Look, I'm no cheerleader. Of course, I say that precisely because I'm defensive, particularly in light of what I'm about to say. Since I'm going to compliment Justice Butz again. As I did here and here. My only defense is that I've also said that I didn't think that one of her opinions was all that impressive. Still, I'm a fan. At least thus far.
Why, you might ask? Because of opinions like this one. Which is really good, and which cogently engages in a sophisticated and persausive synthesis of various competing lines of federal and state precedent. It's the type of opinion that never fails to impress. And it's definitely worth a read.
Among other things, this case is about an important issue: When can a plaintiff file a Section 1983 suit based upon conduct that transpired during the course of an arrest which he was convicted of resisting? As you can imagine, such lawsuits are filed somewhat frequently. As a result, there's a large body of precedent about when such suits are cognizable. Particularly after Heck, in which the Supreme Court held that Section 1983 claims can't be brought when doing so would essentially constitute a collateral attack upon the validity of an underlying criminal conviction. So, for example, you can't file a Section 1983 claim asserting that the police set you up in order to convict you; absent first vacating the conviction, you're boned. ("Boned" -- of course -- being a formal legal term for a particular typical of res judicata.)
The basic rule in this regard makes total sense. The problem is that lower courts have sometimes been a bit aggressive -- in part relying upon fairly broad language articulated in footnote 6 of Justice Scalia's opinion in Heck -- in their application of that case. For example, courts routinely apply Heck to bounce Section 1983 claims alleging excessive force during an arrest. The theory being that if you were convicted of (or pled guilty to), say, resisting arrest, you can't bring a Section 1983 claim against the police, since your claim that the police used excessive force is inconsistent with your conviction, since if they used excessive force, you were entitled to resist. Which we know you weren't, since you were convicted.
This is a facially appealing argument, and in some cases, is totally correct. However, in the real world, this theory often doesn't work. For example, imagine that the sequence of events transpires this way: (1) you resist arrest, (2) they handcuff you and put you in a patrol car, and (3) then, while you're restrained, the police beat the crap out of you. The fact that you're convicted of (1) is no way inconsistent with a Section 1983 claim for (3). But lower courts often misread Heck to preclude Section 1983 claims in precisely such cases. Moreover, in practice, the categorical rule articulated by Heck is hard to apply because (1) and (3) are often close in time; moreover, the actual events that underlie your conviction for resisting are often unclear, particularly in cases involving a guilty plea.
The great thing about Justice Butz is that she -- unlike many lower courts -- can tell the difference between these competing concepts. She does a great job explaining why certain cases make sense, why others don't, and how the various competing principles are properly resolved and applied. Mind you, the rationale that I've articulated above is my own, and she explains the theory a little differently. But they're two sides of the same coin. Plus, as a bonus, she also explains and agrees with Smith v. Hemet, a Ninth Circuit case which I discussed here and in which I also agreed with the majority (rather than the dissent). So I'm totally on board with everything that Justice Butz says.
Finally -- and I know this post is already a bit long -- this particular case also exemplifies precisely why the collateral estoppel principles articulated in Heck can't be categorically applied, regardless of what Justice Scalia inartfully said in footnote 6. Here, the plaintiff resisted arrest, and (in an attempt to subdue him) was subsequently tasered, handcuffed, and put in restraints by the police. So far so good. But then, after he was restrained, he started to struggle a bit more. So one of the police officers grabbed for his taser in an attempt to stun him once more. And pulled the trigger. One problem: instead of grabbing his taser, he accidentally grabbed his gun. And hence shot the plaintiff with his nine millimeter. Oops!
Plaintiff's conviction for resisting arrest is obviously not inconsistent with a claim for excessive force based upon such events. And yet, relying on Heck and other authorities, the trial court entered judgment for the defendants on that basis. Justice Butz knows that this is wrong, and cogently explains why. A good opinion.
P.S. - Memo to all police officers: Please make sure that's actually a taser in your hand before squeezing the trigger. It's not a difficult task. And definitely worth the effort. Plaintiff wasn't killed here. The next time we might not be so lucky.
Monday, November 21, 2005
Friday, November 18, 2005
The Santa Anita Companies v. Westfield Corp. (Cal. Ct. App. - Nov. 17, 2005)
Hilarious. You have to read the first eight pages of this opinion. Which explain, at length, how even high-priced legal talent in Los Angeles -- in particular, O'Melveny & Myers -- can totally screw up a relatively straightforward real estate transaction by making a boneheaded error that resulted in an extremely valuable 2.36 acre parcel of land adjacent to the Santa Anita Racetrack being mistakenly transferred to the wrong party. And how no one noticed this fact for several years. Until a paralegal -- a paralegal -- from Gibson Dunn caught the mistake.
Of course, the mistake was caught only after the statute of limitations had run. But no matter. Justice Mosk holds the statute was tolled. Becasue O'Melveny acted competently -- and in a same manner as other major Los Angeles law firms -- when it made a totally stupid mistake that even a paralegal could (and did) catch. Yep. Definitely.
Of course, the mistake was caught only after the statute of limitations had run. But no matter. Justice Mosk holds the statute was tolled. Becasue O'Melveny acted competently -- and in a same manner as other major Los Angeles law firms -- when it made a totally stupid mistake that even a paralegal could (and did) catch. Yep. Definitely.
Thursday, November 17, 2005
Osman v. Superior Court (Cal. Ct. App. - Nov. 16, 2005)
THIS counts as a waiver?! Wow.
The prosecution messes up a criminal complaint and the court grants defendant's demurrer. Section 1007 of the Penal Code says that in such settings, the court can grant the prosecution a maximum of 10 days to amend the complaint, and Section 1008 states that if no such amendment is made within this period, the complaint must be dismissed.
So, here, the court grants the demurrer, but its order -- contrary to Section 1007 -- granted the prosecution 33 days in which to amend. So when no amendment was made within 10 days, pursuant to Section 1008, the defendant moved for mandatory dismissal of the complaint.
But Justice Mallano holds here that no such dismissal was required, because defendant "by her silence" waived the protections of Section 1007. What?! Remember, defendant properly and timely requested dismissal. Her only "silence" was her failure to jump up and down at the hearing itself and scream that the court's order violated Section 1007. But since when does that count as a waiver? Is it a waiver when the trial court grants a summary judgment motion and I don't say "Hey, that's wrong" at the conclusion of the hearing? Is it waiver when the court improperly sets a trial to be heard in Santa Clara County if you don't orally object immediately after the court orally issues its order? Since when?
Yes, it's waiver when you don't make a timely objection. But, before this case, we didn't require an objection at the actual hearing itself -- an objection that you'd not even necessarily know to make, as it might well be an error (as here) that you didn't anticipate and the legal invalidity of which you were unaware. Add to all of this the fact that Sections 1007 and 1008 are mandatory provisions anyway, and hence ones which might well be incapable of being waived.
In any event, at a minimum, we shouldn't stretch to find waiver. Which, with all due respect, Justice Mallano does here.
P.S. - Full disclosure. I personally know the defendant, Randa Osman. She's a partner at the law firm at which both my wife and I once worked, and was a co-worker for a time. And I also like and respect her. But -- and I'm being totally honest here -- I didn't even realize that this was her case until after I was halfway through writing this post. My reactions have nothing to do with the fact that it's Randa. They're instead my honest reactions to the Court of Appeal's holding.
The prosecution messes up a criminal complaint and the court grants defendant's demurrer. Section 1007 of the Penal Code says that in such settings, the court can grant the prosecution a maximum of 10 days to amend the complaint, and Section 1008 states that if no such amendment is made within this period, the complaint must be dismissed.
So, here, the court grants the demurrer, but its order -- contrary to Section 1007 -- granted the prosecution 33 days in which to amend. So when no amendment was made within 10 days, pursuant to Section 1008, the defendant moved for mandatory dismissal of the complaint.
But Justice Mallano holds here that no such dismissal was required, because defendant "by her silence" waived the protections of Section 1007. What?! Remember, defendant properly and timely requested dismissal. Her only "silence" was her failure to jump up and down at the hearing itself and scream that the court's order violated Section 1007. But since when does that count as a waiver? Is it a waiver when the trial court grants a summary judgment motion and I don't say "Hey, that's wrong" at the conclusion of the hearing? Is it waiver when the court improperly sets a trial to be heard in Santa Clara County if you don't orally object immediately after the court orally issues its order? Since when?
Yes, it's waiver when you don't make a timely objection. But, before this case, we didn't require an objection at the actual hearing itself -- an objection that you'd not even necessarily know to make, as it might well be an error (as here) that you didn't anticipate and the legal invalidity of which you were unaware. Add to all of this the fact that Sections 1007 and 1008 are mandatory provisions anyway, and hence ones which might well be incapable of being waived.
In any event, at a minimum, we shouldn't stretch to find waiver. Which, with all due respect, Justice Mallano does here.
P.S. - Full disclosure. I personally know the defendant, Randa Osman. She's a partner at the law firm at which both my wife and I once worked, and was a co-worker for a time. And I also like and respect her. But -- and I'm being totally honest here -- I didn't even realize that this was her case until after I was halfway through writing this post. My reactions have nothing to do with the fact that it's Randa. They're instead my honest reactions to the Court of Appeal's holding.
Wednesday, November 16, 2005
People v. Sanborn (Cal. Ct. App. - Nov. 9, 2005)
There are two interesting things about this opinion. First, it's yet another in an infinitely long line of cases in which the defendant gets sentenced to (in essence) death in prison for molesting children. Infinitely. Long. Line. Sanborn is 34, and is sentenced to a determinate term of 24 years plus two consecutive terms of 12 years. So enjoy dying behind bars. Oh, by the way. They love child molesters in there. It'll be a great series of decades. If you somehow manage to survive them. Opinions will vary on whether that's the appropriate punishment. But it's definitely common.
