all you do is to move files into the deleted items folder, that ain't going to subject you to non-attempt liability. Mind you: It won't stop those e-mails from being discovered by the government either, since it'll perhaps not shock you to discover that they actually check that folder (and more!) once they seize your computer.
But if all you do is hit the delete button, even with an evil intent, your malicious incompetence may well not count as a substantive federal offense.
Good to know.
You may not be entirely off the hook, however. The Ninth Circuit doesn't decide whether hitting the delete button (or moving the e-mails to the "deleted items" folder, which is the same thing) counts as attempted obstruction of justice. The Ninth Circuit similarly doesn't decide whether "double deleting" e-mails -- i.e., moving them to the "deleted items" folder and then "emptying" that folder -- counts as obstruction of justice. So you've still got look out for that.
But if all you do is to move files into the deleted items folder, that ain't going to subject you to non-attempt liability. Mind you: It won't stop those e-mails from being discovered by the government either, since it'll perhaps not shock you to discover that they actually check that folder (and more!) once they seize your computer.
But if all you do is hit the delete button, even with an evil intent, your malicious incompetence may well not count as a substantive federal offense.
Good to know.
Thursday, August 27, 2015
People v. Romero & Self (Cal. Supreme Court - Aug. 26, 2015)
Sometimes you read these death penalty cases and wonder what it was that led the jury to invoke the death penalty.
Not here.
Just read the first nine pages of the opinion, which recounts the various crimes that the defendants committed during two months in 1992, alongside their subsequent escape attempts from prison in 1994.
Wow. It'd be hard to find a (death-qualified) jury that would not sentence these two to death.
A third defendant is equally culpable. But he testified against the other two. So only gets 51 to life pursuant to a plea deal. Including eligibility for parole. And gets to serve his sentence out of state.
It's good to be the one who flips.
Not here.
Just read the first nine pages of the opinion, which recounts the various crimes that the defendants committed during two months in 1992, alongside their subsequent escape attempts from prison in 1994.
Wow. It'd be hard to find a (death-qualified) jury that would not sentence these two to death.
A third defendant is equally culpable. But he testified against the other two. So only gets 51 to life pursuant to a plea deal. Including eligibility for parole. And gets to serve his sentence out of state.
It's good to be the one who flips.
Wednesday, August 26, 2015
Sternberg v. California State Board of Pharmacy (Cal. Ct. App. - Aug. 26, 2015)
It at first seemed a little harsh to me that the California State Board of Pharmacy revoked Andrew Sternberg's pharmacy license just because he was the pharmacist in charge when someone else stole some drugs from the office. Seemed harsh to the administrative law judge as well, who recommended merely that Mr. Sternberg be publicly reproved.
But, reading on, I then noticed that the Board stayed this revocation, and merely put Mr. Sternberg on probation for three years. Probation: That seems more reasonable.
Still. The guy's being punished for someone else's theft. How's that fair?
But then I read more about the facts. This wasn't just a tiny little theft, or of some insubstantial little drug. "During a two-year period while he supervised the Target pharmacy—September 1, 2006, to August 31, 2008—Imelda Hurtado, a pharmacy technician, stole at least 216,630 tablets of Norco1 from the pharmacy, with an estimated retail value of up to $1.50 per tablet, or $324,945, and street value of up to $5 per tablet, or $1,083,150."
Dude. That's a lot of Norcol. That's a lot of theft. We might well want the supervisor to, well, supervise a little more in order to prevent these drugs from hitting the street.
Then I read more. About precisely how the theft was accomplished. Which, in a way, was a neat little roadmap about how to steal drugs from a pharmacy. But also highlighted the kinds of things that Mr. Sternberg did -- or, more accurately, failed to do -- to prevent such a theft:
Hurtado accomplished this theft as follows: She would place orders for up to 3,000 tablets (six bottles with 500 tablets per bottle) to be delivered to the pharmacy on a day she was scheduled to work. She did this approximately 85 times, as often as three times a week. When orders arrived, she would take the delivery to a work station farthest away from the pharmacist’s station. She would then remove the six bottles, hide them in the store room, and destroy the packing invoice. When the pharmacist on duty took a lunch break, she would go to the store room, put three bottles in her purse, and take them out to her car. Later in the day, when the pharmacist was on a break, she would take the other three bottles to her car in the same manner. Her theft was discovered when Sternberg found a bottle of Norco in the store room. The Target pharmacy normally did not sell Norco . . . .
The wholesaler (‘supplier’) typically delivered the drug orders to the pharmacy between 12:30 p.m. and 1:00 p.m. Section 4059.5 of the Pharmacy Law requires that a pharmacist sign for and receive all dangerous drugs or devices delivered to a pharmacy. [Sternberg] testified that his policy was that ‘everybody that works in the pharmacy knows that the law prevents anybody from signing for deliveries, except a pharmacist.’ [Sternberg] did not explain how he would enforce that policy, nor was there any evidence presented as to how that would be implemented. With respect to receipt of drug deliveries, when [Sternberg] signed for the delivery of dangerous drugs he would sign a ‘delivery log that is supplied by the supplier’; however, that log only disclosed how many containers were being delivered, not what was in the actual containers. He would then count the number of bottles, and give the tote to a pharmacy technician who he assigned to take care of unpacking the drugs, placing appropriate shelf labels on the bottles, and checking the invoice/packing slip inside the box to assure that the supplier delivered what was ordered. After [Sternberg] signed for the drugs, he ‘never’ looked at the invoices being taken out of the delivery container and did not check the invoices against the drugs he received. [Sternberg] admitted that as the Pharmacist-in-Charge he had the ‘discretion’ to examine the invoices, but chose not to do so. The invoices he received were given to a pharmacy technician, who then placed them in a box under a counter. After the box was filled, it was then transferred to a ‘little storage area’ in the pharmacy. The box was not checked regularly by any pharmacists, but ‘occasionally’ [Sternberg] or another pharmacist would look at those invoices, but only ‘for a specific drug that we had to order for somebody to see if it came in or if it didn’t come in.’ As a result, the missing inventory and invoices were only discovered by chance, and not for at least 18 months."
Wow. I think we can all agree that this falls far short from "best practices" at a pharmacy.
So, in the end, I can see why Mr. Sternberg received the discipline he did. If not more.
But, reading on, I then noticed that the Board stayed this revocation, and merely put Mr. Sternberg on probation for three years. Probation: That seems more reasonable.
Still. The guy's being punished for someone else's theft. How's that fair?
But then I read more about the facts. This wasn't just a tiny little theft, or of some insubstantial little drug. "During a two-year period while he supervised the Target pharmacy—September 1, 2006, to August 31, 2008—Imelda Hurtado, a pharmacy technician, stole at least 216,630 tablets of Norco1 from the pharmacy, with an estimated retail value of up to $1.50 per tablet, or $324,945, and street value of up to $5 per tablet, or $1,083,150."
Dude. That's a lot of Norcol. That's a lot of theft. We might well want the supervisor to, well, supervise a little more in order to prevent these drugs from hitting the street.
Then I read more. About precisely how the theft was accomplished. Which, in a way, was a neat little roadmap about how to steal drugs from a pharmacy. But also highlighted the kinds of things that Mr. Sternberg did -- or, more accurately, failed to do -- to prevent such a theft:
Hurtado accomplished this theft as follows: She would place orders for up to 3,000 tablets (six bottles with 500 tablets per bottle) to be delivered to the pharmacy on a day she was scheduled to work. She did this approximately 85 times, as often as three times a week. When orders arrived, she would take the delivery to a work station farthest away from the pharmacist’s station. She would then remove the six bottles, hide them in the store room, and destroy the packing invoice. When the pharmacist on duty took a lunch break, she would go to the store room, put three bottles in her purse, and take them out to her car. Later in the day, when the pharmacist was on a break, she would take the other three bottles to her car in the same manner. Her theft was discovered when Sternberg found a bottle of Norco in the store room. The Target pharmacy normally did not sell Norco . . . .
The wholesaler (‘supplier’) typically delivered the drug orders to the pharmacy between 12:30 p.m. and 1:00 p.m. Section 4059.5 of the Pharmacy Law requires that a pharmacist sign for and receive all dangerous drugs or devices delivered to a pharmacy. [Sternberg] testified that his policy was that ‘everybody that works in the pharmacy knows that the law prevents anybody from signing for deliveries, except a pharmacist.’ [Sternberg] did not explain how he would enforce that policy, nor was there any evidence presented as to how that would be implemented. With respect to receipt of drug deliveries, when [Sternberg] signed for the delivery of dangerous drugs he would sign a ‘delivery log that is supplied by the supplier’; however, that log only disclosed how many containers were being delivered, not what was in the actual containers. He would then count the number of bottles, and give the tote to a pharmacy technician who he assigned to take care of unpacking the drugs, placing appropriate shelf labels on the bottles, and checking the invoice/packing slip inside the box to assure that the supplier delivered what was ordered. After [Sternberg] signed for the drugs, he ‘never’ looked at the invoices being taken out of the delivery container and did not check the invoices against the drugs he received. [Sternberg] admitted that as the Pharmacist-in-Charge he had the ‘discretion’ to examine the invoices, but chose not to do so. The invoices he received were given to a pharmacy technician, who then placed them in a box under a counter. After the box was filled, it was then transferred to a ‘little storage area’ in the pharmacy. The box was not checked regularly by any pharmacists, but ‘occasionally’ [Sternberg] or another pharmacist would look at those invoices, but only ‘for a specific drug that we had to order for somebody to see if it came in or if it didn’t come in.’ As a result, the missing inventory and invoices were only discovered by chance, and not for at least 18 months."
Wow. I think we can all agree that this falls far short from "best practices" at a pharmacy.
So, in the end, I can see why Mr. Sternberg received the discipline he did. If not more.
