Rich v. Thatcher (Cal. Ct. App. - Nov. 14, 2011)

The California Court of Appeal starts the week by issuing an opinion that really should go up to the California Supreme Court.

Sure, maybe it's not as clearly-review-worthy as the health care challenges that the U.S. Supreme Court decided to review today.  But it still involves an issue that cries out for the review by the California Supreme Court:  When do grandparents get to see their children notwithstanding the objection of the child's parent(s)?  Here, for example, Father dies, and Mother doesn't want Father's parents to have any visitation with the kid.  We know the standard, and it's the usual one in these cases.  Best interests of the child.  But what evidentiary standard do we apply?  Preponderance of the evidence?  Clear and convincing evidence?  Something else?

Justice Yegan, in a very short opinion (seven double-spaced pages), holds that the standard should be clear and convincing evidence.  But he does so relying almost exclusively on an opinion by Justice Chin in 2004.  But that was a concurring and dissenting opinion joined by . . . no one else.  At best, Justice Chin had one other potential vote for it (Justice Brown), but the majority clearly didn't want to sign onto this point.  And Justice Chin was perhaps right (in footnote 6 of his opinion) when he argued that it was somewhat strange that the Court did not decide whether the clear and convincing evidence test was applicable even though the issue was raised and briefed by the parties.  But that might have been a pretty good indication of their call on the issue, particularly when Justice Chin decided that he would raise the issue and still couldn't get anyone to formally sign on.

The California Supreme Court instead held that the statutory scheme gave a rebuttable presumption in favor of the parent's decision to exclude the grandparents.  That seems right.  The issue then becomes whether the statute (or the Constitution) requires something more.  Justice Yegan agrees with Justice Chin that it does, arguing that the Due Process Clause grants the parents the primary right to raise the child.  There's a decent argument in that regard.  But it was also one that the California Supreme Court didn't seem to find especially compelling, arguing that granting visitation didn't detract from that right -- that letting grandparents into the kid's life when there was a finding that it was in the kid's best interest did not negate the parent's authority over the child.

So one view might be that what the California Supreme Court did in Marriage of Harris was correct, and that the appropriate test is the rebuttable presumption the Court created therein.  Or another view might be that something more (like the clear and convincing evidence test) is the proper one; that's what Justice Chin argued -- saying that a rebuttable presumption was "meaningless" -- and Justice Yegan and the rest of the panel agrees.

But whatever your view of this issue, its proper resolution should not depend upon which panel one happens to draw on appeal.  The California Supreme Court did something in Marriage of Harris.  Whether that's the right (or sufficient) take was at issue in that case, and prompted a split opinion.  The subsequent resolution of this issue by the Court of Appeal should thus be reviewed.  And it's an issue of sufficient importance that we shouldn't wait to do so.  The California Supreme Court should grant review of this case.

U.S. v. Ceballos (9th Cir. - Nov. 7, 2011)

I agree with the panel that there's no appellate jurisdiction over a nonbinding recommendation made by a district court regarding where an inmate should serve his sentence. It's nonbinding.  It's not part of the sentence.  No appeal.

Given that, I'm not so sure it makes sense to have the first part of the opinion actually decide this question.  Which the panel here does.  It seems particularly anomalous to tell the district court that it has no jurisdiction to amend a sentence as part of your resolving an appeal over which you have no jurisdiction.  It feels sort of like a pot calling the kettle black.

Which isn't to say that the panel can't say whatever it wants.  It can.  The lack of jurisdiction doesn't stop you from making whatever observations you'd like.  Including, when you're on the Ninth Circuit, from saying how you'd resolve an appeal were you in fact to have jurisdiction.

But don't forget that the district court is similarly unconstrained.  The Ninth Circuit decides (in dicta) that the district court wasn't authorized to amend the sentence to recommend a particular placement.  But that doesn't stop the district court from recommending a placement outside the actual judgment, and the Bureau of Prisons appears to give deference to placement recommendations from the sentencing court regardless of in what document such recommendations are made.

So just like the Ninth Circuit can say what it feels, so can the district court.  And while both lack technical legal significance, both have profound practical effect.

Which is what matters.

Lacey v. Maricopa County (9th Cir. - Nov. 10, 2011)

As I said when the original opinion came out earlier this year, Judge Bybee wrote a pretty darn good (partial) dissent in this one.

I was apparently not the only one who thought so.  Because the Ninth Circuit just took the case en banc.

Executive Benefits Ins. Agency v. Arkison (9th Cir. - Nov. 4, 2011)

I love it when the Ninth Circuit invites amicus briefs.  It's awesome.

I'm not going to write one in this case.  As I know little -- wait, make that nothing -- about the relevant issue.

