Thursday, January 29, 2015

People v. Ramirez (Cal. Ct. App. - Jan. 28, 2015)

There's the old saying that you shouldn't bring a knife to a gunfight.  But what about a fistfight?  It's obvious you should bring your fists.  But what about a gun?  Just in case?

What about if it's definitely going to be a fistfight and maybe going to be a gunfight?  What do you do about that?

It's tough to translate aphorisms into modern day legal advice.  It's even tougher when the Court of Appeal has to figure out what the actual law is in this area.  Or, worse, what the jury instructions in such cases should say.

Witness this opinion.

The majority and the dissent disagree about both what to do in situations like this one as well as what exactly transpired here.  Was the jury properly instructed?  Was it confused?  Did the prosecutor mess things up by misstating the law during closing?

Everyone agrees that you can bring a gun to a fistfight as long as you don't use it.  (Or at least that it's not murder, since no one's dead.)  Everyone also agrees that you can't start a fistfight, while bringing a gun, hoping that the other side will then pull a gun and thereby enable you to shoot 'em.

But the majority here says that the relevant CALCRIM instructions here didn't accurately tell the jury (particularly in light of what the prosecutor said during closing) what to do if you elect to bring a gun to a fistfight that you start just in case -- but not hoping -- that the other side has a gun, and then you end up shooting the guy because you thought he had a gun.  Self-defense?  Imperfect self-defense?  A straightforward case of murder, since you're the one who started the fight and brought the gun?

The safe bet, of course, is to leave the gun at home.  Ditto for the fists, for that matter.

But we don't live in a perfect world.

Hence the need for opinions -- and the resulting disputes -- like this one.

Johnson v. Dept of Justice (Cal. Supreme Ct. - Jan. 29, 2015)

Why does today's opinion by the California Supreme Court, which overrules the Court's eight-year old Equal Protection decision in Hofsheier, remind me of the old Gilda Radner skit.

Wednesday, January 28, 2015

Harb v. City of Bakersfield (Cal. Ct. App. - Jan. 23, 2015)

It's yet another drunk driver.  Routine.

The guy loses control of his car and drives onto the sidewalk.  He's slurring his words, as usual.  He leaves the wrecked car and takes a pee in the bushes.  He's disoriented and pukes.  He tries to get back in his car as the police arrive.

The guy's wasted and it's barely 7:00 p.m.  Pathetic.

So the police officers try to cuff him, at which point the guy resists.  Takes three officers to get control of him.

As usual, an ambulance arrives, but even though the guy had a tiny bump on his head (probably from the struggle), the paramedics quickly depart.  Just another drunk.  We'll take him downtown, book him, and let him sleep it off.

It's a little surprising that the guy blows a .00.  But that just means he's on drugs, not alcohol.

Just another pre-Thanksgiving blowout in Kern County, right?

Except for one thing.  The guy's not drunk.  He's not on drugs, either.

He's having a stroke.

Oops.

The guy now wears diapers and has to have someone cut his food for him.  Needless to say, there's a lawsuit.

Needless to say, the police probably wish they'd have treated this one a little less like it was routine.

People v. Mackey (Cal. Ct. App. - Jan. 14, 2015)

If you want a detailed description into the seedy underbelly of Oakland, take a look at this.

It's like a movie.  A dark, depressing, ultra-violent movie.

Tuesday, January 27, 2015

Greenwell v. Auto-Owners Ins. Co. (Cal. Ct. App. - Jan. 27, 2015)

In my two decades of being a law professor, I've graded more than a couple of civil procedure exams in which the essay was about personal jurisdiction.  Like, literally, thousands.

Justice Robie begins this opinion by noting that the stuff we do in law school isn't necessarily all that far off from what happens in the real world. He says:

"This case goes to show that sometimes life can be like an essay question on a law school exam. Here, a California resident owned an apartment building in Arkansas that was insured by a Michigan insurance company under a policy the owner obtained through an insurance agent in Arkansas. That policy included commercial property coverage for the Arkansas apartment building and commercial general liability coverage for the owner’s property ownership business, which he operated from California. Other than writing this policy, the insurer did no business in California.

Both the commercial property coverage and the commercial general liability coverage in the policy covered some risks, losses, or damages that could have arisen in California, but the dispute at issue here arose out of two fires that damaged the building in Arkansas. Initially, the insurer agreed to treat the two fires as separate losses but later reversed its position and took the position that both incidents were subject to only a single policy limit payment. As a result, the owner sued the insurer in a California state court for breach of contract and bad faith.

Here is the question: Under the foregoing circumstances, did the insurer have sufficient minimum contacts with California to allow the state court to exercise personal jurisdiction over the company in this action?"

That's a darn good hypothetical.  And the Court of Appeal answers:  "No."

Justice Robie's opinion is very cogent.  I'd be exceptionally psyched if I saw something like this submitted by a student in a law school exam.

Admittedly, Justice Robie (and his chambers) got to read briefs on the issue, and then had much longer to pen an answer than in your normal law school in-class (or even take-home) exam.

But, still, it's very good.

Of course, even very good things aren't perfect.  If a student submitted this as their essay answer, I might give 'em a couple of tiny suggestions.  For example, the opinion plods along in places, and could probably be five pages shorter without any loss of substantive content.  Another minor point:  on pages five and six, the author forgets that the Due Process Clause should be capitalized.

But substantively, the opinion reads well, and correctly focuses on the "nexus" requirement for specific personal jurisdiction:  The cause of action has to arise out of the defendant's contacts with the forum state.  That's the weak part of plaintiff's claim, and why the Court of Appeal holds that it ultimately fails.  Yeah, the defendant did business in California.  But the cause of action "really" arose out from acts in Arkansas, not California.

The only substantive part of the answer that I thought was relatively weak was the claim that the fact that the witnesses were mostly in Arkansas reaffirmed the lack of nexus.  The location of the witnesses is indeed a fact that's relevant to personal jurisdiction.  But only to the "fairness" prong, not the existence (or lack thereof) of minimum contacts in the first place.  Even if all of the witnesses to the Arkansas fire were in California -- e.g., viewing the thing on closed-circuit television -- and all of the debris transported here, the answer would be the same.  Witnesses are relevant to prong three, not prong two.

Apart from these minor changes, though, I'd have told my student that it was an outstanding answer.  They'd definitely get an A.

Probably even make law review.

POSTSCRIPT - Extraordinarily reliable sources tell me (and I've confirmed) that the California Style Manual says to capitalize things like "Constitution," "Bill of Rights," "Social Security," basically every statute known to man (e.g., the Civil Mediation Act and Usury Law), but, apparently, not the Due Process Clause.  I'll leave my normative comments about this scheme to myself.  But now I might have to bump Justice Robie's grade up a bit.  'Cause when you know something your professor doesn't; well, seems to me that's the definition of an A+.

Monday, January 26, 2015

In Re Hokulani Square (9th Cir. - Jan. 26, 2015)

Sometimes the Ninth Circuit is required to answer seemingly esoteric questions.  Like:

What is "money"?

Clearly, money is money.  But what about things like money?  Or in lieu thereof?

This matters here because trustees of bankruptcy estates can get compensated based, pursuant to 11 U.S.C. § 326(a), on a percentage of "moneys disbursed or turned over in the case by the trustee to parties in interest."  That's not a problem when, say, the trustee gives $1,000,000 to a creditor.

But what about when the trustee gives a house worth $1,000,000 to a creditor?

Seems like the practical effect is the same.  But is the house "moneys"?

This happens more than you might think.  Particularly with respect to creditors bids.  Let's say a bank lends a guy $1,000,000 to buy a condo, then the dude goes bankrupt.  The trustee then auctions off the property.  Lots of times -- particularly in the modern "underwater real estate" era -- the bank is the one who ends up with the condo at the auction, by making a bid that's not "real" money but instead is the value of its loan.

Does the trustee get compensated based on the value of the condo?  Or does that not count at all?

Not counting the house (and/or credit bid) as "moneys" might have absurd consequences.  For example, if the bank wins the credit bid with its $1,000,000 loan, then the trustee gets nothing.  But if the trustee does the exact same amount of work, and someone outbids the bank by a single dollar (i.e., pays $1,000,001 for the condo), the trustee potentially gets paid a percentage of the whole $1,000,001, which seems crazy.  Similarly, if the bank bids $1,000,000, and actually pays $1,000,000, but then gets back its $1,000,000 because it has a loan of $1,000,000, the trustee again might get a portion of the million, even though he'd get absolutely nothing if the bank "shorthanded" this process by simply making a credit bid.

