People v. Honan (Cal. Ct. App. - June 29, 2010)

A guy walks into a sauna at a 24-hour fitness where another guy's in there talking on a cell phone. They're both in towels. The guy who walks in takes a seat and, looking and smiling at the guy on the cell phone, drops his towel and starts quasi-masturbating. It's clear the guy's asking the other guy if he wants a little action. But the other guy's not interested.

This happens, I imagine, not infrequently. It's undoubtedly annoying (if you're not interested, anyway), and properly illegal.

So what's the right penalty? The guy's charged and put on three years probation. That seems fine to me. Maybe even a little bit overly harsh for an awkward (but common) way of seeking to have a consensual sexual encounter, but okay. I might give a dude like that a year probation, but the trial court gives him three. I can get behind that.

But here's the rub (if you'll pardon the pun): the guy also gets mandatory lifetime registration as a sex offender. I'm not cool with that. At all.

Dropping your towel to a dude in a sauna you think's interested in a little action isn't the same as flashing a woman or little kid on the street. With the latter, yeah, you're a sex offender, and I'm okay with registration. No so the sauna dude. He's doing something qualitatively different. The mandatory lifetime registration here just seems massive overpunishment to me.

I blame two groups here. First, prosecutors. I'd have charged the guy with lewd conduct, which doesn't carry mandatory lifetime registration. Indeed, that's what the guy was initially charged with. But on the day of trial, the prosecutor added the charge of indecent exposure and thus the mandatory registration punishment. Why? Because the defendant had the audacity to ask for a trial. Apparently what everyone does is to use the greater charge as a "stick" to get you to plead guilty, but if you don't, boom, mandatory lifetime registration.

That's wrong to me. The Larry Craigs of this world have a right to go to trial without the fear of massive overcharging. If the right charge is -- as here -- lewd conduct, that's what should be the charge. Prosecutors who think that their job is to get a guilty plea at all costs or to get the largest penalty available aren't, in my mind, doing their job, and are instead committing injustice.

Second, the Legislature. If a trial court is allowed (as here) to sentence someone to probation, and chooses to do so, I think that's a darn good sign that mandatory lifetime registration may be an unwarranted and excessive penalty. Seems to me that in such cases, the Legislature should allow discretionary lifetime registration, or mandatory registration only during the period of probation and discretionary registration thereafter.

But that'd be "soft on sex offenders," right? God forbid we should have that label attached. A flaming electoral defeat may well follow. Simply not worth the risk to actually do justice.

I'm not necessarily blaming the Court of Appeal here, which is largely stuck with a statute and exercise of executive discretion that's unreviewable. But I'll not leave it entirely out of my rant either. The Court of Appeal repeatedly says that mandatory registration doesn't violate equal protection because a person who engages in indecent exposure, unlike lewd conduct, "is necessarily engaged in a purposeful and aggressive sexual display designed to provoke others."

Not true. Unless by "provoke" you mean to include "arose" and by "aggressive" you mean to include "exciting." Dudes in a sauna like Honan aren't looking to upset people. They just want to give (or get) a blowjob. They're hoping for a consensual encounter, and do what they do in the (potentially mistaken, as here) belief that the other guy's looking for action too. They're not in the market -- as some others are -- for shock. They just want some consensual boy-on-boy sauna love. But the indecent exposure statute criminalizes that because it only requires that the exposure occur in a place "where there are present other persons to be offended." Even if you did not intend offense, but rather intended joyful reciprocity, you're guilty. Which, under the facts of this particular case, is what I'm confident Honan did.

So I don't think the Court of Appeal is entirely blameless in this one as well, and operates under assumptions that are simply factually inaccurate.

Not that I necessarily expect the justices to know the ins and outs of how people proposition others in single-sex saunas. Though it shouldn't be that hard to figure out.

In short, if you'll pardon a final pun, no one comes out especially cleanly here.

Stacey v. Rederiet Otto Danielsen (9th Cir. - June 29, 2010)

I'll be the first to admit that I know very little about maritime law. Sure, I'm in the Ninth Circuit, and yeah, I live near the ocean. But surfboards and kayaks are about as seafaring as I typically get.