But if you have an opinion, by all means, share it with 'em.  The question is:  "Does Stern v. Marshall, 131 S. Ct. 2594 (2011), prohibit bankruptcy courts from entering a final, binding judgment on an action to avoid a fraudulent conveyance? If so, may the bankruptcy court hear the proceeding and submit a report and recommendation to a federal district court in lieu of entering a final judgment?"

No idea.  But we'd love to find out.

You've got thirty days to submit the brief.

POSTSCRIPT -  The day after Thanksgiving, the Ninth Circuit gives everyone another 45 days.  Yay!  So now you've got until January 19, 2012.  So put that on your holiday to-do list.

Schad v. Ryan (9th Cir. - Nov. 10, 2011)

Here's an opinion (in 2009).  No, wait.  We want to amend it.  Here's our revised opinion (in 2010).  Which still has the same lineup on the votes, but substitutes a new defendant, since there's a new warden.

Hold on.  We want to amend the opinion again.  Here's the second amended opinion.  Still in 2010.  Same lineup.  But we also include Judge Callahan's dissent from the denial of rehearing en banc.  As well as make some minor changes in the panel opinion.

Wait.  We're not done.  It's 2011.  Time for another amendment.  Here's our third amended opinion.  Which has the same parties as the earlier amended opinions, but now has a different lineup.  Since Judge Graber has now replaced Judge Rymer, making the opinion unanimous.  With Judges Schroeder, Reinhardt, and Graber all agreeing on the result.

Though not the way you'd think.  The previous opinions reversed the denial of habeas relief with respect to the death sentence.  This last opinion affirms the denial of habeas relief.

That's what the panel does today in this per curiam death penalty case.

Three points.  Beyond noting that I don't recall previously seeing an opinion that was amended three different times over a period lasting more than two years.

First, notice that the defendant sentenced to be executed outlives one of the members of the panel.  There's irony for you.

Second, I recall reading a Senate report -- as well as an interview with Judge Reinhardt at some point -- that said that Judge Reinhardt had never voted to affirm a death sentence.  Well, if that was ever true, it's not the case now.  Since Judge Reinhardt's on the panel, and the panel's final opinion affirms.  So Edward Schad will indeed be killed.  With Judge Reinhardt's assent.

Finally, the panel's final amendment is not, as you might expect, due to a change of heart.  But rather a result of a change in precedent.  The Supreme Court held in Cullen that when state courts have decided an issue on the merits, federal courts can't consider additional evidence on habeas.  So that's fatal -- literally -- to Schad.  Which is why the Supreme Court GVR'd the second opinion and sent in back to the Ninth Circuit, which then did what it did.

Technically, I'm not sure that this is the panel's "Third Amended Opinion."  Since the fact that the case went up to the Supreme Court, which then vacated the earlier result, means that this is actually the first opinion on remand.  So I'm not sure I'd style it this way.

Moreover, this may actually have doctrinal (and practical) significance.  The panel enters an order alongside the latest opinion by saying that no future petitions for rehearing or rehearing en banc may be filed.  I'm not sure that's proper.  This is a new opinion on remand.  Heck, it's a different result.  It's one thing to say that when you've made minor changes in an opinion, that doesn't restart the clock.  It's another to say that even when a case (1) goes up to the Supreme Court, (2) gets vacated, and (3) the panel changes the result of the case, no one's permitted to ask for rehearing.  You might, after all, have gotten the new result wrong.  And the judges who might want to ask for a rehearing en banc -- and who might be keenly interested in hearing a petition requested such relief -- are different judges than the ones who previously tried (but failed) to take the case en banc.  Since the sides are now flipped.

It's not that I don't understand the practicalities.  The Supreme Court GVR'd the case. The handwriting's on the wall.  Ed's going to die.  But I think that, procedurally, the case is in a different posture than what exists when an opinion is simply amended.  And the fact that we know that an en banc call (or request for panel rehearing) isn't going to be successful is not a sufficient reason to preclude such a request.  Since, after all, that's true 99% of the time anyway.

Bauman v. DaimlerChrysler Corp. (9th Cir. - Nov. 10, 2011)

Judge O'Scannlain writes a sharply worded dissent from the denial of rehearing en banc -- joined by seven other judges -- of an opinion about . . . wait for it . . . personal jurisdiction.

He's pitching the Supreme Court to take up the case.  And, for selfish reasons, I'm in favor of anything that gets more civil procedure cases before the Court.

Makes my academic job more interesting.

Teroso Del Valle Master HOA v. Griffin (Cal. Ct. App. - Nov. 1, 2011)

Get your ugly solar power out of my pretty homeowners association.

Though I actually agree with the Court of Appeal here.  The HOA won at trial.  Its victory should be affirmed on appeal.  The homeowners are wrong.

