Mike v. FTB (Cal. Ct. App. - March 5, 2010)

A couple of things I already knew, even from my relatively skimpy reading of Indian law over the years.

First, states can't tax income that a Native American who resides on her tribe's reservation from activities conducted on the reservation. That makes sense. It's another sovereign. There you go.

Second, states can tax income that a Native American who resides outside a reservation receives, even from activities conducted on the reservation. That too makes sense. You're a resident on the lands of the taxing sovereign. That sovereign can tax you. Even for income that you receive from activities in another sovereign. No different than foreign countries. I get it.

Here's the tough part -- and the one at issue in this opinion. What if you're a Native American, and a member of a tribe, but you reside on another tribe's reservation? Can the state tax you on the income you receive from activities conducted on your own reservation?

That's a toughie. And I admittedly didn't know the answer before I read this opinion.

Even after reading the opinion, I'm still not 100% sure I know the correct answer. But (1) I at least now know (for sure) what the law is according to the California Court of Appeal, and (2) Justice McDonald convinces me -- on the merits -- that the right answer may well be "Yes."

So when Angelina Mike gets $365,000 in 2000, which is her share of her tribe's casino profits, California can tax it. That's the law. And Justice McDonald helpfully explains why.

I'm on board with that, I guess. With the simple caveat that it seems strange. In two ways.

First, imagine that we're not talking about an Indian tribe, but a different kind of sovereign; say, a foreign country. The analogy here would be: Can California tax a person who lives in Canada on income that she received from activities in Mexico? The clear answer would be "No". Yet, in the present case, change "Canada" to "The Agua Caliente Band of Cahuilla Indians Reservation" and "Mexico" to "The Twenty-Nine Palms Band of Mission Indians Reservation" and you've got a different result.

That seems weird. Now, I understand that tribes are "domestic" sovereigns, and hence the law somewhat different than "pure" foreign countries. But there' still something there.

Second, on a practical level, what are people like Angelina Mike supposed to do? Indian tribes didn't exactly thrive post-1776, if you know what I mean. In the present case, for example, Mike's tribe contains only twelve people over the age of 18. Plus, it's not like the government selected really great places upon which to place the reservations for Native Americans. Again, here, the reservation for Mike's tribe consists entirely of a 240-acre section near Coachella -- big enough for a casino, a parking lot, and a sanitation place, which is what's on it -- and a 160-acre section near Twenty-Nine Palms. The latter of which is pure, undeveloped desert land, with no electrical, water, or sewer facilities, and has no developed roads or other infrastructure.

What exactly is Mike supposed to do? Live alone, in the middle of the desert, with no electricity, water, or toilets? Or live in the sewage plant? Hardly palatable choices. So she does what any reasonable person would do, especially who cares about tribal membership and native heritage, and lives on the closest Indian reservation -- 18 miles away -- that's technically for a different tribe, but one that "share[s] many historical, familial, social, and genetic ties" with her tribe.

But that means she gets taxed. Even for stuff that occurs entirely on her reservation. So the price to be a truly "sovereign" Native American, at least for people like Mike, is that you've got to either live in sewage or without any sewage at all.

Seems harsh. Maybe that's indeed what the law says. But it's still harsh.

D.C. v. R.R. (Cal Ct. App. - March 15, 2010)

Cases involving "X.X. vs. YY" are often interesting. This one is no exception.

I recall reading about the underlying events somewhere. This is one of the lawsuits that followed.

Essentially, a 15-year old actor-student at Harvard-Westlake posted a facebook page that some people might find pretentious. Prompting an all-out assault by his way-too-cool classmates. Including a variety of outright threats of violence and unambiguously homophobic comments based upon the student's perceived sexual orientation.

The student then sued, and while he had to arbitrate his dispute with Harvard-Westlake, no so with respect to the students themselves. One of whom, in response to the lawsuit against him, filed an anti-SLAPP motion. The trial court denied the motion, the defendant appealed, and the Court of Appeal -- in a divided opinion -- affirmed.

I won't reveal all of the sophisticated commentary (*sarcasm alert*) that the other Harvard-Westlake students wrote on the student's facebook page; for that, read the opinion. But I'll share what the defendant here wrote, which is both at issue in the appeal and which will give you the general tenor of the comments the plaintiff received:

"Hey [plaintiff], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I've . . . wanted to kill you. If I ever see you I'm . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell."

Nice.

Defendant says he was just "joking" -- though his lengthy declaration, not surprisingly, give a much more nuanced version of the message -- and asserts that his communication was protected by the First Amendment as well as a "communication in the public interest". Needless to say, I am somewhat dubious about the latter component, and the Court of Appeal didn't agree either. You're not a public figure merely because you have a facebook page. Even if you're a wanna-be actor too.