People v. Toloy (Cal. Ct. App. - Aug. 26, 2015)
Section 290 of the Penal Code requires that when certain people (e.g., sex offenders) are released from jail after serving a sentence of 30 days or more, these people must register their new (post-release) address with the local police department within five working days of their release.
You'd think those statutes are very closely related, right?
But the Court of Appeal holds that the latter statute is "directory, not mandatory". In non-legalese, that means that even if (as here) the warden is required to -- but fails -- to inform the prisoner of his registration obligations, in violation of Section 290.017(a), that person can still be convicted of violating those registration obligations. Even if, as a result of that express statutory directive, the person didn't know about those obligations.
POSTSCRIPT - There may be some dispute about what "not knowing" about these obligations means. The Court of Appeal quoted a prior California Supreme Court case that said that "[A] violation of section 290 requires actual knowledge of the duty to register. A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement.” So you might take that to mean that actual notice of the statute is required, but that as long as you have knowledge of the statute -- whether from a prior notice, or independent reading of casebooks, or whatever -- it doesn't matter that the mandatory notice under Section 290.017(a) was provided. But, then again, defendant here admitted that "he had initialed a form informing him of that obligation when he reregistered in January 2014, but he maintained that he believed it applied only if he was a transient," and the Court of Appeal didn't seem to think that was a defense, so one might view that as taking a more limited view as to what constitutes sufficient "actual knowledge" to justify a conviction. Maybe defendant was not credible, or maybe that's just not a defense to "actual knowledge". But either way, it's surely better to give the required, mandatory warnings under Section 290.017(a) -- and to say that "actual knowledge" does all the work here is not as clear in this context as it might be in some others.
POSTSCRIPT - There may be some dispute about what "not knowing" about these obligations means. The Court of Appeal quoted a prior California Supreme Court case that said that "[A] violation of section 290 requires actual knowledge of the duty to register. A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement.” So you might take that to mean that actual notice of the statute is required, but that as long as you have knowledge of the statute -- whether from a prior notice, or independent reading of casebooks, or whatever -- it doesn't matter that the mandatory notice under Section 290.017(a) was provided. But, then again, defendant here admitted that "he had initialed a form informing him of that obligation when he reregistered in January 2014, but he maintained that he believed it applied only if he was a transient," and the Court of Appeal didn't seem to think that was a defense, so one might view that as taking a more limited view as to what constitutes sufficient "actual knowledge" to justify a conviction. Maybe defendant was not credible, or maybe that's just not a defense to "actual knowledge". But either way, it's surely better to give the required, mandatory warnings under Section 290.017(a) -- and to say that "actual knowledge" does all the work here is not as clear in this context as it might be in some others.
Tuesday, August 25, 2015
U.S. v. Sanchez-Gomez (9th Cir. - Aug. 25, 2015)
San Diego is not Los Angeles.
So holds the Ninth Circuit.
Okay, so it's a bit more complicated than that. But that's essentially what the Ninth Circuit holds.
Sure, in 2007, the Ninth Circuit held that the Central District of California could validly shackle all pretrial detainees appearing before a magistrate, without any particularized showing of good cause (e.g., that the particular detainee might be a threat). But the Ninth Circuit says that holding doesn't necessarily mean that the Southern District of California can do a similar thing:
"The policy in Howard [the Ninth Circuit case involving the Central District] authorized only leg shackles, while this policy [in the Southern District] authorizes full five point shackles. The policy in Howard applied only at first appearances, while the policy in the Southern District applies to a wide range of non-jury proceedings. The policy in Howard applied only before magistrate judges; this policy applies to proceedings before both magistrate and district judges."
Plus, as I said, the Southern District isn't the Central District. And Judge Schroeder explains some of these differences, as well as a bit of the backstory about the relevant courtroom in Los Angeles:
"The concerns in Howard were focused on the nature and location of the proceedings. The primary justification given for that policy was a concern for maintaining security in a particular courtroom, a problem peculiar to the Roybal Courthouse in Los Angeles. Howard, 480 F.3d at 1013. We discussed security concerns created by “the Central District’s practice of conducting proceedings in a large courtroom on the third floor of the Roybal Courthouse, in the presence of multiple defendants, where the risks of conflict, violence, or escape are heightened.” Id.
A bit of history is illuminating. The Roybal Courthouse involved in Howard was built several decades earlier, and was originally designed not as a stand-alone courthouse, but as an office building with a few courtrooms. This design is what gave rise to the security problems discussed in Howard and was the result of a feud between the General Services Administration and the District Court for the Central District. After the District Court rejected a proposal to move out of their existing courthouse and into an entirely new one, Congress chose instead to incorporate a few additional courtrooms into a planned office building, which became the Roybal Courthouse. . . . The Roybal Courthouse was thus particularly ill-suited to accommodate modern security concerns.
In this case, the government has not demonstrated that the courthouses in the Southern District pose similar problems for security. The record here indicates the Marshals in the Southern District pointed to problems arising from the existence of three courthouses, ostensibly brought about by the 2012 opening of a new, state-of-the-art courthouse which, unlike Roybal, presumably was designed to accommodate modern security concerns."
In short, San Diego has a shiny new, fancy courthouse with modern security, whereas Los Angeles has a converted office building with a madhouse on the third floor. What you can do in the latter is not necessarily what you can do in the former.
So holds the Ninth Circuit.
Okay, so it's a bit more complicated than that. But that's essentially what the Ninth Circuit holds.
Sure, in 2007, the Ninth Circuit held that the Central District of California could validly shackle all pretrial detainees appearing before a magistrate, without any particularized showing of good cause (e.g., that the particular detainee might be a threat). But the Ninth Circuit says that holding doesn't necessarily mean that the Southern District of California can do a similar thing:
"The policy in Howard [the Ninth Circuit case involving the Central District] authorized only leg shackles, while this policy [in the Southern District] authorizes full five point shackles. The policy in Howard applied only at first appearances, while the policy in the Southern District applies to a wide range of non-jury proceedings. The policy in Howard applied only before magistrate judges; this policy applies to proceedings before both magistrate and district judges."
Plus, as I said, the Southern District isn't the Central District. And Judge Schroeder explains some of these differences, as well as a bit of the backstory about the relevant courtroom in Los Angeles:
"The concerns in Howard were focused on the nature and location of the proceedings. The primary justification given for that policy was a concern for maintaining security in a particular courtroom, a problem peculiar to the Roybal Courthouse in Los Angeles. Howard, 480 F.3d at 1013. We discussed security concerns created by “the Central District’s practice of conducting proceedings in a large courtroom on the third floor of the Roybal Courthouse, in the presence of multiple defendants, where the risks of conflict, violence, or escape are heightened.” Id.
A bit of history is illuminating. The Roybal Courthouse involved in Howard was built several decades earlier, and was originally designed not as a stand-alone courthouse, but as an office building with a few courtrooms. This design is what gave rise to the security problems discussed in Howard and was the result of a feud between the General Services Administration and the District Court for the Central District. After the District Court rejected a proposal to move out of their existing courthouse and into an entirely new one, Congress chose instead to incorporate a few additional courtrooms into a planned office building, which became the Roybal Courthouse. . . . The Roybal Courthouse was thus particularly ill-suited to accommodate modern security concerns.
In this case, the government has not demonstrated that the courthouses in the Southern District pose similar problems for security. The record here indicates the Marshals in the Southern District pointed to problems arising from the existence of three courthouses, ostensibly brought about by the 2012 opening of a new, state-of-the-art courthouse which, unlike Roybal, presumably was designed to accommodate modern security concerns."
In short, San Diego has a shiny new, fancy courthouse with modern security, whereas Los Angeles has a converted office building with a madhouse on the third floor. What you can do in the latter is not necessarily what you can do in the former.
U.S. v. Christensen (9th Cir. - Aug. 25, 2015)
You might expect me to critique the Ninth Circuit for taking nearly 22 months after oral argument to write this opinion.
Nope. Not this time.
This appeal involves the convictions of notorious private investigator Anthony Pellicano and a variety of his associates. Defendants filed fourteen briefs in the Ninth Circuit, a total of over 900 pages. The government's answering brief was nearly 700 (!) pages long. The Ninth Circuit opinion itself caps out at 123 (!!) single-spaced pages. Including a dissent on a material point by Judge Christensen, who's sitting by designation from the district court in Montana. And who, in a neat little coincidence, has the same last name as the lead defendant.
Cranking out 123 pages of published text, plus additional stuff in an accompanying unpublished memorandum disposition, takes time. Twenty-two months, even.
So notwithstanding the fact that several of the district court captions in this appeal begin with "05", I think this is about as timely an opinion as we have any legitimate reason to expect.
Nope. Not this time.
This appeal involves the convictions of notorious private investigator Anthony Pellicano and a variety of his associates. Defendants filed fourteen briefs in the Ninth Circuit, a total of over 900 pages. The government's answering brief was nearly 700 (!) pages long. The Ninth Circuit opinion itself caps out at 123 (!!) single-spaced pages. Including a dissent on a material point by Judge Christensen, who's sitting by designation from the district court in Montana. And who, in a neat little coincidence, has the same last name as the lead defendant.
Cranking out 123 pages of published text, plus additional stuff in an accompanying unpublished memorandum disposition, takes time. Twenty-two months, even.
So notwithstanding the fact that several of the district court captions in this appeal begin with "05", I think this is about as timely an opinion as we have any legitimate reason to expect.
Monday, August 24, 2015
People v. Seumanu (Cal. Supreme Ct. - Aug. 24, 2015)
"Nolan Pamintuan was engaged to marry Rowena Panelo on May 18, 1996.