People v. Nunes (Cal. Ct. App. - Nov. 1, 2011)

Don't steal beer.  Don't drink stolen beer.  Don't drink stolen beer on the railroad tracks and throw rocks at passing Amtrak trains.  Not good lifestyle choices.

But even more important advice:  If you're an engineer on said train, don't stop the train, get off, and confront the perpetrators.  Because these offenders may well be gang members who will beat you within an inch of your life.  As well as the other Amtrak employees on the train who come to your aid.

Jaramillo v. County of Orange (Cal. Ct. App. - Nov. 8, 2011)

Sometimes I look in vain for someone sympathetic.  A plaintiff.  A county.  A witness.  A defendant.  Someone.

This is one of those cases.

I don't want anyone to win.  Particularly not Jaramillo or Orange County.  But those are the two litigants.  One of whom has to win.

It's Jaramillo.

Both of 'em did wrong, in my view.  Egregiously wrong.  But someone's gotta win.

In Re Marriage of Seaton (Cal. Ct. App. - Nov. 8, 2011)

There's a quote-worthy line in Fletch (one amongst many) in which Chevy Chase tells Alan's wife, Gail:  "Sally Ann and Alan were married eight years ago.  Never divorced.  Making Alan a bigamist.  Even in Utah."

If only real cases were that simple.  What about in Nevada?

You'd think the case would be easy, right?  Bigamous marriages are void.  No good.  Don't exist.

But how would you decide this one:

Patricia marries Richard in 1973.  She separates from him in 1987, but doesn't divorce him (yet).  She then hangs out with Henry, but in 1988 breaks up with Henry to start dating Jeffrey.  But a couple months later, an apparently persuasive Henry takes her to Reno, sets her up at a buffet, does some tequila shots with her, and boom, they get married that evening.  Remember, by the way, that Patricia's dating Jeffrey at this point and is still married to Richard.  All of which Patricia knows, so she falsely states on her Nevada marriage license that she's had previously divorced Richard.  Not true.

Patricia eventually sobers up and decides, hey, maybe that Henry chap isn't really my cup of tea, and then continues to date Jeffrey.  The next year, Jeffrey finds a picture of Patricia getting married to Henry, and (quite understandably) says:  "What the hell?!"  Patricia tells her the story, and Jeffrey says, babe, you have to get that annulled or something.  Patricia says, yeah, I know, sorry about that, I'll take care of it.

Later that year, Patricia tells Jeffrey:  "Honey, you rock.  I got a divorce from Richard.  I also got the marriage to Henry annulled.  I'm free!"  Jeffrey responds:  "That's great, darling.  Just remember that, for the moment, I'm still married."  Since Jeffrey married Debra in 1970.  Although Jeffrey separated from Debra shortly after he met Patricia, he was still married to her at this point.

Did I mention, by the way, that Patricia was a legal secretary?  And that Jeffrey was, at that time, a law student?  'Cause they were.

Jeffrey then passes the Bar, which is a time of transition for many of us.  And Jeffrey decides to mark the occasion by divorcing his wife, Debra, and marry Patricia.  Which he does.  In 1991, Jeffrey divorces his wife, and the next month, he marries Patricia.  Who had indeed divorced Richard in 1988.

No problem.  Except for one thing.  Debra had indeed divorced Richard, but lied about getting her marriage to Henry annulled.  That hadn't actually transpired.

Fast forward to 2008, at which point Jeffrey files for legal separation from Patricia, and Patricia responds by filing for divorce.  Jeffrey eventually discovers that Patricia did not, in fact, ever out of get her marriage to Henry.  So he then amends his answer to say that the parties don't need to get divorced, since they were never married.  Bigamous marriages being void and all.

To which Patricia responds by essentially saying that Bigamy Plus Bigamy Equals Marriage.  Saying that at the time she married Henry, she was still married to Richard, which meant that she was never really married to Henry, and hence her second bigamy wasn't really bigamy due to the first bigamy.

Which makes for a conundrum.  Because not only do we have to figure out if that's right, but we also have to decide all of the above according to the law of Nevada -- the place where the second marriage transpired. What would Nevada say about all this?

There's a Nevada Supreme Court case that holds, in dicta, that you still need an annulment to get out of your bigamous marriage.  Which Jeffrey and the trial court seize upon to hold that, yep, the parties were not in fact married -- we're talking about Jeffrey and Patricia at this point -- because Patricia never dissolved anything with Henry before marrying Jeffrey.

But the California Court of Appeal reverses.  Holding that, no, that was just dicta, and in a case involving a putative spouse, and that really, Nevada law is probably more like California law, which holds that you don't have to do anything to a bigamous marriage because it was void (not merely voidable) at the outset.  It does not exist, so there's nothing to dissolve.