Justice Rothschild dissents, and it's a pretty strongly-worded opinion. Less strongly worded than the defendant's message, of course, but still, you get the jist. Here's a sample: "[T]he majority‘s reasoning [] alters the legal landscape to the severe detriment of First Amendment rights. In deciding that the post was unprotected, the majority holds defendants to an evidentiary standard that conflicts with controlling California Supreme Court precedent, disregards defendants‘ evidence on the basis of invalid factual inferences and unsupported legal theories, and ignores the relevant case law by failing to consider the entire factual context in which [defendant's] post occurred."

It's an interesting debate. As well as a reminder that there may well be consequences that you might want to consider before hitting the "Send" button. Especially if what precedes it entails a death threat.

P.S. - The majority opinion protects everyone's anonymity by using initials, but it's not too hard to figure out who we're talking about. Since the opinion also tells us the pseudonym the plaintiff uses in his entertainment work: Danny Alexander. From there imdb is but a click away.

Grotenhuis v. County of Santa Barbara (Cal. Ct. App. - March 15, 2010)

There are presumably many reasons why rich people transfer their home to "corporations" they control. Truthfully, I don't know what those reasons are. But I bet they have something to do with taxes and asset protection. In short, there are financial upsides to these deals.

But you can't get the upsides of corporate ownership and then avoid the downsides on a theory that the "true" owner of the home is an individual and hence eligible for a home rollover.

We use alter ego liability to impose liability and avoid injustice. Not the other way around.

Yep.

P.S. - Justice Yegan spells it right throughout the entire opinion, with the exception of the second paragraph. It's "principal" residence, not "principle".

Guggenheim v. City of Goleta (9th Cir. - March 12, 2010)

I feel bad repeatedly talking about en banc review during the last couple of days. I know I must sound like a broken record sometime.

That said, it's an important component of the process.

Here's a case that I said back in September would probably get taken en banc even though the panel opinion was joined by both Judge Bybee and Judge Goodwin. Even though it was a largely fact-bound opinion about whether a particular city's mobile home ordinance constituted a taking.

And today the Ninth Circuit did precisely that. If only to prove that even a broken clock -- like a law professor -- is typically correct at least twice a day.

(I say "typically" since a broken clock is potentially correct three times on the day that daylight savings time ends and potentially only once on the day daylight savings time begins.)

Norse v. City of Santa Cruz (9th Cir. - March 12, 2010)

I talked about the original panel opinion here. Noting that it's rarely a good idea to give a Nazi salute, or to compare pretty much anything to the Holocaust.

But we haven't heard the last of such time-honored practices. Because today the Ninth Circuit took the case en banc.

People v. Puluc-Sique (Cal. Ct. App. - March 8, 2010)

Yes, Virginia, the California Attorney General's Office really did argue that the appeal should be dismissed because the fugitive disentitlement doctrine applies to a criminal defendant who was involuntarily deported.

Fortunately, the Court of Appeal recognized the silliness of this argument.

There's a world of difference between a dude that flees the jurisdiction and a dude who's thrown out of the jurisdiction. The former may well not be able to appeal his conviction, but the latter can. It's one thing for a court to say that a guy has to take the bad (his conviction) with the good (his escape from justice). It's wholly another to say that someone had to take the bad (his conviction) with the bad (his deportation).

Regular litigants often make a number of extraordinarily bad arguments, on the theory that it's sometimes worthwhile to throw a ton of stuff at the wall and see what sticks. But that principle usually doesn't apply to attorney general's offices, who are able to take a broader -- and more informed -- view.

But there's an exception to every rule. This one's one of 'em.

Newdow v. Lefevre (9th Cir. - March 11, 2010)

That money in your pocket is just fine.

Rounding out the high-profile religion cases from today, the Ninth Circuit holds that the "In God We Trust" motto on U.S. coins and currency doesn't violate the First Amendment either.

The Ninth Circuit holds Newdow's got standing to raise a claim to the contrary -- though lacks standing to object to the federal statute that makes "In God We Trust" the national motto -- but holds on the merits that there's no Establishment Clause violation.

This decision is from the same panel that split 2-1 in the Pledge of Allegiance case: Judge Nelson, Reinhardt and Bea. But this time the decision is 2 1/2 to 1. Judge Bea again writes the majority opinion, and Judge Nelson again joins. But this time Judge Reinhardt concurs in the result. Saying, essentially, that given the crappy Pledge case, which he hates but which as of today is the law of the circuit, he's constrained to dismiss the Coin case as well.

