This is why I love Judge Kozinski. Just love him. And why you should too. In a platonic, non-sexual way, of course.
When Judge Kozinski goes off on something, he's often right. But even when he's wrong, he almost always writes a great opinion, and one that gets you thinking. And that's definitely the case here. A complaint is filed against a district court judge, and the majority basically decides not to do anything about it. To which Judge Kozinski writes a dissent, which absolutely kicks the crap (pardon my French) out of the panel.
That's not, again, to say that Judge Kozinski is necessarily right on the merits. This case probably involves an issue on which reasonable minds might disagree. Especially since the dispute isn't really law-based, but rather merely concerns what the appropriate penalty (if any) should be for a particular judge who conducted himself in a manner that was (in my mind) clearly wrong. You've got several very nice judges on this panel; indeed, perhaps, in this case, overly nice. So when the majority basically lets the judge off by saying that he's probably "learned his lesson," you can see where they're coming from. So it's not that Judge Kozinski is totally and indisputably right about the merits.
Nonetheless, his opinion crushes the panel's. It's not even close. You've got to read the whole thing to see precisely what I mean. And it's also somewhat weird, because the majority opinion doesn't even seem to take on most of Judge Kozinski's arguments, and instead almost seems to let themselves be crushed. The majority almost seems to say: "Yes, Alex, I know that you're right, and if we were harsher people, yeah, we'd slam this guy pretty hard, but we're just going to be overly nice here, because we just don't have it in us to punish this 80-year old jurist, who's likely to be gone in a very short time anyway. Can we just please let it be?"
Of course, the majority doesn't actually say that, and Judge Kozinski has a pretty persuasive response even if they did. But that's the underlying dispute here, I think.
So anyway, this is exactly why we need people like Alex on the bench. Who are both able and willing to go off on particular issues -- things about which they feel strongly -- even thought (indeed, maybe because) they're going against the tide. My only complaint, quite frankly, about Judge Kozinski's dissent is that even he's a bit too nice, and -- like the majority -- relentlessly refrains from naming the judge at issue. Who's Judge Manuel Real, by the way. Sure, you can find out who it is fairly easily. But still, given what transpired here, there's at least got to be some sort of shame that attaches to his conduct, and for the entire panel to deliberately leave out his Judge Real's name seems utterly lame to me. Judge Real did what he did. If there was nothing wrong about it, then he shouldn't be ashamed to have his name attached to it. And if, by contrast, there was indeed something wrong with it, then the least the panel should do is let the public know. To have the panel instead dance around Judge Real's identity just seems incredibly lame.
For those readers who practice (as I once did), learning that it's Judge Real who performed the acts at issue here will hardly come as a shock. The guy -- with all due respect -- is both a bully and somewhat of a nutjob. And I've got utterly no axe to grind here; I've never had a case before him, nor has he ever done anything to either me or anyone of my acquaintance. But his reputation is well-known and, in my mind, well-deserved. So it came not as all as a shock to me to learn that he, inter alia, was both the type of tyrant and the type of whacko who would perform the activities at issue here.
Anyway, read this thing. Alex: You da man. Don't ever change.
Monday, October 10, 2005
Wednesday, October 05, 2005
Jibril v. Gonzales (9th Cir. - Sept. 19, 2005)
This is a darn interesting opinion by Judge O'Scannlain. It's powerful, compelling, and darn sophisticated in its approach. I like it.
It's an asylum case, and we all know the background of those. Some Ninth Circuit judges have never met a candidate for asylum they didn't like and want to let in. Others have never met a candidate they didn't hate and want to kick out. Those may be slight exaggerations. But only slight. This is an area in which emotion -- or at least politics -- tends to run fairly deep.
When you read all of these various decisions, you often have a view (as I do) about which end of the spectrum Judge O'Scannlain tends to be near. But what I particularly like about this opinion is that, unlike many asylum opinions, which are relentlessly results-oriented, this one is actually pretty darn fair. Not that you can't tell where Judge O'Scannlain's inclinations lie, because you assuredly can. But I thought that his factual analysis was fairly neutral and principled. And -- and this is the thing I was most surprised about -- it's crystal clear that Judge O'Scannlain here is neutrally applying precedent that he doesn't like and would prefer not to follow, and yet does, in fact, apply. That's darn rare in asylum cases, where you can almost always find precedent that supports the result you want to reach, in large part because the prior authorities are so split and divisive in their approaches, depending on who was on the relevant panel that wrote the opinion.
Now, I'm no dummy. My keen sense is that Judge O'Scannlain is definitely pulling a Marbury here; in other words, that he's granting asylum in this case, even though he doesn't particularly want to, in order to craft a decision that slams the general principles that require this result and hence affect other asylum claims more broadly. Such an approach also saves the opinion -- which slams a variety of prior Ninth Circuit cases -- from potential en banc review, as both sides of the aisle will find something they like in the opinion and neither will be especially interested in using this particular case as the vehicle to reshape circuit precedent.
But, be that as it may -- and perhaps, in part, because of it -- I like the opinion. It's smart. It's principled. It makes a lot of sense. And, in a lot of what he says, I think that Judge O'Scannlain is entirely right.
So good job, Dairmuid. It's an impressive opinion. One that I wouldn't have been nearly as smart enough to write.
It's an asylum case, and we all know the background of those. Some Ninth Circuit judges have never met a candidate for asylum they didn't like and want to let in. Others have never met a candidate they didn't hate and want to kick out. Those may be slight exaggerations. But only slight. This is an area in which emotion -- or at least politics -- tends to run fairly deep.
When you read all of these various decisions, you often have a view (as I do) about which end of the spectrum Judge O'Scannlain tends to be near. But what I particularly like about this opinion is that, unlike many asylum opinions, which are relentlessly results-oriented, this one is actually pretty darn fair. Not that you can't tell where Judge O'Scannlain's inclinations lie, because you assuredly can. But I thought that his factual analysis was fairly neutral and principled. And -- and this is the thing I was most surprised about -- it's crystal clear that Judge O'Scannlain here is neutrally applying precedent that he doesn't like and would prefer not to follow, and yet does, in fact, apply. That's darn rare in asylum cases, where you can almost always find precedent that supports the result you want to reach, in large part because the prior authorities are so split and divisive in their approaches, depending on who was on the relevant panel that wrote the opinion.
Now, I'm no dummy. My keen sense is that Judge O'Scannlain is definitely pulling a Marbury here; in other words, that he's granting asylum in this case, even though he doesn't particularly want to, in order to craft a decision that slams the general principles that require this result and hence affect other asylum claims more broadly. Such an approach also saves the opinion -- which slams a variety of prior Ninth Circuit cases -- from potential en banc review, as both sides of the aisle will find something they like in the opinion and neither will be especially interested in using this particular case as the vehicle to reshape circuit precedent.
But, be that as it may -- and perhaps, in part, because of it -- I like the opinion. It's smart. It's principled. It makes a lot of sense. And, in a lot of what he says, I think that Judge O'Scannlain is entirely right.
So good job, Dairmuid. It's an impressive opinion. One that I wouldn't have been nearly as smart enough to write.
Tuesday, October 04, 2005
DHX, Inc. v. Allianz AGF (9th Cir. - Sept. 19, 2005)
I don't know much in this world. But here's one thing I do know: Don't try to hide things from the Ninth Circuit. Ever. Never ever. As anti-Nike might say, "Just don't do it." Because they get angry. Very angry. Which ain't good for you. Trust me.
Want to see an angry judge? Take a look at Judge Beezer's concurrence in this one. He's an angry man. Polite, restrained (to a degree), and analytical. But angry.
Why's he angry? Because the parties here settled the case (and hence the appeal), but tried to let the Ninth Circuit know as little as possible about this settlement in the hopes that the court would vacate the adverse decision of the district court below. That way it couldn't be used as estoppel, precedent, or anything else. The trick was to try to keep the appeal "alive" (for both Article III and prudential purposes) by having one side -- the one that wanted to vacate the judgment -- pay the other side's attorneys' fees to show up at oral argument and make it look like there was a live controversy, and hopefully doing this all without getting sanctioned for hiding the fact that the parties had settled.
And it worked. To a degree, anyway. No one got sanctioned. And the majority didn't grant the vacatur itself, but did remand to the district court to decide whether or not it felt like vacating the judgment. But don't think that the parties get off without taking some bigtime shots. From Judge Beezer, who isn't at all happy with what's been going on here.
Hence his concurrence. Which I view as relentlessly seething, even though it's simultaneously restrained. I have the keen sense that this is an angry, angry dude. And, quite frankly, for not insubstantial reasons. And an angry judge can do a lot of things to you, even if he's restrained enough to keep most of his comments out of the realm of personal attacks and instead limited to the doctrine. All of which Judge Beezer does. Which is why the panel, for example, ordered the parties to produce the entire settlement agreement to the court, and Judge Beezer -- for the benefit of the world -- elects to attach a copy to his concurrence. Which I'm sure the party that wanted the decision vacated (and paid all this money in order to make it happen) was really happy about. Not. And makes some not-so-subtle slams on the terms of this agreement and counsel for the parties, as well as including broad portions of the transcript of the oral argument in which counsel is put in the quite uncomfortable -- dare I say, somewhat squirming -- position of having to explain to a not-so-friendly bench what exactly has transpired here. Again, I thought that, in the scheme of things, Judge Beezer's opinion was fairly moderate, and he also made a very coherent (and good) doctrinal Article III point. But you could still see the emotional undercurrent. Which, I'm sure, also affects his substantive analysis: You wouldn't be fully human if it didn't, at least a tiny, tiny bit.
So a neat opinion to read. In the end, the majority decides to remand the case back down to the district court to decide whether it feels like vacating the case itself. But, if I were the parties, I wouldn't put much hope in these district court proceedings. Not only because a district court hardly has much of an incentive to vacate its own decision, which I'm sure it's convinced is correct. But also because both the tone and content of Judge Beezer's concurrence also serves to give the district court a lot of reasons to deny such a request on its merits.