Second, there's actually a double jeopardy claim here of a type I've never seen before. The jury begins to deliberate, and these deliberations last a long time. The jury eventually reaches a verdict on some (but not all) of the counts, but then there's a death in the family of one of the jurors, and she's excused. At which point the judge instructs the jury to rip up the verdict forms they've already completed and start anew. Which they do, and then convict the defendant on a ton of counts. In response to which the defendant argues that this procedure (in which he acquiesced) violates double jeopardy, since once the jury reached a verdict on the counts on which they agreed, jeopardy attached. So the post-ripping-up verdicts were impermissible.
Justice Hollenhorst rejects this claim, which seems right, though I might have articulated different reasons than his. Which actually puts it favorably, since I think that he doesn't really have any actual reasons, but instead merely discusses and distinguishes precedent, rather than expressing any actual policy or doctrinal arguments. My sense is that the verdicts are final only once they're accepted by the judge, or at least read in court, and hence the ripped-up verdict sheets don't count. Still, it's an interesting double jeopardy argument. And if the jury had indeed found the defendant not guilty in these initial verdict sheets, I'd have a tough time arguing that double jeopardy didn't attach, even though that still seems the right result. This case, however, doesn't present such a pristine and difficult case. Still, it's an interesting -- and novel -- issue. One I hadn't even thought about before, much less confronted in the real world.
One other thing. Does anyone really believe -- honestly -- that juries even pretend to follow instructions to begin deliberations anew once an alternate is seated? Come on. You know that it's pretty much a total fiction that they start deliberations all over. And if you didn't know it before this case, definitely go ahead and check out what happens here. The jury deliberates for eight full days without reaching a verdict, asking for some testimonial readbacks and the like. Then the alternate comes in and the jury instructed to deliberate anew. At which point the jury takes all of three and a half hours to reach a verdict on ten-plus counts. Oh yeah. I'm really sure they totally started over. Definitely. But Justice Hollenhorst doesn't care. It's a black box. Which means we just pretend that they follow our instructions. Even when we know that's a total lie.
Anyway. Enjoy prison, Mr. Sanborn. Good luck on your eventual habeas petition. Assuming, of course, you can find someone to do it for you. Without screwing it up. And without getting iced in prison first.
Second, there's actually a double jeopardy claim here of a type I've never seen before. The jury begins to deliberate, and these deliberations last a long time. The jury eventually reaches a verdict on some (but not all) of the counts, but then there's a death in the family of one of the jurors, and she's excused. At which point the judge instructs the jury to rip up the verdict forms they've already completed and start anew. Which they do, and then convict the defendant on a ton of counts. In response to which the defendant argues that this procedure (in which he acquiesced) violates double jeopardy, since once the jury reached a verdict on the counts on which they agreed, jeopardy attached. So the post-ripping-up verdicts were impermissible.
Justice Hollenhorst rejects this claim, which seems right, though I might have articulated different reasons than his. Which actually puts it favorably, since I think that he doesn't really have any actual reasons, but instead merely discusses and distinguishes precedent, rather than expressing any actual policy or doctrinal arguments. My sense is that the verdicts are final only once they're accepted by the judge, or at least read in court, and hence the ripped-up verdict sheets don't count. Still, it's an interesting double jeopardy argument. And if the jury had indeed found the defendant not guilty in these initial verdict sheets, I'd have a tough time arguing that double jeopardy didn't attach, even though that still seems the right result. This case, however, doesn't present such a pristine and difficult case. Still, it's an interesting -- and novel -- issue. One I hadn't even thought about before, much less confronted in the real world.
One other thing. Does anyone really believe -- honestly -- that juries even pretend to follow instructions to begin deliberations anew once an alternate is seated? Come on. You know that it's pretty much a total fiction that they start deliberations all over. And if you didn't know it before this case, definitely go ahead and check out what happens here. The jury deliberates for eight full days without reaching a verdict, asking for some testimonial readbacks and the like. Then the alternate comes in and the jury instructed to deliberate anew. At which point the jury takes all of three and a half hours to reach a verdict on ten-plus counts. Oh yeah. I'm really sure they totally started over. Definitely. But Justice Hollenhorst doesn't care. It's a black box. Which means we just pretend that they follow our instructions. Even when we know that's a total lie.
Anyway. Enjoy prison, Mr. Sanborn. Good luck on your eventual habeas petition. Assuming, of course, you can find someone to do it for you. Without screwing it up. And without getting iced in prison first.
Tuesday, November 15, 2005
In Re Rains (9th Cir. - Nov. 8, 2005)
Crickey. Sure, we're toughening up on the ability of debtors to file for bankruptcy. But I never knew that it would be this tough.
Omar Rains was (indeed, according to the State Bar, still is) a California attorney. Things apparently do not go well for him, so he decides to go BK. There's an adversary bankruptcy proceeding that goes to mediation, and that process lasts all day. It's a tough negotiation, but eventually, at the end of the day, the parties enter into a settlement agreement. The contract requires Rains to pay $250,000 -- no small amount -- to the trustee, but Rains agrees to do so, and signs the settlement agreement.
Which sucks for Rains, of course. But things are going to get much, much worse for him. Because immediately after the mediation, Rains -- whose head is pounding -- drives himself to the emergency room, at which point he's promptly admitted to the hospital and diagnosed with a ruptured cerebral aneurysm, sub-arachnoid hemmorage, and stoke. Yikes. He undergoes surgery the very next day and is in the ICU for a month before eventually being discharged. Guess he should have skipped the mediation, eh?
Thereafter, Rains tries to get out of the settlement agreement. Claiming -- quite plausibly, in my view -- that he was actively having a stroke during the negotiation and execution of this agreement. And he backs up this claim with the testimony of various medical professionals that, given what was medically going on in his head at the time, Rains would have been "without the mental capacity to engage in business affairs on September 23, 2002 [the date of the mediation] . . . and for a number of days on each side of that date." Which, again, I find fairly plausible. Let me say, for the record, that if I'm ever having a stroke, I hope to God that I'm not doing so during a day-long mediation, much less one at the end of which I'm going to agree to spend a quarter million bucks. This may come as a shock, but I may not be thinking entirely clearly during such a process.
What I think, of course, doesn't matter. Because the bankruptcy court concludes that Rains had the mental capacity to understand and enter into the settlement agreement notwithstanding his stroke, the district court agrees, and the Ninth Circuit -- probably rightly -- concludes that such a factual finding is not "clear error".
Still. What a crappy day for Rains. Makes my own very worst days sound like an utter cakewalk.
Omar Rains was (indeed, according to the State Bar, still is) a California attorney. Things apparently do not go well for him, so he decides to go BK. There's an adversary bankruptcy proceeding that goes to mediation, and that process lasts all day. It's a tough negotiation, but eventually, at the end of the day, the parties enter into a settlement agreement. The contract requires Rains to pay $250,000 -- no small amount -- to the trustee, but Rains agrees to do so, and signs the settlement agreement.
Which sucks for Rains, of course. But things are going to get much, much worse for him. Because immediately after the mediation, Rains -- whose head is pounding -- drives himself to the emergency room, at which point he's promptly admitted to the hospital and diagnosed with a ruptured cerebral aneurysm, sub-arachnoid hemmorage, and stoke. Yikes. He undergoes surgery the very next day and is in the ICU for a month before eventually being discharged. Guess he should have skipped the mediation, eh?
Thereafter, Rains tries to get out of the settlement agreement. Claiming -- quite plausibly, in my view -- that he was actively having a stroke during the negotiation and execution of this agreement. And he backs up this claim with the testimony of various medical professionals that, given what was medically going on in his head at the time, Rains would have been "without the mental capacity to engage in business affairs on September 23, 2002 [the date of the mediation] . . . and for a number of days on each side of that date." Which, again, I find fairly plausible. Let me say, for the record, that if I'm ever having a stroke, I hope to God that I'm not doing so during a day-long mediation, much less one at the end of which I'm going to agree to spend a quarter million bucks. This may come as a shock, but I may not be thinking entirely clearly during such a process.
What I think, of course, doesn't matter. Because the bankruptcy court concludes that Rains had the mental capacity to understand and enter into the settlement agreement notwithstanding his stroke, the district court agrees, and the Ninth Circuit -- probably rightly -- concludes that such a factual finding is not "clear error".
Still. What a crappy day for Rains. Makes my own very worst days sound like an utter cakewalk.
Monday, November 14, 2005
U.S. v. Norris (9th Cir. - Nov. 10, 2005)
So, I ask myself, exactly what have the Ninth Circuit and California appellate courts been up to during my sojourn on the East Coast? No good, no doubt. Heartless bastards.
Just kidding. Actually, the more I think about it, the more I'm pretty sure that, in my absence, these courts simply continued to churn out published opinions that -- maybe 90 percent of the time -- I agree with, and even more unpublished opinions that I'd agree with as well if I could somehow find the time to read them all. Sure, maybe the opinions could occasionally reason things out a bit better, or be written more persuasively. But, honestly, I probably find myself smiling and nodding my head in agreement much, much more than I find myself screaming at the computer screen at what I'm reading. It's just that the ten percent or so of cases in which I think someone's made a horrible error -- or the five percent of cases that are really impressive -- make for more interesting reading than the remainder. So those are the ones about which I generally post.