So there you have it. Another Ninth Circuit decision that's not going en banc and that's not going to be reversed by the Supreme Court.

Tijani v. Holder (9th Cir. - March 11, 2010)

There are a lot of great Ninth Circuit decisions today. But I want to mention this one, which will get less publicity, and thus may well be overlooked.

Except by the Ninth Circuit itself. Since this one will, and should, go en banc.

It's a perfect storm. The opinion is a 1-1-1. The petitioner, who wants asylum, is totally unsympathetic. The author of the "majority" opinion (Judge Noonan), does one thing that the right wing will like (finding that credit card fraud its categorically an offense of moral turpitude) but another that it'll hate (ordering the IJ to decide whether the petitioner should be granted asylum but to assume that everything he says is true). Judge Tashima disagrees with (1) and argues that this holding is in "open defiance" with an en banc ruling last year. Judge Callahan disagrees with (2). In short, it's an opinion that no one other than Judge Noonan likes.

Which is why it almost certainly won't stand.

So read this one while you can. It'll set the stage for an interesting fight later this year.

Newdow v. Rio Linda USD (9th Cir. - March 11, 2010)

Hopefully you didn't forget about the Pledge of Allegiance cases. Because they're not over. Sure, the Supreme Court reversed the Ninth Circuit's earlier invalidation of teacher-led recitations of the 1954 version of the Pledge, which includes the words "under God." But remember that is reversal was only on procedural standing grounds, since the student's mother intervened to argue the other way. But that's easily solved. Plaintiffs got the parent of a new student -- this one with full custody -- to bring the same challenge. So we're back in the Ninth Circuit again.

The case was argued over two full years ago, back in December 2007. With everyone and his mother filing amici briefs.

So now the Ninth Circuit has to decide the merits of the case again. With the backdrop of both the Supreme Court's reversal (albeit technically on standing grounds) as well as the firestorm of controversy that accompanied its initial opinions.

Guess how the panel comes out? With the following (important) information: the panel consists of Judges Dorothy Nelson, Reinhardt and Bea.

Did you guess that the opinion was not unanimous? Of course you did. Did you guess that Judge Bea voted to find the Pledge constitutional, and that Judge Reinhardt voted the other way? Yep. Without a doubt. So which way does Judge Nelson vote?

The majority votes to uphold the Pledge.

I won't comment on the various opinions much. In part because this is an exceptionally high-profile case, so I'll have very little to add beyond what other people will say. But in large part because I can't add much beyond the various opinions themselves. Which span 193 single-spaced pages; as a result, most everything that can rationally be said has already been said by the authors themselves. When you've got over two years to write an opinion, and you know that every word you say will be exceptionally scrutinized, trust me, you do a good job. So I refer the reader to the opinions themselves.

The only thing I'll say is that this is (1) a classic Judge Reinhardt opinion, (2) a classic Judge Bea opinion (perhaps a bit more moderate given the inclusion of Judge Nelson), and (3) for better or worse, a somewhat predictable vote from Judge Dorothy Nelson. As for the latter, of course I do not know the inside of Judge Nelson's heart, or what she'd decide in a vacuum. But, given the prevailing context -- with the public and the current Supreme Court's view on the matter fairly clear -- I think Judge Nelson's decision is consistent with what one would expect. Judge Nelson and Judge Reinhardt are studies in contrast. Judge Reinhardt relishes a fight, and is more than willing to swim against even an overwhelming tide. Again, for better or worse, that's not Judge Nelson. Who has both a different personality as well as a different sense of what it means to be an appellate judge in these sorts of cases.

Notwithstanding the earlier Ninth Circuit opinion, I would not expect this one to be taken en banc. Sure, there may well be a call for a vote. But the Ninth Circuit has more Judge Beas and Judge Nelsons than Judge Reinhardts. Again, for better or worse.

Primiano v. Howmedia Osteonics (9th Cir. - March 10, 2010)

Here's a good primer -- as well as a holding -- on how to properly apply Daubert. Particularly, as here, to medical expert testimony.

The opinion, by Judge Kleinfeld, is written like an old-time law review article. The kind of thing we don't see anymore. Lots of quotes about and citations to standards, and then a discussion of those several pages of standards to the facts.

This is not your typical modern opinion, at least in style. But it works. And is persuasive.

Gravillis v. Coldwell Banker (Cal. Ct. App. - Feb. 26, 2010)

Kenny Gravillis bought a home in L.A. for $500,000 using Coldwell Banker as his broker. After buying the house, he concluded that Coldwell Banker had done a terrible job, and had failed to disclose some significant known defects in the house, so he sued 'em.