Who were the attorneys involved, you ask? David Woolley was the counsel for DHX, and was the attorney who was being paid by the other side to show up for oral argument. (One of the very few lawyers who I've seen who has his undergraduate degree from Oxford, I might add.) Geoffrey Robb was the counsel for Allianz, the party who wanted the decision vacated and who paid the other side to try to help make it happen. (On his end, he's an East Asian Studies and History major from Wesleyan, another somewhat non-traditional route to becoming a California attorney.)
Want to see an angry judge? Take a look at Judge Beezer's concurrence in this one. He's an angry man. Polite, restrained (to a degree), and analytical. But angry.
Why's he angry? Because the parties here settled the case (and hence the appeal), but tried to let the Ninth Circuit know as little as possible about this settlement in the hopes that the court would vacate the adverse decision of the district court below. That way it couldn't be used as estoppel, precedent, or anything else. The trick was to try to keep the appeal "alive" (for both Article III and prudential purposes) by having one side -- the one that wanted to vacate the judgment -- pay the other side's attorneys' fees to show up at oral argument and make it look like there was a live controversy, and hopefully doing this all without getting sanctioned for hiding the fact that the parties had settled.
And it worked. To a degree, anyway. No one got sanctioned. And the majority didn't grant the vacatur itself, but did remand to the district court to decide whether or not it felt like vacating the judgment. But don't think that the parties get off without taking some bigtime shots. From Judge Beezer, who isn't at all happy with what's been going on here.
Hence his concurrence. Which I view as relentlessly seething, even though it's simultaneously restrained. I have the keen sense that this is an angry, angry dude. And, quite frankly, for not insubstantial reasons. And an angry judge can do a lot of things to you, even if he's restrained enough to keep most of his comments out of the realm of personal attacks and instead limited to the doctrine. All of which Judge Beezer does. Which is why the panel, for example, ordered the parties to produce the entire settlement agreement to the court, and Judge Beezer -- for the benefit of the world -- elects to attach a copy to his concurrence. Which I'm sure the party that wanted the decision vacated (and paid all this money in order to make it happen) was really happy about. Not. And makes some not-so-subtle slams on the terms of this agreement and counsel for the parties, as well as including broad portions of the transcript of the oral argument in which counsel is put in the quite uncomfortable -- dare I say, somewhat squirming -- position of having to explain to a not-so-friendly bench what exactly has transpired here. Again, I thought that, in the scheme of things, Judge Beezer's opinion was fairly moderate, and he also made a very coherent (and good) doctrinal Article III point. But you could still see the emotional undercurrent. Which, I'm sure, also affects his substantive analysis: You wouldn't be fully human if it didn't, at least a tiny, tiny bit.
So a neat opinion to read. In the end, the majority decides to remand the case back down to the district court to decide whether it feels like vacating the case itself. But, if I were the parties, I wouldn't put much hope in these district court proceedings. Not only because a district court hardly has much of an incentive to vacate its own decision, which I'm sure it's convinced is correct. But also because both the tone and content of Judge Beezer's concurrence also serves to give the district court a lot of reasons to deny such a request on its merits.
Who were the attorneys involved, you ask? David Woolley was the counsel for DHX, and was the attorney who was being paid by the other side to show up for oral argument. (One of the very few lawyers who I've seen who has his undergraduate degree from Oxford, I might add.) Geoffrey Robb was the counsel for Allianz, the party who wanted the decision vacated and who paid the other side to try to help make it happen. (On his end, he's an East Asian Studies and History major from Wesleyan, another somewhat non-traditional route to becoming a California attorney.)
Monday, October 03, 2005
Villacreses v. Molinari (Cal. Ct. App. - Sept. 26, 2005)
Hmmm. I don't know about this one. And it's an important holding. Not particularly for the doctrine that it espouses or the rules that it applies. But rather because of its practical consequences.
The basic scoop here is that Justice Bedsworth holds that the arbitration clause at issue in this contract doesn't really compel arbitration because the text of that clause doesn't actually say that the parties are required to arbitrate, and instead merely recites the disclosures (in all caps) that are required by CCP 1298 whenever the parties are agreeing to an arbitration clause. In other words, the parties only agreed to the disclosures required for arbitration, but never actually agreed to arbitration itself. At least according to Justice Bedsworth and the rest of the panel.
That may sound just like a hypertechnical dissertation on the particular contract here. But it's actually a really important holding. Because the form real estate contract at issue here is, from what I can tell, the exact same as the form contracts signed in a plethora of other residential real estate deals, and also contains a contractual clause that is identical to that in a number of other contracts as well. In other words, if this contract doesn't effectively compel arbitration, then tons of other contracts -- including contracts that pretty much everyone thinks contain ironclad arbitration provisions -- don't compel arbitration either. Lots. Lots. Lots. Indeed, I bet I could find a dozen arbitration cases in which arbitration was previously compelled based upon language identical to that here and in which the parties admitted that arbitration was required. (Sadly, however, I've got a brief in the Court of Appeal due on Friday that totally requires my current attention, so I'll not be able to take myself up on this bet. Damn work. Always getting in the way.)
So not only is the holding important, but I'm also not sure that it's right. Principally because I have no doubt -- no doubt whatsoever -- that the parties mutually intended this clause to compel arbitration. That when they initialed the provision, they thought that their initials required them to arbitrate. Which is a pretty telling (and important) point about the meaning of this provision. It takes a damn sophisticated lawyer to articulate -- as Justice Bedsworth does -- a reason why the textual provision doesn't actually appear to affirmatively compel arbitration. Indeed, Justice Bedsworth implicitly recognizes this fact -- alongside a backhanded (but fun) swipe at Clinton -- when he notes that the reason the clause doesn't itself facially compel arbitration is because the only operative ("affirmative") portion only says that "BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE NEUTRAL ARBITRATION OF ALL DISPUTES TO WHICH IT APPLIES AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTED LITIGATED IN A COURT OR IN A JURY TRIAL." Sounds like an arbitration provision, right? But Justice Bedsworth notes that the word "IT" isn't defined, so who knows what "it" means? And since this clause only requires the parties to arbitrate disputes "to which it applies", and since the term "it" isn't defined, there's no effective arbitration clause. See?
Okay, that's a pretty good legal argument. But I'm quite sure it wasn't the intent of the parties. So what do you do? Obviously, in the end, the result will be a fight between those who would stick (potentially woodenly) to the express text of a contract and those who would interpret this contract more flexibly to effectuate what I think was the clear intent of the parties. Justice Bedsworth doesn't get into this fight, but instead merely takes as a given that if the text doesn't expressly say X, then X isn't required. To me, at least as applied here, that's a result that's far from self-evident.
Even though this is a very narrow holding, I wouldn't be surprised to see it reviewed and/or depublished by the California Supreme Court. Admittedly, I also wouldn't be surprised if they left it alone, especially since it appears (at least at first glance) to be such a narrow and contract-specific holding. But I think that the import of this case is actually far more significant than might first appear.
The basic scoop here is that Justice Bedsworth holds that the arbitration clause at issue in this contract doesn't really compel arbitration because the text of that clause doesn't actually say that the parties are required to arbitrate, and instead merely recites the disclosures (in all caps) that are required by CCP 1298 whenever the parties are agreeing to an arbitration clause. In other words, the parties only agreed to the disclosures required for arbitration, but never actually agreed to arbitration itself. At least according to Justice Bedsworth and the rest of the panel.
That may sound just like a hypertechnical dissertation on the particular contract here. But it's actually a really important holding. Because the form real estate contract at issue here is, from what I can tell, the exact same as the form contracts signed in a plethora of other residential real estate deals, and also contains a contractual clause that is identical to that in a number of other contracts as well. In other words, if this contract doesn't effectively compel arbitration, then tons of other contracts -- including contracts that pretty much everyone thinks contain ironclad arbitration provisions -- don't compel arbitration either. Lots. Lots. Lots. Indeed, I bet I could find a dozen arbitration cases in which arbitration was previously compelled based upon language identical to that here and in which the parties admitted that arbitration was required. (Sadly, however, I've got a brief in the Court of Appeal due on Friday that totally requires my current attention, so I'll not be able to take myself up on this bet. Damn work. Always getting in the way.)
So not only is the holding important, but I'm also not sure that it's right. Principally because I have no doubt -- no doubt whatsoever -- that the parties mutually intended this clause to compel arbitration. That when they initialed the provision, they thought that their initials required them to arbitrate. Which is a pretty telling (and important) point about the meaning of this provision. It takes a damn sophisticated lawyer to articulate -- as Justice Bedsworth does -- a reason why the textual provision doesn't actually appear to affirmatively compel arbitration. Indeed, Justice Bedsworth implicitly recognizes this fact -- alongside a backhanded (but fun) swipe at Clinton -- when he notes that the reason the clause doesn't itself facially compel arbitration is because the only operative ("affirmative") portion only says that "BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE NEUTRAL ARBITRATION OF ALL DISPUTES TO WHICH IT APPLIES AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTED LITIGATED IN A COURT OR IN A JURY TRIAL." Sounds like an arbitration provision, right? But Justice Bedsworth notes that the word "IT" isn't defined, so who knows what "it" means? And since this clause only requires the parties to arbitrate disputes "to which it applies", and since the term "it" isn't defined, there's no effective arbitration clause. See?
Okay, that's a pretty good legal argument. But I'm quite sure it wasn't the intent of the parties. So what do you do? Obviously, in the end, the result will be a fight between those who would stick (potentially woodenly) to the express text of a contract and those who would interpret this contract more flexibly to effectuate what I think was the clear intent of the parties. Justice Bedsworth doesn't get into this fight, but instead merely takes as a given that if the text doesn't expressly say X, then X isn't required. To me, at least as applied here, that's a result that's far from self-evident.
Even though this is a very narrow holding, I wouldn't be surprised to see it reviewed and/or depublished by the California Supreme Court. Admittedly, I also wouldn't be surprised if they left it alone, especially since it appears (at least at first glance) to be such a narrow and contract-specific holding. But I think that the import of this case is actually far more significant than might first appear.