He spent the evening before, May 17, with friends and family at the rehearsal
dinner at a restaurant in Daly City. Panelo gave him a wedding present that night:
a black Movado watch engraved with their intended wedding date. After dinner,
Pamintuan drove Panelo to her apartment and continued on to Hayward, where he
intended to spend the night at his father‘s apartment. Pamintuan was wearing a
brown Gucci watch, a gold engagement ring, a black leather sport coat, an Old
Navy-brand pea coat, and boots. . . .
That night defendant declared his intention to steal a car in order to commit some robberies, so defendant, Iuli, Palega, and Tautai Seumanu set off to look for a suitable vehicle to steal. They eventually located a van to their liking and Tautai and defendant used a screwdriver to steal it. Back at their family compound in Hayward with the stolen van, the group changed out of their Samoan clothes and donned dark clothes; defendant brought out firearms from the outbuilding. Iuli knew ―something big‖ was going to happen when he saw the guns. Defendant spoke of committing robberies and everyone was ―in on the deal.‖ The foursome left the house in the stolen van and began looking for a robbery victim. . . . After considering and rejecting a few possibilities, the group spotted a potential victim and attempted an armed robbery but the intended victim escaped. When the group reentered the stolen van and drove off, defendant chastised Tautai for the botched robbery. They then observed Nolan Pamintuan parking his car and defendant said: "Let‘s go back and get that guy who just got out of the car." Palega turned the van around.
Defendant, holding a sawed-off shotgun, jumped out of the van with Iuli and confronted the victim. Pamintuan looked shocked and scared and offered defendant the inscribed black Movado watch his fiancée had just given him hours earlier, saying: ―Just take this, that is all I have.‖ Defendant took it and then forced the victim into the van. As they drove off, defendant and Tautai stripped the victim of everything he had, including his boots, sport coat, pea coat, ring, wallet, and watch. Defendant became angry when he discovered Pamintuan was carrying only $3 in cash. The victim offered to withdraw money from the bank and was by this time begging for his life.
They drove to a bank with an automated teller machine and defendant warned Pamintuan that if he tried to escape, defendant would kill him. Tautai and Iuli accompanied Pamintuan to the ATM, where he withdrew $300 and gave it to defendant upon returning to the van. Iuli was worried that the ATM camera had photographed him, Tautai, and the van. The foursome wanted the victim to withdraw more money, and when Pamintuan told them of the daily $300 limit they became angry. Defendant ordered Palega to drive away from the bank and find a dark spot. Defendant and Tautai argued over who would kill the victim, while Palega advised against killing him. Iuli exited the van in an attempt to stop the shooting, seeing no point, as Pamintuan had already given them all of his money. Pamintuan continued to beg for his life. Defendant then shot him in the chest with a single shot from the shotgun. The four then abandoned the stolen van in the neighborhood and went home."
Oh. One more thing. "At 12:15 p.m., police showed photographs to Pamintuan‘s brother, Paul, who identified the shotgun victim as his brother, Nolan. Panelo, the victim‘s intended bride, was told of his murder around 1:30 p.m.; they had planned to marry at 2:00 p.m. that day."
Yeah, you're going to be sentenced to death for that. And the California Supreme Court will unanimously affirm.
That night defendant declared his intention to steal a car in order to commit some robberies, so defendant, Iuli, Palega, and Tautai Seumanu set off to look for a suitable vehicle to steal. They eventually located a van to their liking and Tautai and defendant used a screwdriver to steal it. Back at their family compound in Hayward with the stolen van, the group changed out of their Samoan clothes and donned dark clothes; defendant brought out firearms from the outbuilding. Iuli knew ―something big‖ was going to happen when he saw the guns. Defendant spoke of committing robberies and everyone was ―in on the deal.‖ The foursome left the house in the stolen van and began looking for a robbery victim. . . . After considering and rejecting a few possibilities, the group spotted a potential victim and attempted an armed robbery but the intended victim escaped. When the group reentered the stolen van and drove off, defendant chastised Tautai for the botched robbery. They then observed Nolan Pamintuan parking his car and defendant said: "Let‘s go back and get that guy who just got out of the car." Palega turned the van around.
Defendant, holding a sawed-off shotgun, jumped out of the van with Iuli and confronted the victim. Pamintuan looked shocked and scared and offered defendant the inscribed black Movado watch his fiancée had just given him hours earlier, saying: ―Just take this, that is all I have.‖ Defendant took it and then forced the victim into the van. As they drove off, defendant and Tautai stripped the victim of everything he had, including his boots, sport coat, pea coat, ring, wallet, and watch. Defendant became angry when he discovered Pamintuan was carrying only $3 in cash. The victim offered to withdraw money from the bank and was by this time begging for his life.
They drove to a bank with an automated teller machine and defendant warned Pamintuan that if he tried to escape, defendant would kill him. Tautai and Iuli accompanied Pamintuan to the ATM, where he withdrew $300 and gave it to defendant upon returning to the van. Iuli was worried that the ATM camera had photographed him, Tautai, and the van. The foursome wanted the victim to withdraw more money, and when Pamintuan told them of the daily $300 limit they became angry. Defendant ordered Palega to drive away from the bank and find a dark spot. Defendant and Tautai argued over who would kill the victim, while Palega advised against killing him. Iuli exited the van in an attempt to stop the shooting, seeing no point, as Pamintuan had already given them all of his money. Pamintuan continued to beg for his life. Defendant then shot him in the chest with a single shot from the shotgun. The four then abandoned the stolen van in the neighborhood and went home."
Oh. One more thing. "At 12:15 p.m., police showed photographs to Pamintuan‘s brother, Paul, who identified the shotgun victim as his brother, Nolan. Panelo, the victim‘s intended bride, was told of his murder around 1:30 p.m.; they had planned to marry at 2:00 p.m. that day."
Yeah, you're going to be sentenced to death for that. And the California Supreme Court will unanimously affirm.
Poole v. Orange County Fire Authority (Cal. Supreme Ct. - Aug. 24, 2015)
Justice Cuellar writes a concurrence in an otherwise unanimous case just to make clear his view that "plain" statutory language isn't always necessarily clear. Or dispositive. You've instead got to look at the statute as a whole.
It's five (double-spaced) pages worth reading.
If only because it's from a justice we're just starting to get to know.
It's five (double-spaced) pages worth reading.
If only because it's from a justice we're just starting to get to know.
Friday, August 21, 2015
In Re Marriage of Siegel (Cal. Ct. App. - Aug. 21, 2015)
When a complaint seeks only X, the trial court isn't empowered to give the plaintiff Y.
So, for example, when a complaint seeks only that the ex-husband produce evidence that he has purchased the life insurance required by a marital dissolution agreement, and at the hearing, the ex-husband provides proof of insurance, the trial court can't order that the ex-husband establish and fund a $126,910 trust. That'd violate due process.
This is an obvious point. But one that bears repetition. As well as publication by the Court of Appeal.
Maybe the husband should indeed establish and fund the trust. But plaintiff's got to ask for it first.
So, for example, when a complaint seeks only that the ex-husband produce evidence that he has purchased the life insurance required by a marital dissolution agreement, and at the hearing, the ex-husband provides proof of insurance, the trial court can't order that the ex-husband establish and fund a $126,910 trust. That'd violate due process.
This is an obvious point. But one that bears repetition. As well as publication by the Court of Appeal.
Maybe the husband should indeed establish and fund the trust. But plaintiff's got to ask for it first.
Thursday, August 20, 2015
Fluor Corp. v. Superior Court (Cal. Supreme Ct. - Aug. 20, 2015)
What a great opinion. Arising out of something you very, very rarely see.
The case is about the assignment of insurance coverage after corporate mergers or spinoffs. It's complicated and, unless you're in this field, you don't really need to know the holding. (Though it certainly wouldn't hurt.) For our purposes, it's sufficient to say that, in 2003, the California Supreme Court held that the rule was X; here, that an insurer could validly prohibit insureds from assigning their rights after a loss has occurred.
But -- and here's the unusual part -- notwithstanding the incredible attention to and briefing in cases in the California Supreme Court, no one noticed or mentioned that there's actually a statute that already governs this issue; in particular, Section 520 of the California Insurance Code. A statute that's been on the books since 1872 (and that was recodified 1935). And -- and here's the incredible part -- that statute says that insurers cannot do what the California Supreme Court said in 2003 they could.
No one saw the thing. No one mentioned it. It didn't get cited. It didn't get argued. It was simply overlooked.
But after the California Supreme Court's decision, someone stumbled across the thing. Which led to people starting to argue. Arguments which eventually led to lawsuits. Lawsuits which eventually culminated in today's California Supreme Court opinion.
What do you do when you clearly held X but a statute says the actual rule should be Y?
Today the California Supreme Court answers that question. Its holding: You overrule the prior case and make the law Y.
Now, I'm not entirely sure that'd be the answer if the world (and justices) loved rule X. Or if there were definite, settled, investment-backed expectations based upon that principle. But that's not the case here: the insurance companies didn't materially rely on rule X (since the losses had already transpired), and my sense is that the current justices on the California Supreme Court -- like many commentators -- aren't thrilled with rule X either. So that makes it a lot easier to overrule that principle based upon an overlooked statute rather than simply affirming rule X on stare decisis grounds.
Which would be doctrinally tough anyway. Since a common law rule really shouldn't prevail over a statutory enactment. Overlooked or not.
So, here, you've essentially got a unanimous California Supreme Court that says, n the words of Gilda Radner: "Never mind."
(Or, as the California Supreme Court more artfully -- and legally -- puts it: "[T]his still does not explain why section 520 was not discussed by the parties — especially the plaintiff or its amicus curiae — in Henkel itself. And yet as observed post, part IV, such omissions occasionally happen. This reminds us that even with access to computer research technology, any human enterprise cannot be perfect; and that it is better that wisdom, or at least controlling authority, come to our attention late, rather than not at all. (Cf. Smith v. Anderson (1967) 67 Cal.2d 635, 646 (conc. opn. of Mosk, J.) [“'Wisdom too often never comes, and so one ought not to reject it merely because it comes late.'”], quoting from Wolf v. Colorado (1949) 338 U.S. 25, 47 (dis. opn. of Rutledge, J.).)"