What are the rules for recovery in maritime actions when two ships collide? I may read all the published Ninth Circuit opinions, but truthfully, I don't really know.

Which is all just a way of saying that I'm no maritime expert. In the slightest.

Still, I guess I can have a sense of what the right rules should be. Let's take two hypotheticals, for example.

(A) Two ships nearly collide, allegedly due to the negligence of the first. The first ship comes really, really close to the second, but they don't hit. But the near-collision freaks out one of the passengers on the second, who suffers severe emotional distress. Can the passenger sue under maritime law?

(B) Slight variant. Same factual setting as the first. But add that after the first ship narrowly avoids the second, it hits a third ship. The passenger on the first ship didn't see or hear that crash, but did participate in the search for survivors. Can the passenger sue now?

Doctrinally, we're asking what the scope of recovery should be for negligent infliction of emotional distress under maritime law. We're creating federal common law. What should the rule be?

This is what state courts do all the time, but we're slightly less used to it in the federal system. The "right" answer may also require us to parse through Supreme Court and circuit precedent in likely analogous area; i.e., FELA cases. Which I definitely haven't, and you probably haven't either. So without reading those cases, I'm not sure that I am confident of the "correct" way to decide this case.

That admission aside -- and in full recognition of my manifest ignorance of maritime law -- I will say that if we were writing on a blank slate, I think that Judge Hall has a point here. She argues that the plaintiff in Scenario 2, which (as you may have guessed) is not a hypothetical, should not be allowed to recover. Whereas Judge Noonan writes an opinion joined by Judge Thomas that holds that these facts indeed state a cognizable cause of action under federal maritime law, and for that reason reverses the district court.

So, again, I'd have to read the cases. But without doing so, I would say that I might lean in Judge Hall's corner on this one. Even if FELA cases -- which are deliberately broadly remedial -- may do something else.

I'm just a bit worried about potentially expansive maritime liability if NIED allows recovery for near-misses. Does it keep me up at night? Hardly. But it does seem like a more limited theory of recovery might be more on the mark.

At least for someone, like me, who knows utterly nothing. But who occasionally looks out at the ocean.

For whatever that's worth.

People v. Hartsch (Cal. Supreme Ct. - June 28, 2010)

After needlessly killing two people in a car, Cisco Hartsch tells his confederate not to worry about it, because "it's not like they were important, like, if they were bankers or lawyers or anything like that."

Which is good, I guess, if your jury consists entirely of bankers and lawyers. But not so good if it's a different venire. Which will sentence you to death, and the California Supreme Court will affirm.

But at least that comment is better than when you also told him: "the bitch didn't want to die and . . . she had nice tits." That's really not going to help with the jury either.

Greenspan v. LADT (Cal. Ct. App. - June 25, 2010)

An arbitrator is hearing two cases against you. He decides the first one against you. The second one's pending. What should you do?

Here's an example of what you should not do.

Filing a lawsuit against the arbitrator as a means of trying to disqualify him ain't gonna work. Plus, it might make hiim . . . uh, a bit displeased. Sufficiently displeased that a $6 million-plus judgment against you in the second lawsuit won't be at all surprising.

Not going to work.

Word to the wise.

People v. Low & Gastello (Cal. Supreme Ct. - June 24, 2010)

Two opinions from the California Supreme Court (here and here) with the same fact pattern and to the same effect. Defendant gets arrested and brought to a jail. The police ask him: "Do you have any drugs on you? It's a felony to enter a jail with drugs."

The defendants don't want to incriminate themselves, so say either "No" or nothing. Then they're taken into the jail and searched, at which point officers find drugs. So now defendants are charged with the additional (high-penalty) offense of bringing drugs into a jail.

Defendants assert a Fifth Amendment defense and also say it's not like they wanted to go to jail -- they didn't have a choice -- so shouldn't be convicted. But the California Supreme Court unanimously rejects their contentions. "You voluntarily had drugs. Your bad if that means you have to incriminate yourself due to the statute."

I can understand that. Makes sense at some level.