Thursday, September 29, 2005
Valov v. DMV (Cal. Ct. App. - Sept. 20, 2005)
Rack this one up to another casualty of the War on Terror. Sorry, Molokans. We've elected to crush a central religious liberty. But don't feel bad. We're doing the same to a lot of other faiths too. So at least you've got company.
I actually didn't know anything about the Molokan faith before reading this opinion; indeed, I had never even heard of them. So did a little google action, and it turns out that this is a fundamentalist sect that split from the Russian Orthodox Church in the 1550s, during the rein of Ivan the Terrible. Sounds like they had a not-great time in Tsarist Russia, and were apparently (according to Wikipedia) beat, tortured, killed, imprisoned, and exiled. Nowadays there are 200 Molokan churches, 150 of which are in Russia. And 25,000 or so Molokans in the United States. Anyway, nice to read about you, all you Molokans out there. Pleasure to meet you.
Oh, yeah. And sorry about your religious liberty. But that's what happens to "crazy" religious beliefs, don't you know. You guys ain't powerful enough to protect yourself through the political system. And weren't not that interested in protecting your nutty beliefs in the judiciary either, notwithstanding the First Amendment. So, here, Molokans -- those nutballs! -- believe pretty strongly in the Second Commandment, which (so sayeth Exodus 20:4) "Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is on the earth beneath, or that is in the water below." I -- being the lapsed Catholic who didn't pay much attention in CCD that I am -- always thought that one was about "graven images"; particularly, those of God. But apparently it's about creating any likeness of anything in heaven or on earth. Which, according to the Molokans, means no pictures. Or anything. Including themselves. And, by the way, once I think about it, it seems to me they may well be right. At least from a textualist perspective. Which is a pretty interesting comment on textualism, by the way.
Thing is, though, most of us (the "sane" ones, not you sick Molokans) don't read the thing that way. And -- and this will come as a shock, I know -- our legislatie enactments generally protect only the "right" interpretation of the Bible, not your "crazy" version. So, for example, the Legislature often closes stores up and don't allow the sale of alcohol on Sundays. That's totally constitutional. 'Cause it's secular. Get it? But the crazy tenants of your absurd religion; well, you've only got 25,000 members. That ain't enough votes.
Of course, in the old days, there used to be a little something called the First Amendment. And the judiciary was pretty interested in protecting it. Including religious freedom. So, for example, in 1963, there was a guy named John Shubin who was a Molokan who, consistent with his religious faith, didn't want his picture taken for his driver's license. Now, in California, we didn't even have pictures on driver's licenses when we started issuing these things in 1944. But in 1959, we started adding them. So Shubin brings a lawsuit in 1963 alleging that compelling him to add his picture would violate the First Amendment. And he wins. So he gets a license that doesn't have his picture on it. So sayeth the California judiciary. You can put other stuff on it, of course, to identify him. But no pictures. And, even though this decision technically applies only to Shubin (since he was the only one who brought suit), it's still judicial precedent, and so the DMV -- consistent with the decision -- creates an administrative regime where it doesn't require pictures for those whose religious beliefs in this area similarly preclude pictures. Who, basically, read Exodus 20:4 -- or any other religious tract -- the same way as Shubin.
But that was all before The Towers Fell. Thanks to Shubin, Jack Valvov -- also a Molovan -- had been issued a number of previous driver's licenses without his picture. But, in 2003, when he goes to renew, the DMV tells him to forget it. He's gotta choose: Violate his religious beliefs or refuse to drive. Valvov, like Shubin before him, believes this violates the First Amendment. So sues. But now it's 2005. We've "come a long way, baby." The California Court of Appeal, in this decision by Justice Kriegler, holds that he's gotta choose, and that the DMV's practice of compelling Volvov to have his picture taken if he wants a license doesn't violate the First Amendment.
Why the change? One need go no further than Justice Kriegler's own words: "[I]t is undeniable that public safety concerns -- specifically, counter-terrorism interests -- changed drastically after September 11, 2001. Terrorist attacks after September 11, 2001 further testify to the need for such heightened saftey concerns. . . . While we are aware of some pre-9/11 decisions that found free exercise violations based on religious objections to driver's license photographs, we find them unpersuasive." It's the War on Terror, my man. Part of that means you lose your religious freedom. Nope, that doesn't play right into their hands. That's instead the American Way. Tough titties for you. I guess you gotta go back to Russia -- or some other country -- if you want to exercise your religious. Here, it's either violate the Second Commandment or ride the bus.
As you can probably tell, I'm a bit skeptical of this result. Part of Justice Kriegler's opinion results from an application of Employment Division v. Smith, a case that I pilloried even in my youth -- see, e.g., 104 Harv. L. Rev. 198 (1990) (written by yours truly) -- and that Congress had the good sense to legislatively overrule, at least in the federal context. And part is a factual reaction to the War on Terror and the perceived need to compel people like Valov to violate their religious principles so the Constitution can persist. (What?!) Like many people, I don't find either of these components particularly persuasive.
Don't think this only affects that 25,000 "crazy" Molovans, by the way. The same principle applies not only as a matter of First Amendment doctrine, but also all the other "nutty" religions that have a similarly "whacko" view of the Second Commandment (i.e., who hold a religious belief different than "ours"). As Justice Kriegler notes, the Amish, Pentacostal Christians, certain Islamic sects, and a variety of other religious groups hold a similarly demented view of what the Second Commandment and/or their God requires. Tough. The bus for all of you. P.S. - Just try to open a checking account, get on a plane, buy beer, or do just about anything else without a driver's license. Good luck. And, yeah, maybe we could solve this problem by using fingerprints or descriptions or something like that. But we don't feel like it. Tough for all of you again.
I'm not going to make any affirmative points here. I'm just going to let my sarcasm speak for itself. Sorry if that means this ain't a very intellectual post. But it's all I've got in me right now.
Final word: Happy Birthday to my daughter Sierra, who turned four today. You're awesome.
I actually didn't know anything about the Molokan faith before reading this opinion; indeed, I had never even heard of them. So did a little google action, and it turns out that this is a fundamentalist sect that split from the Russian Orthodox Church in the 1550s, during the rein of Ivan the Terrible. Sounds like they had a not-great time in Tsarist Russia, and were apparently (according to Wikipedia) beat, tortured, killed, imprisoned, and exiled. Nowadays there are 200 Molokan churches, 150 of which are in Russia. And 25,000 or so Molokans in the United States. Anyway, nice to read about you, all you Molokans out there. Pleasure to meet you.
Oh, yeah. And sorry about your religious liberty. But that's what happens to "crazy" religious beliefs, don't you know. You guys ain't powerful enough to protect yourself through the political system. And weren't not that interested in protecting your nutty beliefs in the judiciary either, notwithstanding the First Amendment. So, here, Molokans -- those nutballs! -- believe pretty strongly in the Second Commandment, which (so sayeth Exodus 20:4) "Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is on the earth beneath, or that is in the water below." I -- being the lapsed Catholic who didn't pay much attention in CCD that I am -- always thought that one was about "graven images"; particularly, those of God. But apparently it's about creating any likeness of anything in heaven or on earth. Which, according to the Molokans, means no pictures. Or anything. Including themselves. And, by the way, once I think about it, it seems to me they may well be right. At least from a textualist perspective. Which is a pretty interesting comment on textualism, by the way.
Thing is, though, most of us (the "sane" ones, not you sick Molokans) don't read the thing that way. And -- and this will come as a shock, I know -- our legislatie enactments generally protect only the "right" interpretation of the Bible, not your "crazy" version. So, for example, the Legislature often closes stores up and don't allow the sale of alcohol on Sundays. That's totally constitutional. 'Cause it's secular. Get it? But the crazy tenants of your absurd religion; well, you've only got 25,000 members. That ain't enough votes.
Of course, in the old days, there used to be a little something called the First Amendment. And the judiciary was pretty interested in protecting it. Including religious freedom. So, for example, in 1963, there was a guy named John Shubin who was a Molokan who, consistent with his religious faith, didn't want his picture taken for his driver's license. Now, in California, we didn't even have pictures on driver's licenses when we started issuing these things in 1944. But in 1959, we started adding them. So Shubin brings a lawsuit in 1963 alleging that compelling him to add his picture would violate the First Amendment. And he wins. So he gets a license that doesn't have his picture on it. So sayeth the California judiciary. You can put other stuff on it, of course, to identify him. But no pictures. And, even though this decision technically applies only to Shubin (since he was the only one who brought suit), it's still judicial precedent, and so the DMV -- consistent with the decision -- creates an administrative regime where it doesn't require pictures for those whose religious beliefs in this area similarly preclude pictures. Who, basically, read Exodus 20:4 -- or any other religious tract -- the same way as Shubin.
But that was all before The Towers Fell. Thanks to Shubin, Jack Valvov -- also a Molovan -- had been issued a number of previous driver's licenses without his picture. But, in 2003, when he goes to renew, the DMV tells him to forget it. He's gotta choose: Violate his religious beliefs or refuse to drive. Valvov, like Shubin before him, believes this violates the First Amendment. So sues. But now it's 2005. We've "come a long way, baby." The California Court of Appeal, in this decision by Justice Kriegler, holds that he's gotta choose, and that the DMV's practice of compelling Volvov to have his picture taken if he wants a license doesn't violate the First Amendment.
Why the change? One need go no further than Justice Kriegler's own words: "[I]t is undeniable that public safety concerns -- specifically, counter-terrorism interests -- changed drastically after September 11, 2001. Terrorist attacks after September 11, 2001 further testify to the need for such heightened saftey concerns. . . . While we are aware of some pre-9/11 decisions that found free exercise violations based on religious objections to driver's license photographs, we find them unpersuasive." It's the War on Terror, my man. Part of that means you lose your religious freedom. Nope, that doesn't play right into their hands. That's instead the American Way. Tough titties for you. I guess you gotta go back to Russia -- or some other country -- if you want to exercise your religious. Here, it's either violate the Second Commandment or ride the bus.