So Patricia wins.  Even though she's a huge liar.  (I'm crediting Jeffrey's version of the facts here -- as did the trial court -- both because it's eminently more credible as well as because it makes things cleaner.)

But that doesn't end things.  Because, okay, the parties were in fact married.  But does that really mean that Patricia -- the one who entered into the bigamous marriage -- gets to use that bigamy against Jeffrey?  That she gets to defend her marriage to Jeffrey by attacking her marriage to Henry:  a marriage that existed only due to her own fraud?

Because even though we say that bigamous marriages are void -- that they never existed -- that's not, in fact, always the case.  For example, if X has to pay alimony to Y until Y gets remarried, and Y then gets married, a marriage that's bigamous, California holds that Y can't use the bigamy to attack her own marriage:  X gets out of the alimony obligation even though the marriage is in fact void.  Ditto for children:  Kids born during a bigamous marriage are still legitimate (with the appropriate conclusive presumptions) even though we declare the marriage void.  So do we really want to let Patricia take advantage of her own fraud?  Or do these cases suggest that we should instead preclude her from attacking the validity of her own marriage?

Justice Mauro concludes -- and I think correctly -- that it's okay to let Patricia attack her own marriage.  On the ground that, vis-a-vis Jeffrey, he's simply getting what he expected.  He thought that he was marrying someone who wasn't married.  He thought that their marriage was valid.  So it doesn't really create inequity to say, for all intents and purposes, that, yeah, your marriage was indeed valid.  Even though the reason it was valid was not necessarily why you thought it was valid at the time.

There's only one part of the opinion that I would change.  At the end, Justice Mauro awards costs to Patricia.  I'd have had 'em bear their own costs.  Patricia still wins.  But I don't condone what she did.  I think that even though Jeffrey probably should lose, equity would counsel in favor of not making him pay his future-ex-wife's costs.  I figure he's gone through enough.

You'd think that this was a television episode.  Indeed, it should be.  Don't be surprised if you see it on one of those law shows at some point.  But it's real.  Some law firm out there, and one more more lawyers, lived this drama.

Welcome to California.

Ditullio v. Boehm (9th Cir. - Nov. 7, 2011)

My students sometimes ask me why we read dissents, since they're not the law.  I generally respond in part that we read them because they often enlighten us to the policy consequences of the majority's decision, and also identify an alternative way the court could have gone.  I also mention that sometimes dissents may affect future judicial developments, either in the lower courts or in the Supreme Court.  That's especially the case, I add, when the decision is close (e.g., a 5-4).

Here's a good example.

It's not that Justice Rehnquist's dissent made an actual difference in the outcome, as Judge Callahan simply authors a dissent herself.  But read her opinion.  It follows directly from what Justice Rehnquist said.  And if there had been another vote like Judge Callahan's, the law would be different.  At least in the Ninth Circuit, and potentially elsewhere.  Moreover, she expressly notes that the underlying decision was a 5-4, a fact that (as my students realize) is technically totally irrelevant, but which may nonetheless sometimes may a practical difference.

Good to have concrete examples of the things we teach.  Here's one of them.

Glenn v. Washington County (9th Cir. - Nov. 4, 2011)

The more I read this opinion, the more I became convinced that there was utterly no reason why 18-year old Lukus Glenn had to die.  At least viewing the evidence in the light most favorable to the nonmoving party.  I would be horrified -- horrified -- if I were his parents, and watched the police kill him.

I agree with Judge Fisher, who reverses the grant of qualified immunity to the officers.  And then some.  I have rarely seen a case in which I'm more sympathetic to the parents.

Washington County better hope it pulls a jury without parents on it.  Because even just reading the thing would make me think twice before calling the police to assist me with an unruly child.  My reaction to actually hearing the evidence might be even stronger.

People v. Carlson (Cal. Ct. App. - Nov. 2, 2011)

Don't drink and drive.  You'll eventually be caught and convicted, and (among other penalties) be ordered to participate in drunk driving offender programs.

Don't thereafter drink and drive again.  You'll, again, eventually be caught and convicted, and again punished and ordered to do the programs.

Don't thereafter drink and drive yet again.  You'll yet again eventually be caught and convicted.  You'll again be punished, your license will be suspended, etc. etc.

When of the above happens between 2001 and 2006, to reiterate, don't drink and drive.  Because when, in January 2007, you do, this time, you may kill someone -- in particular, the passenger of your car.  In no small part because you've got a .23 and are weaving in and out of traffic at almost 95 miles an hour.  Which, again, you should not do even in the abstract, and certainly not when drunk.

And when all of that happens, we'll convict you of murder.  And sentence you to fifteen years to life in prison.

And the California Court of Appeal will affirm.

Suzanne Amelia Carson didn't follow this sage counsel.  She was 27.  She'll be a lot older when she gets out of prison.