Love it. Great opinion.
One more thing. I also learned something new. Maybe you will too. Guess when third-party liability insurance started in the United States? The Court tells us in footnote 19: "Liability insurance was first issued in the United States in 1886. (2 Dunham, The Business of Insurance (1912) pt. IV, Liability Insurance, ch. 43, Historical Sketch, p. 191.) It did not exist prior to then because, until the United States Supreme Court allowed such insurance in Phoenix Ins. Co. v. Erie Transportation Co. (1886) 117 U.S. 312, it was considered to be against public policy, and illegal, to insure against one‟s own negligence in tort."
Didn't know that. Now I do.
The case is about the assignment of insurance coverage after corporate mergers or spinoffs. It's complicated and, unless you're in this field, you don't really need to know the holding. (Though it certainly wouldn't hurt.) For our purposes, it's sufficient to say that, in 2003, the California Supreme Court held that the rule was X; here, that an insurer could validly prohibit insureds from assigning their rights after a loss has occurred.
But -- and here's the unusual part -- notwithstanding the incredible attention to and briefing in cases in the California Supreme Court, no one noticed or mentioned that there's actually a statute that already governs this issue; in particular, Section 520 of the California Insurance Code. A statute that's been on the books since 1872 (and that was recodified 1935). And -- and here's the incredible part -- that statute says that insurers cannot do what the California Supreme Court said in 2003 they could.
No one saw the thing. No one mentioned it. It didn't get cited. It didn't get argued. It was simply overlooked.
But after the California Supreme Court's decision, someone stumbled across the thing. Which led to people starting to argue. Arguments which eventually led to lawsuits. Lawsuits which eventually culminated in today's California Supreme Court opinion.
What do you do when you clearly held X but a statute says the actual rule should be Y?
Today the California Supreme Court answers that question. Its holding: You overrule the prior case and make the law Y.
Now, I'm not entirely sure that'd be the answer if the world (and justices) loved rule X. Or if there were definite, settled, investment-backed expectations based upon that principle. But that's not the case here: the insurance companies didn't materially rely on rule X (since the losses had already transpired), and my sense is that the current justices on the California Supreme Court -- like many commentators -- aren't thrilled with rule X either. So that makes it a lot easier to overrule that principle based upon an overlooked statute rather than simply affirming rule X on stare decisis grounds.
Which would be doctrinally tough anyway. Since a common law rule really shouldn't prevail over a statutory enactment. Overlooked or not.
So, here, you've essentially got a unanimous California Supreme Court that says, n the words of Gilda Radner: "Never mind."
(Or, as the California Supreme Court more artfully -- and legally -- puts it: "[T]his still does not explain why section 520 was not discussed by the parties — especially the plaintiff or its amicus curiae — in Henkel itself. And yet as observed post, part IV, such omissions occasionally happen. This reminds us that even with access to computer research technology, any human enterprise cannot be perfect; and that it is better that wisdom, or at least controlling authority, come to our attention late, rather than not at all. (Cf. Smith v. Anderson (1967) 67 Cal.2d 635, 646 (conc. opn. of Mosk, J.) [“'Wisdom too often never comes, and so one ought not to reject it merely because it comes late.'”], quoting from Wolf v. Colorado (1949) 338 U.S. 25, 47 (dis. opn. of Rutledge, J.).)"
Love it. Great opinion.
One more thing. I also learned something new. Maybe you will too. Guess when third-party liability insurance started in the United States? The Court tells us in footnote 19: "Liability insurance was first issued in the United States in 1886. (2 Dunham, The Business of Insurance (1912) pt. IV, Liability Insurance, ch. 43, Historical Sketch, p. 191.) It did not exist prior to then because, until the United States Supreme Court allowed such insurance in Phoenix Ins. Co. v. Erie Transportation Co. (1886) 117 U.S. 312, it was considered to be against public policy, and illegal, to insure against one‟s own negligence in tort."
Didn't know that. Now I do.
Wednesday, August 19, 2015
U.S. v. Chadwell (9th Cir. - Aug. 19, 2015)
It seems pretty obvious. But just in case it's not, the Ninth Circuit holds today that it's not improper to let the jury view during its deliberations a DVD that was admitted into evidence and played at trial. That's perfectly fine, and the defendant has no right to be personally present while the jury does so.
Yep.
Yep.
Tuesday, August 18, 2015
First Intercontinental Bank v. Ahn (9th Cir. - Aug. 18, 2015)
It's tough to be a judge on the Ninth Circuit.
Don't get me wrong. It's a great job. One for which many people might give their eye teeth.
But it's a lot of work. You've got tons of cases to decide. In many (if not most) of which reasonable minds might reasonably disagree. You've got petitions for rehearing and rehearing en banc to review and adjudicate. You've got oral arguments to prepare for and attend. You've got plenty of opinions to write, both published and unpublished.
Mind you, you've got a lot of help. You've got at least one administrative assistant. You've got three or four incredibly motivated and bright law clerks. You've often got a nontrivial number of externs helping as well. All of which somewhat lessens your burden.
But ultimately, the opinions that are produced have your name on them. So you're responsible for them. No small task. Including but not limited to making sure that the opinions sound like you, even when they're written in (large or small) part by one of the other people in your chambers. This ain't easy either. More work. More effort.
So when I read this opinion by Judge Milan Smith, I was somewhat sympathetic. It's a conflict of laws opinion: Do California's choice of law rules require application of California law or Georgia law to a dispute over attorney's fees for the prevailing party on a contract? Not a totally easy dispute. But one that Judge Smith's opinion seems to resolve reasonably and, I think, correctly.
So it's not the merits of the opinion that struck me as unusual. Rather, it was its style.
Having read plenty of opinions by Judge Smith over nearly a decade, as well as plenty of opinions by other judges on the Ninth Circuit, I was struck as I read the opinion by how much this one didn't read like most of the others. Sure, it had an introduction, and statement of facts, and legal argument; none of that was off.
But there's a style of legal writing that you see much more in law schools than you do in Ninth Circuit opinions. And that's the style that was evident here.
You'll have to read the opinion yourself to see if you get the same sense that I do. And it's also hard to describe exactly just what seems a bit "off" about the opinion. The best I can do is to say that the thing is overly staccado. Every little factor in the conflict of law test gets its own heading. Every tiny point gets addressed seriatim and in relative isolation. It just looks -- for lack of a better word -- weird.
I'll give an example to try to demonstrate what I mean. Here's what the ninth page of the opinion looks like:
Is there anything substantively wrong with that? No. Everything in there is right. If one of my first-year law students wrote this on a paper or in an exam, I wouldn't be surprised.
But it's not what you generally see -- or expect -- in a published Ninth Circuit opinion. Paragraphs that are a single sentence, and that have their own heading to boot? Headings that are nearly as long as the underlying section? Really?
We're used to seeing things more, well, integrated. It's not that the style of legal writing evident here is demonstrably "wrong". But it's more of what you'd expect to see on a bar exam answer than in an erudite Ninth Circuit opinion. Particularly one by Judge Smith.
So I was going to say something about the style of this opinion anyway. Again: Not to blame Judge Smith, who's got plenty to do. But to nonetheless mention that, for whatever reason, this is a pretty good example of an opinion that doesn't read much like the product of the person whose name is on it, which happens from time to time but is still somewhat distracting.
But then read on, and felt like definitely commenting on the thing. If only because subsequent pages of the opinion repeatedly refer to decisions of "the California District Court of Appeals". (E.g,, The California District Court of Appeals confronted a situation similar to the one we consider here. . . . and "The California District Court of Appeals ultimately decided . . . .")
It's not that other judges haven't used a similar appellation in the past. Even the United States Supreme Court, I've discovered, has called it the "California District Court of Appeals," and has done so a half-dozen times. Albeit not in the past fifty years.
Ditto for the Ninth Circuit. There appear to be nine opinions where it's previously referred to such a tribunal. The last of which transpired in 1978, in a per curiam opinion. You've got to back 45 years to find a signed opinion in the Ninth Circuit that uses that term.
There's a reason for that, of course. It's not the "District". And it's not the Court of Appeals. It's the California Court of Appeal. Pure and simple. That's what the Ninth Circuit has called the thing roughly 1400 times in the past decade. And it's what the California Constitution describes as well.
Admittedly, the Court of Appeal has districts. So you'd be just fine in calling it, say, the Third District of the California Court of Appeal. But it's not the "California District Court of Appeals."
As Judge Smith knows full well.
Look, this stuff's confusing. I still mess up, on rare occasion, between the federal Court of Appeals and the state Court of Appeal. Google "California District Court of Appeals" and you'll see lots of people who make the same mistake that's repeatedly made in Judge Smith's published opinion.
But it nonetheless still detracts from the quality of the opinion. Particularly when combined with the stylistic point identified above.
This just seems like one of those published opinions that fell through the cracks.
Which is itself surprising. Judge Smith, Judge Smith's law clerks, the other judges on the panel, the law clerks for the other judges on the panel, and even the publication staff in the Clerk's office: all of 'em presumably read this thing, and none of them caught (or at least mentioned) what seems to me an obvious, repeated error. Putting even wholly aside the style of the opinion, which is admittedly the sole province of Judge Smith and his chambers.
Anyway, an unusual opinion. Hence worthy of comment.
Even if -- and this definitely bears repeating -- the substance of the opinion seems spot on.
Don't get me wrong. It's a great job. One for which many people might give their eye teeth.
But it's a lot of work. You've got tons of cases to decide. In many (if not most) of which reasonable minds might reasonably disagree. You've got petitions for rehearing and rehearing en banc to review and adjudicate. You've got oral arguments to prepare for and attend. You've got plenty of opinions to write, both published and unpublished.