As you can probably tell, I'm a bit skeptical of this result. Part of Justice Kriegler's opinion results from an application of Employment Division v. Smith, a case that I pilloried even in my youth -- see, e.g., 104 Harv. L. Rev. 198 (1990) (written by yours truly) -- and that Congress had the good sense to legislatively overrule, at least in the federal context. And part is a factual reaction to the War on Terror and the perceived need to compel people like Valov to violate their religious principles so the Constitution can persist. (What?!) Like many people, I don't find either of these components particularly persuasive.
Don't think this only affects that 25,000 "crazy" Molovans, by the way. The same principle applies not only as a matter of First Amendment doctrine, but also all the other "nutty" religions that have a similarly "whacko" view of the Second Commandment (i.e., who hold a religious belief different than "ours"). As Justice Kriegler notes, the Amish, Pentacostal Christians, certain Islamic sects, and a variety of other religious groups hold a similarly demented view of what the Second Commandment and/or their God requires. Tough. The bus for all of you. P.S. - Just try to open a checking account, get on a plane, buy beer, or do just about anything else without a driver's license. Good luck. And, yeah, maybe we could solve this problem by using fingerprints or descriptions or something like that. But we don't feel like it. Tough for all of you again.
I'm not going to make any affirmative points here. I'm just going to let my sarcasm speak for itself. Sorry if that means this ain't a very intellectual post. But it's all I've got in me right now.
Final word: Happy Birthday to my daughter Sierra, who turned four today. You're awesome.
Wednesday, September 28, 2005
Kolender v. San Diego County Civil Service Comm'n (Cal. Ct. App. - Sept. 12, 2005)
I'll freely admit that the moral issues raised by this opinion have a fair amount of depth and complexity. Moreover, these moral issues are, to me, far more interesting than the legal matters at issue in the case; indeed, the latter don't really compel any extensive commentary at all.
But read the first three pages of the opinion and see whether you'd agree whether the underlying events would impart to most observers the following lesson: "Don't lie. And, if you do, don't thereafter tell the truth and admit that you lied. Because, as a practical matter, that's almost always the worst thing that you can do."
But read the first three pages of the opinion and see whether you'd agree whether the underlying events would impart to most observers the following lesson: "Don't lie. And, if you do, don't thereafter tell the truth and admit that you lied. Because, as a practical matter, that's almost always the worst thing that you can do."
Tuesday, September 27, 2005
People v. Urziceanu (Cal. Ct. App. - Sept. 12, 2005)
I love this guy. To get a sense of how some people really do take the Compassionate Use Act seriously, read the first seven pages of this opinion. Michael Urziceanu is hardly a guy who's just passing out pot to anyone who walks into his house in order to make a profit. Look what he does with an undercover cop who comes to his house to buy some marijuana for her alleged headaches: (1) he opens up his home to help her even though he normally only processes new members on Tuesdays and Wednesdays, (2) refuses to provide her with any pot when she says that she left her doctor's certificate at home," and instead tells her to fill out the paperwork (a drug dealer with paperwork?!) and come back the next day with her certificate, (3) makes a copy of her driver's license and medical certificate for his files, (4) calls the doctor on the cop's form five times to verify that the certificate isn't a forgery and is in fact a real certificate, (5) gives her some pot in bread and a cookie for free because she says she needs 'em, and (6) sells his pot, which I imagine is pretty good, for $50 per 3.5 grams, which seems like a fairly reasonable cost (basically, $50 for an eighth (of an ounce)).
In other words, this is exactly the kind of practice that you'd want your true "Compassionate Use" guy to run. Of course, he's doing this pretty much in public, so all the police have to do to bust him is -- as they did here -- read the newspaper or search the web, make an easy undercover buy, and then go to trial. Not that the guy (Michael Urziceanu) isn't pretty cool about the whole thing; as the police are searching his house and doing an inventory of all his pot, for example, he tokes up. (Which, admittedly, I might do too -- if only to relieve stress -- if I was potentially staring at several years in the pokey.) Now, mind you, some of the stuff here strikes me as less than stellar; for example, he's also got several guns and ammo in the house. Drugs and weapons; probably not the best mix.
So what kind of person becomes a professional compassionate drug distributor, you ask? Well, at least here, interestingly enough, Michael started out working for the New Jersey Department of Corrections. But cracked three vertebrae on that job and subsequently got clipped by a drunk driver while driving his motorcycle. Not really good luck on either front, and probably caused a lot of pain. Maybe even enough to start his transition to his current occupation.
Eventually, at his trial, Michael Urziceanu gets acquitted of several offenses but convicted of several others, and he appeals. Justice Robie reverses his conviction on the conspiracy to sell marijuana count but affirms his conviction on the felon in possession of firearms and ammunition counts, the former on the ground that the Medical Marijuana Program Act applies retroactively. So a retrial on that count.
That's my drug update for the day.
In other words, this is exactly the kind of practice that you'd want your true "Compassionate Use" guy to run. Of course, he's doing this pretty much in public, so all the police have to do to bust him is -- as they did here -- read the newspaper or search the web, make an easy undercover buy, and then go to trial. Not that the guy (Michael Urziceanu) isn't pretty cool about the whole thing; as the police are searching his house and doing an inventory of all his pot, for example, he tokes up. (Which, admittedly, I might do too -- if only to relieve stress -- if I was potentially staring at several years in the pokey.) Now, mind you, some of the stuff here strikes me as less than stellar; for example, he's also got several guns and ammo in the house. Drugs and weapons; probably not the best mix.
So what kind of person becomes a professional compassionate drug distributor, you ask? Well, at least here, interestingly enough, Michael started out working for the New Jersey Department of Corrections. But cracked three vertebrae on that job and subsequently got clipped by a drunk driver while driving his motorcycle. Not really good luck on either front, and probably caused a lot of pain. Maybe even enough to start his transition to his current occupation.
Eventually, at his trial, Michael Urziceanu gets acquitted of several offenses but convicted of several others, and he appeals. Justice Robie reverses his conviction on the conspiracy to sell marijuana count but affirms his conviction on the felon in possession of firearms and ammunition counts, the former on the ground that the Medical Marijuana Program Act applies retroactively. So a retrial on that count.
That's my drug update for the day.
Monday, September 26, 2005
Brill Media Co. v. TCW Group (Cal. Ct. App. - Sept. 7, 2005)
Damn spellcheckers! Why can we send a man to the moon (or at least used to be able to!) but can't figure out how to program our computer to correct our embarrassing errors? Resulting, to take but one example, in this order, in which Justice Turner amends his original opinion to change the line "claims bought by entities" to "claims brought by entities" and the words "alleged contract" to "alleged conduct". In other words, to correct the errors that only a human could catch. If only such a human would bother to read the thing one last time before it was published in the Official Reporter.
Ross v. Ragingwire Telecom (Cal. Ct. App. - Sept. 7, 2005)
Let's just be glad for what we have, shall we? Even when you hit the bong hard, in our Great State, you can't be thrown in the state clink for it, at least as long as you've got a doctor to back you up. That's the Compassionate Use Act of 1996. Or at least my rough vernacular description of it.
But that doesn't mean you can't be fired for toking up. It's not the Bring Your Bong To Work Act. Nor is it a "Feel Free to Fail the Drug Test" card. Look, it's not that there isn't a reasonable argument to the contrary; after all, if you can't be fired for taking prescription drugs (and you can't), why should you be allowed to be fired for taking your prescription pot? Good argument. But not every good argument is good enough. And the dispositive difference here is that mary jane isn't a prescription drug and is still illegal under federal law. Which doesn't escape Justice Scotland, who affirms a demurrer granted against a dude who was fired when his drug test came back positive.
Sorry, my man. The CUA just keeps you out of lockup. Doesn't keep you in your job.
But that doesn't mean you can't be fired for toking up. It's not the Bring Your Bong To Work Act. Nor is it a "Feel Free to Fail the Drug Test" card. Look, it's not that there isn't a reasonable argument to the contrary; after all, if you can't be fired for taking prescription drugs (and you can't), why should you be allowed to be fired for taking your prescription pot? Good argument. But not every good argument is good enough. And the dispositive difference here is that mary jane isn't a prescription drug and is still illegal under federal law. Which doesn't escape Justice Scotland, who affirms a demurrer granted against a dude who was fired when his drug test came back positive.
Sorry, my man. The CUA just keeps you out of lockup. Doesn't keep you in your job.
Friday, September 23, 2005
In Re Conserv. Joel E. (Cal. Ct. App. - Aug. 31, 2005)
Don't know where I come out on this one. It's a toughie, and a multifaceted toughie, at that.
At issue is whether a party can represent himself at conservatorship proceedings; in other words, whether a person who is alleged to be incompetent can represent himself in an adjudication whose target is to take away that person's ability to control the vast majority of his own affairs. There, in my mind, strong arguments on both sides of that question. And, unfortunately, I don't think that the opinion by Justice Butz does a good job of addressing -- or even articulating -- those arguments. It's a pretty poor opinion on a very important topic. (And I say that with all due respect, having very much complimented Justice Butz -- here and here -- on both of the prior opinions of hers about which I've posted.)
The arguments both ways, in my mind, largely mirror the (hotly-contested) contemporary issues regarding whether someone can represent themselves at a criminal trial. Arguments in favor of "Yes": It's their life. It's their liberty at stake. They have a right to participate, and also to control their own destiny. Sometimes they may even be better than a professional attorney. Other times the actual outcome is largely preordained, and hence the value of participation deemed to outweigh the potentially adverse consequences. Automomy is good, and maybe even a right. Arguments in favor of "No": It's too important, both for the individual and society. They're not as good as a professional, and may even be incompetent (especially here). Paternalism is good. Can't risk it.