Mirmehdi v. U.S. (9th Cir. - Nov. 3, 2011)

This introduction almost seems deliberately baiting.

Judge O'Scannlain begins his opinion with the following paragraph:  "We are asked to decide, among other things, whether an alien not lawfully in the United States may sue for monetary damages claiming constitutionally invalid detention."

To which I immediately responded -- out loud, even -- "Of course she can."  The fact that someone's in the country illegally doesn't make her any less of a "person" protected by Due Process Clause.  You can't run over a person with your car just because they're here illegally:  they can sue you.  You can't beat a person just because they're here illegally:  they can still sue.  You can't kidnap them either.  The fact that you're here without permission doesn't deprive you of your constitutional rights or your ability to enforce them.  That'd be a problem if the Constitution only protected "citizens."  But it doesn't.  It protects "persons."  To put it in the way I'd tell my five-year-old, "Illegal aliens are people too."  A fact that's both morally as well as constitutionally relevant.

I know from just the tone of the introductory paragraph as well as the lineup of the panel, however, that the opinion's going to hold that they can't sue.  But I still can't believe that they're going to hold that illegal aliens can't sue because they're illegal aliens.  Do I know some people feel that should be the law?  Sure I do.  But it's not, and I can't fathom that any intellectual respectable person is going to so hold.

It's only halfway through the opinion, however, when I start to realize that the panel's not really going to answer the "Question Presented" in the opening paragraph.  We're not talking about whether illegal aliens "may sue for monetary damages claiming constitutionally invalid detention."  We're instead only addressing whether they may sue for monetary damages claiming an invalid detention in immigration proceedings.  So if you're going through immigration court and are detained as part of those judicial proceedings, do you have a freestanding right to sue under Bivens.

That's a completely different question than the one the opinion initially presents.  Because even though the panel (predictably) says, no, we're not going to grant you a Bivens claim arising from immigration detentions, that most definitively does not mean that an illegal alien cannot "sue for monetary damages claiming constitutionally invalid detention."  Take, for example, an illegally alien put into state prison in an unconstitutional manner.  He can sue under Section 1983.  The panel's holding doesn't change that.  So he can indeed sue for monetary damages claiming constitutionally invalid detention.  And even the panel concedes (in its final footnote) that even in the immigration detention context, an illegal alien can still sue the "officers who made the arrest at an operational level."  Because there's a previous Ninth Circuit case that expressly so holds, and which they can't overrule.  So there's another way to sue.

The question that the panel really answers is whether there should be (1) a freestanding Bivens claim (as opposed to, say, a Section 1983 claim); (2) for immigration detentions in particular.  It's only in this particular context that the panel's adjudicating someone's right to sue.  And that context is entirely omitted from the introductory paragraph, which mentions neither the Bivens aspect nor anything about the fact that we're only talking about immigration cases.

To be sure, the panel's decision disproportionately affects illegal aliens.  They're generally the ones in immigration court and, thus, potentially illegally obtained.  But the fact that they're illegally in the U.S. actually has nothing to do with the court's holding.  For example, even aliens entitled to asylum (and who, as here, successfully obtain it) aren't permitted to sue.  So even if you're "legally" here you still can't sue.  Similarly, even aliens expressly permitted to be here -- e.g., those with tourist visas, green cards, etc. -- who are subsequently put in deportation proceedings (e.g., for committing a crime) are not entitled to sue under Bivens either.  Again, it's not that they're here illegally, it's instead simply that, for whatever reason, they're in immigration court that precludes a Bivens suit.  Indeed, the panel's holding extends even to natural-born U.S. citizens -- they can't sue either -- if they're ever detained in immigration proceedings.  And while that's rare, it happens:  the DHS occasionally seeks to remove people that they think are here illegally but who were in fact born here.  Lots of cases on this.  (And might even happen to President Obama if Donald Trump got his way.)  Those U.S. citizens can't sue  under Bivens either.  Because the whole basis of the panel's holding has nothing whatsoever to do with whether someone's in the country illegally, but rather simply arises out of the fact that the remedies already available in immigration court -- hearings, judicial review, habeas petitions, etc. -- suffice by themselves (according to the panel) to provide an adequate remedy for unconstitutional detentions in those proceedings, thereby negating the need for a Bivens remedy.

Can reasonable people fight about whether that's in fact the case?  Of course they can.  Since none of those existing remedies provide monetary compensation for the harms of prior detention, and instead simply terminate any future detention.  So you can see why some jurists might (and, I'm supremely confident, in fact do) disagree with even the panel's limited holding.  Because what's the incentive not to unconstitutionally incarcerate someone in immigration court if the worse thing that can happen to you is that they eventually get let out?