But what's good for X is presumably good for Y. So tell me how this case comes out:

Legislature passes a statute that says "It's hereby a crime to bring blood or hair that's not your own into a jail." Risk of infection or lice; something like that. Police tell defendant accused of assault "Do you have any hair or blood spatters on your clothes from the victim? You gotta tell us before we put you in jail otherwise it's a crime." Presumably the same result, right? Unless the guy incriminates himself, he can be charged.

So why not get at it directly? What about this statute: "The Legislature finds that people who have assaulted someone recently are at a higher danger of assaulting others in jail and need to be segregated. It is hereby illegal to enter a jail if you have recently assaulted someone without disclosing this fact." Defendant's suspected of assault and booked into jail, with the officer saying "Did you commit an assault recently? You have to tell me or it's a crime to go into general population." Ditto for identical statutes that change "assault" to "murder" or "rape" or "theft".

Same as the other statutes, right? Personal status is no different than possessory status, after all. Don't forget that defendants in each scenario "voluntarily" put themselves into the position they're in. So they can't be heard to complain.

Convictions upheld 7-0 in the California Supreme Court, right?

Bomersheim v. Los Angeles Gay and Lesbian Center (Cal. Ct. App. - May 26, 2010)

"Defendant Los Angeles Gay & Lesbian Center (defendant or the Center) provides medical services in Los Angeles County. From January 1999 to March 2004 defendant treated with Bicillin C-R more than 600 patients presenting with confirmed syphilis infection or reported sexual contact with someone who was known or suspected to be infected with syphilis. Bicillin C-R is not recommended for such use. The proper formulation would have been Bicillin L-A. Though both medications contain the same amount of penicillin, Bicillin C-R is a mixture of short- and long-acting penicillin, while Bicillin L-A is composed wholly of long-acting penicillin. Robert Bolan, M.D., the Center's medical director, admitted in deposition that Bicillin C-R 'was incorrect for the condition . . . treated.'"

Oops.

People v. Garcia (Cal. Ct. App. - June 23, 2010)

The day after Jane Doe breaks up with Garcia, Garcia goes to her house and entered through an unlocked front door. Garcia then had "intercourse with her while she was sleeping" and "t[ook] a picture with his phone camera of himself having sex with Doe." When Doe woke up to the sound of Garcia's phone camera and called police, Garcia "admitted he had used poor judgment."

"Poor judgment," eh? You think?

And then some.

Benson v. Superior Court (Cal. Ct. App. - June 22, 2010)

The coroner can keep your heart. At least in California. As long as he or she has a plausible reason to continue to diddle with it.

Thrifty Payless v. Mariners Mile Gateway (Cal. Ct. App. - June 21, 2010)

Here's what happens when you write a bad contract.

Mariners Mile owns a fancy piece of commercial land in Newport Beach. It proposes to build a Rite-Aid store on the property, and enters into a lease with Thrifty for a specified rent. Mariners then starts to build the building. So far so good.

But then Mariners decides that it can probably get more rent from someone else. It asks Rite-Aid to pay more, but Rite-Aid isn't interested in renegotiating a deal the parties had already signed.

But the provisions of the lease provide that if the building hasn't been finished by a certain date, unless it's Rite-Aid's fault, both of the parties have a right to terminate the contract. So Mariners essentially says: "Dude, if you don't pay more than the contract requires, we're not finishing the building by the specified date, at which point we'll cancel the contract." Rite-Aid responds that that'd be a breach of the contract, and calls Mariners' bluff. But it's no bluff. They slow things down, don't build it on time, and then get a different tenant -- Walgreens -- at a higher rent, and terminate the contract. At which point Rite-Aid sues.

But the trial court dismisses the complaint on a nonsuit, and the Court of Appeal affirms. These are sophisticated parties. They wrote a contract that says either side gets to terminate. In such settings, the Court of Appeal held, there's no implied covenant of good faith and fair dealing, since it would conflict with the contract terms, so even if Mariners deliberately slowed down the building so it could terminate, that was its right. And, yes, even if there may be some extrinsic evidence that shows that the parties intended the contract only to allow Rite-Aid to terminate the contract if the lease didn't start on time, that's not what the final version of the contract said. So Rite-Aid can't sue even if it was -- as it assuredly was -- held up and then screwed over.

Watch what you sign.