In the criminal arena, we've basically held that the "Yes" arguments prevail. That's probably the strongest argument in favor of a right to self-representation here. Because what's at stake in conservatorship actions (essentially, continuing liberty) is very similar to what's a stake in a criminal action; indeed, in many cases, an involuntary conservatorship would be much more of a deprivation than, say, the imposition of probation in a criminal proceeding. Justice Butz spends a lot of time on the analogy, but essentially just lists all the various cases and situations, and doesn't do much analytical work at all about what (if anything) rightly distinguishes the various settings. For a case that's basically one of first impression, that's very much not the way to go.
Perhaps Justice Butz, in the end, reaches the correct result. I'm not sure. But I am pretty positive that I don't like the superficial way in which she gets there, and that this process also makes me extremely unconfident in the outcome she reaches. Plus, can't we be a bit more creative here? For example, it seems to me, even upon a superficial glance, that there's a huge risk that the proposed conservatee is indeed incompetent; indeed, that this is the whole point of the proceeding, and -- as here -- the record may already provide a fertile basis upon which to make such a potential finding. If the record does, indeed, demonstrate such a basis, why not use that fact as a basis to find no right to self-representation, as (I think) incompetents don't have a right to self-representation even in a criminal case. But, if no such record exists, why presume that every defendant in a conservatorship proceeding is incompetent and deny them all the right to self-representation on that basis? Let's say that my wife, out of spite (or otherwise), initiates conservatorship proceedings over me. Do I -- a reasonably bright and, I'm pretty sure, not incompetent dude -- really have to turn my entire life over to the skills of a counsel who's appointed by state, whom I may not trust, and who may be much worse than I am? It would seem to me that I have the right to represent myself in such a setting. Sure, everyone else may not be me. But a conclusive holding like the one articulated by Justice Butz here nonetheless seems the wrong way to go.
So maybe I think that, even if the result reached by Justice Butz may be correct in many cases, her approach still articulates the wrong rule. At least that's my thought right now. Who knows; in 10 seconds, I may change my mind again. But, regardless, there's a lot more here that's worthy of discussion. And I wish that Justice Butz had taken the time to do so.
At issue is whether a party can represent himself at conservatorship proceedings; in other words, whether a person who is alleged to be incompetent can represent himself in an adjudication whose target is to take away that person's ability to control the vast majority of his own affairs. There, in my mind, strong arguments on both sides of that question. And, unfortunately, I don't think that the opinion by Justice Butz does a good job of addressing -- or even articulating -- those arguments. It's a pretty poor opinion on a very important topic. (And I say that with all due respect, having very much complimented Justice Butz -- here and here -- on both of the prior opinions of hers about which I've posted.)
The arguments both ways, in my mind, largely mirror the (hotly-contested) contemporary issues regarding whether someone can represent themselves at a criminal trial. Arguments in favor of "Yes": It's their life. It's their liberty at stake. They have a right to participate, and also to control their own destiny. Sometimes they may even be better than a professional attorney. Other times the actual outcome is largely preordained, and hence the value of participation deemed to outweigh the potentially adverse consequences. Automomy is good, and maybe even a right. Arguments in favor of "No": It's too important, both for the individual and society. They're not as good as a professional, and may even be incompetent (especially here). Paternalism is good. Can't risk it.
In the criminal arena, we've basically held that the "Yes" arguments prevail. That's probably the strongest argument in favor of a right to self-representation here. Because what's at stake in conservatorship actions (essentially, continuing liberty) is very similar to what's a stake in a criminal action; indeed, in many cases, an involuntary conservatorship would be much more of a deprivation than, say, the imposition of probation in a criminal proceeding. Justice Butz spends a lot of time on the analogy, but essentially just lists all the various cases and situations, and doesn't do much analytical work at all about what (if anything) rightly distinguishes the various settings. For a case that's basically one of first impression, that's very much not the way to go.
Perhaps Justice Butz, in the end, reaches the correct result. I'm not sure. But I am pretty positive that I don't like the superficial way in which she gets there, and that this process also makes me extremely unconfident in the outcome she reaches. Plus, can't we be a bit more creative here? For example, it seems to me, even upon a superficial glance, that there's a huge risk that the proposed conservatee is indeed incompetent; indeed, that this is the whole point of the proceeding, and -- as here -- the record may already provide a fertile basis upon which to make such a potential finding. If the record does, indeed, demonstrate such a basis, why not use that fact as a basis to find no right to self-representation, as (I think) incompetents don't have a right to self-representation even in a criminal case. But, if no such record exists, why presume that every defendant in a conservatorship proceeding is incompetent and deny them all the right to self-representation on that basis? Let's say that my wife, out of spite (or otherwise), initiates conservatorship proceedings over me. Do I -- a reasonably bright and, I'm pretty sure, not incompetent dude -- really have to turn my entire life over to the skills of a counsel who's appointed by state, whom I may not trust, and who may be much worse than I am? It would seem to me that I have the right to represent myself in such a setting. Sure, everyone else may not be me. But a conclusive holding like the one articulated by Justice Butz here nonetheless seems the wrong way to go.
So maybe I think that, even if the result reached by Justice Butz may be correct in many cases, her approach still articulates the wrong rule. At least that's my thought right now. Who knows; in 10 seconds, I may change my mind again. But, regardless, there's a lot more here that's worthy of discussion. And I wish that Justice Butz had taken the time to do so.
Thursday, September 22, 2005
Preminger v. Principi (9th Cir. - Aug. 25, 2005)
You'll be hard pressed to find someone who's as much of an advocate for law in the public interest as me. I'm a huge fan. Indeed, one of the (many) great things about my academic gig is that it allows me plenty of time and opportunity to do whatever work I feel might make the world a more just place. Practicing law is an awesome profession. At least when you don't have to do it for a living.
All of this is a means of introduction to my comments on this case and one of its participants, attorney Scott Rafferty. The case was brought by the Santa Clara Democratic Central Committee against the Department of Veterans' Affairs challenging the VA's policy of kicking out anyone who tries to register voters (or conduct any other "partisan activity") at a VA facility. Because we definitely don't want anyone helping veterans to register to vote. What a nightmare that would be. Thanks, VA, for helping to avoid such an obvious debacle.
Anyway, I'm pretty sympathetic to the constitutional merits of the plaintiffs' position here, although it looks like they make at least one pretty critical tactical mistake (see, e.g., footnote 5 of the opinion) that might have worked to their detriment. In the end, Judge Graber holds that plaintiffs are unlikely to prevail on the merits and hence that the district court didn't abuse its discretion to deny a preliminary injunction. This seems to me a plausible (though by no means self-evident) holding, particularly given the substantive content of the VA's regulations, which do allow at least some ("nonpartisan") registration activities at VA facilities.
But I wanted to add one nonsubstantive point as well, and that's about the conduct of counsel who work in the public interest. Here's my take-away message: You gotta be cool.
Lots of attorneys are jerks. That's just the way it is. People often get into this profession because they can't (or won't) control their hormones, and so think work out their aggression by ceaselessly and needlessly "fighting" all day, every day. Sure, being a jerk typically harms, rather than helps, their clients (though hypercombative lawyers almost always convince themselves that the converse is true). But it's fun for such desperately-needs-a-better-outlet individuals. And that's all that matters.
But that's not all that matters when you're working for the public interest. When you do that, even if you're ordinarily a jerk, you've got to take things down a notch. Because your personality definitely shouldn't get in the way of your substantive objectives.
I say that in connection with this case because a tiny portion of it brought that topic to the front of my brain. As Justice Graber's opinion notes, the case started when an attorney named Scott Rafferty -- a young lawyer and recent graduate of Yale Law School -- made several visits to the VA facility to try to register voters. Now, I'm totally all for that. Great job, Scott. But here's the part (as Judge Graber describes it) that's not so great: "The April 2004 visit was not Rafferty's first. On earlier occasions, he had tried to register voters but had been denied access by VA employees. Rafferty had apparently been disruptive and confrontational with VA staff when he was told that he could not register voters on the premises." Due to this prior conduct, even after the VA subsequently gave permission to register veterans on the premises, when Rafferty came back, "a VA employee recognized Rafferty and told the group to leave. "
So two things. First, notice that being a classic, hypercombative lawyer caused Rafferty to get kicked out of the facility -- thus frustrating his central public purpose -- even after the VA had (temporarily, at least) joined his side. Second, this conduct, which is described in the opening paragraphs of Judge Graber's opinion, can't help his case, and instead provides both color and substantive content that probably helps to lead the panel to the conclusion that the VA's policies are constitutional since they advance the goal of stopping disruption in the facility.
Full disclosure: I happen to know Scott. I don't know him personally (or well), but he intervened in a public interest case that my wife and I brought (and, I might add -- proudly -- won) in connection with the recall of Governor Davis: Partnoy v. Shelley. He was a pain in the butt, but was always polite. A bit too interested, I thought, in interjecting himself in a lawsuit which -- by the time he intervened -- we had already won. And, as the court (rightly, in my view) held, he was largely raising claims that were either late, meritless, or both. But, besides being a bit of a pain in my ass -- as we had to write brief after brief dealing with the guy -- I thought his heart was in the (sort of) right place. He wanted to do public interest work. More power to him.
But do it mellowly, my man. Don't get so caught up in the "fight" that you end up being a jerk. A modest and mellow attorney who lets his or her work and arguments do the talking is better than a hyperaggressive jerk who screams and shouts. Particularly in public interest cases. That's my perspective, anyway.
All of this is a means of introduction to my comments on this case and one of its participants, attorney Scott Rafferty. The case was brought by the Santa Clara Democratic Central Committee against the Department of Veterans' Affairs challenging the VA's policy of kicking out anyone who tries to register voters (or conduct any other "partisan activity") at a VA facility. Because we definitely don't want anyone helping veterans to register to vote. What a nightmare that would be. Thanks, VA, for helping to avoid such an obvious debacle.