But regardless of whether that limited holding is normatively correct, the point is that the opinion does not even attempt to answer the question ostensibly presented in the first paragraph.  One that seems to go out of its way to touch hot-button issues:  to advise the reader from the get-go that the result of its opinion will deprive "coddled" illegal aliens of illegitimately obtained rights.  That's unnecessary, as well as inaccurate.

The case isn't about illegal aliens.  It's about immigration court.  And limited to Bivens remedies.  Things nowhere mentioned in that first paragraph, and that affect illegal aliens and non-illegal aliens alike.  And, with deference and respect, I think that introducing the opinion the way it does appeals -- whether deliberately or not -- to prejudice.  And that ain't right.

So it's an inartfully worded introductory paragraph.  It could be better.  I'd have said: "We are asked to decide whether a participant in immigration proceedings has a freestanding claim under Bivens to sue for monetary damages asserting his constitutionally invalid detention."  That's the real question, as well as sufficiently hints to the reader the way the panel's going to come out.  Without interjecting things to which we need not appeal and which we do not, in fact, decide.

Conahan v. Sebelius (9th Cir. - Nov. 1, 2011)

Gaye Glazer is diagnosed with liver cancer.  Glazer wants surgery, but Kaiser doesn't want to pay for it, and Kaiser's Tumor Board instead suggests that Glazer undergo chemo.  Which is cheaper, and which the Tumor Board prefers because surgery might leave Glazer with too little liver to survive.

But it's Glazer's life.  She has the surgery.  Which removes seventy percent of her liver.  She files a lawsuit to have Kaiser cover her costs.  She loses below.  She lives almost five years after the surgery.

And dies eight months before the Ninth Circuit affirms Kaiser's denial of coverage.

Kaiser:  Live; Work; Thrive.  But don't expect us to pay for it.

Oglio Entertainment Group v. Hartford Cas. Ins. Co. (Cal. Ct. App. - Nov. 1, 2011)

This is why you don't sign a musician to a record deal who sings lounge act versions of Ozzy Ozborne songs.

I can think of many, many other reasons as well.

Supremely Unpublished (Cal. Supreme Ct. - Oct. 31, 2011)

One of the things I like most about the California Supreme Court is that, busy as they are, they're not too busy to occasionally engage in pure error review; e.g., to grant review of the occasional unpublished opinion that's really wrong.  Sure, those opinions aren't precedential, so only affect the litigants.  But that doesn't necessarily mean that the opinions are unimportant, or unworthy of correction.  When you've got thousands and thousands of appellate decisions, some are bound to be wrong, and I think it's beneficial to step in on occasion and say so.

Moreover, since these opinions are (usually) pretty clearly wrong, it doesn't take up that much time to review them.  The California Supreme Court's decisions in these cases are (usually) short and unanimous.  Yes, they still have to write them and vote on them and have oral argument.  But that ain't that tough.  And I'm glad the Court's willing to put in the effort.

The two cases from the California Supreme Court today are like that.  Here and here.  Both unpublished opinions.  Both get reversed.

I say this, by the way, notwithstanding the fact that in today's cases, you actually have disagreement; in one case, by Justice Werdegar, and in the other, by Justice Kennard.  Even when there's not unanimity, I still am of the view that review is often proper.  Because even though three (appellate) judges are more likely to get things right that one (superior court) judge, the former are still far not perfect.  And that's true even when one or two California Supreme Court justices agree with 'em.

People v. Thomas (Cal. Ct. App. - Oct. 28, 2011)

This makes me really inclined to voluntarily submit to an alcohol screening.  Which the police used here as a pretext to obtain the defendant's DNA.

I'm sure, by the way, this was all coincidence.  The police receive an anonymous tip about defendant.  They follow him, and promptly stop him for alleged traffic offenses.  They say he's got bloodshot and watery eyes, so ask him to take a PAS test, which he blows into -- at which point they now have his saliva and thus DNA, which they then analyze to tie him to a series of crimes.  Of course, they don't charge him with DUI or even a traffic offense, since they got what they wanted.  Plus he passed all the tests.

On the one hand, that's darn good police work.  As well as permitted by contemporary jurisprudence.  On the other hand, a cynic might note that the "anonymous" tip, the alleged "traffic" offense that they saw, and the officer's un-disprovable claim s/he saw signs of intoxication are all easily manufactured, thereby permitting the exercise of a great deal of unchecked executive power.

Two sides of the same coin.  Depends on which you value more.

Miller v. City of Los Angeles (9th Cir. - Oct. 27, 2011)

I probably come out somewhere between the majority and the dissent here; perhaps a middle ground.  But if I had to choose, I'd probably say that Judge Ikuta's dissent has the better of the argument over Judge Kozinski's majority opinion.