Mind you, you've got a lot of help. You've got at least one administrative assistant. You've got three or four incredibly motivated and bright law clerks. You've often got a nontrivial number of externs helping as well. All of which somewhat lessens your burden.
But ultimately, the opinions that are produced have your name on them. So you're responsible for them. No small task. Including but not limited to making sure that the opinions sound like you, even when they're written in (large or small) part by one of the other people in your chambers. This ain't easy either. More work. More effort.
So when I read this opinion by Judge Milan Smith, I was somewhat sympathetic. It's a conflict of laws opinion: Do California's choice of law rules require application of California law or Georgia law to a dispute over attorney's fees for the prevailing party on a contract? Not a totally easy dispute. But one that Judge Smith's opinion seems to resolve reasonably and, I think, correctly.
So it's not the merits of the opinion that struck me as unusual. Rather, it was its style.
Having read plenty of opinions by Judge Smith over nearly a decade, as well as plenty of opinions by other judges on the Ninth Circuit, I was struck as I read the opinion by how much this one didn't read like most of the others. Sure, it had an introduction, and statement of facts, and legal argument; none of that was off.
But there's a style of legal writing that you see much more in law schools than you do in Ninth Circuit opinions. And that's the style that was evident here.
You'll have to read the opinion yourself to see if you get the same sense that I do. And it's also hard to describe exactly just what seems a bit "off" about the opinion. The best I can do is to say that the thing is overly staccado. Every little factor in the conflict of law test gets its own heading. Every tiny point gets addressed seriatim and in relative isolation. It just looks -- for lack of a better word -- weird.
I'll give an example to try to demonstrate what I mean. Here's what the ninth page of the opinion looks like:
Is there anything substantively wrong with that? No. Everything in there is right. If one of my first-year law students wrote this on a paper or in an exam, I wouldn't be surprised.
But it's not what you generally see -- or expect -- in a published Ninth Circuit opinion. Paragraphs that are a single sentence, and that have their own heading to boot? Headings that are nearly as long as the underlying section? Really?
We're used to seeing things more, well, integrated. It's not that the style of legal writing evident here is demonstrably "wrong". But it's more of what you'd expect to see on a bar exam answer than in an erudite Ninth Circuit opinion. Particularly one by Judge Smith.
So I was going to say something about the style of this opinion anyway. Again: Not to blame Judge Smith, who's got plenty to do. But to nonetheless mention that, for whatever reason, this is a pretty good example of an opinion that doesn't read much like the product of the person whose name is on it, which happens from time to time but is still somewhat distracting.
But then read on, and felt like definitely commenting on the thing. If only because subsequent pages of the opinion repeatedly refer to decisions of "the California District Court of Appeals". (E.g,, The California District Court of Appeals confronted a situation similar to the one we consider here. . . . and "The California District Court of Appeals ultimately decided . . . .")
It's not that other judges haven't used a similar appellation in the past. Even the United States Supreme Court, I've discovered, has called it the "California District Court of Appeals," and has done so a half-dozen times. Albeit not in the past fifty years.
Ditto for the Ninth Circuit. There appear to be nine opinions where it's previously referred to such a tribunal. The last of which transpired in 1978, in a per curiam opinion. You've got to back 45 years to find a signed opinion in the Ninth Circuit that uses that term.
There's a reason for that, of course. It's not the "District". And it's not the Court of Appeals. It's the California Court of Appeal. Pure and simple. That's what the Ninth Circuit has called the thing roughly 1400 times in the past decade. And it's what the California Constitution describes as well.
Admittedly, the Court of Appeal has districts. So you'd be just fine in calling it, say, the Third District of the California Court of Appeal. But it's not the "California District Court of Appeals."
As Judge Smith knows full well.
Look, this stuff's confusing. I still mess up, on rare occasion, between the federal Court of Appeals and the state Court of Appeal. Google "California District Court of Appeals" and you'll see lots of people who make the same mistake that's repeatedly made in Judge Smith's published opinion.
But it nonetheless still detracts from the quality of the opinion. Particularly when combined with the stylistic point identified above.
This just seems like one of those published opinions that fell through the cracks.
Which is itself surprising. Judge Smith, Judge Smith's law clerks, the other judges on the panel, the law clerks for the other judges on the panel, and even the publication staff in the Clerk's office: all of 'em presumably read this thing, and none of them caught (or at least mentioned) what seems to me an obvious, repeated error. Putting even wholly aside the style of the opinion, which is admittedly the sole province of Judge Smith and his chambers.
Anyway, an unusual opinion. Hence worthy of comment.
Even if -- and this definitely bears repeating -- the substance of the opinion seems spot on.
Patel v. City of Montclair (9th Cir. - Aug. 18, 2015)
I'm not even sure what plaintiffs (and their counsel) were thinking in this one.
Police officers enter the public areas of the Galleria Motel and cite the owner for code violations that are in plain view. The owner and the motel sue, claiming that their Fourth Amendment rights were violated when the police entered the motel to search for crimes.
But, to reiterate, the places that the officers went were public areas. Where everyone was allowed.
That makes this an easy case. Super easy. Not even worth bringing, in my view. You're allowed to search in public places open to the public.
Which the Ninth Circuit concisely holds as well.
Not a surprise.
Police officers enter the public areas of the Galleria Motel and cite the owner for code violations that are in plain view. The owner and the motel sue, claiming that their Fourth Amendment rights were violated when the police entered the motel to search for crimes.
But, to reiterate, the places that the officers went were public areas. Where everyone was allowed.
That makes this an easy case. Super easy. Not even worth bringing, in my view. You're allowed to search in public places open to the public.
Which the Ninth Circuit concisely holds as well.
Not a surprise.
Monday, August 17, 2015
People v. Blackburn (Cal. Supreme Ct. - Aug. 17, 2015)
Three of these four sentences describe a horrible crime. The fourth is just weird:
"In 2004, Blackburn was convicted of first degree burglary and forcible false imprisonment. Blackburn had entered the home of an 85-year-old woman at night, and she awoke to find him naked and lying on top of her. He pinned her down with his legs and restrained her by pulling her hair, but the woman managed to escape. When the police arrived, they found Blackburn sitting naked on the toilet, eating pork chops, and speaking incoherently."
"In 2004, Blackburn was convicted of first degree burglary and forcible false imprisonment. Blackburn had entered the home of an 85-year-old woman at night, and she awoke to find him naked and lying on top of her. He pinned her down with his legs and restrained her by pulling her hair, but the woman managed to escape. When the police arrived, they found Blackburn sitting naked on the toilet, eating pork chops, and speaking incoherently."
Friday, August 14, 2015
Demuth v. County of Los Angeles (9th Cir. - Aug. 14, 2015)
Sometimes Judge Kozinski publishes an opinion principally to shame the parties.
Like here.
Most of the case gets resolved in an accompanying unpublished memorandum disposition. But Judge Kozinski wants to make sure to publicize both the facts of the case as well as the panel's reaction thereto. So he writes and publishes a brief synopsis of what transpired.
I'll adopt the same course, and merely quote from the opinion:
"This story begins in Los Angeles’s Los Padrinos Juvenile Courthouse. Florentina Demuth, a public defender, arrived shortly after 8:30 a.m. She had a hearing for one of her clients that day, though it wasn’t set for a specific time. Around 9:00 a.m., she had a brief conversation with Heidi Shirley, who was the presiding referee in Demuth’s case. Demuth also had a conversation with opposing counsel in which Demuth indicated that she didn’t intend to return to court until approximately 1:30 p.m. Demuth then left to work in her office, which was located in a different part of the building. A short while later, Referee Shirley asked Li, the sheriff’s deputy on duty in her courtroom, to page Demuth over the court’s intercom. Deputy Li paged Demuth several times. Demuth heard at least one page, but she didn’t respond. Deputy Li also telephoned Demuth’s direct line. Demuth heard her direct line ringing, but she didn’t answer.
This was not unusual. Lawyers, especially public defenders, were often absent from the courtroom when their case was called, and it typically took some time—and a few pages—to get them there. While she was being paged, Demuth was with her supervisor, Patricia De La Guerra Jones, who had instructed Demuth to finish an assignment before returning to court.
Referee Shirley was eager to hear the case of Demuth’s client. She had approximately 53 cases on her calendar to hear before 2:00 p.m., and the deadline to hear the case of Demuth’s client was that day. Around 9:45 a.m., Referee Shirley made the following statement: “Alright, I order Ms. Demuth to come to this courtroom. If she refuses, then Ms. De La Guerra Jones will have to come in and explain to me why this is happening.” Li found Demuth in her office suite talking to De La Guerra Jones. Li told Demuth several times that she had been called byReferee Shirley, to which Demuth responded “just a minute,” or something to that effect. After some back and forth, Li raised his voice and demanded that Demuth come immediately. Demuth responded that “[i]f you want me to come right now, you’ll have to arrest me.” Li then did just that: He put Demuth in handcuffs and escorted her to Referee Shirley’s courtroom, where he removed the handcuffs. The arrest lasted some 11 minutes.
Demuth sued Li and the County of Los Angeles under 42 U.S.C. § 1983 and a variety of state law theories. . . ."
I must say that I was surprised to hear that attorneys routinely absent themselves from proceedings and don't come to the courtroom even when paged by the judge. Or even pick up their phone. Especially when, as here, the attorney is extremely young, and hasn't even been a lawyer for five years.
But clearly I'm not used to juvenile court. Thankfully.
The panel quickly holds that the deputy had no probable cause to arrest Ms. Demuth, and wasn't protected by qualified immunity either.