But the standard brokerage agreement had an arbitration clause. So Coldwell Banker filed a motion to compel arbitration, which Gravillis opposed. At the hearing, the trial court denied the motion to arbitrate, and asked Gravillis to prepare an order. Which it did -- to which Coldwell Banker responded by "objecting" to the proposed order with a reiteration of its arguments at the hearing. Inexplicably, this tactic worked, and rather than signing the proposed order, the trial court compelled arbitration.

At which point Gravillis filed a motion for reconsideration. Which also worked. At which point the trial court entered an order denying arbitration.

So Coldwell Banker filed an appeal. And the Court of Appeal reversed, and compelled the matter to be arbitrated.

All of this, as you might imagine, took years and years: We're talking way back in 2004 and 2005. So lots of transaction costs and attorney's fees.

So eventually, in 2008, Coldwell Banker gets its requested arbitration hearing. At which the arbitator awards plaintiff almost $400,000 in damages.

Coldwell Banker, not surprisingly, files a motion to vacate, which the trial court denies. Coldwell Banker then again appeals, claiming that the arbitrator failed to follow California law.

But you asked for it, you got it. The Court of Appeal affirms.

Lesson of the Day: Be careful what you wish for.

Najmabdi v. Holder (9th Cir. - March 9, 2010)

How do you feel about deporting to Iran a 60-year old woman who's been in the U.S. for the last 23 years?

If it matters, she's Westernized, has never committed a crime, studied fashion design while in the U.S., and is a small business owner who designs Western style clothing for Iranian women.

Here's what the Ninth Circuit does.

Judge Milan Smith writes the majority opinion. Judge Bybee joins. Judge Pregerson dissents.

Which may give you a hint as to how the case comes out.

Lobo v. Tamco (Cal. Ct. App. - Feb. 24, 2010)

See if this fact pattern applies to you as well.

I'll share how it looks like it works for me. I work at a university. I run or bike to work on occasion, but often drive. When I do, I drive my own car.

My employer occasionally asks me to go to various off-campus locations. Alumni events, bar activities, swearing-in ceremonies, presentations, etc. When I do, it reimburses me for mileage. Over the past ten years, I've driven my own car to maybe thirty of these things. My employer doesn't provide a car for me in part because it's cheap and in part because I don't do these things often enough to "justify" a company car. (Unlike, I might add, the Dean and the President of the University.) Normally, though, I just drive my car to and from my home.

Let's say I crash my car going home one evening. Or run into someone. Can I get worker's comp? Can they sue the university?

According to this opinion, the answer -- stunningly -- may well be "Yes".

Let's compare my (and your) situation to the facts of that case. There, the employer didn't provide the employee with a company car either. There, as part of his work, the employee occasionally had to go to off-site locations, and occasionally used his own car. During the past sixteen years, the employee had done so ten times or less. He was driving home one day -- again, to his home, not to a job site -- and smashed into someone, killing him. The trial court granted summary judgment to the defendant when the decedent's estate sued the employer, holding that the usual "coming and going rule" (i.e., there's no respondeat superior liability) applies when an employee's driving his own car to and from work. But the Court of Appeal reverses.

I'm dubious. Very dubious. But it's good to know. I'll definitely remember that the next time I get into an accident on the way home from work.

Rhodes v. Paskett & Henry (9th Cir. - March 8, 2010)

Paul Ezra Rhodes kills multiple people at various different times. Idaho sentences him to death multiple different times, and three of his appeals now reach the Ninth Circuit. Does he get relief?

No, no, and not now (or, likely, ever).

This is one person who's not likely to die of natural causes.

Smith v. Mahoney (9th Cir. - March 5, 2010)

It's a death penalty case. In the Ninth Circuit. With a panel that consists of three Democratic appointees, none of whom have the name "Tallman" and one of whom has the name "Fletcher."

No way the panel's going to affirm the death sentence, right?

Wrong.

Admittedly, this is not your typical death penalty case. For one thing, the defendant confessed to the murders. Not only to the police, but at trial as well. Moreover, not only did he confess, but he didn't offer any defense at all. Indeed, he said that he wanted to be sentenced to death, and told the sentencing judge "that he considered himself to be a violent person; that he was uninterested in rehabilitation; that he felt no remorse; and that part of the reason he killed the two men was that he had always had 'kind of a morbid fascination to find out what it would be like to kill somebody.'"