Murdoch v. Castro (9th Cir. - June 21, 2010)

Here's a blistering Chief Judge Kozinski dissent. From a 6-5 en banc decision (though, more accurately, a 5-1-3-2, but with the top six in favor of one result and the bottom five in favor of the other) in which he's in the minority.

Just to give you a tenor of the thing, here's his conclusion:

"Today we become the only court in the country to hold that a state court may adjudicate a constitutional claim 'on the merits' by overlooking it, and then have its carelessness rewarded with AEDPA’s presumption that its adjudication was good enough for government work. We defer to a decision the state courts never made to reach a result that the state’s highest court disagrees with. We fail to give effect to the plain meaning of the Confrontation Clause—one of the best-established principles of Anglo-American law—on the ground that it isn’t 'clearly established.' Any one of these errors would be remarkable, but their combination produces a truly spectacular miscarriage of justice.

The purpose of AEDPA is to allow state courts to operate in good faith. So, in the ordinary case, when a defendant has an unbiased judge and the state courts take his constitutional claims seriously, we must defer even if we disagree on the merits. But this isn’t an ordinary case. The state trial judge coerced a key witness into testifying and the state appellate judges never addressed the key claim on appeal. Cases like this are the reason federal habeas exists. When a federal constitutional claim falls through the cracks of a state’s criminal justice system, federal courts must be there to catch it. No one else can. Charles Murdoch certainly deserved better from the California courts. Ultimately, though, it is we who surely did let him fall."

Tell us what how you really feel, Alex.

People v. Henry (Cal. Ct. App. - June 21, 2010)

Here's a funny twist: The Court of Appeal reading a concurring opinion that insults the lower courts as a holding that justifies the practice of the lower courts that was insulted.

Lucky United v. Lee (Cal. Ct. App. - May 28, 2010)

Litigation has gone on, up and down the Court of Appeal, since 1999. The latest saga involves many different proceedings that exclusively relate to cost and fee awards, with people fighting over hundreds of dollars, costs, interest, etc. Minor stuff in the scheme of things.

Given all this, I was surprised to see the Court of Appeal award costs on appeal. Can't we just conclude this thing once and for all?

People v. Casas (Cal. Ct. App. - May 25, 2010)

Nothing new from the California Court of Appeal today, and two tiny orders is all we have from the Ninth Circuit. So let's just take a brief diversion to an opinion from last month to remind ourselves what a wonderful thing drugs are:

"Defendant, Jorge Jose Casas, a salesman at a car dealership, used a trade-in vehicle to follow a customer home to collect the down payment, a process referred to as 'chasing.' However, he did not return to the dealership immediately with the down payment or the trade-in vehicle, using the vehicle to drive nearly 400 miles in search of drugs to purchase using the cash portion of the down payment. He was convicted of embezzlement (Pen. Code,1 §§ 503, 508) following a jury trial and sentenced to state prison."

Selling used cars and a drug addiction. An awesome combination.

Leu v. International Boundary Commission (9th Cir. - May 17, 2010)

Here's a modern-day Marbury v. Madison.

Contrast to the original.

Taylor v. Sisto (9th Cir. - May 25, 2010)

I'll be surprised if this one survives.

Yes, it's strange. The California state court judge repeatedly told the jurors to leave all their life experiences in a metaphorical "box" outside the jury room when they were deciding the case. It was the judge's main theme. Some of what was to be left in the "box" were prejudices and the like; that's good. But the judge was clear that he wanted the jury to leave everything in the box; their own beliefs, experiences, reasonability, etc. That goes too far. Plus is just weird.

Weird is one thing. Reversible error is another. Reversible error on habeas review after AEDPA is yet a third. And while I think what the judge here is definitely (1), and at least arguably (2), I don't think it's (3). So on this one I think I'm with Judge Ikuta, who dissents, rather than with Judges Noonan and Berzon.

Plus, I think you should read this one while you can because it's the exact of case that -- while fact-specific and not at all worthy of Supreme Court review -- the Supreme Court sometimes likes to take up from the Ninth Circuit just to spank 'em down. Since I feel very confident that the vote in the Supreme Court on this one would not go the same way.