But Judge Kozinski saves the central point of his opinion for the last paragraph. Which reads:
"No one in this case has covered himself with glory: not the lawyer whose lackadaisical response to a judicial summons and disrespectful retort to a fellow court officer set off this unfortunate chain of events; not the supervisor who did not urge the lawyer to comply promptly with the deputy’s repeated requests that she come to court or admonish her for her tart response to the deputy; not the deputy who took the bait and abused his power; not the judges of the Los Padrinos Juvenile Court, who, doubtless aware of the incident, failed to mediate a minor dispute among court officers and allowed it to metastasize into a federal case. What seems to be at stake here is little more than wounded pride, as any damages suffered by the plaintiff seem hardly more than nominal. The dispute should have been resolved by an admission that the deputy violated Demuth’s constitutional rights, followed by mutual apologies and a handshake, saving the taxpayers of Los Angeles County the considerable costs of litigating this tiff."
I agree.
P.S. - For those who think the Socratic method in law school is unnecessary (or unusually harsh), check out the video of the oral argument in this case. It's not mean. But it's incredibly probing. Question after question and hypotheticals galore. Just like law school. But with three (smart) law professors grilling you instead of just one. For 45 minutes straight, no less.
Like here.
Most of the case gets resolved in an accompanying unpublished memorandum disposition. But Judge Kozinski wants to make sure to publicize both the facts of the case as well as the panel's reaction thereto. So he writes and publishes a brief synopsis of what transpired.
I'll adopt the same course, and merely quote from the opinion:
"This story begins in Los Angeles’s Los Padrinos Juvenile Courthouse. Florentina Demuth, a public defender, arrived shortly after 8:30 a.m. She had a hearing for one of her clients that day, though it wasn’t set for a specific time. Around 9:00 a.m., she had a brief conversation with Heidi Shirley, who was the presiding referee in Demuth’s case. Demuth also had a conversation with opposing counsel in which Demuth indicated that she didn’t intend to return to court until approximately 1:30 p.m. Demuth then left to work in her office, which was located in a different part of the building. A short while later, Referee Shirley asked Li, the sheriff’s deputy on duty in her courtroom, to page Demuth over the court’s intercom. Deputy Li paged Demuth several times. Demuth heard at least one page, but she didn’t respond. Deputy Li also telephoned Demuth’s direct line. Demuth heard her direct line ringing, but she didn’t answer.
This was not unusual. Lawyers, especially public defenders, were often absent from the courtroom when their case was called, and it typically took some time—and a few pages—to get them there. While she was being paged, Demuth was with her supervisor, Patricia De La Guerra Jones, who had instructed Demuth to finish an assignment before returning to court.
Referee Shirley was eager to hear the case of Demuth’s client. She had approximately 53 cases on her calendar to hear before 2:00 p.m., and the deadline to hear the case of Demuth’s client was that day. Around 9:45 a.m., Referee Shirley made the following statement: “Alright, I order Ms. Demuth to come to this courtroom. If she refuses, then Ms. De La Guerra Jones will have to come in and explain to me why this is happening.” Li found Demuth in her office suite talking to De La Guerra Jones. Li told Demuth several times that she had been called byReferee Shirley, to which Demuth responded “just a minute,” or something to that effect. After some back and forth, Li raised his voice and demanded that Demuth come immediately. Demuth responded that “[i]f you want me to come right now, you’ll have to arrest me.” Li then did just that: He put Demuth in handcuffs and escorted her to Referee Shirley’s courtroom, where he removed the handcuffs. The arrest lasted some 11 minutes.
Demuth sued Li and the County of Los Angeles under 42 U.S.C. § 1983 and a variety of state law theories. . . ."
I must say that I was surprised to hear that attorneys routinely absent themselves from proceedings and don't come to the courtroom even when paged by the judge. Or even pick up their phone. Especially when, as here, the attorney is extremely young, and hasn't even been a lawyer for five years.
But clearly I'm not used to juvenile court. Thankfully.
The panel quickly holds that the deputy had no probable cause to arrest Ms. Demuth, and wasn't protected by qualified immunity either.
But Judge Kozinski saves the central point of his opinion for the last paragraph. Which reads:
"No one in this case has covered himself with glory: not the lawyer whose lackadaisical response to a judicial summons and disrespectful retort to a fellow court officer set off this unfortunate chain of events; not the supervisor who did not urge the lawyer to comply promptly with the deputy’s repeated requests that she come to court or admonish her for her tart response to the deputy; not the deputy who took the bait and abused his power; not the judges of the Los Padrinos Juvenile Court, who, doubtless aware of the incident, failed to mediate a minor dispute among court officers and allowed it to metastasize into a federal case. What seems to be at stake here is little more than wounded pride, as any damages suffered by the plaintiff seem hardly more than nominal. The dispute should have been resolved by an admission that the deputy violated Demuth’s constitutional rights, followed by mutual apologies and a handshake, saving the taxpayers of Los Angeles County the considerable costs of litigating this tiff."
I agree.
P.S. - For those who think the Socratic method in law school is unnecessary (or unusually harsh), check out the video of the oral argument in this case. It's not mean. But it's incredibly probing. Question after question and hypotheticals galore. Just like law school. But with three (smart) law professors grilling you instead of just one. For 45 minutes straight, no less.
Thursday, August 13, 2015
Rodriguez v. Robbins (9th Cir. - Aug. 13, 2015)
Sarah S. Wilson works as a trial attorney at the Department of Justice in the Office of Immigration Litigation in Washington D.C. She's young; she graduated from the University of Georgia Law School, and joined the Georgia Bar in 2009.
A couple of weeks ago, Ms. Wilson did an oral argument in an immigration case in front of the Ninth Circuit. The argument did not start out especially well. As she began making her argument, multiple members of the panel told Ms. Wilson to slow down, and to talk a little more clearly. Ms. Wilson took the advice in stride. I can't say she entirely complied with their counsel, but presentation styles are notoriously difficult to change, especially on the fly, and especially for young lawyers. I empathize with her plight. But she tried her best.
But things then got worse. Ms. Wilson then referred in oral argument to a story that had been published three days earlier in the L.A. Times. The panel asked if this newspaper article was in the record, and Ms. Wilson was forced to concede that it was not. That's a problem.
But it got worse still. Judge Wardlaw, in particular, was exceptionally interested in the timing and nature of the article. She noted that the article quoted "federal authorities" as the source of its information and wanted to know if the U.S. had planted the story in an attempt to influence the panel. Ms. Wilson responded that it wasn't the U.S.'s policy to comment on its sources, and said she didn't know a number of details about the story. But Judge Wardlaw was relentless, and wanted to know the scoop. The full scoop.
Today, things got about as bad as they can get for Ms. Wilson. The Ninth Circuit issued the following order:
"Counsel for Appellants/Cross-Appellees is ordered to show cause why sanctions should not be imposed for the improper oral argument before this Court on July 24, 2015, based on an L.A. Times news article, published July 21, 2015, three days before oral argument in this case, entitled 'Suspect was fighting deportation,' the source for which is identified as 'federal authorities' and which directly references and quotes from earlier proceedings in this case. Fed. R. App. P. 46(c); Circuit Rule 46-2(a); ABA Model Rules of Professional Conduct 3.5.
Counsel shall also provide the Court and opposing counsel with copies of the transcripts of the bond hearings for Mr. Keane Dean, including both the preliminary and the Rodriguez hearings, as well as any other bond hearings that may have taken place in Mr. Dean’s immigration proceedings, to which counsel also improperly referred during the July 24, 2015 oral argument."
Yikes.
A couple of weeks ago, Ms. Wilson did an oral argument in an immigration case in front of the Ninth Circuit. The argument did not start out especially well. As she began making her argument, multiple members of the panel told Ms. Wilson to slow down, and to talk a little more clearly. Ms. Wilson took the advice in stride. I can't say she entirely complied with their counsel, but presentation styles are notoriously difficult to change, especially on the fly, and especially for young lawyers. I empathize with her plight. But she tried her best.
But things then got worse. Ms. Wilson then referred in oral argument to a story that had been published three days earlier in the L.A. Times. The panel asked if this newspaper article was in the record, and Ms. Wilson was forced to concede that it was not. That's a problem.
But it got worse still. Judge Wardlaw, in particular, was exceptionally interested in the timing and nature of the article. She noted that the article quoted "federal authorities" as the source of its information and wanted to know if the U.S. had planted the story in an attempt to influence the panel. Ms. Wilson responded that it wasn't the U.S.'s policy to comment on its sources, and said she didn't know a number of details about the story. But Judge Wardlaw was relentless, and wanted to know the scoop. The full scoop.
Today, things got about as bad as they can get for Ms. Wilson. The Ninth Circuit issued the following order:
"Counsel for Appellants/Cross-Appellees is ordered to show cause why sanctions should not be imposed for the improper oral argument before this Court on July 24, 2015, based on an L.A. Times news article, published July 21, 2015, three days before oral argument in this case, entitled 'Suspect was fighting deportation,' the source for which is identified as 'federal authorities' and which directly references and quotes from earlier proceedings in this case. Fed. R. App. P. 46(c); Circuit Rule 46-2(a); ABA Model Rules of Professional Conduct 3.5.
Counsel shall also provide the Court and opposing counsel with copies of the transcripts of the bond hearings for Mr. Keane Dean, including both the preliminary and the Rodriguez hearings, as well as any other bond hearings that may have taken place in Mr. Dean’s immigration proceedings, to which counsel also improperly referred during the July 24, 2015 oral argument."
Yikes.
U.S. v. Cook (9th Cir. - Aug. 13, 2015)
The police suspected that Oshan Cook had just dropped off some MDMA with a known dealer because his backpack looked lighter when he left the dealer's home than it did when he entered. When Mr. Cook went back to the dealer's home, carrying the same backpack, six officers arrested him at gunpoint, ordering him to the ground.