Then there are cases like this one, which are really neither bad nor good, but merely interesting. The panel is Wallace, Rawlinson, and Bybee. Not exactly a dream panel if you're a criminal defendant, eh? No. Not at all. But the first paragraph of Judge Rawlinson's opinion quickly summarizes the panel's decision, which reverses one of the defendant's convictions on the ground that his confession was insufficiently cooberated.
What?! A panel like this reversing a criminal conviction on insufficiency grounds?! When there's been a confession?! You might well ask: What sort of apostasy has suddenly overcome these members of the panel? Since when do they reverse on such grounds? Is the conviction in this case really so egregiously wrong that even these three can unanimously agree to reverse on insufficiency grounds?
Well, maybe. Perhaps. Though the panel also upholds the defendant's other two convictions, and also does so in a manner that slyly (and, honestly, with a fairly lame amount of differentiation from precedent) undercuts Miranda. Check out, for example, how quickly and obliquely the panel talks about the "polygraph" issue -- the central argument in the case, in my view -- at the end of Section A. Plus, I don't think that I'm overly cynical to think that the panel is perhaps more willing to reverse one of the defendant's three convictions here in light of the underlying sentence issued by the district court: concurrent 15-year terms (for child molestation) on each of the three counts. Which means that even with one of the convictions gone, on remand, the panel can be pretty sure that the defendant is likely to receive the exact same -- very long -- sentence. That helps, eh?
P.S. - What took so long on this one?! The opinion deliberately reads like it's a very simple case, and one with obvious answers. And it's a fairly short one: only 13 pages. But the oral argument in this case was all the way back on February 7, 2005, and the opinion issued over nine months later, on November 10, 2005. Not what you typically see in cases like this. Don't see why the opinion took longer to gestate than an entire person.
Welcome back.
Just kidding. Actually, the more I think about it, the more I'm pretty sure that, in my absence, these courts simply continued to churn out published opinions that -- maybe 90 percent of the time -- I agree with, and even more unpublished opinions that I'd agree with as well if I could somehow find the time to read them all. Sure, maybe the opinions could occasionally reason things out a bit better, or be written more persuasively. But, honestly, I probably find myself smiling and nodding my head in agreement much, much more than I find myself screaming at the computer screen at what I'm reading. It's just that the ten percent or so of cases in which I think someone's made a horrible error -- or the five percent of cases that are really impressive -- make for more interesting reading than the remainder. So those are the ones about which I generally post.
Then there are cases like this one, which are really neither bad nor good, but merely interesting. The panel is Wallace, Rawlinson, and Bybee. Not exactly a dream panel if you're a criminal defendant, eh? No. Not at all. But the first paragraph of Judge Rawlinson's opinion quickly summarizes the panel's decision, which reverses one of the defendant's convictions on the ground that his confession was insufficiently cooberated.
What?! A panel like this reversing a criminal conviction on insufficiency grounds?! When there's been a confession?! You might well ask: What sort of apostasy has suddenly overcome these members of the panel? Since when do they reverse on such grounds? Is the conviction in this case really so egregiously wrong that even these three can unanimously agree to reverse on insufficiency grounds?
Well, maybe. Perhaps. Though the panel also upholds the defendant's other two convictions, and also does so in a manner that slyly (and, honestly, with a fairly lame amount of differentiation from precedent) undercuts Miranda. Check out, for example, how quickly and obliquely the panel talks about the "polygraph" issue -- the central argument in the case, in my view -- at the end of Section A. Plus, I don't think that I'm overly cynical to think that the panel is perhaps more willing to reverse one of the defendant's three convictions here in light of the underlying sentence issued by the district court: concurrent 15-year terms (for child molestation) on each of the three counts. Which means that even with one of the convictions gone, on remand, the panel can be pretty sure that the defendant is likely to receive the exact same -- very long -- sentence. That helps, eh?
P.S. - What took so long on this one?! The opinion deliberately reads like it's a very simple case, and one with obvious answers. And it's a fairly short one: only 13 pages. But the oral argument in this case was all the way back on February 7, 2005, and the opinion issued over nine months later, on November 10, 2005. Not what you typically see in cases like this. Don't see why the opinion took longer to gestate than an entire person.
Welcome back.
Monday, November 07, 2005
Brief Sojourn
I'm in D.C. during the first part of this week, with very limited internet access. And even if I had it, all of my time here is going to be spent preparing for the oral argument in front of the Supreme Court on Wednesday. As a result, I shan't post anything until Thursday. But rest assured that I shall be back later this week. With bells on.
Thursday, November 03, 2005
Parkview Villas Ass'n v. State Farm (Cal. Ct. App. - Nov. 2, 2005)
I like it. Justice Perluss does a good job in this opinion, in my humble estimation, of finding a middle ground in the continuing disputes regarding the contours of the "Golden Rule" of summary judgment in California: that anything not contained in the separate statement of undisputed facts "does not exist" for purposes of the motion. Justice Perluss -- with substantial input from amici -- holds that, yeah, that rule is the rule, but that this rule isn't really as harsh as it might otherwise appear. As applied to this case, Justice Perluss finds that the trial court shouldn't have granted summary judgment against a party who prepared a separate statement of material facts in opposition to the motion and who included in its separate statement a list of the evidence upon which it relied but whose citations therein to this evidence was, shall we say, somewhat vague (e.g., did not cite particular lines of particular paragraphs). Sure, if they hadn't done any separate statement, or had not cited any evidence therein, maybe we would grant summary judgment against them on the grounds that their alleged evidence "didn't exist". And, yes, if their citations were so vague that we couldn't even get a hint as to the evidence to which they were referring, then, yeah, it's not the court's duty to pour through all of the voluminous papers to find the relevant evidence.
But Justice Perluss is right, in my view, that this wasn't the case here. And, as a result, that a remedy less than granting summary judgment was appropriate. The trial court could have granted a continuance and made the nonmoving party refile a proper separate statement. It could even have sanctioned the party as well. But we have (rightly) come a long way (, baby) from the type of procedural pitfalls that proved fatal in the 1800s. We prefer adjudication on the merits. When we can solve pleading or motion or related problems with judicial remedies shorter than civil death, we should generally prefer them. So I found Justice Perluss' decision in this case particularly persusasive and reasonable.
It's an important case on an important and recurring topic, and also a good example of the kind of common sense judicial reasoning that I increasingly appreciate. Just what you'd expect from any former member of the Harvard Law Review, eh? (*wink*)
But Justice Perluss is right, in my view, that this wasn't the case here. And, as a result, that a remedy less than granting summary judgment was appropriate. The trial court could have granted a continuance and made the nonmoving party refile a proper separate statement. It could even have sanctioned the party as well. But we have (rightly) come a long way (, baby) from the type of procedural pitfalls that proved fatal in the 1800s. We prefer adjudication on the merits. When we can solve pleading or motion or related problems with judicial remedies shorter than civil death, we should generally prefer them. So I found Justice Perluss' decision in this case particularly persusasive and reasonable.
It's an important case on an important and recurring topic, and also a good example of the kind of common sense judicial reasoning that I increasingly appreciate. Just what you'd expect from any former member of the Harvard Law Review, eh? (*wink*)
Wednesday, November 02, 2005
Daniels v. Woodford (9th Cir. - Nov. 2, 2005)
Sometimes you can tell how a case is going to come out by how the matter is characterized in the very first sentence of the opinion. Even when that sentence is incredibly short. Here's the first line of this one: "Jackson Chambers Daniels, Jr. is a sixty-six year old parapalegic on California's death row." That's a pretty strong clue regarding what the opinion is eventually going to decide, no? Especially when the panel consists of Judges Pregerson, Ferguson, and Betty Fletcher.
Anyway, as you might imagine, after this opinion, Jackson Daniels is no longer on death row. Indeed, this is a somewhat unusual case because the lower court had made the traditional anti-death penalty move -- affirming the conviction but reversing the death sentence -- but the Ninth Circuit here does something different (and more rare), and both affirms the reversal of the death sentence as well as reverses the underlying conviction. Not something that you see every day. Even from this panel. Especially in a case involving the murder of two police officers. So, for only for those reasons, the opinion is worth reading.
Anyway, as you might imagine, after this opinion, Jackson Daniels is no longer on death row. Indeed, this is a somewhat unusual case because the lower court had made the traditional anti-death penalty move -- affirming the conviction but reversing the death sentence -- but the Ninth Circuit here does something different (and more rare), and both affirms the reversal of the death sentence as well as reverses the underlying conviction. Not something that you see every day. Even from this panel. Especially in a case involving the murder of two police officers. So, for only for those reasons, the opinion is worth reading.
Monday, October 31, 2005
U.S. v. Heredia (9th Cir. - Oct. 24, 2005)
Judge Kozinski's dissents often crush the majority opnion. He's so smart, his writing is so incredibly good, and his analytical attacks are so concise and pointed that you often come away from reading his dissent with the feeling that not only is he right, but that his analysis also totally dominates the majority.
But not this time. Here, Judge Kozinski dissents to an opinion written by Judge Bybee. But, this time, Judge Bybee's opinion is both more persuasive and better written and then Judge Kozinski's dissent. Judge Bybee essentially out Kozinski's Kozinski in this one.
So this one is definitely worth a read. Sure, Judge Kozinski's dissent is well-written, and in his usual colloquial (and easy to read) style. And, as usual, he doesn't shy away from directly attacking the majority opinion. But, this time, Judge Bybee's opinion is even better, and does the same things that the dissent does, but does them more cogently and more persuasively. It's really quite a good opinion, and all the better for how it directly and powerfully responds to the dissent.