United States v. O'Donnell (9th Cir. - June 14, 2010)

Okay, so you haven't had an exceptionally wonderful morning. It's Monday, after all. Back to the grind.

But did your Monday morning see the Ninth Circuit reinstate two criminal felony charges against you?

That's how prominent Los Angeles attorney Pierce O'Donnell started his work week.

The district court thought that the relevant statute didn't prohibit O'Donnell from giving $26,000 to the Edwards for President campaign through 13 "straw donors," so dismissed the first two counts of the indictment against O'Donnell. The United States disagreed, and the Ninth Circuit agreed with the United States. So back to defending a couple of federal felony counts for O'Donnell.

Sort of makes your not-so-fun Monday morning pale in comparison, eh?

Blair v. Bethel School District (9th Cir. - June 14, 2010)

Name a situation -- if you can -- in which it's okay for a state actor to retaliate against someone for that person's expression of protected First Amendment speech; in particular, speech that concerns a public issue and does not cause disruption or any other untoward effects.

I'll put the question another way. An individual exercises his First Amendment right to criticize a public figure. He's unpopular as a result.

Various state actors disagree with the individual's views, and as a result, they remove him as the vice-president of a particular Board. They concede that they did so in response to his views and his protected First Amendment statements.

Surely that's a violation of the individual's civil rights, right?

Nope.

I agree. There are some cases when retaliating against someone based upon their protected speech -- or even their political views -- is okay. This is one of them.

U.S. v. Bonds (9th Cir. - June 11, 2010)

Barry Bonds is going to have a much more enjoyable weekend thanks to the Ninth Circuit. Which this morning affirmed a hearsay ruling that's going to make his prosecution for making false statements to the grand jury very, very difficult.

It's hard to prove that your results came back positive when the only dude who can confirm that the samples came from you -- the guy you gave 'em to -- refuses to testify. Sure, as a result, he's in jail on contempt charges. But there are two people who can authenticate those samples, one of 'em who refuses to testify and the other of which (you) has a right not to. The U.S. can't use the testimony of a guy saying that he was told by X that the samples came from Y. That's hearsay. And it can't use the lab test results that have your name on 'em for the same reason.

Judge Bea dissents, but it outvoted by Judges Schroeder and Reinhardt.

Consider this home run number 763 for Bonds. Just don't forget the asterisk.

Shin v. Holder (9th Cir. - June 11, 2010)

Mother's in the United States, and tells her unmarried children (in South Korea) that she's gotten a green card because she was a longtime hairdresser on a U.S. military base. The kids believe her, and accordingly apply to immigrate to the United States. They have to wait seven years for a visa to become available, but eventually, it does, and they immigrate. Welcome!

Mother does indeed have a green card. One problem. Unbeknownst to the kids, she got it from a dude inside the immigration office that was selling them on the side.

So years after the kids immigrate, the U.S. discovers this scheme. People get sent to prison, participants get kicked out, etc.

What about the kids? Everyone agrees they're totally innocent of wrongdoing. But everyone also agrees they were only able to come here in the first place derivatively through Mother, who was here by fraud. However, that was years ago, and the kids have now settled into the United States. What to do with them?

Three options:

(A) Kick 'em out.
(B) Kick 'em out, but give the Attorney General discretion to let 'em stay.
(C) Let 'em stay.

Here's what the Ninth Circuit does.

U.S. v. Villasenor (9th Cir. - June 10, 2010)

A car drives through the Calexico border station. It gets inspected at primary inspection. It get referred to secondary inspection. It gets dog-sniffed. Clean. It leaves.

The car then heads north. The driver stops at a gas station, and talks on his cell phone for ten minutes, and goes to the restroom.

The driver then drives a couple of miles and goes to an AM/PM. He talks on his cell phone for five more minutes. He then drives on.

He drives for another half hour. Now he's in El Centro. He drives to the DMV, and walks in. He does his business there, and then drives off some minutes later.

Shortly after the driver leaves the DMV, he's pulled over by the cops. Sure, the dude's far from the border with Mexico at this point, and has done a plethora of things.

But the Ninth Circuit holds that this is a "extended border" stop. Hence okay.

Remember that the next time you're anywhere near a border. Like, say, if you live and spent nearly every waking hour there.