Anyway, I'm pretty sympathetic to the constitutional merits of the plaintiffs' position here, although it looks like they make at least one pretty critical tactical mistake (see, e.g., footnote 5 of the opinion) that might have worked to their detriment. In the end, Judge Graber holds that plaintiffs are unlikely to prevail on the merits and hence that the district court didn't abuse its discretion to deny a preliminary injunction. This seems to me a plausible (though by no means self-evident) holding, particularly given the substantive content of the VA's regulations, which do allow at least some ("nonpartisan") registration activities at VA facilities.
But I wanted to add one nonsubstantive point as well, and that's about the conduct of counsel who work in the public interest. Here's my take-away message: You gotta be cool.
Lots of attorneys are jerks. That's just the way it is. People often get into this profession because they can't (or won't) control their hormones, and so think work out their aggression by ceaselessly and needlessly "fighting" all day, every day. Sure, being a jerk typically harms, rather than helps, their clients (though hypercombative lawyers almost always convince themselves that the converse is true). But it's fun for such desperately-needs-a-better-outlet individuals. And that's all that matters.
But that's not all that matters when you're working for the public interest. When you do that, even if you're ordinarily a jerk, you've got to take things down a notch. Because your personality definitely shouldn't get in the way of your substantive objectives.
I say that in connection with this case because a tiny portion of it brought that topic to the front of my brain. As Justice Graber's opinion notes, the case started when an attorney named Scott Rafferty -- a young lawyer and recent graduate of Yale Law School -- made several visits to the VA facility to try to register voters. Now, I'm totally all for that. Great job, Scott. But here's the part (as Judge Graber describes it) that's not so great: "The April 2004 visit was not Rafferty's first. On earlier occasions, he had tried to register voters but had been denied access by VA employees. Rafferty had apparently been disruptive and confrontational with VA staff when he was told that he could not register voters on the premises." Due to this prior conduct, even after the VA subsequently gave permission to register veterans on the premises, when Rafferty came back, "a VA employee recognized Rafferty and told the group to leave. "
So two things. First, notice that being a classic, hypercombative lawyer caused Rafferty to get kicked out of the facility -- thus frustrating his central public purpose -- even after the VA had (temporarily, at least) joined his side. Second, this conduct, which is described in the opening paragraphs of Judge Graber's opinion, can't help his case, and instead provides both color and substantive content that probably helps to lead the panel to the conclusion that the VA's policies are constitutional since they advance the goal of stopping disruption in the facility.
Full disclosure: I happen to know Scott. I don't know him personally (or well), but he intervened in a public interest case that my wife and I brought (and, I might add -- proudly -- won) in connection with the recall of Governor Davis: Partnoy v. Shelley. He was a pain in the butt, but was always polite. A bit too interested, I thought, in interjecting himself in a lawsuit which -- by the time he intervened -- we had already won. And, as the court (rightly, in my view) held, he was largely raising claims that were either late, meritless, or both. But, besides being a bit of a pain in my ass -- as we had to write brief after brief dealing with the guy -- I thought his heart was in the (sort of) right place. He wanted to do public interest work. More power to him.
But do it mellowly, my man. Don't get so caught up in the "fight" that you end up being a jerk. A modest and mellow attorney who lets his or her work and arguments do the talking is better than a hyperaggressive jerk who screams and shouts. Particularly in public interest cases. That's my perspective, anyway.
Wednesday, September 21, 2005
Willliams v. Roe (9th Cir. - Aug. 24, 2005)
Here's something that you definitely don't see every day: A state prisoner winning an Ex Post Facto Clause claim in a post-AEDPA federal habeas case. Just doesn't happen much.
That said, I think that Judge Tashima's opinion is spot on. And relatively brief, to boot. When a statute that says that the penalty for Crime X can be either A or B, at the judge's discretion, is amended to declare that the penalty must now be B (rather than the lesser A), applying the amended statute to Defendant for a crime that transpired prior to the statutory amendment violates the Ex Post Facto Clause. (That sentence, by the way, was even briefer than Judge Tashima's nine-page opinion.) Sounds right to me. Just like when a statute that says that the penalty for Crime X must be A is amended to say that the penalty must now be B (= A + 5 years). The state can't sentence Defendant to B if the crime was committed before the statutory amendment. Same result.
What's perhaps most troubling about this opinion is not the result it reaches -- which seems entirely right -- but rather the treatment of this claim prior to it getting before the Ninth Circuit. Williams made this same argument in the California state system on habeas, only to get it repeatedly and uniformly slapped down, in the superior court, the Court of Appeal, and in the California Supreme Court. And, on federal habeas, he got the same treatment in the district court as well (before Judge Real): Denied.
This doesn't exactly say very nice things about the "careful" treatment of habeas petitions, particularly in the state system. Rather, the sense you get is that it's often just a rush to see how quickly the state court (or, in at least some cases, the federal district court) can get these "frivolous" petitions denied. And one might perhaps be inclined to think that the stark contrast between the result in the state habeas system (routine denial, often without any substantive comment whatsoever) and the result here is only because the stinking "liberal" Ninth Circuit went out of its way to grant relief. But such an explanation (1) is not particularly plausible on the merits, since I think the panel -- which admittedly is pretty leftie (Pregerson, Tashima, and Paez) -- reaches the right result, even after applying the super-strict substantive standards applicable to post-AEDPA federal habeas petitions (which did not apply in the state habeas proceedings, which should have made the state court much more willing to grant relief than the Ninth Circuit), and (2) doesn't take into account that, as footnote 1 of Judge Tashima's opinion references, the State basically admitted that there was an ex post facto violation here. Why exactly does it take four rounds of state and district court habeas proceedings in order to finally find a violation that the state essentially concedes? Why are these judges seemingly blind to a violation that (1) even the state itself can't plausibly defend, and (2) is an "obvious" violation of "controlling precedent" of the "United States Supreme Court" under AEDPA?
The correct answer to these questions probably speaks volumes about how habeas petitions are routinely treated in lower courts. Sure, there are a ton of them, and they're often a pain in the butt (if for no other reason than the fact that we don't provide counsel in habeas proceedings means that these petitions are typically filed pro se).
Still, they're important. People's fundamental person liberty is at stake. You've got to take them seriously. And get 'em right. Particularly in fairly obvious cases such as these.
There's no excuse for this one to have taken as long as it has to reach the right result.
That said, I think that Judge Tashima's opinion is spot on. And relatively brief, to boot. When a statute that says that the penalty for Crime X can be either A or B, at the judge's discretion, is amended to declare that the penalty must now be B (rather than the lesser A), applying the amended statute to Defendant for a crime that transpired prior to the statutory amendment violates the Ex Post Facto Clause. (That sentence, by the way, was even briefer than Judge Tashima's nine-page opinion.) Sounds right to me. Just like when a statute that says that the penalty for Crime X must be A is amended to say that the penalty must now be B (= A + 5 years). The state can't sentence Defendant to B if the crime was committed before the statutory amendment. Same result.
What's perhaps most troubling about this opinion is not the result it reaches -- which seems entirely right -- but rather the treatment of this claim prior to it getting before the Ninth Circuit. Williams made this same argument in the California state system on habeas, only to get it repeatedly and uniformly slapped down, in the superior court, the Court of Appeal, and in the California Supreme Court. And, on federal habeas, he got the same treatment in the district court as well (before Judge Real): Denied.
This doesn't exactly say very nice things about the "careful" treatment of habeas petitions, particularly in the state system. Rather, the sense you get is that it's often just a rush to see how quickly the state court (or, in at least some cases, the federal district court) can get these "frivolous" petitions denied. And one might perhaps be inclined to think that the stark contrast between the result in the state habeas system (routine denial, often without any substantive comment whatsoever) and the result here is only because the stinking "liberal" Ninth Circuit went out of its way to grant relief. But such an explanation (1) is not particularly plausible on the merits, since I think the panel -- which admittedly is pretty leftie (Pregerson, Tashima, and Paez) -- reaches the right result, even after applying the super-strict substantive standards applicable to post-AEDPA federal habeas petitions (which did not apply in the state habeas proceedings, which should have made the state court much more willing to grant relief than the Ninth Circuit), and (2) doesn't take into account that, as footnote 1 of Judge Tashima's opinion references, the State basically admitted that there was an ex post facto violation here. Why exactly does it take four rounds of state and district court habeas proceedings in order to finally find a violation that the state essentially concedes? Why are these judges seemingly blind to a violation that (1) even the state itself can't plausibly defend, and (2) is an "obvious" violation of "controlling precedent" of the "United States Supreme Court" under AEDPA?
The correct answer to these questions probably speaks volumes about how habeas petitions are routinely treated in lower courts. Sure, there are a ton of them, and they're often a pain in the butt (if for no other reason than the fact that we don't provide counsel in habeas proceedings means that these petitions are typically filed pro se).
Still, they're important. People's fundamental person liberty is at stake. You've got to take them seriously. And get 'em right. Particularly in fairly obvious cases such as these.
There's no excuse for this one to have taken as long as it has to reach the right result.
Tuesday, September 20, 2005
U.S. v. Cervantes-Flores (9th Cir. - Aug. 24, 2005)
I'm not going to complain about the panel's opinion, which I think rightly affirms the conviction here. (Though the Crawford/confrontation issue about the testimonial nature of a "no records" declaration is one about which I think reasonable minds could definitely disagree).
There are a variety of alternative ways to view the underlying events of the case. Which are these. In 1998, Roberto Cervantes-Flores is found in the United States and convicted of improper entry by an alien and sentenced to 4 years in prison. After he's served his time, in January 2003, he's deported from Hidalgo, Texas. One week later, a border patrol agent catches him in the United States again, this time in Tecate, California. He's then convicted (again) and, this time, sentenced to 8 years in prison. So, in essence, Cervantes-Flores will spend 12 years in prison in the United States for entering this country illegally.
Which of the following is the best caption for this factual summary:
A. "The Price of Secure Borders"
B. "Our Tax Dollars Hard at Work"
C. "Oh, The Humanity"
D. "Better Him Than Me"
This question is not likely to be on the SAT anytime soon. But it's an informative one.