Well, not surprisingly, the judge obliged. Given these facts, even when the defendant later changed his mind (post-sentencing) and appealed, it's perhaps not surprising that his death sentence gets affirmed.

Mind you, there's some stuff on the other side too, which also makes this an unusual case. For example, Montana offered Smith a plea bargain that would have made him eligible for release in a little under 18 years -- and all he'd have to do is testify truthfully, like he did at trial anyway. So proving "prejudice" from any errors that might have been made isn't as tough as in a lot of other cases. Plus, you've got the facts that the defendant (1) was deeply depressed when he decided to "volunteered" to be killed, (2) had been in solitary confinement for some time, and (3) had received death threats from other inmates and believed that he would be killed in prison. Not to mention that even the majority opinion concludes that the defendant's lawyer "failed to properly investigate possible defenses to the death sentence and failed to present those possible defenses" to the defendant, and that these failures made defendant's representation ineffective as a matter of law.

So that weighs heavily on the other side. Which is why Judge (Betty) Fletcher dissents.

Nonetheless, you've still got a panel of three not-conservative judges on the Ninth Circuit affirming a death penalty. Not something you see every day.

P.S. - Let's all learn from defendant's mistake here. Before committing the murders, he felt “messed up emotionally” and felt like he "had to get away from the environment that [he] was in in order to get calmed down.” Makes sense. So he decided to go to Mexico. Okay, I can understand that. But if you're indeed "emotionally messed up," my strong sense is that it's a good idea not to "tak[e] between thirty to forty hits of LSD daily." That's not going to help. At all. And may even help contribute, as here, to some really, really poor decisions.

P.P.S. - One final note -- without commentary -- from the last paragraph of the majority opinion. The murders happened 27 years ago, and the decision to "volunteer" for death was similarly long ago. "By all accounts, Smith has reformed his life. He has developed strong relationships with various members of his family and has taken advantage of the educational opportunities offered by the prison that houses him. He has expressed deep regret for his deplorable actions. However, consideration of these issues are beyond our jurisdiction in this case. Clemency claims are committed to the wisdom of the executive branch. On the legal issues presented to us, we affirm the judgments of the district court denying Smith’s petition for a writ of habeas corpus.

Coito v. Superior Court (Cal. Ct. App. - March 4, 2010)

With all due respect to Justice Kane, I'm going to have to agree with Justice Dawson on this one.

It's a case that's important to pretty much every California attorney (or at least every California litigation attorney): Whether statements made by a witness and recorded by a lawyer (or her representative) are protected work product. Some courts have held that they are, including the California Court of Appeal, and some courts have held that they aren't (including different panels of the California Court of Appeal).

Justice Dawson persuades me that it's not work product. Granted, on Tuesday, I just finished Upjohn with my class, and Justice Dawson's view is exceptionally similar to the federal rule on this subject, so maybe I was predisposed to find that position persuasive. But I slam plenty of federal cases. Both inside and outside of class. So think that this is really my true belief.

It's not that Justice Kane doesn't have a point. The questions that are asked may well reflect, to a degree, the mental impressions or conclusions of an attorney. But I don't think that's enough to make the notes work product and thereby impede important discovery. In this regard, I'm not sure I can say it any better than Justice Dawson did: "We do acknowledge that an attorney could reveal his or her thoughts about a case by the way in which the attorney conducts a witness interview. We are confident, however, that competent counsel will be able to tailor their interviews so as to avoid the problem should they choose to do so. We also note that, if there were something unique about a particular witness interview that revealed interpretive rather than evidentiary information, nothing about our holding would prevent the attorney resisting discovery from requesting an in camera hearing before the superior court and the opportunity to convince that court that the interview or some portion of it should be protected as qualified work product."

I think that the deeper problem with the majority rule is that it will encourage attorneys to take rough notes -- and by "rough notes", I mean "something that's their own mental impressions, not something totally or nearly verbatim" -- because that way it'll be protected work product. Indeed, after Coito, that's perhaps precisely what attorneys should do. The downside of which, of course, is that (1) it's harder to impeach people that way, and (2) your notes might not be as good as they would otherwise be. The latter concern being why Upjohn and related cases made up the work product rule in the first place.

Notwithstanding this fact, I'm persuaded that the Court of Appeal gets this one right. And on a more practical level, know the rule. Put away those tape recorders and verbatim notes. Or at least recognize that it's going to be subject to discovery.

Mortimer v. Baca (9th Cir. - Feb. 8, 2010)

Imagine that you're innocent, but you can't make bail. Imagine further that you go to trial -- presumably as quickly as possible -- and are acquitted of all charges.