Judge Kozinski nonetheless holds that's what the statute requires.  Because it's "plain" and "clear" and "unambiguous" that money just means money, not property.

But I wonder.

Judge Kozinski starts out by quoting the definition of "money" in the Third International Dictionary: "something generally accepted as a medium of exchange, measure of value, or means of payment."  I get that.  But doesn't property qualify under this very definition?  If Judge Kozinski goes out to dinner and leaves his wallet at home, I'm quite confident the restaurant will take his house -- and/or his watch -- in lieu of cash.  Doesn't that mean that property (both real and personal) is a generally accepted "medium of exchange, measure of value, or means of payment;" indeed, all three?

Plus, the very definition that Judge Kozinski cites goes on to qualify its meaning by saying that "something generally accepted as a medium of exchange, measure of value, or means of payment" includes not only "paper money" and coins but also "money of account".  Property might potentially qualify there as well.

I'm ultimately just not persuaded that the word "money" is nearly as clear as Judge Kozinski would read it.  So I might delve more deeply into -- and care more rigorously about -- the policy results that might follow from defining money more narrowly.  Particularly if I think that Congress would not have wanted trustees to be artificially compensated by cash exchanges over economically identical (but noncash) transactions.

I also think that "money" (or, more accurately, "moneys") means different things in different contexts.  Were someone to say at a restaurant that he didn't have any "money," I agree that I'd interpret that to mean that he doesn't have any cash.  (I am not sure I'd say the same thing were he to say that he didn't have any "moneys," but I'd have to think about that more.)

By contrast, were a robber to come up to me and say "Your money or your life," and I were to have in my wallet a stack of bills plus a gold ingot worth $1,000, I would not at all think that the person was only asking for my cash.  Nor would I be at all surprised if he shot me were he to discover that I had retained the ingot in reliance upon his purportedly "clear" instruction that I only give him my paper bills.

Whole books have been written about "What is money?"  I think those texts might be a lot shorter if the answer was as crystal clear as the Ninth Circuit takes it to be.




Cortez v. Skol (9th Cir. - Jan. 26, 2015)

Judge Friedland seems right here.  When prison policy says not to walk three hostile, half-chained, high-security inmates by yourself through "no man's land" where there are no cameras and no backup, a jury might find that it's indeed unreasonable to do so.  Which means that when you nonetheless elect to do so because you're "busy", and two of the prisoners brutally attack and stomp on the head of the handcuffed third until he suffers serious brain injuries, that same jury might perhaps find you liable.

Thursday, January 22, 2015

In Re Wilson (Cal. Ct. App. - Jan. 22, 2015)

It's not just teenagers whose parents neglect and/or abandon them who turn to serious crime:

Wilson was born on September 7, 1977. He lived with his parents and two younger siblings in Inglewood, and then later in south central Los Angeles.

According to Wilson and his mother, his family life was very structured; his parents were overprotective and were strict disciplinarians. Wilson’s mother chose his friends, rarely allowed him to watch television, and would not let him play outside with other neighborhood children. He was not allowed to spend the night at a friend’s home. Until he was in high school, Wilson attended Los Angeles Christian School, where his mother worked. . . .

Wilson felt isolated and resentful because of the restrictions placed on him by his parents. He claimed that he was teased in the neighborhood for attending a charter school and because he wore a school uniform. Wilson began going out at night without his parents’ knowledge, and fought with his parents when they attempted to control his actions. . . .

Wilson began having behavioral problems at his school. His parents decided to send him to a public high school. He initially attended El Camino Real Charter High School in the San Fernando Valley. By his early teens, Wilson began using marijuana and alcohol on a regular basis. Wilson was truant from school. He associated with older males in his neighborhood who had made money by selling drugs and committing crimes. His parents would lock him out of the house for violating the house rules.

In ninth grade Wilson was expelled from El Camino Real Charter High School for fighting. Wilson’s mother enrolled him at Washington High School in Los Angeles. She later discovered that Wilson was not attending classes at Washington High School.

Wilson ran away to his paternal aunt’s house, after his mother found drug paraphernalia in his clothing. Wilson moved back and forth between his parents’ home and various relatives for a number of months. After one of Wilson’s friends was involved in a shooting, his mother sent him to Arizona to stay with another maternal aunt. Wilson soon found himself in trouble with his aunt for skipping school so he returned to Los Angeles. Wilson emulated the lifestyle of his friends who sold and abused drugs, consumed alcohol and did not attend school. At age 15, he joined the East Coast Crips gang and became involved in gang activity."

Needless to say, this does not end well.  In 1996, Derrick Wilson gets convicted of first-degree felony murder and attempted murder and sentenced to LWOP for a crime he committed when he was 17.

Today the Court of Appeal grants him habeas relief and a chance to be resentenced based upon the subsequent decisions of the Supreme Court about LWOP sentences for minors and the Eighth Amendment.

We'll see if Mr. Wilson takes advantage of his opportunity better than he took advantage of his parents' attempts to have him grow up a normal teenager.

Wednesday, January 21, 2015

Mosser Companies v. San Francisco Rent & Stabilization Bd. (Cal. Ct. App. - Jan. 21, 2015)

Parents move into a rent-controlled apartment in San Francisco and pay $1,495 a month.  They've got (inter alia) a 13-year old child.  Everyone lives together in harmony.

Years go by.  The rent can legally only go up a little bit, so it's now $1,680 a month.  Way below the market rent, which is double that.

The parents are older.  So is the 13-year old.  State law says that you can't raise the rent to market rates until the original "the original occupant or occupants who took possession of the the dwelling or unit . . . no longer permanently reside there."  The only people on the lease are Parents.

Eventually, Parents (who are now older) move out, but Child -- who's now 23 -- stays.

Can Landlord raise the rent?

The Court of Appeal says:  No.

Child was an original (lawful) occupant.  Even though the lease was with Parents, Child can stay in the rent-controlled apartment, at rent-controlled rates, even after Parents leave.

People v. Camp (Cal. Ct. App. - Jan. 21, 2015)

Hugo Camp gets charged with, and pleads guilty to, a theft offense, and gets ordered to serve 14 months in jail and, thereafter, 14 months of "mandatory supervision" by the probation office.  The probation office then notices that there's an immigration hold on the guy, and he's scheduled to be deported to South Africa.  Hard to supervise a guy there.  So the probation office, the trial court, and the defendant say it doesn't make sense to do the second 14 month stint, so let's just deport the guy immediately.  The People say whatever the trial court decides is fine.

So the trial court enters an order that keeps the 14 months in jail but then let's the guy get deported.

The People then appeal.  Saying that, no, the trial court should have been compelled to put the guy in jail for 28 months; that it wasn't allowed to remove supervision even though the guy will be sent away to another continent.

I'll let you read what Justice Aaron -- who's fine with what the trial court did -- says about this, and contrast it to what Justice O'Rourke (who's not okay with it) says about it in his dissent.

I'll just add one other, nonlegal, point.

I'm not sure why the San Diego District Attorney's Office has such a (belated) interest in not letting this guy get deported ASAP.  Yes, I'm sure he did something wrong, and needs to be punished.  But if you were fine with putting the guy in jail for 14 months and then getting "supervision" for the next 14 months in the community, I'm not sure why you're all of the sudden unhappy with the guy being in jail for 14 months and then getting immediately deported.

Seems like the latter thing is good for everyone -- or at least everyone in the U.S.  Costs less money.  Stops him from committing more crimes here.  Gets him, in short, out of our hair.

As between 14 months of probation and immediate deportation, doesn't the latter seem the better policy?






Tuesday, January 20, 2015

Omega S.A. v. Costco Wholesale (9th Cir. - Jan. 20, 2015)

It took the Ninth Circuit over a year after oral argument to publish its opinion in this one.  But here you go.

As is usual with my speculation, I may well be entirely off base.  But read Judge Wardlaw's concurrence and see if you don't think -- as I do -- that it reads like it started out as a bench memorandum for the panel and turned into a concurrence only after Judges Nelson and Rawlinson wanted to resolve the case on other grounds.