So an impressive performance by Judge Bybee. And, by the way, a strikingly smart panel: Judges Bybee, Willie Fletcher, and Kozinski. Thar's some darn sharp tools in that shed.
P.S. - Yes, yes. I know. On occasion, I'm sure I sound like a hack. Here I am saying how impressive Judge Bybee is. Just as I did here and here. And, yes, maybe my compliments of Judge Kozinski (see, e.g., here and here) are a similarly well-worn refrain as well. But the truth's the truth. Plus, it's not that I like (or agree with) everything these two conservative jurists do; for example, here. I merely call them as I see them.
But not this time. Here, Judge Kozinski dissents to an opinion written by Judge Bybee. But, this time, Judge Bybee's opinion is both more persuasive and better written and then Judge Kozinski's dissent. Judge Bybee essentially out Kozinski's Kozinski in this one.
So this one is definitely worth a read. Sure, Judge Kozinski's dissent is well-written, and in his usual colloquial (and easy to read) style. And, as usual, he doesn't shy away from directly attacking the majority opinion. But, this time, Judge Bybee's opinion is even better, and does the same things that the dissent does, but does them more cogently and more persuasively. It's really quite a good opinion, and all the better for how it directly and powerfully responds to the dissent.
So an impressive performance by Judge Bybee. And, by the way, a strikingly smart panel: Judges Bybee, Willie Fletcher, and Kozinski. Thar's some darn sharp tools in that shed.
P.S. - Yes, yes. I know. On occasion, I'm sure I sound like a hack. Here I am saying how impressive Judge Bybee is. Just as I did here and here. And, yes, maybe my compliments of Judge Kozinski (see, e.g., here and here) are a similarly well-worn refrain as well. But the truth's the truth. Plus, it's not that I like (or agree with) everything these two conservative jurists do; for example, here. I merely call them as I see them.
Thursday, October 27, 2005
Louisiana Pacific v. Lester Bldg. Systems (9th Cir. - Oct. 24, 2005)
Sometimes you gotta realize when things are futile. This is a particularly appropriate message of the day in light of contemporary events in the legal world. But I mention that fact not to refer to a particular Supreme Court nominee, but rather in a much more pedestrian context. The reality is this: No matter what I say, I'm pretty darn sure I won't be able to persuade many people to read a 70-page opinion on the intricacies of the Anti-Injunction Act. It could be the most sexy Anti-Injunction Act case in the history of the universe. Still, I know the reality. It just ain't gonna happen.
But I'll nonetheless mention that this case is worth reading. Really. Okay, maybe only for people who really, really, really, really, really like fed courts issues. Really. But for that select group -- yes, probably the same people who once dressed up as their favorite Dungeons and Dragons character -- it's a case that's definitely worth the investment. For everyone else: Well, it's true for them as well, but I ain't gonna beat my head against a wall. Much. Sure, they should maybe read it too. But good luck with that. Easier to sell snowballs to Eskimos, as my father would sometimes say. (He had a lot of other euphemisms as well. I feel bad for him, however, as he can no longer use the "Is the Pope Polish?" line. Ah, the death of a classic.)
Here's my one-paragraph summary of the case to wet your interest. It's a case with both an opinion (by Judge Clifton), a concurrence (by Judge Silverman), and a dissent (by Judge Reinhardt). So no one fully agrees with anyone else. The dispute matters: It both revolves around a $509 million class action settlement as well as the propriety of a subsequent $29.6 million jury verdict against Louisiana Pacific. And I thought as I began to read Judge Clifton's opinion that I was totally going to agree with him and disagree with my former boss (in dissent), but it turned out, by the end, that the contrary was true. Plus there are super-long footnotes in the opinion (oh boy!) and a ton of direct interchange between the majority and dissent. Finally, the concurrence by Judge Silverman contains the following bon mot that humorously summarizes his main point with a thinly-veiled reference to Las Vegas' contemporary advertising slogan: "What happens in state court stays in state court." Funny!
That's the best I can do to convince you that it's a page turner. It was for me. But the day I claim that I'm representative of any class is the day I formally institutionalize myself. Enjoy the opinion if you so choose!
But I'll nonetheless mention that this case is worth reading. Really. Okay, maybe only for people who really, really, really, really, really like fed courts issues. Really. But for that select group -- yes, probably the same people who once dressed up as their favorite Dungeons and Dragons character -- it's a case that's definitely worth the investment. For everyone else: Well, it's true for them as well, but I ain't gonna beat my head against a wall. Much. Sure, they should maybe read it too. But good luck with that. Easier to sell snowballs to Eskimos, as my father would sometimes say. (He had a lot of other euphemisms as well. I feel bad for him, however, as he can no longer use the "Is the Pope Polish?" line. Ah, the death of a classic.)
Here's my one-paragraph summary of the case to wet your interest. It's a case with both an opinion (by Judge Clifton), a concurrence (by Judge Silverman), and a dissent (by Judge Reinhardt). So no one fully agrees with anyone else. The dispute matters: It both revolves around a $509 million class action settlement as well as the propriety of a subsequent $29.6 million jury verdict against Louisiana Pacific. And I thought as I began to read Judge Clifton's opinion that I was totally going to agree with him and disagree with my former boss (in dissent), but it turned out, by the end, that the contrary was true. Plus there are super-long footnotes in the opinion (oh boy!) and a ton of direct interchange between the majority and dissent. Finally, the concurrence by Judge Silverman contains the following bon mot that humorously summarizes his main point with a thinly-veiled reference to Las Vegas' contemporary advertising slogan: "What happens in state court stays in state court." Funny!
That's the best I can do to convince you that it's a page turner. It was for me. But the day I claim that I'm representative of any class is the day I formally institutionalize myself. Enjoy the opinion if you so choose!
Wednesday, October 26, 2005
Belmontes v. Stokes (9th Cir. - Oct. 24, 2005)
When I first looked at who joined the dissent from the failure to take this case en banc, I thought it contained all of the usual conservative suspects. It's another state habeas case in which the panel grants relief and the right wing attempts (but fails) to take the matter en banc. In that regard, this case is very similar to Musladin v. LaMarque, which came down the previous working day (and which I discuss here and here) and in which the exact same thing transpired.
But first glances can sometimes be deceiving. Sure, it's mostly the same group, as Callahan, O'Scannlain, Kleinfeld, Tallman, Bybee, and Bea each join both dissents. But, somewhat surprisingly, the dissent in this case includes Judge Gould, who didn't join the dissent from the refusal to rehear Musladin. Weird, since my sense is that Musladin is the somewhat weaker case on the merits. Perhaps Judge Gould was spooked by the fact that the Supreme Court previously GVR'd this case, which shouldn't matter, but which sometimes creates a perception of future reversal. (Shameless self-promotion: Cf. Shaun P. Martin, Gaming the GVR, 36 Ariz. St. L.J. 551 (2004)). Perhaps even more significantly, guess who joined the dissent in Musladin but who doesn't join the dissent in this one? Judge Kozinski.
I found that fact particularly interesting because (1) I think that it reaffirms my belief (which I've previously discussed) that Alex is not a knee-jerk jurist, and (2) in light of the fact that his stock as a potential Supreme Court nominee -- on the assumption that Meirs gets tubed -- is (at least according to some) on the rise, and is (again, according to some) much higher than the super-long-shot status he previously held. Now, even the little birdies who're chirping on the subject basically put him at 25-1 or so. Still, that's a fair piece higher than many, and much better odds than he previously had. So interesting to see his take on this one, as well as to ponder how his reactions to cases like these would play with the public in the event he were nominated to the Court.
But first glances can sometimes be deceiving. Sure, it's mostly the same group, as Callahan, O'Scannlain, Kleinfeld, Tallman, Bybee, and Bea each join both dissents. But, somewhat surprisingly, the dissent in this case includes Judge Gould, who didn't join the dissent from the refusal to rehear Musladin. Weird, since my sense is that Musladin is the somewhat weaker case on the merits. Perhaps Judge Gould was spooked by the fact that the Supreme Court previously GVR'd this case, which shouldn't matter, but which sometimes creates a perception of future reversal. (Shameless self-promotion: Cf. Shaun P. Martin, Gaming the GVR, 36 Ariz. St. L.J. 551 (2004)). Perhaps even more significantly, guess who joined the dissent in Musladin but who doesn't join the dissent in this one? Judge Kozinski.
I found that fact particularly interesting because (1) I think that it reaffirms my belief (which I've previously discussed) that Alex is not a knee-jerk jurist, and (2) in light of the fact that his stock as a potential Supreme Court nominee -- on the assumption that Meirs gets tubed -- is (at least according to some) on the rise, and is (again, according to some) much higher than the super-long-shot status he previously held. Now, even the little birdies who're chirping on the subject basically put him at 25-1 or so. Still, that's a fair piece higher than many, and much better odds than he previously had. So interesting to see his take on this one, as well as to ponder how his reactions to cases like these would play with the public in the event he were nominated to the Court.
Tuesday, October 25, 2005
Musladin v. LaMarque (9th Cir. - Oct. 21, 2005)
Am I always perfectly right? No. I'm sure that this admission rocks the universe. Those with any contact with me assuredly have come to expect perfection. But, sadly, it's an unrealistic expectation. I am a mere human. Fragile. Imperfect. Ocassionally wrong.
Why make this concession now? Well, quite frankly, because it's not looking particularly great for our hero. Back in April, I posted that this opinion -- written by my respected prior employer, Judge Reinhardt -- was one that "may be one of those classic Ninth Circuit cases that just doesn't have staying power." And I said, in my classicly cocky know-it-all fashion, that people should "read this one while you can" because it was exactly the type of case that the Supreme Court and the en banc court like to reverse, and hence it was "far from clear that it'll still be precedent a couple of years from now."