You'd think that they'd then simply let you go home. That's what uniformly happens on television and in the movies, after all. You walk out of the courtroom.

Apparently, that does indeed sometimes happen. But not always. Occasionally, it seems, they keep you in jail for another day or so. While they're "processing the paperwork".

That's apparently fine, holds the Ninth Circuit. No Section 1983 violation there.

Interesting case.

People v. Nitschmann (Cal. Ct. App. - March 3, 2010)

Until today, I hadn't thought about the fact that the Court of Appeal might well have repeated, non-remand-based exposure to a particular defendant. But Justice Yegan reminds me that in California, the same division may indeed see appeals from a particular defendant on different charges over time. Morever, if the defendant is memorable -- say, has a unique name, like "Ralph Helmut Nitschmann" -- memory (or a reminder in the briefs) might serve them well.

What prompted my realization on this subject was the (equally memorable) way Justice Yegan begins this opinion. With the following introduction:

"Fifteen years ago we said: 'Ralph Helmut Nitschmann has lead a life of crime.' (People v. Nitschmann (1995) 35 Cal.App.4th 677, 679.) Nothing has changed except the victim's name . . ."

Nitschmann must have had a pretty good sense that this was the way things were going to come out immediately once he saw the panel. His panel this time consisted of Justices Yegan, Gilbert, and Coffee. Guess who was on the panel 15 years ago? Two of the three same people: Justices Yegan and Gilbert. With the same person -- Justice Yegan -- writing the opinion in both cases. Both of which affirmed and both of which started out by referring to Nitschmann by name and in a way that was not especially positive.

Sometimes you can predict the future pretty well. This was one of those times.

Doe v. Kamehameha Schools (9th Cir. - March 2, 2010)

I profoundly respect the deferential standard of review we give to district courts about issues of fact. It's appropriate. It's right.

I recognize that it's often difficult for appellate courts to let something go forward that they think is wrong. But that difficulty only makes faithful adherence to the appropriate standard of review all the more essential.

In short, I'm a big believer in deference.

That said, with all due respect to the unanimous panel in this case, and with full recognition that we're talking about an intensely factual finding of the district court, I could not disagree more strongly with the holding in this case.

This is the latest installment in the longstanding judicial debate about whether the Bishop's Trust in Hawaii can continue to exclude all non-Native Hawaiians from the Kamehameha Schools. For those unfamiliar with the saga, I won't attempt to summarize it, but will instead simply refer to Judge Beezer's very good (and very concise) description in the first several pages of the opinion. Suffice it to say that there have been multiple prior lawsuits, two -- but only two -- non-Native Hawaiians admitted to the schools in the past, and that the latest litigation is a follow-on to a prior lawsuit that was settled at the Supreme Court certiorari stage.

But here's the rub. In the latest lawsuit, the plaintiffs want to file anonymously. And for darn good reason.

For anyone who's not hip to the racial politics of Hawaii, let's just say it's very, very polarized. Perhaps for (again) darn good reason, given the history of the place. But for our purposes, that polarization takes place in a very specific context, particularly when it involves non-Native Hawaiians requesting admission to schools currently reserved for Native Hawaiians. A context replete with both pervasive threats and potential and actual violence.

None of what Judge Beezer recounts is new to me, but it might be new to some readers. So I'll give a snippet of some of what transpires below. Which is important, because the whole appeal is about whether the plaintiffs are able to sue anonymously -- albeit with their identities revealed to counsel for defendants -- rather than being subjected to retaliation for filing the lawsuit:

"After the district court’s order [admitting a prior non-Native Hawaiian to the Kamehama Schools], the U.S. Attorney for Hawaii noted a 'growing sense of anger and rage' and threats of 'kill haole day everyday' [Ed - 'haole' is a derisive term for non-Native Hawaiians] . . . . [A]fter the amount of the Doe I settlement was leaked to the Honolulu press, there were calls to 'break [the plaintiff’s and his attorney’s] every bone and make [those] bastards suffer.' Others stated that 'now the boy will have to pay' because they knew people 'who want to kick this boys [sic] ****.' Still others urged that the identities of the Doe I plaintiff and his mother be exposed to force them 'to stand up and face those that they are robbing.' . . . [T]he plaintiffs called the court’s attention to violent crimes with racial overtones committed by Native Hawaiians against non-Natives. In some of these crimes, young children severely injured their non-Native classmates, calling the victims derogatory names related to their skin color, especially 'f------ haole.' . . . [When the magistrate judge denied the plaintiffs' request to sue anonymously,] the online forums of each [Hawaiian] newspaper generated myriad comments [such as] 'Good that the judge ordered them to make these little brats [sic] names known to the public, so they can be tormented by their fellow students and general public.' Another posting stated that these '4 kids . . . will need 10 bodyguards lol.'