It's also an opinion worth reading for two other reasons.  First, it's unusual (to say the least) that a panel decides the case on the basis of an argument that (as Judge Wardlaw claims) the parties did not brief and that the winning party expressly disavowed at oral argument.  Mind you, there was an intervening Supreme Court decision that was exceptionally relevant.  But still.

Second, Judge Wardlaw's concurrence is all about a neat little issue that I hadn't previously seen in the Ninth Circuit (though the Supreme Court took a related issue up) -- whether a party can stamp something on a product (here, fancy Omega watches), claim that this stamp is a "copyright," and then use that copyright to stop entities like Costco from selling gray market products; e.g., brand name watches that it bought cheaply in another country to sell here.  She says that you can't.  The majority, by contrast, resolves the case on a different ground.

Neat stuff.  Even if it took quite a while in coming.  (You'll also notice that the district court number in the caption begins with "04".  So this one's been around for more than a little bit.)

People v. Givan (Cal. Ct. App. - Jan. 20, 2015)

When you're driving with a .17 (-plus) BAC at 8:00 a.m., plus have some weed in your system -- and run a red light and kill someone, you're going to get 25-plus to life.  Or at least you will if you have five prior felonies.

And the Court of Appeal will affirm.

Friday, January 16, 2015

State Ready Mix v. Moffat & Nichol (Cal. Ct. App. - Jan. 8, 2015)

Justice Yegan begins this opinion by saying:  "Mixing concrete, like baking a cake, is fraught with problems when the recipe is not followed."

True enough.  The major difference being that when you screw up a cake, you simply throw it away, whereas when you botch the concrete, you have to rebuild the whole freaking pier.

Or worse.

Justice Yegan holds that the mistake here was entirely the fault of State Ready Mix, Inc.  Which seems right.  Pretty important to get this stuff right, I might add.

People v. Mulcrevy (Cal. Ct. App. - Jan. 15, 2015)

When smoking marijuana apparently isn't enough for you, you can graduate to hash oil (sometimes called "honey oil"), which is incredibly concentrated marijuana.

The trial court in this case held that the Compassionate Use Act doesn't apply to concentrated marijuana.  The California Attorney General confessed error, and the Court of Appeal reverses.

Presumably making this guy (among others) incredibly happy:


P.S. -  The name of the defendant in this case is Sean Patrick M.  Scarily close to my own name of Shaun Patrick M.  Let's hope I don't feel the need to hit a hash oil pipe any time soon.

Thursday, January 15, 2015

City of San Jose v. Office of the Comm'r of Baseball (9th Cir. - Jan. 15, 2015)

This is right.

Baseball's antitrust exception may be weird.  But it's been the law forever, and Congress has elected not to change it notwithstanding its high-profile nature.

So if the San Francisco Giants want to squash competition by conspiring with other major league baseball owners to deny the Oakland A's permission to move to San Jose -- which is in the Giants' "territory" -- that's okay.  Lawsuit dismissed.

Judge Kozinski's opinion is tight, concise, and entirely accurate.  I'm not sure why it took over five months to write.  Especially since it contains only two (not very good) jokes in it.

But the final product is nonetheless outstanding.  As well as spot on with respect to the merits.

Enjoy the Coliseum for a while longer, As.

People v. Campbell (Cal. Ct. App. - Jan. 15, 2015)

I'm shocked -- shocked -- to find that people who meet each other at a hookah lounge occasionally arrange to buy and sell marijuana.

I'm am (no joke) surprised to read that it results in a murder.  For utterly no apparent reason.  The victim seemed more than willing to give the stuff up once the defendant and his compadres showed up (1) en masse, and (2) armed.  Yet shots ring out, a guy dies, and a first-degree felony murder charge gets filed against the perpetrator(s).

The defendant here gets his conviction reversed for failure to instruct on a lesser included offense.  But remember:  That's just a retrial, not an acquittal.

There's still a long way to go before the defendant here even has the possibility of seeing the world outside of prison in the medium term.

Wednesday, January 14, 2015

U.S. v. Zamudio (9th Cir. - Jan. 14, 2015)

It's gotta be tough to be appointed to the Ninth Circuit.

Sure, there are the accolades and the robes and the people calling you "judge" and the like.  But it's not all roses and honor.

Imagine, for example, that you're a new judge on the Ninth Circuit.  Just appointed.  You've never been a judge before, and are maybe the youngest (or second-youngest) on the court.  Here you are, with people who will be your colleagues, and with whom you'll interact, for likely the rest of your natural life. There's an obvious incentive to get along with them early.  Be friendly.  Be jovial.  Be collegial.

Let's further imagine that one of your very first panels is a criminal case in which everyone agrees to affirm the defendant's conviction for being a deported alien who returned to the United States.  The opinion gets assigned to one of the other members of the panel -- someone who's been on the Ninth Circuit since literally you were a one-year old baby.  The guy's got gravitas.  He's way, way more experienced than you are.

That senior member of the panel writes an opinion, which is quickly joined by the second member of the panel -- another experienced Ninth Circuit judge.  Again, you all agreed on the result beforehand.  This guy is guilty, and we're going to affirm his conviction.

Your law clerk comes to you and presents you with the following hypothetical.  Precedent, she says, clearly holds that the statute of limitations on the crime of being "found" in the United States starts running when the defendant presents himself to a state officer.  So if, for example, a guy walks up to an ICE agent and says: "I'm here illegally, having been previously deported.  Want to do something about it?", that starts the five-year statute of limitations for convicting the guy for being in the U.S. illegally.  Can't just sit there and wait forever and then try to convict the guy.

But most cases aren't that straightforward.  She then gives you two cases.  One, she says -- but only one -- involves a dude who sufficiently "presents" himself to ICE to start the statute of limitations.  You've got to decide which one that is.  Here are the two cases:

(A)  Defendant A gets deported from the U.S., sneaks back in, and then goes to ICE and files immigration papers under a fake name with virtually no truthful biographical facts about who he actually is in order to try to get a green card.  However, his application also contains (as required) his fingerprints, and ICE has those fingerprints in a computer file somewhere.  But the INS never actually matches the prints.  Is Defendant A "found" in the U.S. as of the date he presented his false application under a fake name?

(B)  Defendant B gets deported from the U.S., has his wife drive down to Tijuana and bring his green card, and then his wife and he drive up to the border station and present ICE with his green card in an attempt to gain entry.  The green card has Defendant B's true name and all his relevant information, and if the ICE agent were to have run the green card in ICE's computer, the computer would have informed the agent that the green card is no longer valid since Defendant B had been deported.  But the ICE agent takes the green card, looks at it a bit, hands it back to Defendant B, and waves him and his wife on through.  Is Defendant B "found" in the U.S. as of the date he presented his true (but invalid) green card under his own name?

Whatchathink?

You cannot fight the hypothetical.  One of these two situations has to involve a situation in which Defendant is, in fact, "found" in the U.S. sufficient to start the statute of limitations.

So which would you choose?  And how confident are you that your choice is the right one?

If it's me, I'd say that B started the limitations period, rather than A.  B involved a real (not fake) green card and the guy's actual name, whereas A involved a fake name and merely fingerprints.  Doesn't seem like an especially close call.  To me, B involves a much stronger case for starting the limitations period as opposed to A.

Here's the problem.  Which is the actual problem in today's opinion.  A is an actual case.  It's a case from the Second Circuit, and one in which that court squarely held that the situation in A started the limitations period, since even though it was a fake name, the "true" fingerprints made it possible (even though it didn't actually happen) for ICE to find out the true facts.

You see the problem, right?  If A starts the limitations period, then under that same reasoning, B should as well.

Now, there's an easy way to solve this problem.  You're on the Ninth Circuit.  That other case is from the Second.  You can simply say that other opinion is wrong:  that presenting false documents doesn't start the limitations period.  And, on that basis, not follow it.

But your senior colleague, Judge Cliff Wallace, has written an opinion that, in part, says sort of that, saying that the Ninth Circuit is not '[bound] to accept this out of circuit case."  But he then holds, at some length, that the present case is distinguishable in any event, since here, since the green card was an actual green card, arguing that this presentation "did not provide the authorities with either the information or the means with which to discover his immigration status," and since his "presentation of his invalid green card did not enable the government to ascertain that his entry was illegal, even in the exercise of diligence," the limitations period did not commence even under the potentially-persuasive Second Circuit precedent.