Bold words. Here's the thing, though. The Ninth Circuit didn't take it en banc. Sure, the conservatives tried, and called for a vote. But didn't succeed. Yeah, they got Judge Reinhardt to slightly modify his opinion, and he issued a new one that appears here. And yeah, they got several votes to take the case en banc, and seven of the judges expressly joined a lengthy dissent from the denial. But didn't have enough votes. As a result, the basic holding of the panel opinion persists. Notwithstanding my somewhat contrary prediction.
Okay. So I'm apparently not the Nostradamus of the legal profession. Sue me. (Don't really.) Plus, the Supreme Court still has the opportunity to save me from my shame and to step in -- as I somewhat predicted -- and reverse this bad boy. We'll see if they do. But, if not, I hereby apologize to my former employer. If I was wrong and you were right, I'm sorry that I doubted you. My bad.
P.S. - Sure, I've got my excuses. After all, I wrote my potentially erroneous post on April 15 -- the day on which I filed my tax return, so my mind was undoubted both jumbled (thank you, tax code) and elsewhere. But I'm forced to admit -- to my undying shame -- that the real culprit is that, until six days ago, I hadn't made a recent count of precisely which judges remain to vote on en banc petitions. I should have been smarter and have relied less on my failing (and imperfect) memory. I needed to be less old. If I had been, I perhaps could have seen this vote coming. Damn. I'm about to turn 40. I hate being reminded how old that is. Oh well.
Why make this concession now? Well, quite frankly, because it's not looking particularly great for our hero. Back in April, I posted that this opinion -- written by my respected prior employer, Judge Reinhardt -- was one that "may be one of those classic Ninth Circuit cases that just doesn't have staying power." And I said, in my classicly cocky know-it-all fashion, that people should "read this one while you can" because it was exactly the type of case that the Supreme Court and the en banc court like to reverse, and hence it was "far from clear that it'll still be precedent a couple of years from now."
Bold words. Here's the thing, though. The Ninth Circuit didn't take it en banc. Sure, the conservatives tried, and called for a vote. But didn't succeed. Yeah, they got Judge Reinhardt to slightly modify his opinion, and he issued a new one that appears here. And yeah, they got several votes to take the case en banc, and seven of the judges expressly joined a lengthy dissent from the denial. But didn't have enough votes. As a result, the basic holding of the panel opinion persists. Notwithstanding my somewhat contrary prediction.
Okay. So I'm apparently not the Nostradamus of the legal profession. Sue me. (Don't really.) Plus, the Supreme Court still has the opportunity to save me from my shame and to step in -- as I somewhat predicted -- and reverse this bad boy. We'll see if they do. But, if not, I hereby apologize to my former employer. If I was wrong and you were right, I'm sorry that I doubted you. My bad.
P.S. - Sure, I've got my excuses. After all, I wrote my potentially erroneous post on April 15 -- the day on which I filed my tax return, so my mind was undoubted both jumbled (thank you, tax code) and elsewhere. But I'm forced to admit -- to my undying shame -- that the real culprit is that, until six days ago, I hadn't made a recent count of precisely which judges remain to vote on en banc petitions. I should have been smarter and have relied less on my failing (and imperfect) memory. I needed to be less old. If I had been, I perhaps could have seen this vote coming. Damn. I'm about to turn 40. I hate being reminded how old that is. Oh well.
Monday, October 24, 2005
Parents Involved in Community Schools v. Seattle School Dist. No. 1 (9th Cir. - Oct. 20, 2005)
Lest one think that the problem of race relations has been solved in America, take a gander at this 137-page en banc decision. The issue is whether the Equal Protection Clause prohibits an integration tiebreaker in Seattle's open choice, noncompetitive public high school assignment plan.
Both the majority and dissent make darn good points. It's a tough issue. The nature of the dispute assures it. But one should definitely have an opinion.
It's a good review of the existing contours of the Supreme Court's race-based Equal Protection jurisprudence. And a fine example of just how difficult it is to resolve the disputes arising thereunder.
Both the majority and dissent make darn good points. It's a tough issue. The nature of the dispute assures it. But one should definitely have an opinion.
It's a good review of the existing contours of the Supreme Court's race-based Equal Protection jurisprudence. And a fine example of just how difficult it is to resolve the disputes arising thereunder.
Thursday, October 20, 2005
Plumlee v. Del Papa (9th Cir. - Oct. 18, 2005)
My relatively firm belief -- although I admit that it's perhaps idiosyncratic -- is that one should tailor one's dissent at least a little bit to the identity of your colleagues in the majority. For example, if you believe (for whatever reason) that the people who outvoted you are cold-hearted, manipulative bastards who know that what they're doing is wrong but are drunk with the knowledge that they can do it anyway, your dissent can (and maybe even should) be totally mean. And let me assure you, by the way, that this happens; indeed, that there are some judges -- I'll omit the names, but they ain't hard to guess -- who are infamous in this regard. By contrast, when you think your colleagues simply get it wrong, but are trying their best, you're usually pretty nice, even though you disagree (and sometimes vehemently disagree) with them. Now, the term "respectfully" is totally overused (and in, "I respectfully dissent"), and indeed often is used to mean exactly the opposite of respect. But I think you really should be fairly nice when your colleagues are the type of people whom you respect and who are misguided in this particular case notwithstanding their best efforts and their good hearts.
Let me apply this general principle more concretely; for example, in this case. The majority opinion is written by Betty Fletcher. Now, whatever one might think about Judge Fletcher, she's definitely not a jerk, much less a manipulative bastard. Rather, she's assuredly one of the nicest and most reasonable members of the bench, and I think pretty much everyone would agree with that assessment. Can she be wrong? Sure. Can you think her judicial philosophy is misguided? Of course. But she's undeniably doing what she thinks is right, and her thoughts in that regard are sufficiently straightforward and right down the middle that you just can't think of her in really derogatory terms. You just can't. And everybody knows that.
Which is why Judge Bea's dissent here -- and Judge Fletcher's reaction to it -- are pretty unusual. You often see marginally testy exchanges between opinions, or at least it's hardly a surprise when you do. But I don't ever recall seeing someone get into it like this with Judge Fletcher, of all people. Nor do I recall a previous opinion of hers that was so pointedly responsive to the dissent. This is a much, much, much more personal exchange that I've heretofore seen from Judge Fletcher. Which says something, I think.
The entire dialogue between Judge Fletcher and Judge Bea takes up 65 whole pages, and you really have to read the whole thing to get a flavor for what's going on. Plus, even if you do, there's a fair amount of superficial courtesy expressed by both sides, so it's easy to overlook the overall tenor. But if you're used to reading the typical opinion by Judge Fletcher, you definitely notice the difference here. Take a look at footnote 4, for a very slight example, where Judge Fletcher says that Judge Bea "accuses us of taking these responses out of context." Or, more significantly, on page 14247, where she includes the following -- somewhat striking (especially for her) -- paragraph in the text: "Before concluding, we feel that we must briefly respond to the dissent's accusations that we are distorting the facts, introducing a subjective and 'rudderless' standard into the law, and inviting 'volumes of litigation' by encouraging defendants to concoct conspiracy theories about their defense attorneys." Yikes. One gets a keen sense that Judge Fletcher is not typically confronted with such bold critiques, and also doesn't particularly like it. And, after all, who would? And, thereafter, when she responds to these objections by arguing that Judge Bea attacks a "straw man", that his accusations "rel[y] on a highly selective reading of our opinion," and that he has "ignore[d]" and "mischaracterize[d] the opinon, she is using language that is much, much, much harsher than what I'm used to hearing from her.
Now, on Judge Bea's end, as you can probably tell from Judge Fletcher's response, he's hardly pulling punches here. Sure, he ends his dissent with a superficial paean to his colleagues -- one that could actually be read as a backhanded slam anyway -- but that's only after about three dozen really harsh comments. Which, again, we are completely used to seeing in response to, say, a Judge Reinhardt or Judge O'Scannlain opinion. But Betty Fletcher?! Come on.
The exchange you see her is not something you're going to see every day. Or even every year. Or even every decade. So if only for that reason -- as well as, perhaps, the importance of the underlying holding -- it may well be worth slogging through this very long and detailed opinion. I was glad I did.
Let me apply this general principle more concretely; for example, in this case. The majority opinion is written by Betty Fletcher. Now, whatever one might think about Judge Fletcher, she's definitely not a jerk, much less a manipulative bastard. Rather, she's assuredly one of the nicest and most reasonable members of the bench, and I think pretty much everyone would agree with that assessment. Can she be wrong? Sure. Can you think her judicial philosophy is misguided? Of course. But she's undeniably doing what she thinks is right, and her thoughts in that regard are sufficiently straightforward and right down the middle that you just can't think of her in really derogatory terms. You just can't. And everybody knows that.
Which is why Judge Bea's dissent here -- and Judge Fletcher's reaction to it -- are pretty unusual. You often see marginally testy exchanges between opinions, or at least it's hardly a surprise when you do. But I don't ever recall seeing someone get into it like this with Judge Fletcher, of all people. Nor do I recall a previous opinion of hers that was so pointedly responsive to the dissent. This is a much, much, much more personal exchange that I've heretofore seen from Judge Fletcher. Which says something, I think.