When Mr. Cook dropped to the ground, three of the six officers handcuffed him, and he was face down on the sidewalk, with three officers on top of him, and with his hands handcuffed behind his back. At which point one of the officers grabbed Cook's backpack, which Cook had dropped to the side when he was ordered to the ground, and searched it for twenty or thirty seconds.
The Ninth Circuit, in an opinion by Judge Nguyen, holds that this is okay. Because even though Mr. Cook had a small build, had three officers on top of him (and three more nearby), and was planted face-down on the sidewalk with his hands tied behind his back with handcuffs, it was reasonable to conclude that this face-down, handcuffed, dominated individual might perhaps break free and reach for the backpack. Hence the officers could reasonably search the backpack, even without a warrant, to make sure there were no guns in the backpack. Lest the prone, handcuffed, tiny Mr. Cook break out of his metal restraints, throw off the three officers on top of him, avoid the other three nearby, zip open the backpack, grab the (non-existent) guns therein, and shoot the officers dead.
So holds the Ninth Circuit.
When Mr. Cook dropped to the ground, three of the six officers handcuffed him, and he was face down on the sidewalk, with three officers on top of him, and with his hands handcuffed behind his back. At which point one of the officers grabbed Cook's backpack, which Cook had dropped to the side when he was ordered to the ground, and searched it for twenty or thirty seconds.
The Ninth Circuit, in an opinion by Judge Nguyen, holds that this is okay. Because even though Mr. Cook had a small build, had three officers on top of him (and three more nearby), and was planted face-down on the sidewalk with his hands tied behind his back with handcuffs, it was reasonable to conclude that this face-down, handcuffed, dominated individual might perhaps break free and reach for the backpack. Hence the officers could reasonably search the backpack, even without a warrant, to make sure there were no guns in the backpack. Lest the prone, handcuffed, tiny Mr. Cook break out of his metal restraints, throw off the three officers on top of him, avoid the other three nearby, zip open the backpack, grab the (non-existent) guns therein, and shoot the officers dead.
So holds the Ninth Circuit.
Wednesday, August 12, 2015
People v. Preston (Cal. Ct. App. - Aug. 12, 2015)
So you want to be a justice on the Court of Appeal, eh? Presumably because you'll get to resolve critical, riveting cases like this one:
"This appeal arises from three separate cases. In each case the trial court granted defendant probation. In the first case, the trial court suspended execution of sentence and imposed a restitution fund fine. In the second and third cases, the trial court suspended imposition of sentence and imposed a restitution fund fine and a probation revocation fine. In September of 2013, the trial court revoked probation in all three cases and, in each case, imposed an additional restitution fund fine of $300 and a parole revocation fine of $300. Defendant Lisa Marie Preston raised a number of issues relative to the imposition of these additional fines. We requested supplemental briefing on four questions:
(1) Whether the trial court‘s failure to impose a parole revocation fine when sentence was imposed and execution stayed in case Nos. SF091142A/12F5679 (case 1) was an unauthorized sentence.
(2) Whether the trial court was authorized to impose a parole revocation fine years after it imposed the restitution fund fines in case Nos. SF112662A/12F5677 (case 2) and case Nos. SF117635A/12F5678 (case 3).
(3) Whether the trial court was authorized to impose both a probation revocation fine and a parole revocation fine in cases 2 and 3.
(4) Whether the trial court erred in failing to lift the stays on the probation revocation fines when it revoked defendant‘s probation in cases 2 and 3."
You can read the entire opinion for which $100/$300 fines were permissible, which were required, and which were impermissible.
Just remember that this whole thing is about fines that (1) may never in fact be paid -- or at least not paid with a real check (the defendant was repeatedly convicted of forgery); and (2) in any event are far smaller than the costs of prosecuting and resolving this appeal.
"This appeal arises from three separate cases. In each case the trial court granted defendant probation. In the first case, the trial court suspended execution of sentence and imposed a restitution fund fine. In the second and third cases, the trial court suspended imposition of sentence and imposed a restitution fund fine and a probation revocation fine. In September of 2013, the trial court revoked probation in all three cases and, in each case, imposed an additional restitution fund fine of $300 and a parole revocation fine of $300. Defendant Lisa Marie Preston raised a number of issues relative to the imposition of these additional fines. We requested supplemental briefing on four questions:
(1) Whether the trial court‘s failure to impose a parole revocation fine when sentence was imposed and execution stayed in case Nos. SF091142A/12F5679 (case 1) was an unauthorized sentence.
(2) Whether the trial court was authorized to impose a parole revocation fine years after it imposed the restitution fund fines in case Nos. SF112662A/12F5677 (case 2) and case Nos. SF117635A/12F5678 (case 3).
(3) Whether the trial court was authorized to impose both a probation revocation fine and a parole revocation fine in cases 2 and 3.
(4) Whether the trial court erred in failing to lift the stays on the probation revocation fines when it revoked defendant‘s probation in cases 2 and 3."
You can read the entire opinion for which $100/$300 fines were permissible, which were required, and which were impermissible.
Just remember that this whole thing is about fines that (1) may never in fact be paid -- or at least not paid with a real check (the defendant was repeatedly convicted of forgery); and (2) in any event are far smaller than the costs of prosecuting and resolving this appeal.
U.S. v. Boitano (9th Cir. - Aug. 12, 2015)
Wait: You can be the name partner in an accounting firm, and be responsible for filing other people's taxes, and yet not file any tax returns of your own -- for sixteen years -- and still get only five months in prison?
Sort of makes me want to not file taxes either.
(Though doesn't make me want to be a partner in an accounting firm.)
Sort of makes me want to not file taxes either.
(Though doesn't make me want to be a partner in an accounting firm.)
Tuesday, August 11, 2015
Mann v. Ryan (9th Cir. - Aug. 10, 2015)
Judge Kozinski dissented in the panel's reversal of the death sentence, saying that the opinion might well be summarily reversed by the Supreme Court.
It might not even get that far. The Ninth Circuit just took the case en banc.
We'll see what the draw looks like. Which will matter. Since my strong sense is that the en banc opinion will not be unanimous.
It might not even get that far. The Ninth Circuit just took the case en banc.
We'll see what the draw looks like. Which will matter. Since my strong sense is that the en banc opinion will not be unanimous.
Monday, August 10, 2015
Madrigal-Barcenas v. Lynch (9th Cir. - Aug. 10, 2015)
The next time someone tells you how the Ninth Circuit is so out of step with the Supreme Court, agree with them. And mention this case.
Five times the Ninth Circuit held that an alien convicted of possessing drug paraphernalia under state law was ineligible for relief from deportation. This has been the law of the circuit for at least fifteen years.
The matter eventually goes up to the Supreme Court. Which concludes otherwise. In a 7-2 opinion, with only Justices Thomas and Alito dissenting.
So this morning, pursuant to a GVR from the Supreme Court, the Ninth Circuit overrules its prior precedent. Consistent with what's required by the new Supreme Court opinion.
So, yeah, sometimes the Ninth Circuit is out of step. But sometimes it's out of step in a way that's to the right of the Supreme Court.
Not always to the left.
Five times the Ninth Circuit held that an alien convicted of possessing drug paraphernalia under state law was ineligible for relief from deportation. This has been the law of the circuit for at least fifteen years.
The matter eventually goes up to the Supreme Court. Which concludes otherwise. In a 7-2 opinion, with only Justices Thomas and Alito dissenting.
So this morning, pursuant to a GVR from the Supreme Court, the Ninth Circuit overrules its prior precedent. Consistent with what's required by the new Supreme Court opinion.
So, yeah, sometimes the Ninth Circuit is out of step. But sometimes it's out of step in a way that's to the right of the Supreme Court.
Not always to the left.
Thursday, August 06, 2015
U.S. v. Leung (9th Cir. - Aug. 6, 2015)
There are several opinions in the civil procedure textbook that I assign to my first-year students that discuss juror misconduct during deliberations. Several of them are Supreme Court cases, and others are from the Court of Appeals.
I'm going to ditch all of them, and have my students merely read this opinion by Judge McKeown.
It's concise, to the point, and tells students pretty much everything they need to know.
So thanks, Judge McKeown. You saved my students about ten pages of reading.
Which I'll now devote to further exploration of the Erie doctrine.
Psych.
I'm going to ditch all of them, and have my students merely read this opinion by Judge McKeown.
It's concise, to the point, and tells students pretty much everything they need to know.
So thanks, Judge McKeown. You saved my students about ten pages of reading.
Which I'll now devote to further exploration of the Erie doctrine.
Psych.
People v. Brown (Cal. Supreme Ct. - Aug. 6, 2015)
Here's a nice, sensible, moderate opinion from the California Supreme Court. To which every reasonable person can concur.
Including me.
The Court unanimously holds that it counts as a detention -- and hence requires reasonable suspicion -- for a police officer to pull up behind a parked car and activate his lights, since a reasonable person would not feel free to leave in such a setting.
Of course that's right. Of course you wouldn't feel free to leave if a police officer did that to you. You'd know full well that if you left, they'd simply chase you, and force you to pull over. That's clearly true. The Attorney General's argument to the contrary is meritless.
(The caveats in Justice Corrigan's opinion on this point are similarly sensible. Maybe there's a different result if an officer pulls up behind a parked vehicle that's broken down on the highway and turns on her lights. It's possible that such a person might simply think the officer was there to help. Fair enough.)
Not only is Justice Corrigan right as an empirical matter -- a reasonable driver would not, in fact, feel free to leave -- but it's also good policy. We should prefer to have rules that say that it counts as a detention when officers activate their lights. If for no other reason than we want people to do precisely that -- to stop, and to not feel free to leave -- in such a setting. Especially since citizens don't know what the officers know at the time (e.g., why they're being stopped), we don't want people to have to guess whether an officer with her lights on "really means it" or whether sitting there would simply be voluntary. The world's a better place if there's a rule that's as bright line as possible. When an officer turns on her lights, and those lights are clearly (as here) directed at you, I think it make sense to generally view that display as a command. "Stop".