Now, look, you're young, but you weren't born yesterday.  You suspect that Judge Wallace's opinion is just factually wrong.  You suspect that when a guy crossing the border hands ICE a green card --a green card with the guy's true name on it, his A-number, and all of his relevant information, not only is the government "[]able" to use that information to discover that the guy's been previously deported, but it's actually incredibly easy.  All you've got to do is to type that information in the computer -- either his name and/or his A-number -- and it'll bounce back in five seconds the fact that the guy's actually been deported and hence not allowed in the United States.  Indeed, you suspect that if ICE doesn't have that capability -- if Judge Wallace is right that all it takes to illegally enter the U.S. is to present an expired, invalid green card, and there's nothing that ICE can do to catch you -- then ICE is totally incompetent, and what's the whole use of the fence (or even deporting people in the first place).  You strongly suspect that it's a lot, lot easier (and faster) to run some guy's true name and A-number in a computer than it is to run the dude's fingerprints, and that a contrary argument seems, well, just not especially plausible.

But that's nonetheless what your new colleague has said in his published opinion.

Now, remember.  You're the new guy on the block.  You agree this guy's conviction should be affirmed.  The limitations argument is only a small portion of the opinion.  You're totally on board for the fact that the Second Circuit opinion isn't controlling, and if the opinion just said that, you'd be fine.

But it doesn't.  Instead, it says something that's just not doctrinally or factually persuasive.

Do you nonetheless sign onto the opinion?  Or do you write a brief concurrence joining the vast majority of the opinion but deciding instead not to follow the Second Circuit, rather than trying to distinguish that case on the basis of an argument that doesn't quite work?

If your name's John Owens, you do the former.  Just sign on.

Now, maybe Judge Owens -- like Judge Schroeder (who's also on the panel) -- thinks that Judge Wallace's distinguishing argument makes sense.  Maybe I'm the outlier, and everyone else in the world thinks that once you give ICE an invalid green card at the border with your true name and A-number, there's simply no way, as Judge Wallace asserts in his opinion, that "the government [can] ascertain that [your] entry was illegal, even in the exercise of diligence."

But I don't think so.

I think instead that there's a view, among many judges (and perhaps especially among new judges), that if it's "their opinion," and if you agree with the result, even if there's part of the opinion that seems silly and that you suspect is wrong, you sign on anyway.

I'm not sure that's what transpired here.  Only Judge Owens knows, and he's not talking.  (It's actually what I I hope transpired, because I think it's the most charitable interpretation of why someone would sign on to this part of the opinion, which I don't think is that powerful.)

Oh, one more thing.  Did I mention who Judge Owens previously clerked for?  That's right:  Cliff Wallace.

I'm sure it isn't entirely rare for another judge on the panel to write part of an opinion that doesn't quite fit the facts and then the other judges have to figure out what to do.  Sometimes you write a note (nowadays, an e-mail) and try to set 'em straight.  Sometimes they agree, and edit the thing.  Other times, they don't.  And you have to decide what to do.  Join the thing anyway, or write separately?

And sometimes you simply sign your name.

Tuesday, January 13, 2015

Gonsalves v. Li (Cal. Ct. App. - Jan. 13, 2015)

I routinely tell my students in my Pretrial Practice class that there's always a fine line between being a good trial attorney and being too good as a trial attorney.  You want to push the envelope, and to play on the sympathies of the jury.  But too much of that gets your really good jury verdict reversed.

Case in point.

There are lots of tiny little evidentiary errors here.  One of which -- admitting denials of RFA's into evidence -- bears special mention.  The Court of Appeal holds you can't do that.  Good to know.

Taken separately, truthfully, I don't know if there's a showing of prejudice.

But it's a good example of cumulative error.  Maybe the RFA's alone wouldn't require reversal.  Maybe the emphasis on the defendants being from China, while improper, wouldn't alone justify vacating the jury award.  Maybe the stuff about having to pay back worker's compensation, or the attorney's prior representation of a paraplegic, wouldn't by themselves compel the Court of Appeal to require to new trial.

But taken together, yeah, there's a decent chance it affected the result.  The case was close.  There was a lot of stuff that went wrong.

Do it again and get it right this time.

And for us attorneys, remember the lesson:  Be a good trial lawyer.  But not too good.

Monday, January 12, 2015

U.S. v. Neal (9th Cir. - Jan. 12, 2015)

A crazy guy with crazy beliefs decides that a dozen people have committed "crimes" against him and hence he's allowed to file "liens" against their "oaths of office".  So he fills in the blanks on some UCC forms and mails them to his mother with instructions to type 'em up and file them with the California Secretary of State.

Trust me that the guy's nutty.  Trust me that he's not alone.  There are lots of people who think that you're allowed to file similarly crazy "liens" on all sorts of absurd grounds.

Is this a socially beneficial practice?  No.  Is it somewhat of a pain in the butt if someone actually files an absurd "lien" against you with the Secretary of State?  Yeah.  Kinda.  It's obviously crazy, but you do have to go through the pain of getting it removed.

So what do they do to this guy?

They throw him in federal prison for seven-plus years.

This is a particularly surprising sentence given that you can do analogous things that are far, far worse than this and receive utterly no punishment whatsoever.  To take but one example, let's say that instead of trying to file absurd liens against someone, you actually file absurdly frivolous lawsuits against them.  The filing of a lawsuit is much more burdensome than the filing of a lien; they've got to hire lawyers, go to court, get the suit dismissed, etc.

What's the penalty for that.  Well, in an extreme case, the penalty is . . . a prefiling order that stops you from doing it again.  No incarceration at all.

Yet a lien gets you 87 months.

To say that such disparate treatment seems anomalous to me is an understatement.  (Especially when, as in this case, I'm fairly confident that the crazy dude who's filing the liens actually believes -- albeit absurdly -- that the dozen dudes actually harmed him and that he's "entitled" to file liens against them.  Seven years in prison for just writing a letter to his mother attempting to do that?  Seriously?  When a dude who files, say, a half-dozen frivolous lawsuits against his ex-wife just to harass her gets no punishment whatsoever?  Doesn't seem right.)

Friday, January 09, 2015

U.S. v. Rodman (9th Cir. - Jan. 9, 2015)

I empathize with the result.  The legal reasoning is coherent.

Yet there's still something about this opinion that just seems wrong.

I'm not a huge fan of unregulated machine guns floating around the United States, so I get why ATF wants to know when an existing machine gun -- created before they were banned -- gets transferred.  It also seems a bit sleazy, and permissibly illegal, for a guy to chop off the serial number of an old (legal) machine gun, slap it on a new machine gun, and then submit a form to the ATF saying that they just sold the "old" gun.

All that I'm down with.  I assume that's a crime, and rightly so.  (Maybe not the most serious crime of our generation, mind you.  It's not like you've made another machine gun.  You've just replaced an older one with a newer one.  Assuming that the guns are roughly the same apart from age, I'm not quaking in my boots or anything like that.  But still, it's a crime, and you should be punished.)

But exactly what crime is it?

Lying to the government, no doubt.  Submitting a false statement, sure.  I can think of a plethora of crimes that seem likely to apply.

But the dude here gets charged with conspiracy to defraud the United States.

Doesn't that seem weird?  It's not like he's trying to steal money from the US.  Or avoid taxes.  Or anything like that.  "Defraud" doesn't seem to apply.

Now, Judge Milan Smith tells me that the Supreme Court has said that to "defraud" means to do anything that obstructs any function of the government.  If that's true (and I have no reason to disbelieve him), then I guess, yeah, it's a fraud.

But it still seems funky.  And leaves a bad taste in my mouth.  Seems like we're just zooing up a crime -- and a punishment -- from a statute that wasn't intended to cover things like this.

But, as I said, I can't fault the legal reasoning.

While we're talking about precedent, however, there's another precedent that seems facially relevant.  The dude with whom Rodman allegedly "conspired" was a licensed firearms dealer, who allegedly told Rodman that it was legal to do what they were doing.  There are several cases out there that say that when a licensed firearms dealer tells you that X is legal, and you rely on that representation, you can assert that advice as a defense:  entrapment by estoppel, since the "government" (i.e., the licensed dealer) told you it was legal.