The entire dialogue between Judge Fletcher and Judge Bea takes up 65 whole pages, and you really have to read the whole thing to get a flavor for what's going on. Plus, even if you do, there's a fair amount of superficial courtesy expressed by both sides, so it's easy to overlook the overall tenor. But if you're used to reading the typical opinion by Judge Fletcher, you definitely notice the difference here. Take a look at footnote 4, for a very slight example, where Judge Fletcher says that Judge Bea "accuses us of taking these responses out of context." Or, more significantly, on page 14247, where she includes the following -- somewhat striking (especially for her) -- paragraph in the text: "Before concluding, we feel that we must briefly respond to the dissent's accusations that we are distorting the facts, introducing a subjective and 'rudderless' standard into the law, and inviting 'volumes of litigation' by encouraging defendants to concoct conspiracy theories about their defense attorneys." Yikes. One gets a keen sense that Judge Fletcher is not typically confronted with such bold critiques, and also doesn't particularly like it. And, after all, who would? And, thereafter, when she responds to these objections by arguing that Judge Bea attacks a "straw man", that his accusations "rel[y] on a highly selective reading of our opinion," and that he has "ignore[d]" and "mischaracterize[d] the opinon, she is using language that is much, much, much harsher than what I'm used to hearing from her.
Now, on Judge Bea's end, as you can probably tell from Judge Fletcher's response, he's hardly pulling punches here. Sure, he ends his dissent with a superficial paean to his colleagues -- one that could actually be read as a backhanded slam anyway -- but that's only after about three dozen really harsh comments. Which, again, we are completely used to seeing in response to, say, a Judge Reinhardt or Judge O'Scannlain opinion. But Betty Fletcher?! Come on.
The exchange you see her is not something you're going to see every day. Or even every year. Or even every decade. So if only for that reason -- as well as, perhaps, the importance of the underlying holding -- it may well be worth slogging through this very long and detailed opinion. I was glad I did.
Wednesday, October 19, 2005
Summerlin v. Schriro (9th Cir. - Oct. 17, 2005)
This one's actually a bit of a surprise to me. Yeah, I know the 9th Circuit often gets slapped for being liberal, but it's a reputation that's actually way overplayed. But then a case like this comes along. Which is (1) a death penalty case, (2) previously taken en banc in which the 9th Circuit reversed the death penalty, (3) to which the Supreme Court responded by granting certiorari and reversing (and remanding), and (4) as to which the en banc court (on remand) now again reverses the death penalty, this time on a different issue.
Pretty bold. Not necessarily wrong, of course. But reasonably bold. Especially since the murder in question occurred over 24 years ago and the petitioner has been on death row for over two decades now. Not exactly the type of person for whom the Supreme Court is typically expected to have a lot of sympathy. This is also precisely the kind of case that conservatives scream about when they complain about liberal justice. The guy's a murderer and has been sentenced to die. So kill him, already. So sayeth some.
Since this is the anticipated reaction by at least some observers, I was somewhat surprised at not only the result (a reversal), but also the vote. 10-1. Pretty unusual. Especially for a post-remand case such as this, in which you've got to be at least a little bit worried that the Supremes are itching to spank you back down if you again reverse the death sentence on remand.
Admittedly, the en banc court is granted a little freedom since the decision in the Supremes the first time the case went up was 5-4. So it's not like what transpired before was one of those bench-slaps that the Supremes occasionally give the 9th Circuit. Still, you gotta be a little worried, don't ya? At least enough to stop it from being 10-1?
As a result, my initial reaction was that this must be a pretty strong case; one in which the death penalty really was imposed improperly. Since that's the only way they'd get 10 votes. But then I saw who was on the en banc draw. Wow. Three Carter appointees (Schroeder, Pregerson, and Reinhardt). One Reagan (O'Scannlain). And the entire remainder Clinton. No Bush I. No Bush II. And guess who's the 1 in the 10-1? You got it. Diarmuid. So it lines up exactly as one might expect. It's just that, this time, that means a 10-1.
Which in turn generated several thoughts. First, how often is the en banc court really that politically skewed? Statistically, it's gotta be pretty rare. Second, did this skew in this particular case have anything -- anything at all -- to do with the decision by the 9th Circuit two weeks ago to increase the size of en banc panels to 15 (from 11)? You gotta admit that the timing is, at a minimum, pretty fortuitous. Third, and finally, where the hell did all the hard-core conservatives go? You almost always see a pack -- sometimes a pretty big pack -- of them on the en banc panels, and you definitely see them all the time on three-judge panels. Where are they now?
Their absence from this draw made me go back and look at the composition of the court, which I haven't actually counted for quite a while now. Amongst the actives, one-third are Republican appointees (2 for Regan and Bush I and 4 for Bush II) and two-thirds are Democratic appointees (3 Carters and 13 Clintons). This is a quite a bit more skewed than I would have thought for the relevant years in question. Which in turn made me ponder why that's the case. Did Clinton appoint younger judges? I don't think so. Did the judges appointed by Reagan and Bush I decide to go senior (and hence be ineligible for an en banc draw) faster than their Democratic counterparts? I was interested enough in the latter query to actually start pulling data to try to figure it out. It'll take a while: There are a lot of judges out there. But I'll keep you apprised.
Anyway, a weird one. Interesting. But weird. Not a case where I'd have predicted a 10-1 just looking at the underlying issue and procedural posture.
Pretty bold. Not necessarily wrong, of course. But reasonably bold. Especially since the murder in question occurred over 24 years ago and the petitioner has been on death row for over two decades now. Not exactly the type of person for whom the Supreme Court is typically expected to have a lot of sympathy. This is also precisely the kind of case that conservatives scream about when they complain about liberal justice. The guy's a murderer and has been sentenced to die. So kill him, already. So sayeth some.
Since this is the anticipated reaction by at least some observers, I was somewhat surprised at not only the result (a reversal), but also the vote. 10-1. Pretty unusual. Especially for a post-remand case such as this, in which you've got to be at least a little bit worried that the Supremes are itching to spank you back down if you again reverse the death sentence on remand.
Admittedly, the en banc court is granted a little freedom since the decision in the Supremes the first time the case went up was 5-4. So it's not like what transpired before was one of those bench-slaps that the Supremes occasionally give the 9th Circuit. Still, you gotta be a little worried, don't ya? At least enough to stop it from being 10-1?
As a result, my initial reaction was that this must be a pretty strong case; one in which the death penalty really was imposed improperly. Since that's the only way they'd get 10 votes. But then I saw who was on the en banc draw. Wow. Three Carter appointees (Schroeder, Pregerson, and Reinhardt). One Reagan (O'Scannlain). And the entire remainder Clinton. No Bush I. No Bush II. And guess who's the 1 in the 10-1? You got it. Diarmuid. So it lines up exactly as one might expect. It's just that, this time, that means a 10-1.
Which in turn generated several thoughts. First, how often is the en banc court really that politically skewed? Statistically, it's gotta be pretty rare. Second, did this skew in this particular case have anything -- anything at all -- to do with the decision by the 9th Circuit two weeks ago to increase the size of en banc panels to 15 (from 11)? You gotta admit that the timing is, at a minimum, pretty fortuitous. Third, and finally, where the hell did all the hard-core conservatives go? You almost always see a pack -- sometimes a pretty big pack -- of them on the en banc panels, and you definitely see them all the time on three-judge panels. Where are they now?
Their absence from this draw made me go back and look at the composition of the court, which I haven't actually counted for quite a while now. Amongst the actives, one-third are Republican appointees (2 for Regan and Bush I and 4 for Bush II) and two-thirds are Democratic appointees (3 Carters and 13 Clintons). This is a quite a bit more skewed than I would have thought for the relevant years in question. Which in turn made me ponder why that's the case. Did Clinton appoint younger judges? I don't think so. Did the judges appointed by Reagan and Bush I decide to go senior (and hence be ineligible for an en banc draw) faster than their Democratic counterparts? I was interested enough in the latter query to actually start pulling data to try to figure it out. It'll take a while: There are a lot of judges out there. But I'll keep you apprised.
Anyway, a weird one. Interesting. But weird. Not a case where I'd have predicted a 10-1 just looking at the underlying issue and procedural posture.
Monday, October 17, 2005
Membreno v. Gonzales (9th Cir. - Oct. 14, 2005)
Ouch. It's bad enough when your panel opinion gets taken en banc. It's worse when the opinion that they've taken en banc was per curiam, which (as I understand it, anyway) is latin for "This thing is so totally easy that it's not even worth writing about at length, much less telling anyone which set of clerks bothered to puke this thing out." And then there's the ultimate insult. Having your opinion unanimously dismissed by the en banc court, with not even your closest crony backing you up.
But that's precisely what happens here. To Judges Hall, Brunetti, and Graber. They're each on the panel that, back in October of 2004, decides that an immigration petitioner's appeal is so easy that they can dismiss it on the merits in a per curiam opinion and without oral argument. Oopsies. Apparently the rest of the court isn't equally convinced that the panel correctly resolved the case. So they take the case en banc. And decide -- in a unanimous opinion -- that the panel shouldn't have decided the case on the merits, and instead get rid of the case on procedural grounds.
I can't recall the last time I've read a case in which the en banc court was unanimous in deciding that the panel had gotten it wrong. I am certain that I can't remember the last time an en banc court decided an immigration case that garnered the uniform assent of such disparate jurists as (as here) Pregerson, Reinhardt, Kleinfeld, Tallman, Bybee and Bea. When all those dudes -- and, notice, that they're indeed all dudes -- are arrayed in a uniform line against you, you've probably made a mistake. As indeed the panel did here. And got smacked down -- albeit very nicely, and sub silentio -- for it.