There are a variety of alternative ways to view the underlying events of the case. Which are these. In 1998, Roberto Cervantes-Flores is found in the United States and convicted of improper entry by an alien and sentenced to 4 years in prison. After he's served his time, in January 2003, he's deported from Hidalgo, Texas. One week later, a border patrol agent catches him in the United States again, this time in Tecate, California. He's then convicted (again) and, this time, sentenced to 8 years in prison. So, in essence, Cervantes-Flores will spend 12 years in prison in the United States for entering this country illegally.
Which of the following is the best caption for this factual summary:
A. "The Price of Secure Borders"
B. "Our Tax Dollars Hard at Work"
C. "Oh, The Humanity"
D. "Better Him Than Me"
This question is not likely to be on the SAT anytime soon. But it's an informative one.
Monday, September 19, 2005
Arnold v. Runnels (9th Cir. - Aug. 24, 2005)
Rarely have I seen as one-sided a crush as in this case. The majority -- led by Judge Bright of the Eighth Circuit (alongside Judge Tashima) -- just pounds our own Judge Callahan in dissent. Judge Callahan needs to do more than just include in her dissent all the possible arguments that one might make to support her desired result (here, affirming the conviction). She actually has to persuade. And, on this front, there's no contest. Judge Bright's opinion crushes Judge Callahan's.
You gotta support the home team, Judge Callahan. If ever there's a need to write a good opinion, it's when you're opposing someone sitting by designation. Particularly when the judge is from another circuit.
You let us down on this one, Judge.
You gotta support the home team, Judge Callahan. If ever there's a need to write a good opinion, it's when you're opposing someone sitting by designation. Particularly when the judge is from another circuit.
You let us down on this one, Judge.
Hawthorne Savings Co. v. Reliance Ins. Co. (9th Cir. - Aug. 24, 2005)
You learn something new every day. Before reading this opinion, I didn't know the story about O.J. Simpson's house, or that O.J. took out a loan from Hawthorne to cover his litigation costs, that O.J. defaulted on the loan (what a shock!), that a variety of possible buyers emerged (including a leading candidate who was going to use a loan from Hawthorne to buy the house) at the trustee sale, that Hawthorne decided to itself bid against these buyers at the sale (and won!), and that it subsequently sold the house for a neat $1.2 million profit. At least that was its profit before the slew of subsequent lawsuits, of course, including this insurance coverage dispute.
If you're interested in the story beyond my one-sentence description of it, read the first three pages of Judge Berzon's opinion. Pretty brief. Whereas, if you're keenly interested in the fascinating issues surrounding precisely how federal Burford absention principles interact with the McCarran-Ferguson Act as applied to particular insolvent insurers, as well as other equally enthralling issues, read the subsequent 34 pages as well.
Yeah, right.
If you're interested in the story beyond my one-sentence description of it, read the first three pages of Judge Berzon's opinion. Pretty brief. Whereas, if you're keenly interested in the fascinating issues surrounding precisely how federal Burford absention principles interact with the McCarran-Ferguson Act as applied to particular insolvent insurers, as well as other equally enthralling issues, read the subsequent 34 pages as well.
Yeah, right.
Friday, September 16, 2005
Anthony J. v. Superior Court (Cal. Ct. App. - Aug. 31, 2005)
There's nothing good about this one, whomever one believes. Here's the first several paragraphs of the facts, which I've briefly edited (and inserted fictitious names instead of initials):
Father and Todd’s mother (Mother) were living together in September 2004 when both were incarcerated on criminal charges of child cruelty involving Mother's two older children, Nancy (born in Nov. 1995) and Robert (born in Feb. 2000) . . . . Nancy told a social worker that she had been sexually abused on an ongoing basis by the maternal grandmother, who was babysitting the children while Mother worked. Nancy was diagnosed with genital warts and said that the maternal grandmother would invite male friends to have sex with Nancy. In July 2004, Mother told the social worker that the maternal grandmother had similarly sexually exploited her when she was a child. Both Mother and Nancy told the social worker that Nancy had oral sex with her younger brother, Robert.
Both children were extremely emotionally fragile, with Nancy expressing suicidal thoughts and Robert suffering from nightmares and post-traumatic stress disorder. In August 2004, Mother denied that Nancy was sexually abused and told an investigator that Nancy might have gotten genital warts at the hospital. In October 2004, Mother denied sexual abuse by the maternal grandmother and told the social worker that she and Nancy did not tell the truth about the maternal grandmother because her boyfriend, Father, had abused and intimidated them and threatened to beat Mother if she did not make the statements about the maternal grandmother. . . .
Nancy and Robert were declared dependents under section 300, subdivisions (b) (failure to protect), (c) (serious emotional harm), (d) (sexual abuse), (i) (cruelty), and (j) (abuse of sibling) based on findings that Mother neglected them and failed to protect Nancy from sexual exploitation by the maternal grandmother and from physical abuse by Father. . . . The sustained petition alleged that Father struck, bruised, and scarred Nancy’s body with an extension cord, pulled some of Nancy’s hair from her head, struck her in the face causing black eyes, stomped on and broke her shoulder, and forced her to drink Robert’s urine.
In early March 2005, Mother gave birth to Todd in jail. . . . . On May 10, 2005, the juvenile court sustained a petition finding that Todd was a dependent under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (j) (abuse of sibling) based on the same underlying allegations of abuse which had been sustained as to Todd’s siblings, and on the allegations that Todd’s siblings were dependents of the juvenile court and that Mother failed to reunify with the siblings. According to DCFS's jurisdictional and dispositional report, Father acknowledged to a social worker that he had physically abused Nancy and Robert, admitting that he hit them with a VCR cord, belt, and his hand, and that he slapped Nancy, resulting in a black eye. Father denied knowing about the sexual abuse, but admitted that he observed Nancy orally copulate Robert on numerous occasions. He also denied making Nancy drink Robert’s urine but did admit that he threatened it after witnessing Nancy orally copulate Robert. According to the report, Father "told Nancy not to do it because Robert had not taken a bath all day, not because it was an inappropriate thing to do."
At a contested dispositional hearing on May 17, 2005, Mother's therapist testified that Mother told her that Mother believed that Mother's boyfriend molested her daughter and that he hit the two older children. Mother testified that she was lying when she told the social worker that the maternal grandmother molested her when she was a child. Mother said that she made the statements about the maternal grandmother and caused N.L. to make statements about the maternal grandmother because Father was beating her, threatening her, and threatening to kill her children.
Wow.
Father and Todd’s mother (Mother) were living together in September 2004 when both were incarcerated on criminal charges of child cruelty involving Mother's two older children, Nancy (born in Nov. 1995) and Robert (born in Feb. 2000) . . . . Nancy told a social worker that she had been sexually abused on an ongoing basis by the maternal grandmother, who was babysitting the children while Mother worked. Nancy was diagnosed with genital warts and said that the maternal grandmother would invite male friends to have sex with Nancy. In July 2004, Mother told the social worker that the maternal grandmother had similarly sexually exploited her when she was a child. Both Mother and Nancy told the social worker that Nancy had oral sex with her younger brother, Robert.
Both children were extremely emotionally fragile, with Nancy expressing suicidal thoughts and Robert suffering from nightmares and post-traumatic stress disorder. In August 2004, Mother denied that Nancy was sexually abused and told an investigator that Nancy might have gotten genital warts at the hospital. In October 2004, Mother denied sexual abuse by the maternal grandmother and told the social worker that she and Nancy did not tell the truth about the maternal grandmother because her boyfriend, Father, had abused and intimidated them and threatened to beat Mother if she did not make the statements about the maternal grandmother. . . .
Nancy and Robert were declared dependents under section 300, subdivisions (b) (failure to protect), (c) (serious emotional harm), (d) (sexual abuse), (i) (cruelty), and (j) (abuse of sibling) based on findings that Mother neglected them and failed to protect Nancy from sexual exploitation by the maternal grandmother and from physical abuse by Father. . . . The sustained petition alleged that Father struck, bruised, and scarred Nancy’s body with an extension cord, pulled some of Nancy’s hair from her head, struck her in the face causing black eyes, stomped on and broke her shoulder, and forced her to drink Robert’s urine.
In early March 2005, Mother gave birth to Todd in jail. . . . . On May 10, 2005, the juvenile court sustained a petition finding that Todd was a dependent under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (j) (abuse of sibling) based on the same underlying allegations of abuse which had been sustained as to Todd’s siblings, and on the allegations that Todd’s siblings were dependents of the juvenile court and that Mother failed to reunify with the siblings. According to DCFS's jurisdictional and dispositional report, Father acknowledged to a social worker that he had physically abused Nancy and Robert, admitting that he hit them with a VCR cord, belt, and his hand, and that he slapped Nancy, resulting in a black eye. Father denied knowing about the sexual abuse, but admitted that he observed Nancy orally copulate Robert on numerous occasions. He also denied making Nancy drink Robert’s urine but did admit that he threatened it after witnessing Nancy orally copulate Robert. According to the report, Father "told Nancy not to do it because Robert had not taken a bath all day, not because it was an inappropriate thing to do."
At a contested dispositional hearing on May 17, 2005, Mother's therapist testified that Mother told her that Mother believed that Mother's boyfriend molested her daughter and that he hit the two older children. Mother testified that she was lying when she told the social worker that the maternal grandmother molested her when she was a child. Mother said that she made the statements about the maternal grandmother and caused N.L. to make statements about the maternal grandmother because Father was beating her, threatening her, and threatening to kill her children.
Wow.
Thursday, September 15, 2005
Hartline v. Kaiser Foundation Hospitals (Cal. Ct. App. - Aug. 31, 2005)
Hmmm. Don't know about this one. Seems wrong to me. Not absolutely sure. But seems wrong.
Hartline sues Kaiser. Kaiser obtains summary adjudication of Hartline's first cause of action against it, which leaves only a (meritless) cause of action for premises liability against Kaiser. Kaiser then sends a 998 offer to Hartline which offers to waive costs in return for a "Request for Dismissal with prejudice." Hartline doesn't accept the offer, and when Kaiser thereafter prevails, it seeks to recover expert witness costs incurred after the 998 offer. The trial court awards 'em, and the Court of Appeal affirms.