Whether or not that precedent makes total sense, it's the law, right?  So if we're willing to follow the whole (tenuous) "defraud" thing, seems like we need to follow this one too, and Rodman gets to at least argue to the jury that he relied on the other guy's representation that what he was doing was legal.  (Which, I might add, is a defense the jury might actually buy, since it's at least plausible that when someone tells you that it's one gun, and one serial number, it's okay to do what Rodman was doing.)

But Judge Smith say, nope, Rodman doesn't get to even argue that defense.  Because Rodman's also a licensed firearms dealer, so he's an "agent" of the government as well.  A defense that works for a regular buyer, Judge Smith says, doesn't work for a licensed buyer.

I can see that argument.  But we're talking about precedent here. What case supports this reasoning?  Well, let's look to the authorities that Judge Smith cites for that proposition.

Searching.  Searching.  Searching.

None.  Nada.  Zip.  He just says it.

Now, again, I don't fault the reasoning.  It definitely ain't lock solid, but it's also far from absurd.  It's just that, particularly when combined with all the other reasoning in the opinion (and don't even get me started on the "conspiracy" portion of the thing), it seems like every single break or argument or doctrinal move comes out against the criminal defendant here.  His argument on "defraud" makes total sense, but we ding him on precedent.  He's got a damn good argument on precedent, but we ding him on common sense.  It's like a moving target.

And for what?  Again, I feel pretty confident that we can ding this guy -- and rightly sentence him -- to a crime he actually and straightforwardly committed.  But we nonetheless do all these mental gymnastics just so we can (1) convict the guy of a conspiracy to defraud, and (2) stop him from even presenting a defense (and supporting jury instruction) to his peers.

It just seems a bit aggressive, that's all.

This is -- to reiterate -- not to say that Judge Smith's opinion is wrong.

Just that it doesn't totally sit right.

Thursday, January 08, 2015

People v. Rekte (Cal. Ct. App. - Jan. 8, 2015)

I'm all for taking appeals very, very seriously.  Because what seems small to us may nonetheless be huge to someone else.

But all of this for a traffic ticket for making a right turn after the light had turned red?

That's a lot of work for very little payback.

Arizona v. ASARCO (9th Cir. - Dec. 10, 2014)

Back in October (of 2013), Judge O'Scannlain wrote an opinion that said that a punitive damages award of $300,000 in a Title VII case in which the jury awarded nominal ($1) damages was excessive, and reduced it to $125,000.  I was critical of the opinion at the time, and expressed some support for Judge Hurwitz's dissent.

The Ninth Circuit thereafter took the case en banc.  What was the ultimate vote?

11-0.  Judge Hurwitz was right.  The en banc court reinstates the $300,000 punitive damages award.

Wednesday, January 07, 2015

People v. Jalalipour (Cal. Ct. App. - Jan. 7, 2015)

Here's a crime that doesn't fill up a plethora of pages in the California Appellate Reports:  a state criminal prosecution of the owner of twelve Subway restaurants for underpaying state sales tax revenue.

Notwithstanding the prosecution, white collar criminals everywhere should be happy at the underlying events.  Sure, the store owner stole nearly $1.4 million from California.  Take one-tenth of one percent of that from a dude on the street and you're looking at serious prison time.  But here, the trial court lets defendant plead guilty to a misdemeanor -- although the prosecution, which had filed felony charges, opposes such relief -- because if he pleads guilty to a felony, under his contract with Subway, he may well lose his Subway stores.

God forbid we should deprive you of the instrumentality of your crimes, eh?

Fear not, though.  Although the Court of Appeal reverses the trial court's decision in this regard -- over the dissent of Justice Thompson -- all that's really at stake here is timing.  The trial court can permissibly drop the charge to a misdemeanor before the prelim.  Or it can drop the charge to a misdemeanor after the defendant has pled guilty, and can even do so with an indicated sentence.  The only thing it can't do (the thing that it did here) is drop it after the prelim and before the plea.

No problem.  We'll just do the thing over.  Take the plea, drop it down, and then sentence the thief of $1.7 million to three years of probation.

Problem solved.

Tuesday, January 06, 2015

People v. Toure (Cal. Ct. App. - Jan. 5, 2015)

Here's a heartwarming story from around Christmastime a couple of years ago:

"On December 23, 2012, at approximately 8:30 or 9:00 p.m., Alece Collins was driving in her automobile behind a Penske truck and a tractor-trailer semi-truck westbound on State Route 58 near Highway 395, in San Bernardino County. The tractor trailer swerved several times over the lane division line, into the eastbound lane of travel. Then it continued for approximately two miles in the eastbound lane of oncoming traffic, eventually striking a gray or silver passenger car. Other cars in the eastbound lane swerved and went off the road to avoid the tractor-trailer, which continued westbound in the eastbound lane.

The semi-truck eventually stopped a few thousand feet west of the site of the collision, on the right side of the road, which was on the north side of the westbound lane. The Penske truck pulled in front of the semi-truck and stopped, while Ms. Collins pulled in behind the semi-truck. The driver of the Penske truck called 9-1-1. The defendant exited the semi-truck, mumbling. Ms. Collins and two of the occupants of her vehicle exited her vehicle. Ms. Collins took a BB gun with her, and one of her companions checked the interior of the cab of the semi-truck for other occupants, but found none. One of Ms. Collins’ companions took the keys out of the ignition of the semi-truck so defendant could not drive off again, because defendant had said something like, 'I’m out of here,' and had gotten back into the cab of the truck. The interior of the truck smelled of alcohol so Ms. Collins assumed defendant was intoxicated."

Good for Ms. Collins and her companions.  Pulling out the BB gun was perhaps unnecessary.  But here's a case where taking the law somewhat into one's own hands and blocking a drunk driver from continuing on his course of conduct seems commendable.

What about the drunk driver of the tractor-trailer, you might ask?  He's a sharp contrast to Ms. Collins:

"CHP Officer Chester opened the passenger side door and asked defendant to exit the vehicle, more than once. As soon the door of the truck cab opened, the officer could smell alcohol. Defendant yelled obscenities and the officer had to repeat his request two or three times before defendant started to walk between the dashboard and the passenger’s seat towards the passenger door. Officer Chester grabbed defendant’s arm to assist him out of the truck, fearing that defendant would fall out of the truck if impaired by drinking. 

Defendant was angry and clenched his fists. Officer Chester asked defendant to turn around so he could frisk defendant for weapons, but as defendant turned around, he spun to the left with his left elbow. CHP Officer Williams, Officer Chester’s partner, blocked the blow and applied a bent wrist control hold on defendant. Throughout the process, defendant continued yelling obscenities, and struggled to free his arms from Officer Williams’ control. 

After being handcuffed, the defendant still fought and screamed, yelling obscenities and kicking Officer Williams. At around this time, CHP Officers Camara and Bostrum arrived. Because defendant was now spitting at the officers, Officer Camara put a spit sock over his head. As Officer Camara put the spit sock on defendant, the officer noticed defendant’s eyes were red and watery, his speech was slurred, and the officer could smell alcohol on defendant’s breath. However, field sobriety tests could not be administered due to the state of defendant’s agitation. Defendant continued to struggle, thrash about, and kick the officers, so leg restraints were applied upon the arrival of two deputies from the San Bernardino County Sheriff’s Department. . . .

At the Barstow station, Officer Camara admonished the defendant of the implied consent to blood-alcohol testing, but defendant refused, using more profanity. Defendant did not consent, but he was still agitated, and he could not be released from restraints until after a blood draw had been performed (he had been “hogtied” for approximately one to two hours already), so the officers wanted to limit the time defendant was in that position. Because blood alcohol content degrades over time, two hours had already passed, and because he was unsure of the availability of a magistrate who could issue a warrant, Officer Camara consulted with his sergeant, who approved a forced draw. The results of the tests on defendant’s blood showed a 0.15 blood alcohol level."

That'll get you four-plus years in prison.

Schultz v. WCAP (Cal. Ct. App. - Jan. 6, 2015)

I had no idea that workers' comp applied to traffic accidents that occur (1) in the parking lot of your employer, (2) anywhere within the (often-large) location of your employer, or even (3) making a turn on a public highway while attempting to enter your place of employment.

Now I know.

Monday, January 05, 2015

Hudec v. Superior Court (Cal. Supreme Ct. - Jan. 5, 2015)

The California Supreme Court unanimously holds today that people found not guilty by reason of insanity have a statutory right to not testify at subsequent proceedings in which the state wants to continue their commitment to a state hospital on the grounds that the patient's continuing mental disorder represents a "substantial danger" to others.  Since the statute says that the patient has all rights at that proceeding that would be available to a criminal defendant, that includes the right not to testify.