Admittedly, it could have been worse. At least luck spared Judges Hall, Brunetti, and Graber from being chosen for the en banc panel, and hence were spared the indignity of either (1) trying to lamely support their panel opinion, or (2) having to vote against the result they previously reached. It's unclear which of these two options would have been more embarrassing. Thank goodness for small favors, eh?
But that's precisely what happens here. To Judges Hall, Brunetti, and Graber. They're each on the panel that, back in October of 2004, decides that an immigration petitioner's appeal is so easy that they can dismiss it on the merits in a per curiam opinion and without oral argument. Oopsies. Apparently the rest of the court isn't equally convinced that the panel correctly resolved the case. So they take the case en banc. And decide -- in a unanimous opinion -- that the panel shouldn't have decided the case on the merits, and instead get rid of the case on procedural grounds.
I can't recall the last time I've read a case in which the en banc court was unanimous in deciding that the panel had gotten it wrong. I am certain that I can't remember the last time an en banc court decided an immigration case that garnered the uniform assent of such disparate jurists as (as here) Pregerson, Reinhardt, Kleinfeld, Tallman, Bybee and Bea. When all those dudes -- and, notice, that they're indeed all dudes -- are arrayed in a uniform line against you, you've probably made a mistake. As indeed the panel did here. And got smacked down -- albeit very nicely, and sub silentio -- for it.
Admittedly, it could have been worse. At least luck spared Judges Hall, Brunetti, and Graber from being chosen for the en banc panel, and hence were spared the indignity of either (1) trying to lamely support their panel opinion, or (2) having to vote against the result they previously reached. It's unclear which of these two options would have been more embarrassing. Thank goodness for small favors, eh?
Thursday, October 13, 2005
Harris v. Bankers Life & Cas. Co. (9th Cir. - Oct. 6, 2005)
Here's another opinion for those desperately interested in civil procedure. (And aren't we all?) When does the 30-day period for removal start to run if the complaint itself doesn't clearly reveal the basis for removal; e.g., if it doesn't contain allegations about the residence of the parties? Judge McKeown holds that it essentially doesn't: rather, that this 30-day period starts only once (and if) the face of the complaint itself affirmatively reveals the facts necessary for removal.
I'm not going to complain much about the result in this case, which I think Judge McKeown gets right. It is a classic case where removal was indeed likely proper. Judge McKeown also does a good job of providing some reasonably persuasive justifications for her adopted rule.
But easy cases sometimes make bad law, and I think that this somewhat happens here. Judge McKeown's rule properly resolves the case before her, and this case also exemplifies the problems of any rule that would start the 30-day clock based upon constructive knowledge of various jurisdictional facts. But, in my mind, Judge McKeown has to -- or at least should -- do a little more than that. Because her rule has definite downsides of its own, and rather than address them, she instead ignores them. Which makes me wonder whether she didn't even consider them, doesn't have a response, or thinks that they involve a different rule.
For example, Judge McKeown holds that the 30-day period only begins to run when the complaint itself contains the jurisdictional facts; further, that the defendant's "knowledge, constructive or otherwise," of the possibility of removal doesn't start the clock. Really? So let's say I (a resident of California) sue IBM (a Delaware corporation with its PPB in New York) in state court, but my complaint only alleges that I'm a California resident and doesn't say anything about IBM's residence. Does IBM's 30-day clock for removal really not start running from the day of service?! After all, my complaint itself doesn't allege the necessary jurisdictional facts. And Judge McKeown has expressly held that the subjective knowledge of IBM -- which surely knows its own residence -- is irrelevant, and has also provided policy reasons (bright line rule, etc.) why that should be the case. So she'd seemingly hold that IBM can remove anytime it wants (within, of course, the year-long deadline) since the 30-day clock didn't start ticking yet. So IBM can remove once it learns who the state court judge will be, once the state court judge has issued a tentative decision on a motion for summary judgment, once various discovery stages are approaching or have transpired, etc. In other words, pursuant to Judge McKeown's rule, IBM can engage in precisely the type of manipulative and abusive removal that the 30-day clock was designed in large part to avoid. Ditto for post-filing and amended complaints that create the possibility of removal; e.g., the 30-day clock starts whenever IBM wants it to start when Shaun initially sues IBM and Sandy (another California resident) and then subsequently dismisses Sandy. The fact that IBM knows that the case is removable immediately upon Sandy's dismissal is irrelevant. It gets to wait and remove whenever it feels like it.
Now, I'm not saying that the rule that Judge McKeown adopts in this regard isn't a possible interpretation of Section 1441. You could adopt such a rule (though I think it'd be a little bit hard to square with the text). But it'd nonetheless be a bad rule. And that's essentially the one that Judge McKeown adopts. At the very least, she needs to articulate why these untoward results of her rule won't occur, won't matter, or are somehow distinguishable. But, in all honesty, without amending her opinion, I don't think she can. Once she holds that the subjective knowledge of the defendant doesn't matter, she's got to bite the bullet on some extremely bad consequences. Sufficiently bad, in my mind, that they clearly outweigh the benefits of her holding, especially since the downsides of her rule will transpire much more often (since they're much more common) than the downsides (e.g., disputes over "what and when defendant knew X") she discusses in her opinion.
I like Judge McKeown. She's smart and fair. But she goes a bit overboard on this one, and lets a bad case make bad law.
I'm not going to complain much about the result in this case, which I think Judge McKeown gets right. It is a classic case where removal was indeed likely proper. Judge McKeown also does a good job of providing some reasonably persuasive justifications for her adopted rule.
But easy cases sometimes make bad law, and I think that this somewhat happens here. Judge McKeown's rule properly resolves the case before her, and this case also exemplifies the problems of any rule that would start the 30-day clock based upon constructive knowledge of various jurisdictional facts. But, in my mind, Judge McKeown has to -- or at least should -- do a little more than that. Because her rule has definite downsides of its own, and rather than address them, she instead ignores them. Which makes me wonder whether she didn't even consider them, doesn't have a response, or thinks that they involve a different rule.
For example, Judge McKeown holds that the 30-day period only begins to run when the complaint itself contains the jurisdictional facts; further, that the defendant's "knowledge, constructive or otherwise," of the possibility of removal doesn't start the clock. Really? So let's say I (a resident of California) sue IBM (a Delaware corporation with its PPB in New York) in state court, but my complaint only alleges that I'm a California resident and doesn't say anything about IBM's residence. Does IBM's 30-day clock for removal really not start running from the day of service?! After all, my complaint itself doesn't allege the necessary jurisdictional facts. And Judge McKeown has expressly held that the subjective knowledge of IBM -- which surely knows its own residence -- is irrelevant, and has also provided policy reasons (bright line rule, etc.) why that should be the case. So she'd seemingly hold that IBM can remove anytime it wants (within, of course, the year-long deadline) since the 30-day clock didn't start ticking yet. So IBM can remove once it learns who the state court judge will be, once the state court judge has issued a tentative decision on a motion for summary judgment, once various discovery stages are approaching or have transpired, etc. In other words, pursuant to Judge McKeown's rule, IBM can engage in precisely the type of manipulative and abusive removal that the 30-day clock was designed in large part to avoid. Ditto for post-filing and amended complaints that create the possibility of removal; e.g., the 30-day clock starts whenever IBM wants it to start when Shaun initially sues IBM and Sandy (another California resident) and then subsequently dismisses Sandy. The fact that IBM knows that the case is removable immediately upon Sandy's dismissal is irrelevant. It gets to wait and remove whenever it feels like it.
Now, I'm not saying that the rule that Judge McKeown adopts in this regard isn't a possible interpretation of Section 1441. You could adopt such a rule (though I think it'd be a little bit hard to square with the text). But it'd nonetheless be a bad rule. And that's essentially the one that Judge McKeown adopts. At the very least, she needs to articulate why these untoward results of her rule won't occur, won't matter, or are somehow distinguishable. But, in all honesty, without amending her opinion, I don't think she can. Once she holds that the subjective knowledge of the defendant doesn't matter, she's got to bite the bullet on some extremely bad consequences. Sufficiently bad, in my mind, that they clearly outweigh the benefits of her holding, especially since the downsides of her rule will transpire much more often (since they're much more common) than the downsides (e.g., disputes over "what and when defendant knew X") she discusses in her opinion.
I like Judge McKeown. She's smart and fair. But she goes a bit overboard on this one, and lets a bad case make bad law.
Wednesday, October 12, 2005
Corder v. Corder (Cal. Ct. App. - Sept. 26, 2005)
I usually have a sense about which side is right. Maybe I'm wrong, of course, but I usually at least have an opinion.
Then there are cases like this one. About which I'm conflicted. As to which both sides make some darn good points. And with respect to which I'm forced to say: "Jeeze, I just don't know." Which in turn makes me ponder whether I'm missing something, whether other informed people would feel the same way, or whether it's simply just a darn tough issue. Which obviously happens. And this may be one of those cases in which the proper resolution of the dispute is just very much unclear.
Now, I hesitate to say that, because it might encourage you to actually read the opinion. Because it's a long one. 62 pages. Yikes. That's more than just a little bit of work in order to satisfy one's intellectual curiosity.
But, hey, we're all superstars here, right? We're all legal studs. We can read, comprehend, digest, analyze, and deeply critique 62 pages of prosaic text in, what, five minutes, right? So let's do it! (Okay, maybe not.)
Let me at least pique your interest. Because the basic facts are both brief and somewhat interesting. Sherry Corder meets Raymond Corder in August 1999, he proposes to her four months later, and they marry. Then, as luck would have it, eight months after they get married, Raymond gets whacked in a construction accident. Now, you notice I say "as luck would have it" but don't say whether it's good luck or bad. Because whether it's good or bad depends very much on both your interpretation of the facts as well as whose luck we're talking about. Sure, it's bad luck for Raymond. He's dead. That's rarely, if ever, an undiluted good. But what about the other folks?