Judge Kozinski, as he sometimes does, pitches his opinion with mystery and guile, commencing his missive with the following introductory paragraph:

"This is a strange case. Its resolution hinges on the absence, as a factual matter, of something we must accept as a legal matter. There are unlikely to be many more like it, so this opinion’s precedential value is probably limited. We nevertheless publish pursuant to General Order 4.3. While we’re at it, we offer some advice to lawyers: Don’t apologize unless you’re sure you did something wrong. And there’s also a lesson for district judges: Don’t accept too readily lawyers’ confessions of error or rely on your own memory of what happened. Trials are complicated and we sometimes misremember details. That’s why we have transcripts."

A neat little intro.  Mind you, even as a facial matter, I disagree with one of the things he says in there:  the part where he says lawyers should be less willing to apologize.  Respectfully, I don't think that's really where the problem is these days.  If I had to choose between telling counsel to put a thumb on the scale towards apologizing or a thumb on the scale the other way, I'd  choose the former.  So I'm not really sure I'd be as gung-ho as Judge Kozinski about publishing an opinion in an effort to try to convince lawyers to be more wary about offering an apology.

I get where Judge Kozinski's sentiment comes from.  Here, there was an in limine motion, a lawyer seemed to violate that order during his closing argument, an objection was sustained and the lawyer immediately apologized, and even after sanctions were considered -- and even after sanctions were ordered -- the lawyer has consistently apologized and argued that his error was merely fleeting and accidental (rather than in bad faith).  But Judge Kozinski thinks he shouldn't have apologized (much less been sanctioned) because what he did didn't violate the order in the first place.  Hence the non-Dad-like advice:  "Don't apologize, Son."

But I think Judge Ikuta's probably right.  The transcript's admittedly somewhat unclear.  And it can sometimes be hard to get the "message" that's intended -- especially during closing arguments -- when you're not actually at the trial.  Particularly, I might add, when the transcript (as here) is probably not a perfectly verbatim recitation; court reporters aren't flawless.  Here, opposing counsel heard what the other side said -- and presumably understood what he meant by it -- and promptly objected; the district judge heard the same thing and immediately sustained the objection, interpreting the statement in a way that indicated that it did indeed violate the in limine order; and even the offender thought (both at the time and consistently thereafter) that the statement did indeed violate the order, and apologized to the judge (and jury) and made a contemporaneous statement in his apology that seemed to suggest that, yeah, what he was inferring was indeed an effort -- albeit perhaps accidental -- to violate the order.

That's pretty good evidence, I think, that what was meant by the statement, and how the jury was meant to understand it, was shared by all the parties and entailed a violation of the in limine order.  Sure, it's not crystal clear, and Judge Kozinski makes a tolerable argument the other way.  But I can easily see how all the parties might read the statement the way Judge Ikuta does, and since all of the participants who were there at the time (and in the context of the actual trial) seem to have understood it that way, I think that's more than sufficient evidence to adopt the district court's interpretation.

One thing I know for sure.  Judge Ikuta's right about Judge Kozinski's dissent.  Judge Kozinski argues at length that the attorney was talking about the defendant's perspective during the closing argument.  I agree, and Judge Kozinski's lengthy quotation amply proves this point.  But that's not true during the portion of the closing argument at issue.  The attorney clearly changed perspectives and started talking about the victim's perspective, including the part of the closing argument that led to the sanctions, and that lends credence to the district court's view that the statement violated the order.  Judge Kozinski's "perspective" argument is simply wrong, and is half-a-beat too sly.  Judge Ikuta catches him and points this out in her dissent, but Judge Kozinski doesn't budge.  Proving that Judge Kozinski is far from a hypocrite, and is more than willing to follow his own advice about the dangers of apologizing or readily admitting error.  Let the reader decide.  Good for lawyers, good for judges.

But while Judge Kozinski seems wrong to me on this point, I think he might well be right with respect to the second portion of his opinion.  In which he alternatively holds that he'd reverse the sanction on the ground that it was excessive.  That seems quite plausible to me.  The district court imposed sixty-some thousand dollars in sanctions, which was exactly the amount of the plaintiff's attorney's fees at trial, presumably on the theory that the violation of the in limine order caused the jury to hang.  But I agree that this is probably wrong.  The district court promptly corrected the error and sustained the objection, the wrongdoing attorney expressly (and immediately) told the jury that the inference that he was trying to get them to draw was wrong, and there's no reason whatsoever apart from the fact that this comment was made during a closing argument to think it actually had any impact whatsoever on the jury's ultimate decision to hang.