Seems fair.

As a practical matter, however, the state's clearly going to have someone -- probably many people -- testify that the patient is still crazy and represents a danger to others.  At which point the patient is going to have to try to rebut that testimony.  That's going to be tough if the patient doesn't testify.  Especially since my strong, strong sense is that, regardless of what the law is, the factfinder is going to hold it against the patient if they do not get up on the stand and demonstrate some passive lucidity.

In short, if they say you're still crazy, you've got a right, but you'd be crazy to invoke it.

Friday, January 02, 2015

U.S. v. Gnirke (9th Cir. - Jan. 2, 2015)

The only published opinion -- thus far -- in California in 2015 involves the following sympathetic party:

"In 1995 David Gnirke was living with his girlfriend and her three children at the U.S. Marine Corps Base at Camp Pendleton, California. One night, Gnirke’s girlfriend returned home to find Gnirke icing the genital area of one of her twin babies. Gnirke explained that the baby had gotten itself caught on the top rail of the crib. Upon being taken to the hospital, medical staff noted swelling of the genital area that the staff did not find to be consistent with Gnirke’s explanation. A doctor concluded that '[t]he best explanation for the penile injury is that hard suction was applied to the penis.'

Gnirke was tried and convicted of aggravated criminal abuse of a child under 18 U.S.C. § 2241(c), and corporal punishment or injury of a child under California Penal Code § 273d. He was sentenced to 235 months of imprisonment and five years of supervised release."

That's a bad start.

But Mr. Gnirke makes it even worse.  In prison, "Gnirke had refused to participate in a sex offender treatment program while incarcerated and was found in possession of pornographic material. He also admitted to using hard drugs and alcohol while in prison—a risk factor for sexual recidivism. Based on an actuarial risk assessment tool, Gnirke’s risk for sexual reoffending was assessed as 'Moderate-High' (between the 81st and 90th percentile) relative to other adult male sexual offenders."

Once it comes time to release Mr. Gnirke, the district court imposes various conditions as part of his supervised release.  The one at issue in this appeal orders him to "'not possess any sexually explicit material involving children and/or adults, as defined by 18 U.S.C. § 2256(2),' the federal statute criminalizing possession and distribution of child pornography."

The part of that condition that prevents him from possessing child pornography is obviously okay.  But you will notice that the restriction also prevents him from possessing any sexually explicit material that involves only adults.  On the theory, as the district court expressly held, that "one thing leads to another;" i.e., that if you possess adult pornography, that'll lead you to molest children.

But even that's not the issue here.  Rather, the condition also goes on to order Mr. Gnirke to "not patronize any place where such materials or entertainment are available."  Which, as the Ninth Circuit notes, "prevents him from setting foot inside his local Walmart, a library that loans R-rated movies, or a movie theater showing an R-rated film with a simulated sex scene (even if Gnirke enters the theater to see a different film)."

That's too much for Judge Christen.  Who holds (joined by Chief Judge Thomas) that that portion of the order is impermissible.

Judge Milan Smith doesn't agree.  He'd hold that even this provision is perfectly fine.  Gotta keep the perverts away from everything.  Even the local Walmart and library.

Tuesday, December 30, 2014

Henry v. Ryan (9th Cir. - Dec. 30, 2014)

It starts here with the panel opinion last year.  Then, earlier this year, the panel decided not to reconsider its opinion.  But, several months ago, the case gets taken en banc, over a blistering dissent.  The Ninth Circuit wants to see whether this death penalty case could be affected by a contemporaneous case that has also been taken en banc.

But 2014 ends not with a bang, but with a whimper.  The case gets voted as "related" to the other case, which means the same panel now resolves both.  Argument's then heard in the first case.  And, today, the Ninth Circuit says:  No big deal.

No need to do anything further in this one.  No stay.  En banc proceedings over.  Mandate issues forthwith.

Good luck with the Supreme Court, Mr. Henry.  Because you're getting nothing from the Ninth.

Which in turn means that he should enjoy 2014.  Because he's unlikely to see the end of 2015.


Monday, December 29, 2014

Mann v. Ryan (9th Cir. - Dec. 29, 2014)

Welcome to the new era.

Published opinions get rare around Christmas time for both the Ninth Circuit and the California appellate courts.  But today we get something from the Ninth Circuit.  It's an opinion by now-Chief Judge Thomas, joined by Judge Reinhardt, with a dissent by former-Chief Judge Kozinski.  In a death penalty case, no less.

Can't ask for a much smarter, or more distinguished, panel.  Not surprised to see the lineup, either.

Chief Judge Thomas says that Eric Mann received ineffective assistance of counsel at the sentencing phase (albeit not at the conviction stage) because his attorney failed to investigate -- or present at trial --some pretty huge mitigating facts.  Judge Kozinski, by contrast, says that the Ninth Circuit's at it again, and that the Supreme Court will summarily reverse or Mann will just get his death sentence reimposed on remand.

The latter's certainly a possibility.  So's the former.

As for who has the better normative argument, well, I'll leave that to the authors.  I can't add much more than what's in their respective opinions.

I will say one thing, however.  When you decide to rip off a kilo of coke from a drug dealer by giving him a shoebox full of paper instead of money, I suggest three things.  First, be a good shot.  Mr. Mann had that one covered.  His first shot went straight through the heart of the first guy, and his second shot severed the aorta of the second guy.  Second, have a plan to dispose of the bodies.  Mr. Mann did not initially satisfy this requirement, but he thought up a good one pretty quickly.  He cleaned his house, recovered the bullets, patched the holes, dumped the bodies, and hammered down the guns and ditched them in a lake.

Finally, if you've got a confederate for all of the above, don't piss her off.

That last thing is what tripped up Mr. Mann.

The police searched the house right after the murders, and found the patches, but couldn't definitively pin the murders on him.  So the double homicide when cold.  For four years.

But Mann's girlfriend, who knew about (and saw) the whole thing, eventually got tired of Mann's abuse and took their daughter and moved from Arizona to live with her father in Washington.  And, shortly thereafter, told the police about the crime.

Hence Mann's conviction and presently-vacated death penalty.

The lesson for 2014 is to not commit double murders.  Or, if you do, to be nice to the witnesses thereof for the rest of your life.

Monday, December 22, 2014

San Luis v. Locke (9th Cir. - Dec. 22, 2014)

It's got an 11-page, single-spaced caption!  It's got a four-page "Table of Contents"!  It's 80 single-spaced pages long!  It ends with a two-page "Glossary of Terms"!  It's an environmental case about whether the National Marine Fisheries Service ("NMFS") properly complied with the Administrative Procedures Act ("APA") when it developed its Biological Opinion ("BiOp") to evaluate under the Endangered Species Act ("ESA") the impact of the plans of the Department of Interior's Bureau of Reclamation ("Reclamation") to extract water in California's Central Valley to the possible detriment of the "Delta's endangered Salmonids"!

I can't pitch today's opinion by Judge Tallman any better than that.

Friday, December 19, 2014

Graciano v. Mercury Ins. Co. (Cal. Ct. App. - Nov. 12, 2104)

I agree with the Court of Appeal.  There are plenty of cases in which an insurance company acts in bad faith by failing to timely accept a policy limits demand.  The trial court thought that this was one of them.

But it's not.  The insurance company could have perhaps gotten its act together a little better and perhaps a little faster.  But it acted, in my view, pretty darn reasonably.  Plaintiff's (understandable) effort to set up a bad faith claim worked below.  But even though the insurer wasn't perfect, it was not properly found liable for bad faith.

Check out the facts and see if you agree with me and the Court of Appeal or with the trial court.

Thursday, December 18, 2014

Lennar Homes v. Stephens (Cal. Ct. App. - Dec. 18, 2014)

Pigs get fat.  Hogs get slaughtered.

Lennar Homes of California learns that lesson today.

It put an incredibly onerous "indemnity" clause into its contract of adhesion with its home buyers, and then tried to enforce that clause to force a named plaintiff in a class action suit against it to pay all of Lennar's attorney's fees.

The trial court granted the home buyer's motion to strike Lennar's indemnity action under the anti-SLAPP statute, and the Court of Appeal affirms, finding the clause unconscionable.