The problem is that I think that Hartline is right that the 998 offer submitted by Kaiser required Hartline to waive its rights to appeal the summary adjudication of the first cause of action, and hence that the offer was not in good faith. Justice Cantil-Sakauye responds only that nothing in the 998 offer said anything about waiving appeal rights. But I think that this is precisely what an unvarnished Request for Dismissal does; or, at a very minimum, a reasonable party could so assume. Moreover, Justice Cantil-Sakauye asserts that if this is what Hartline thought the 998 offer meant, they could have made a counteroffer that agreed to dismiss the remaining cause of action in return for a waiver but preserve their right to appeal. But, first, nothing in 998 requires you to counter (or clarify) an ambiguous offer. And, second, and perhaps more critically, this is what Hartline basically did anyway. The day after the 998 offer, Hartline offers to dismiss the remaining cause of action so that they can appeal the first. That's exactly what the 998 offer purports to do as well.
Justice Cantil-Sakauye notes this fact (albeit in a footnote), but responds only that this wasn't an actual "counteroffer" since Hartline probably hadn't received the 998 offer yet. But so what? There's nothing in 998 that requires a counteroffer anyway. Moreover, what's important about this offer is that Hartline made it, which pretty much conclusively shows that they would have accepted a 998 offer that dismissed the second cause of action in return for a cost waiver that allowed Hartline to appeal summary adjudication of the first cause of action. And what's dispositive is that it shows that Kaiser was not willing to accept such an offer, since -- after all -- they didn't, and instead refused to sign the stipulation that Hartline proposed. Which is darn good evidence that their 998 offer did not intend to allow Hartline to appeal the summary adjudication order since, when Hartline expressly made such an offer, Kaiser refused to accept it. (Plus, this evidence is even stronger, since Hartline's offer -- unlike Kaiser's -- made no mention of costs. So the Court of Appeal's view that Kaiser was proposing to waive costs and allow Hartline to appeal the first cause of action seems flatly inconsistent with the undisputed fact that they were unwilling to allow Hartline to appeal the first cause of action even without a waiver of costs!)
This is the first opinion that I recall reading from Justice Cantil-Sakauye, who joined the Court of Appeal earlier this year. She's a former D.A. and was the youngest appointed judge in California (appointed as a Municipal Court Judge when she was 31). I'm sure her stronger suit is in the criminal area rather than in civil cases. But I'd have preferred to read a more impressive -- or at least persuasive -- start by her as her first published opinion on Court of Appeal.
Hartline sues Kaiser. Kaiser obtains summary adjudication of Hartline's first cause of action against it, which leaves only a (meritless) cause of action for premises liability against Kaiser. Kaiser then sends a 998 offer to Hartline which offers to waive costs in return for a "Request for Dismissal with prejudice." Hartline doesn't accept the offer, and when Kaiser thereafter prevails, it seeks to recover expert witness costs incurred after the 998 offer. The trial court awards 'em, and the Court of Appeal affirms.
The problem is that I think that Hartline is right that the 998 offer submitted by Kaiser required Hartline to waive its rights to appeal the summary adjudication of the first cause of action, and hence that the offer was not in good faith. Justice Cantil-Sakauye responds only that nothing in the 998 offer said anything about waiving appeal rights. But I think that this is precisely what an unvarnished Request for Dismissal does; or, at a very minimum, a reasonable party could so assume. Moreover, Justice Cantil-Sakauye asserts that if this is what Hartline thought the 998 offer meant, they could have made a counteroffer that agreed to dismiss the remaining cause of action in return for a waiver but preserve their right to appeal. But, first, nothing in 998 requires you to counter (or clarify) an ambiguous offer. And, second, and perhaps more critically, this is what Hartline basically did anyway. The day after the 998 offer, Hartline offers to dismiss the remaining cause of action so that they can appeal the first. That's exactly what the 998 offer purports to do as well.
Justice Cantil-Sakauye notes this fact (albeit in a footnote), but responds only that this wasn't an actual "counteroffer" since Hartline probably hadn't received the 998 offer yet. But so what? There's nothing in 998 that requires a counteroffer anyway. Moreover, what's important about this offer is that Hartline made it, which pretty much conclusively shows that they would have accepted a 998 offer that dismissed the second cause of action in return for a cost waiver that allowed Hartline to appeal summary adjudication of the first cause of action. And what's dispositive is that it shows that Kaiser was not willing to accept such an offer, since -- after all -- they didn't, and instead refused to sign the stipulation that Hartline proposed. Which is darn good evidence that their 998 offer did not intend to allow Hartline to appeal the summary adjudication order since, when Hartline expressly made such an offer, Kaiser refused to accept it. (Plus, this evidence is even stronger, since Hartline's offer -- unlike Kaiser's -- made no mention of costs. So the Court of Appeal's view that Kaiser was proposing to waive costs and allow Hartline to appeal the first cause of action seems flatly inconsistent with the undisputed fact that they were unwilling to allow Hartline to appeal the first cause of action even without a waiver of costs!)
This is the first opinion that I recall reading from Justice Cantil-Sakauye, who joined the Court of Appeal earlier this year. She's a former D.A. and was the youngest appointed judge in California (appointed as a Municipal Court Judge when she was 31). I'm sure her stronger suit is in the criminal area rather than in civil cases. But I'd have preferred to read a more impressive -- or at least persuasive -- start by her as her first published opinion on Court of Appeal.
Wednesday, September 14, 2005
Factor Health Mgmt v. Superior Court (Cal. Ct. App. - Aug. 29, 2005)
Whoopsies. We were talking in my Pretrial Practice class a week or so ago about various ways that lawyers can make a fatal mistake and thereby waive an objection to personal jurisdiction. And, contemporaneously, along comes this case.
Two lessons. First, don't request discovery in order to oppose a request for a preliminary injunction. At least if you want to preserve your objection to personal jurisdiction in California state court. Justice Spencer holds that the discovery request constitutes a general appearance, and thereby precludes a motion to quash. This is a hard lesson learned by counsel for the defendant here, who are represented by Scott Sirlin (of Gordon & Rees) and Anthony Paduano. Ouch.
Second, don't trust everything you read in Weil & Brown. Because, as Justice Spencer notes (in footnote 2), that fine Rutter Group publication flatly states that requests for jurisdictional discovery don't waive personal jurisdiction. But it's wrong; moreover, the case that it cites (Roy) doesn't say that. Double ouch.
Two lessons. First, don't request discovery in order to oppose a request for a preliminary injunction. At least if you want to preserve your objection to personal jurisdiction in California state court. Justice Spencer holds that the discovery request constitutes a general appearance, and thereby precludes a motion to quash. This is a hard lesson learned by counsel for the defendant here, who are represented by Scott Sirlin (of Gordon & Rees) and Anthony Paduano. Ouch.
Second, don't trust everything you read in Weil & Brown. Because, as Justice Spencer notes (in footnote 2), that fine Rutter Group publication flatly states that requests for jurisdictional discovery don't waive personal jurisdiction. But it's wrong; moreover, the case that it cites (Roy) doesn't say that. Double ouch.
Tuesday, September 13, 2005
People v. Love (Cal. Ct. App. - Aug. 29, 2005)
Gotta love the caption on this one. Made me want to find out just how many California appellate opinions are named "People v. Love". 'Cause we're California, after all. We should be in favor of love. Not agin' it.
The answer: 32. This one is the latest one: against Latasha Renee Love, for receiving stolen property and failure to appear. Stolen love, no doubt. The earliest People of the State of California v. Love? For that, you'll have to go back to the California Supreme Court's opinion in People v. Love, 19 Cal. 676 (1862). During the Civil War. About a decade after California joined the United States. A bail forfeiture case. When the aptly-named Samuel Love put up $1000 to bail out his friend George Dodge. For larceny. Which was then forfeited by -- you guessed it -- Dodge's failure to appear.
So a theft and a subsequent failure to appear. 143 years apart. And both named People v. Love.
The more things change, the more things stay the same.
The answer: 32. This one is the latest one: against Latasha Renee Love, for receiving stolen property and failure to appear. Stolen love, no doubt. The earliest People of the State of California v. Love? For that, you'll have to go back to the California Supreme Court's opinion in People v. Love, 19 Cal. 676 (1862). During the Civil War. About a decade after California joined the United States. A bail forfeiture case. When the aptly-named Samuel Love put up $1000 to bail out his friend George Dodge. For larceny. Which was then forfeited by -- you guessed it -- Dodge's failure to appear.
So a theft and a subsequent failure to appear. 143 years apart. And both named People v. Love.
The more things change, the more things stay the same.
Monday, September 12, 2005
In Re Freedman (Cal. Ct. App. - Aug 22, 2005)
Shucks. I always like to read about a good fight. So I was bummed that Justice Epstein's opinion didn't contain more of the underlying facts in this case. Sure, they were utterly irrelevant to the merits of the appeal. But when the opinion describes the underlying divorce litigation as "unusually litigious even for its genre" (and involving multiple appeals and petitions), you know you're missing out on some good stuff.
Oh well. Net result: Husband owes Wife a lot of money. Husband goes bankrupt. Wife continues to file appeal notwithstanding Husband's bankruptcy. Court of Appeal holds that Wife's appeal is frivolous. Husband screws up and doesn't file fee request on time, but trial court awards over $44,000 in fees. Court of Appeal reverses.
At least we get a hint of the tenor of the proceedings. Ah, the joys of divorce.
Oh well. Net result: Husband owes Wife a lot of money. Husband goes bankrupt. Wife continues to file appeal notwithstanding Husband's bankruptcy. Court of Appeal holds that Wife's appeal is frivolous. Husband screws up and doesn't file fee request on time, but trial court awards over $44,000 in fees. Court of Appeal reverses.
At least we get a hint of the tenor of the proceedings. Ah, the joys of divorce.
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