Plaintiffs also introduced threatening comments made to their attorney, David Rosen. Rosen received a phone call on the afternoon the magistrate judge’s decision was filed. The caller warned that 'everyone is going to know who your clients are. Now, both you and your haole clients can get the lickins’ you deserve. Why do you f------ haoles even come to Hawaii?' He also received an email: 'You are a son of a bitch . . . I know so many kids that did not get into kamehameha schools with Hawaiian blood and you are trying to take that away . . . I am tired of haoles like you. yOU JEWISH SHITHEAD!!!! if i see you ever in public..no worries . . . I will SPIT on you . . . . it will be my pleasure to beat the crap out of you.'"

To give context to these comments: As Judge Beezer notes in one of the footnotes, “'Kill haole day' is an unofficial tradition in Hawaiian public schools when some Native Hawaiian children 'beat[ ] up Caucasian students on the last day of school.'"

Notwithstanding all of this, the Ninth Circuit holds that the district court could properly refuse to allow the plaintiffs to sue anonymously because it did not abuse its discretion when it found that the plaintiffs' fear of harm was unreasonable. It's not that the panel thought that this conclusion was clearly right; indeed, Judge Beezer expressly says that "were we permitted to make findings and weigh the factors anew, we might have held that anonymity here was appropriate." But the standard of review, the panel concluded, was determinative. It was reasonable to conclude on the evidence that plaintiffs' fear of harm was unreasonable.

Again, I care about the standard of review, and admire both the practice and implementation of deference. But this is the exceptionally rare case in which, in my view, the evidence is crystal clear, and in which the plaintiffs' fear of harm was indisputably entirely legitimate and as well as reasonable.

I'm not at all surprised that once they were not permitted to sue anonymously, the plaintiffs elected to dismiss their lawsuit entirely. I'd have done the same. Precisely because their fear was both palpable and infinitely reasonable.

I understand and appreciate that other people might perhaps disagree, and I agree with Judge Beezer that it's a lot easier to make anonymous threats on the internet than to actually beat people up.

But let me make just three simple points.

(1) People are actually beat up. Already. Young children. For simply being Caucasian (or of another non-Hawaiian race); that's the whole point of "Kill Haole Day." And this all happens to kids who haven't forced their way into the Kamehameha Schools. To think that at least that (or worse) might well happen to plaintiffs seems more than reasonable. This is not merely random fantasy stuff on the internet. It happens. It's real.

(2) Maybe it's my own sense of history. But does anyone else's mind, upon hearing the issue here, harken back to this photograph? Mine does. Change the colors. Make Elizabeth Eckard white (rather than black) and Hazel Bryan native Hawaiian (rather than white). That's what I think we're talking about. Would the Ninth Circuit's ruling really be the same as it is here if we were talking about Little Rock in 1957? Would the Ninth Circuit really say that a district court could legitimately have found that the Little Rock Seven unreasonably feared for their safety? I think not. And, in this regard, the colors may have changed, as well as the reasons (and perhaps even the legitimacy of the opposition). But as far as safety is concerned, the analogy -- sadly -- still holds.

(3) I'd ask the panel, which I sincerely respect, this question: What if it was your own child? Assume you wanted the best education for your child, and thought -- rightly or wrongly -- that s/he was illegally excluded therefrom, and wanted to bring a lawsuit. You saw the exact same things the district court saw. The routinized, race-based beatings. The internet threats. The letters and e-mails to your lawyers. The overarching racial polarization. Do you think that any reasonable observer could rationally call your fear for your child unreasonable in this setting?

For me, all of those points come together, but the last point seems dispositive. One of the express factors in the anonymity test -- a "significant" one -- is the youth and vulnerability of the plaintiffs. Here, the plaintiffs are young students. They are alone and isolated at school, in a racial milieu that's already extremely polarized.

To reveal their identities will unquestionably cause them harm. They'll unquestionably, in my mind, be insulted, picked on, harassed, and otherwise abused by various classmates. Will such abuse also include physical assault? Maybe. But all together, I have no doubt whatsoever that the harm here is sufficiently concrete to justify anonymous litigation. Particularly in the context of a lawsuit in which the identity of the plaintiffs is largely irrelevant to the merits, and which is brought on behalf of pretty much everyone similarly situated.

So I've often opined as to the need for deference. But there are limits. With respect, this is one of them. And, in my view, clearly so.