So now Lennar has to pay the other side's attorney's fees for trying to force it to pay theirs.

Don't be greedy.

Wednesday, December 17, 2014

Arduini v. Hart (9th Cir. - Dec. 17, 2014)

There's only one published opinion from the Ninth Circuit today.  But it's a procedural doozy.

Do you remember your first year of civil procedure?  That's what this case is all about.  (At least as I read it.)  It's about the intersection between issue preclusion and the Erie doctrine.

Okay.  Stop screaming.  Sorry to take you back to that nightmarish era.  Fear not.  It's over now.  No one's going to test you on this stuff any more.  It's all for fun at this point.

Here's the basic scoop.  Shareholder A files a shareholder derivative suit against Company.  It gets dismissed because the shareholder never made a demand on the directors, with the court finding that a demand wouldn't have necessarily been futile.  Thereafter, Shareholder B files a similar derivative suit against Company, again without making a prior demand.  Shareholders A and B are entirely unrelated (different parties, counsel, etc.) apart from being shareholders in the same company.

Does the prior dismissal of the first lawsuit operate as issue preclusion, and thereby compel the dismissal of the second lawsuit, with respect to the futility of a demand?

The Ninth Circuit says "Yes."

Before we talk about Judge Callahan's conclusion, however, we have to mention something that her opinion somewhat curiously omits:  Erie.

Judge Callahan expressly analyzes issue preclusion here according to Nevada law.  Which might make some initial sense, since the first lawsuit was indeed filed in Nevada.

But there's a problem.  A little thing called Erie.  Because the first lawsuit was filed in federal court, not state court.

Preclusion is generally governed by the law of the rendering court.  That way the parties can know in advance what claims and/or issues will be subsequently precluded, and can conduct themselves in the litigation accordingly.  Makes sense.  Hence, if the first lawsuit had been filed in Nevada state court, of course Nevada issue preclusion would apply.

But it wasn't.  It was filed in federal court.

What issue preclusion rules apply when the first lawsuit's filed there?

If you're smart, you might think:  "Federal principles, of course."  On the same theory:  predictability, plus uniformity (of federal common law).

That might, in fact, be the right rule.  But, at least in contemporary jurisprudence, whether that's the extant rule is not so clear.

This much is clear:  If the first lawsuit's filed in federal court and it's a federal question case (i.e., the dispute is governed by federal law), federal issue preclusion rules clearly apply.  The Supreme Court has expressly said so.  Every circuit agrees.  End of story.

Judge Callahan's opinion doesn't say whether the first lawsuit at issue here invoked federal question jurisdiction.  That's a serious omission.  Because if it did, then the Ninth Circuit should be applying (and citing) Nevada law -- which would be irrelevant -- but rather, federal common law.

That's the first problem.

But, as it happens, I went back and did some digging, and it at least appears that at least one of the first shareholder derivative lawsuits was indeed a diversity (rather than federal question) case.  (I say "appears" because there's only the briefest reference in the relevant documents; moreover, there are in fact multiple prior derivative lawsuits here, something that only further complicates things.)  If that's the case, then maybe Judge Callahan rightly analyzes the issue pursuant to Nevada law.  Even if the opinion should probably mention expressly why we're applying state law here rather than federal law given that the first lawsuit was filed in federal court.

Except it's not even that easy.  Because it's unclear to me that even in a pure diversity case we should in fact be applying state law.

Recall that issue preclusion is expressly governed by federal law -- the law of the rendering court -- in federal question cases.  Recall too that issue preclusion is governed by state law when the first suit was filed in state court; again, the law of the rendering court.  That even appears to be true (I assume) when the state lawsuit contains a federal claim.  We don't care about the substantive claim for issue preclusion purposes; we simply care about the forum in which the suit was litigated.  Those are the res judicata principles that apply.

Except maybe it's not.

Sure, sometimes the Ninth Circuit has said that's the rule; e.g., that res judicata is governed by federal law (consistent with Supreme Court precedent) when the rendering court was federal.  But, when it's being more careful, the Ninth Circuit has also drawn a distinction between federal question as opposed to diversity cases, saying that issue preclusion should only be governed by federal law when the first lawsuit was a federal question case but should be governed by state law when the first lawsuit was a diversity case.

Why does the Ninth Circuit so hold?  Truth be told, there's probably a little holdover in that regard from some pre-Erie precedent.  But there's also an articulated policy rationale as well:  maybe we want to say that issue preclusion is "substantive" (even though that's not, in fact, the right standard under the Erie doctrine; nonetheless, it's close enough) and hence that the federal court's judgment in a diversity suit should be decided according to state law.

There are, however, tons of problems with such an approach.  (Recall also that we're assuming for purposes of argument that the prior suit here was a straight diversity suit; today's opinion doesn't say, and doesn't explain why it's applying Nevada law.)  For one thing, it seems weird.  Sure, sometimes we apply the forum state's law's; e.g., its statute of limitations.  But doing so with respect to issue preclusion seems strange, especially since this seems more of a "procedural" thing (e.g., the future effect of the judgment) and also because the diversity case might be applying the substantive law of a different state (e.g., here, Delaware) and yet we're applying Nevada substantive law to preclusion.  A mish-mash that's got a lot going against it.

Plus there's a matter of precedent.  Lots of circuits have held that federal preclusion law applies when the first suit was filed in federal court regardless of whether that action was a diversity or federal question case.  To the extent the Ninth Circuit wants to go the other way, we're creating a circuit split and heightening the already-problematic nonuniformity that arises from applying state preclusion law to federal judgments.

Oh, one more thing thing.  What do you do when there are multiple suits?  For example, doing a little more digging, in the present case, it looks like there were many different shareholder derivative suits, including but not limited to one (mentioned by Judge Callahan in footnote one of her opinion) that it appears raised federal question claims -- as is not entirely unusual, since derivative suits often raise federal securities counts.  When there's a federal question suit and a diversity suit, which preclusion law applies?  Why?  Especially when (as it often the case) they get consolidated and resolved at the same time.

Plus, what about prior cases that raise federal question claims and supplemental state law claims?  Do you apply federal or state preclusion law to those?  Or, bizarrely, both?  Now we're just getting weird.

Notice how applying federal law to determine the preclusive effect of all federal judgments avoids this complexity.  One rule.  One ring to rule them all.  Nice, simple, and straightforward.

So that's problem number one.  As well as two.  Judge Callahan's opinion doesn't say why she elects to apply Nevada law.  And there's good reason to think that might not be the right rule when you dig down and think deeply about it.

Let's now discuss problem number three.

Regardless of which law one applies -- and I think it's important (for straightforward reasons) to get this initial question right -- I blanch a little bit at saying that the outcome of a prior suit is res judicata of a subsequent suit when the plaintiffs in those two lawsuits are completely different.

Recall the usual rule from your first-year civil procedure class.  When P1 sues D, that doesn't stop P2 from suing D.  Either through claim or issue preclusion.  Why not, even if the issues are identical?  Because P1 hasn't had his day in court.  Moreover, this isn't just a prudential rule.  It's a matter of core constitutional rights.  The Due Process Clause bars us from precluding P1 in such a setting.

So why does the Ninth Circuit think that fundamental principle doesn't apply here?

You probably didn't go over the "privity" exception much in law school, but that's why.  The Ninth Circuit says that even though P1 and P2 are different shareholders, they're nonetheless in privity -- and hence issue preclusion applies -- because they're (1) both stockholders, and (2) both suing on behalf of the same company.  Since the "corporation" is the nominal party in a derivative suit, Judge Callahan says, it's the "same" party.  Hence the Due Process Clause doesn't apply and you're bound.

Whatchathink?

Admittedly, Judge Callahan's position has a lot going for it.  It is a derivative suit, after all,  Which is indeed technically the "company" filing suit.  So she's right?  Same party?  Or at least in privity?

I get it.  But I'm still troubled.

For one thing, if that's indeed the rule, and the parties are in privity, then isn't the lawsuit barred by claim preclusion as well?  After all, same transaction, same parties.  Why limit yourself to piddly issue preclusion, and instead go for "true" res judicata?

More centrally, I've got a profound problem with saying that the corporation is the "real" party to the suit given that the suit was dismissed.  Remember:  We're trying to figure out the preclusive effect of a judgment in which the court expressly held that the shareholder was not allowed to sue on behalf of the company since he didn't first make a demand.  Well, if he couldn't sue on behalf of the company, then he didn't in fact represent the company, right?  Which means that he's not in privity.  And yet the Ninth Circuit today holds that he did.