I agree with Judge Ikuta that the district court could spank counsel to uphold the integrity of the court and to deter future misconduct.  But sixty-three thousand for a single comment, even if deliberate (and I'll concede for purposes of argument that it was), seems excessive for something that didn't matter at all. I'm not sure that Judge Kozinski's "$5,000" line really works.  Maybe I'd permit an attorney in an appropriate case to be spanked even more than that.  But a lawyer who utters a single erroneous line, who immediately apologizes, and who immediately rejects in front of the jury the inference that he was trying to deliver is sufficiently deterred, it seems to me, by having to write a check out of his own pocket for five or ten grand.  Unless the guy's burning cigars with hundred dollar bills, sixty thousand-plus is unnecessary, and since it's not compensatory, but rather to deter and preserve integrity, I agree with Judge Kozinski that it's got to be brought down.

But not to zero.  The dude did wrong.  He should have apologized.  And the fact that he did, I might add, would only encourage me further to bring the sanction award lower than I otherwise might.

So I in fact think that the lesson one should receive from Judge Kozinski's opinion today is precisely opposite to the one he actually delivers.  Lawyers should be more, not less, willing to apologize.  Not only because that's typically the right thing to do, and because counsel's instinct is usually overboard the other way.  But also because, after today, you've got an opinion by the Ninth Circuit that says that even when you apologize, that doesn't mean a judge is going to conclude that you actually did the thing for which you apologized.

So it's the perfect world.  Apology without meaning.  Apology without effect.  Apologies that are only an upside.

So apologize.

People v. Kingsberry (Cal. Ct. App. - Oct. 26, 2011)

It looks like this is indeed the rule in California. Though it seems a bit harsh.

Albert Kingsberry pleads guilty and is given probation for five years, ordered to spend 181 days in jail, and is ordered not to drink or possess any alcoholic beverages during his probation.  Four years later, he (stupidly) violates the no-alcoholic-beverages condition.  Hope that beer tasted good.  Because it's the last one you're going to drink for a while.

So the trial court revokes probation and resentences Kingsberry.  To the mid-term of four years in prison.

So Kingsberry does his time.  Hopefully he's learned his lesson.

Around three years later, after good time credits are applied, Kingsberry is about to get out of prison.  As his release date approaches, the Department of Corrections writes the sentencing judge and says:  "Hey, we noticed that you sentenced Kingsberry to four years.  But the mid-term for this offense is actually six years.  You might have made a mistake.  Want him to spend another two years in prison?"  At which point the judge says:  "Yes."  Tacking on two more years to his sentence.

The Court of Appeal concludes that's okay.  And based upon its discussion, that does indeed seem to be the law of California.  On the theory that the initial sentence was "contrary to law" -- as only three-, six- or eight-year sentences are authorized for this offense -- and "illegal" sentences can be vacated at any time.  And even though Kingsberry says "Okay, give me three years:  that's a legal sentence," the Court of Appeal says he's not entitled to that, and that the trial judge can go back and give him more time instead.

It seems fine to me to correct sentences based on errors when it's done promptly.  So, for example, if weeks (or even months) after the sentence, the trial judge recognized the error, I wouldn't have a real problem with going back and correcting it.

But when no one notices the mistake, when everyone relies on it, when everyone knows that the sentence is X number of years, and when the defendant's entire sentence is almost up, that seems qualitatively different to me.  Perhaps not from a legal standpoint, but just as a matter of fairness and settled expectations.  The prisoner thinks he's served his time.  Paid his debt.  Looking forward to an imminent release.  Only, after years in prison, to have the trial court say:  "Nope.  Made a mistake.  I'm sentencing you to another two years."

At the very least, as an equitable matter, I might have the trial court at least look at the defendant's current status before resentencing.  His disciplinary record.  What he's accomplished in prison.  To see if it's fair to pull the rug out of the defendant on the eve of his release.

But the Court of Appeal holds -- and, again, this appears to indeed be California law -- that this doesn't have to be done.  The trial court can simply say:  "I should have known it was six years rather than four.  My bad.  You pay for it."

I understand that the defendant doesn't get to benefit from the mistake by having his sentence further reduced -- to three years rather than four -- to correct the error.  Even though that would indeed solve the "illegal sentence" problem while avoiding the frustration of settled expectations.

Sure, there's a line-drawing problem.  How long do you have to be in prison before you can rely on your sentence.  A day?  A month?  A year?

But there's equally a problem with the Court of Appeal's rule -- at least intuitively -- that says (as it clearly does) that even if you've served 30 years in prison, even if you've been a perfect prisoner, and even it's an hour before your release, as long as the trial court decides that it made a mistake and that your 30-year sentence was thus "illegal," it can throw you in the slammer for another decade.

Sometimes I disagree with the appellate court's legal analysis.  Not here.  It seems spot on.  But on a rare occasion or so, that rule nonetheless tugs on me as somewhat unfair.  Perhaps not in a "This Cannot be the Law" or "That Violates the Constitution" way, but rather in a "Really?  We Can't Do Something Better Than This? way.

This is one of those cases.