People v. Mills (Cal. Supreme Ct. - March 1, 2010)

Here's an opinion today from the California Supreme Court. It's 73 pages long. See if you can figure out what happens even before you're told.

"Eric Thomas and victim Sherri Farrar were a young couple living in the Sacramento area. They had a young son, who was born in 1992. On February 10, 1994, they wished to go out and arranged to have their friend, Nancy Warner, babysit their son. After dropping him off at Warner's house, they went to the Sierra Inn, where they played pool and shared a pitcher of beer. . . . Thomas was ready to leave around 11:00 p.m., as he had to be at work at 7:00 the next morning. Farrar apparently was not ready to leave and they argued, but they eventually left Warner's house around 11:30 p.m. with Farrar driving. During the drive home, Farrar admired the starry sky and accidentally allowed the car to swerve onto the shoulder. Thomas yelled at her and an argument ensued. Past hurtful incidents were recalled, escalating the argument. Farrar eventually stopped the car, grabbed her jacket and purse, and got out. Thomas tried to convince her to return, but she refused and walked away. . . .

By this time it was past midnight. Thomas walked around and tried to find Farrar but was unsuccessful. She was apparently not going to return that evening; Thomas described her as a very stubborn person. He could recall at least six other times an argument had caused her to abandon the car in this fashion, but she always came home after she had cooled off. He also recalled four incidents in which she had hitchhiked. He assumed Farrar would walk to International Billing Services (IBS), a warehouse business where she had previously worked. IBS was open 24 hours a day and was approximately five miles away from where Farrar had gotten out of the car. IBS was open 24 hours a day and was approximately five miles away from where Farrar had gotten out of the car. Four members of her family worked at IBS, and she also had family members who lived in the area. In the meantime, Thomas was in a quandary. Their young son was in the car, and Thomas had to get him home. Thomas also knew he had had a lot to drink and was worried about driving himself, as he had past arrests for drunk driving. He eventually decided to drive home and wait for Farrar. He arrived home without mishap, put his son to bed, and waited for Farrar on the couch in the living room. He eventually fell asleep."

Needless to say, Farrar never comes home.

Once they catch the murderer, I'd have thought that his defense would be: "Thomas did it." After all, there was opportunity, motive, etc. Pretty good defense.

Except for this stuff:

"Defendant worked at IBS as a warehouseman. On the night of the crimes, he was out with fellow IBS employee George Solorzano and his girlfriend, drinking and shooting pool. Defendant liked to drink bottles of Miller Genuine Draft beer. They agreed that defendant would spend the night at Solorzano's house in the Placerville area so they could carpool to work the next morning. Sometime between 11:00 p.m. and 1:00 a.m., they left for Solorzano's home in separate cars. Defendant, driving a red car with gray primer paint on it, followed Solorzano for a bit but turned off the highway and never arrived at Solorzano's house. He did not show up for work the next day, and calls to his home were not answered.

Between 5:45 and 6:45 the next morning, several people driving to work along White Rock Road reported seeing a red car on the side of the road. Some drivers noticed the car also bore gray primer paint. Two reported seeing a man who looked like defendant. Others reported seeing a White man in a blue shirt with a logo on it. Two reported seeing the body of someone lying on the ground near the man.

Police investigated and discovered the lifeless body of Sherri Farrar along White Rock Road about 3.7 miles from the IBS warehouse. She was naked and her throat had been cut. Police found a Miller Genuine Draft beer bottle between her buttocks. The bottle bore defendant‟s thumbprint and had feces around the rim. His fingerprints were also found on other items at the crime scene. A pathologist later estimated Farrar had been killed between 3:00 and 7:00 a.m. A massive wound to her throat caused her death from loss of blood and was probably caused by six to 12 slashes from a blade. Detective Bell testified that police later found box cutters and knives in defendant's car and bedroom . . . . Mary Hansen, a criminalist, found evidence of semen on vaginal and rectal swabs. A DNA analysis found the semen was consistent with defendant's blood, and the chance the semen would match another Caucasian was only one in 12 billion. . . . Police impounded defendant's car, and a police investigation revealed that fibers found on the victim matched the carpet in the car. Tiny spots of blood in the car were consistent with the victim's blood and inconsistent with defendant's."

Oops. That pretty much eliminates the "It wasn't me" defense. (Unless, perhaps, you're a former NFL running back. But let's call that a special case.)

You can also figure out what happens next. Defendant is sentenced to . . . death. Of course. The placement of the beer bottle pretty much sealed that fate.

And then to the California Supreme Court. Where your fate's also sealed. Can you spell: "Unanimously affirmed." Of course you can.