So I'm on board.
At the same time, I'm also on board with the Court's unanimous decision that there was, in fact, reasonable suspicion here. I'll not bore you with the details. But there was a 911 call about a fight with a loaded gun in the alley, the person stopped here came from that alley, you could hear the fight in the background in the 911 call, and the officer could reasonably suspect that the guy in the car had something to do with the fight.
Turns out that he probably didn't. But no matter. The officer had sufficient cause to briefly detain the guy to figure out the scoop. And when the officer went up to the car and smelled alcohol, and eventually arrested the guy for DUI, that was all good and proper. No basis for reversal.
Good opinion. Nice, careful, rational, coherent, and sensible. Plus unanimous.
Were they all to be this way.
Including me.
The Court unanimously holds that it counts as a detention -- and hence requires reasonable suspicion -- for a police officer to pull up behind a parked car and activate his lights, since a reasonable person would not feel free to leave in such a setting.
Of course that's right. Of course you wouldn't feel free to leave if a police officer did that to you. You'd know full well that if you left, they'd simply chase you, and force you to pull over. That's clearly true. The Attorney General's argument to the contrary is meritless.
(The caveats in Justice Corrigan's opinion on this point are similarly sensible. Maybe there's a different result if an officer pulls up behind a parked vehicle that's broken down on the highway and turns on her lights. It's possible that such a person might simply think the officer was there to help. Fair enough.)
Not only is Justice Corrigan right as an empirical matter -- a reasonable driver would not, in fact, feel free to leave -- but it's also good policy. We should prefer to have rules that say that it counts as a detention when officers activate their lights. If for no other reason than we want people to do precisely that -- to stop, and to not feel free to leave -- in such a setting. Especially since citizens don't know what the officers know at the time (e.g., why they're being stopped), we don't want people to have to guess whether an officer with her lights on "really means it" or whether sitting there would simply be voluntary. The world's a better place if there's a rule that's as bright line as possible. When an officer turns on her lights, and those lights are clearly (as here) directed at you, I think it make sense to generally view that display as a command. "Stop".
So I'm on board.
At the same time, I'm also on board with the Court's unanimous decision that there was, in fact, reasonable suspicion here. I'll not bore you with the details. But there was a 911 call about a fight with a loaded gun in the alley, the person stopped here came from that alley, you could hear the fight in the background in the 911 call, and the officer could reasonably suspect that the guy in the car had something to do with the fight.
Turns out that he probably didn't. But no matter. The officer had sufficient cause to briefly detain the guy to figure out the scoop. And when the officer went up to the car and smelled alcohol, and eventually arrested the guy for DUI, that was all good and proper. No basis for reversal.
Good opinion. Nice, careful, rational, coherent, and sensible. Plus unanimous.
Were they all to be this way.
Wednesday, August 05, 2015
People v. Cardenas (Cal. Ct. App. - Aug. 5, 2015)
I'm not a huge fan of locking people up for excruciatingly long periods. But I'm nonetheless fine with Mr. Cardenas getting 18 years in prison for robbery and burglary in this case.
He's not a guy I really want walking around on the streets.
He's not a guy I really want walking around on the streets.
In Re A.G. (Cal. Ct. App. - Aug. 5, 2015)
Some might think it piling on. But Justice Ramirez wants there to be no doubt about where the Court of Appeal stands:
"The evidence that even supervised visitation with father presented some danger to the child’s physical or emotional well-being is as follows. First, as the juvenile court emphasized, the child was young, only six years old, and had no bonding or relationship with father whatsoever. Father and the child had last seen each other when the child was about eighteen months old. The child had recently spoken to father on the telephone and had treated him like anyone else . . . . Second, father frequently violated his parole, had been in and out of custody for the previous six or seven years, stated under oath that he could not promise that he would abide by juvenile court orders regarding visitation and contact, and testified that he only respected the terms of his parole supervision 'To a point.' Third, this most recent violation of parole involved cutting off his GPS tracking device, drug use and sex with a prostitute only 30 days after being released from prison. Fourth, father had a long-standing problem with abusing drugs, beginning at the age of 13. Fifth, and certainly not least, father had a rather long record of serious criminal convictions, including several for sex crimes against children. [Emphasis in original] Overall, given that father regularly engaged in such risky behavior—risky to both himself and the child—and the bond between father and the child was negligible, we find substantial evidence supports the juvenile court’s finding that even supervised visits between father and the child represented a danger to the child’s well-being and thus would be detrimental. However, as discussed below, this very substantiated finding of detriment was unnecessary given that the law does not change, once guardianship is selected as a child’s permanent plan, to suddenly give a mere alleged father a new presumptive right to visitation."
Well then. I guess this one ain't that tough, is it?
"The evidence that even supervised visitation with father presented some danger to the child’s physical or emotional well-being is as follows. First, as the juvenile court emphasized, the child was young, only six years old, and had no bonding or relationship with father whatsoever. Father and the child had last seen each other when the child was about eighteen months old. The child had recently spoken to father on the telephone and had treated him like anyone else . . . . Second, father frequently violated his parole, had been in and out of custody for the previous six or seven years, stated under oath that he could not promise that he would abide by juvenile court orders regarding visitation and contact, and testified that he only respected the terms of his parole supervision 'To a point.' Third, this most recent violation of parole involved cutting off his GPS tracking device, drug use and sex with a prostitute only 30 days after being released from prison. Fourth, father had a long-standing problem with abusing drugs, beginning at the age of 13. Fifth, and certainly not least, father had a rather long record of serious criminal convictions, including several for sex crimes against children. [Emphasis in original] Overall, given that father regularly engaged in such risky behavior—risky to both himself and the child—and the bond between father and the child was negligible, we find substantial evidence supports the juvenile court’s finding that even supervised visits between father and the child represented a danger to the child’s well-being and thus would be detrimental. However, as discussed below, this very substantiated finding of detriment was unnecessary given that the law does not change, once guardianship is selected as a child’s permanent plan, to suddenly give a mere alleged father a new presumptive right to visitation."
Well then. I guess this one ain't that tough, is it?
Tuesday, August 04, 2015
Blixseth v. Yellowstone Mountain Club (9th Cir. - Aug. 4, 2015)
When the Ninth Circuit -- and Judge Kozinski in particular -- issues an order to show cause and issues an opinion that says that you might well have brought an appeal in bad faith, an attempt to "double down" and insist that what you did was completely right is probably not your best option.
That's what transpired here. The client, Timothy Blixseth, and one of his attorneys, Michael Flynn, respond to the OSC by continuing to insist that they did nothing wrong and continuing the type of advocacy that got them in trouble in the first place. So the Ninth Circuit spanks them, and imposes a fee and cost award, plus another $500 to the Ninth Circuit for good measure.
By contrast, four of the other attorneys on the case "allowed
their names to be placed on briefs that presented frivolous and
inflammatory arguments." But those lawyers responded to the OSC with a nuanced mea culpa that distanced themselves as much as possible from what transpired.
Those lawyers avoid sanction altogether. Apart from having their names published in the Federal Reporter, anyway.
That's a better decision.
Rounds v. Commissioner of Social Security (9th Cir. - Aug. 4, 2015)
Heather Rounds lives in Oregon. She's 22 years old, a high school graduate, and lives with her five-year old daughter, a boyfriend, and two cats. She's had two short-term jobs in her life: one as a gas station cashier and one at a fast-food restaurant. She says that she has "difficulties with social interactions,
leaving the house, sleeping, remembering to eat and care
for herself, and remembering instructions. Nevertheless,
she stated that she was able to care for her daughter and her
cats, prepare simple meals, share house work with her
roommate, shop for groceries, and pay bills."
She'd like social security disability payments. Presumably for the rest of her life, since the things about which she complains (not wanting to interact with others, etc.) will not likely change.
Ms. Rounds "sees no reason to want to work". The Ninth Circuit opinion discusses at length the various ailments that Ms. Rounds alleges she might have, many (if not all) of which involve self-reported difficulties. She also has "unusual beliefs and perceptions".
A number of twenty-somethings in Oregon might fit this description.
The ALJ denies benefits. The district court affirms. The Ninth Circuit partially reverses and remands.
Trying to separate those who are truly disabled from those who simply would prefer not to work is a difficult task. Made even more difficult by the reality that (1) some ailments truly do not have many objective signs, and (2) some people are willing to claim ailments of this type but do not in fact have them. There's also a fine line between finding work (as Ms. Rounds does) "'hard and exhausting' due to not fitting in with her co-workers and struggling to interact with customers" because you have real psychological problems versus simply rather being at home with your boyfriend, daughter, and/or cats instead of at work. A reality that would describe many of us.
She'd like social security disability payments. Presumably for the rest of her life, since the things about which she complains (not wanting to interact with others, etc.) will not likely change.
Ms. Rounds "sees no reason to want to work". The Ninth Circuit opinion discusses at length the various ailments that Ms. Rounds alleges she might have, many (if not all) of which involve self-reported difficulties. She also has "unusual beliefs and perceptions".
A number of twenty-somethings in Oregon might fit this description.
The ALJ denies benefits. The district court affirms. The Ninth Circuit partially reverses and remands.
Trying to separate those who are truly disabled from those who simply would prefer not to work is a difficult task. Made even more difficult by the reality that (1) some ailments truly do not have many objective signs, and (2) some people are willing to claim ailments of this type but do not in fact have them. There's also a fine line between finding work (as Ms. Rounds does) "'hard and exhausting' due to not fitting in with her co-workers and struggling to interact with customers" because you have real psychological problems versus simply rather being at home with your boyfriend, daughter, and/or cats instead of at work. A reality that would describe many of us.
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