Here's the thing about Sherry. Sure, she just lost her husband. Of eight months. But, according to a ton of the evidence, she's about to "lose" him anyway. Because -- and here's the interesting (or at least salacious) part -- she just can't seem to stop hooking. Apparently Raymond thought that marriage would "change" her whoring ways. But it ain't happening. And Raymond isn't happy about it. So Splitsville may be about to gain another resident. He hasn't seen a lawyer yet, but he tells lots of friends that it ain't looking good. That her cheating ways -- although bringing home the bacon (!) -- just ain't what he had in mind when he married his prostitute wife. Ah, the trials and tribulations of middle America.
Recall, though, that Raymond conveniently gets out of this difficult dilemma regarding what to do about his whoring wife by winding up dead. And winding up dead not just in some meaningless way (heart attack, etc.), but rather in a way ("construction accident") that gives rise to a lawsuit. So Sherry -- his surviving spouse -- and Lisa, who's Raymond's surviving adult daughter, sue. And end up with a settlement of $1.1 million. And promptly then fight about the appropriate split. Who should get what share?
Here are the basic arguments, distilled down to their basics (from 62 complicated pages of analysis). Lisa says that she should get the lion's share because Raymond was about to divorce Sherry, and hence Sherry's "loss of support" from Raymond was virtually nothing; e.g., the alimony she'd get for a grand total of eight months of marrige (say, $25,000). But Sherry says that Lisa should get almost nothing because she's an adult daughter who's essentially on her own, and the "loss of support" that one typically gets from the loss of a father by such a person is basically nothing (say, $25,000 as well).
The thing is, in my mind, they're both somewhat right. They both probably should get very little at trial. But they didn't get very little; rather, there's this $1.1 million settlement that needs to be split up. So who should get it? That's a toughie. Plus, there are various potentially dispositive legal arguments as well. Justice Sills argues that the fact that Raymond and Sherry might have been "about" to get divorced should be irrelevant, both because they weren't in fact divorced and because to allow such evidence -- particularly evidence about the reasons why they were allegedly going to get divorced -- would turn "no fault divorce" in California on its head. Plus, Sherry argues that the $1.1 million settlement was a figured almost assuredly reached because the defendant thought that she would receive roughly that amount at trial as "lost support", and even if defendant was wrong (because it didn't know about the potential divorce, inaccurately assessed the law, etc.), she should get most or all of that amount because she (not Lisa) "generated" it, or at least it was "allocated" to her in terms of the defendant's own assessment. But Lisa responds that this would just grant an illegitimate million-dollar windfall to the whoring, about-to-be-ditched-by-her-husband Sherry, and that these sums should actually be recovered by the person (Lisa) who actually both was loved by and lost the continuing companionship of her father, rather than the person (Sherry) who didn't really lose anything she wasn't already going to lose. But Sherry responds that giving Lisa this money would be a windfall to Lisa, since there's no freaking way that any jury would award a million dollars to an independent adult daughter like Lisa who lost her adult parent. And Sherry's got some pretty good evidence (typical Orange County jury verdicts, etc.) to prove it.
So who wins? What do you think? Now, mind you, I've summarized all this stuff very briefly, and think that the issue becomes even harder to resolve once you read the compelling -- and competing -- analysis of both the majority and dissent. The trial court awarded 90% of the $1.1 million to Lisa (the daughter) and 10% to Sherry (the wife). Is that the right call?
The Court of Appeal, in an opinion by Justice Ikola, says "Yes". Whereas Justice Sills dissents and concludes "No". And, again, both articulate great arguments in support of their position. A toughie. Read the opinions (if you dare!) and see if you're as equally conflicted as I am. At the end of the day, I just don't know who's right and who's wrong.
Then there are cases like this one. About which I'm conflicted. As to which both sides make some darn good points. And with respect to which I'm forced to say: "Jeeze, I just don't know." Which in turn makes me ponder whether I'm missing something, whether other informed people would feel the same way, or whether it's simply just a darn tough issue. Which obviously happens. And this may be one of those cases in which the proper resolution of the dispute is just very much unclear.
Now, I hesitate to say that, because it might encourage you to actually read the opinion. Because it's a long one. 62 pages. Yikes. That's more than just a little bit of work in order to satisfy one's intellectual curiosity.
But, hey, we're all superstars here, right? We're all legal studs. We can read, comprehend, digest, analyze, and deeply critique 62 pages of prosaic text in, what, five minutes, right? So let's do it! (Okay, maybe not.)
Let me at least pique your interest. Because the basic facts are both brief and somewhat interesting. Sherry Corder meets Raymond Corder in August 1999, he proposes to her four months later, and they marry. Then, as luck would have it, eight months after they get married, Raymond gets whacked in a construction accident. Now, you notice I say "as luck would have it" but don't say whether it's good luck or bad. Because whether it's good or bad depends very much on both your interpretation of the facts as well as whose luck we're talking about. Sure, it's bad luck for Raymond. He's dead. That's rarely, if ever, an undiluted good. But what about the other folks?
Here's the thing about Sherry. Sure, she just lost her husband. Of eight months. But, according to a ton of the evidence, she's about to "lose" him anyway. Because -- and here's the interesting (or at least salacious) part -- she just can't seem to stop hooking. Apparently Raymond thought that marriage would "change" her whoring ways. But it ain't happening. And Raymond isn't happy about it. So Splitsville may be about to gain another resident. He hasn't seen a lawyer yet, but he tells lots of friends that it ain't looking good. That her cheating ways -- although bringing home the bacon (!) -- just ain't what he had in mind when he married his prostitute wife. Ah, the trials and tribulations of middle America.
Recall, though, that Raymond conveniently gets out of this difficult dilemma regarding what to do about his whoring wife by winding up dead. And winding up dead not just in some meaningless way (heart attack, etc.), but rather in a way ("construction accident") that gives rise to a lawsuit. So Sherry -- his surviving spouse -- and Lisa, who's Raymond's surviving adult daughter, sue. And end up with a settlement of $1.1 million. And promptly then fight about the appropriate split. Who should get what share?
Here are the basic arguments, distilled down to their basics (from 62 complicated pages of analysis). Lisa says that she should get the lion's share because Raymond was about to divorce Sherry, and hence Sherry's "loss of support" from Raymond was virtually nothing; e.g., the alimony she'd get for a grand total of eight months of marrige (say, $25,000). But Sherry says that Lisa should get almost nothing because she's an adult daughter who's essentially on her own, and the "loss of support" that one typically gets from the loss of a father by such a person is basically nothing (say, $25,000 as well).
The thing is, in my mind, they're both somewhat right. They both probably should get very little at trial. But they didn't get very little; rather, there's this $1.1 million settlement that needs to be split up. So who should get it? That's a toughie. Plus, there are various potentially dispositive legal arguments as well. Justice Sills argues that the fact that Raymond and Sherry might have been "about" to get divorced should be irrelevant, both because they weren't in fact divorced and because to allow such evidence -- particularly evidence about the reasons why they were allegedly going to get divorced -- would turn "no fault divorce" in California on its head. Plus, Sherry argues that the $1.1 million settlement was a figured almost assuredly reached because the defendant thought that she would receive roughly that amount at trial as "lost support", and even if defendant was wrong (because it didn't know about the potential divorce, inaccurately assessed the law, etc.), she should get most or all of that amount because she (not Lisa) "generated" it, or at least it was "allocated" to her in terms of the defendant's own assessment. But Lisa responds that this would just grant an illegitimate million-dollar windfall to the whoring, about-to-be-ditched-by-her-husband Sherry, and that these sums should actually be recovered by the person (Lisa) who actually both was loved by and lost the continuing companionship of her father, rather than the person (Sherry) who didn't really lose anything she wasn't already going to lose. But Sherry responds that giving Lisa this money would be a windfall to Lisa, since there's no freaking way that any jury would award a million dollars to an independent adult daughter like Lisa who lost her adult parent. And Sherry's got some pretty good evidence (typical Orange County jury verdicts, etc.) to prove it.
So who wins? What do you think? Now, mind you, I've summarized all this stuff very briefly, and think that the issue becomes even harder to resolve once you read the compelling -- and competing -- analysis of both the majority and dissent. The trial court awarded 90% of the $1.1 million to Lisa (the daughter) and 10% to Sherry (the wife). Is that the right call?
The Court of Appeal, in an opinion by Justice Ikola, says "Yes". Whereas Justice Sills dissents and concludes "No". And, again, both articulate great arguments in support of their position. A toughie. Read the opinions (if you dare!) and see if you're as equally conflicted as I am. At the end of the day, I just don't know who's right and who's wrong.
Tuesday, October 11, 2005
Bona v. Gonzales (9th Cir. - Sept. 30, 2005)
Sometimes -- often -- you don't actually need to read most of the opinion to see where the panel's going. This one is a perfect example. Just read the first three pages. Oh my. It's an immigration case in which the INS is trying to remove an alien. And the court's so, so, so going to let her stay here.
You can't read the first three pages -- which have utterly nothing to do with the law, and instead recite only the facts -- and not know where the panel's going to come out. And for those who are confident that the INS only moves to deport those people who totally deserve it, indeed take a gander at those facts. It's not pretty.
You can't read the first three pages -- which have utterly nothing to do with the law, and instead recite only the facts -- and not know where the panel's going to come out. And for those who are confident that the INS only moves to deport those people who totally deserve it, indeed take a gander at those facts. It's not pretty.
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