Doesn't that seem weird to you?

The first court held that X wasn't allowed to represent the company.  Then Y wants to represent the company.  At which point a second court says that Y can't represent the company since X already represented the company.

Huh?

To me, the analogy to putative class actions seems pretty strong.  Sure, a dude may file a lawsuit that asserts class claims.  But if it's not certified, he does not, in fact, represent the class.  And included in that result is the fact that this prior putative lawsuit doesn't bar future lawsuits -- whether individual or class claims -- via res judicata.  It's an individual claim even though it tried to assert class claims.

What's true for class claims should equally be true for derivative claims, no?

So it seems to me that there's a strong argument that, whatever law applies, policy concerns -- as well as the Due Process Clause -- might well bar a finding of privity in dueling derivative claims like those here.

Judge Callahan's contrary approach also results in the strange types of machinations you see arise in the last part of her opinion.  Because she holds that Party A "represented" the company (even though he wasn't allowed to) in the first derivative suit, and hence is in privity with Party B, issue preclusion will apply (she says) to bar the second suit.  But she concedes, as indeed she must, that under the Due Process clause, that won't be the case if Party A) was an "inadequate representative" of Party B.  That is the Hansberry v. Lee case you may recall from your first year of law school:  the one that involved the racially restrictive covenants.

So now you have the second shareholder representative claiming that the first one was inadequate.  In part relying on the holding of the first court that the first plaintiff was indeed inadequate because he did not make a demand on the company.  All this stuff coming after the first lawsuit was dismissed.

The class action analogy again seems strong to me.  Normally we dispute the adequacy of the putative class representative at the certification stage.  If he's adequate, the lawsuit is certified and is allowed to go forward, and there is now preclusion (both issue and claim).  If he's not, it's not, and there's no future preclusion.  But Judge Callahan says that, in derivative suits, the rule is different.  I'm not sure that's the better principle.  Or practice.  Seems to me that a retrospective assessment of the adequacy of a representative who was never, in fact, allowed to represented the company isn't really helpful.  Or at least is inferior to a contemporary assessment.  Seems to me better to instead say that you're not in privity until you're actually allowed to represent the company.

None of this would stop res judicata if the derivative suit was in fact resolved on the merits.  If the first suit was indeed allowed forward, but simply lost, well, I'll spot you, there may well be privity (and hence issue preclusion) then.  At that point, the plaintiff does, in fact, represent the company, and the "company" can't sue again, even though another shareholder.

But that's not this case.  Here, the lawsuit never went forward.  It was dismissed on procedural grounds and the plaintiff wasn't permitted to represent the company on the merits.  To me, that's inconsistent with a finding of privity.  On whatever law -- federal, Nevada, Delaware, or Venusian -- we might feel like applying.  At least if the law is to make sense.

All of which is to say -- in many, many words -- that there are profound Erie and preclusion issues raised by today's Ninth Circuit opinion.

Monday, December 15, 2014

Abdisalan v. Holder (9th Cir. - Dec. 15, 2014)

Sometimes circuit precedent matters.

Judge Tallman writes a panel opinion in an immigration case that concludes that, under circuit precedent, Ms. Abdisalan's appeal is untimely.  Judge Watford thinks that this decision is unjust, and dissents, arguing that the relevant circuit precedent is distinguishable and was undercut by subsequent circuit precedent.

The case gets taken en banc.  Now no one's bound by circuit precedent.

What's the resulting vote?  11-0.  Including Judge Tallman, who's on the en banc panel.  The bad circuit precedent is overruled, and a new -- fairer-- procedural regime is imposed.

To tell the whole truth, it might not just be circuit precedent that's at work here.  The old regime (i.e., the one that's overruled today) was created by a panel opinion in 2011.  Written by . . . Judge Tallman.  (Joined by Judges Fernandez and Rymer.)

Judge Tallman and the rest of the panel surely had a choice back then.  But now, Judge Tallman (1) sees the error of his ways, and/or (2) sees the handwriting on the wall.  So everyone votes to overrule.

That's how law sometimes evolves, my friends.

Vivid Entertainment v. Fielding (9th Cir. - Dec. 15, 2014)

Jobs continue to flow out of California.  And the judiciary is doing absolutely nothing to stop it.

The jobs to which I refer are jobs that arise from legalized vice.  The industry is simply on the decline in our state.

On the gambling side, we've always been a distant second to Las Vegas, and our state-sponsored gambling took a hit when we finally gave up relying on our own thing and joined the multistate Powerball in 2013.  As for drugs, we were in the forefront for a while in the medical marijuana space, but now neighbors like Oregon and Washington have crushed us, legalizing the thing outright last month.

But at least we still have the porn industry, right?  Surely the San Fernando valley will always be the hub of this time-honored profession?

No.  Not after today.

This morning the Ninth Circuit rejected an appeal that claimed that the recent imposition of a mandatory condom regime (and other ancillary regulations) by Los Angeles was unconstitutional.  Not surprisingly, the fact that performers have to wear condoms in L.A. but not in other cities -- or countries -- has resulted in a wholesale flight from the jurisdiction.

But say goodbye.  The Ninth Circuit holds that the voter-initiated Measure B doesn't violate the First Amendment.  Judge Graber analogizes the law to regulations that require g-strings.  You can still do what you want to do, and express what you want to express.  But you have to do it in a way that covers up a tiny little bit.  (And, yes, I realize that the use of the words "tiny" and "little" as applied to this industry is perhaps a slight misnomer.)

For what it's worth, Judge Kozinski was on this panel as well.  And doesn't write anything witty on the side.

The outflood of vice-related jobs continues.

Friday, December 12, 2014

Peterson v. Bank of America (Cal. Ct. App. - Dec. 11, 2014)

I have -- perhaps surprisingly -- no problem at all with the 965 plaintiff, 3,142-page complaint filed in this case.  None whatsoever.

Yes, that's a lot of plaintiffs.  Yes, that's a hefty complaint.  Definitely not the kind of "short and plain" pleading expressly required on the federal side.

But Justice Bedsworth is right.  It meets the joinder standards.  Countrywide allegedly did the same (or nearly the same) thing with every loan.  It inflated the appraisal with an in-house entity, wrote the loan and then sold it on the secondary market in order to pocket the proceeds, deceived the borrower, and made out like a bandit -- until the scheme (and market) collapsed.

Sure, there are various differences in the stories.  Just like when a drunk driver crashes into a crowd of people, there are different injuries, different amounts of lost wages, different ways they were hit, etc. that we have to sort out.  But that doesn't stop joinder.  Not in criminal cases.  Not in civil cases.  What Countrywide (allegedly) did is not qualitatively different.

Moreover, the practical realities that Justice Bedsworth raises are exactly right.  It does the courts no good to split this one case into 965.  Moreover, it does the plaintiffs affirmative harm.  Economies of scale exist.  One scheduling order, one set of depositions, one trial, etc.  Makes total sense.  Not 965 different filing fees against a consolidated adversary.

Indeed, perhaps most surprising, if anything, I'm not sure that Justice Bedsworth's opinion goes far enough.  He repeatedly characterizes this case as essentially a "mass action" -- and/or very similar to a class action -- and urges the trial court on remand to deal with subclasses and the like.  I'm not sure I agree.  It's not a mass action.  It doesn't have to be -- and maybe even shouldn't be -- a class action.  It is a group of plaintiffs filing a lawsuit.  No different, again, than a group of plaintiffs hit by a drunk driver or injured in a chemical spill or killed in an airplane crash.  They can sue together.  We deal with any complexities arising therefrom with the normal severance, bifurcation, and severance regimes relevant to individual actions.  I think those more than suffice.

Am I necessarily against putting certain groups of plaintiffs more closely together; e.g., letting all the plaintiffs injured in X way or deceived in Y fashion go to trial together, an putting the W and/or Z plaintiffs on a different track?  No.  Do I think the complaint needs to be over 14 inches tall?  No.  It can definitely be much, much shorter.  (Though I totally understand why the plaintiffs, in light of the ever-increasingly-strict pleading requirements, erred on the side of caution here.)

But as for the case being properly filed, it is.  It should go forward.  There's absolutely no reason why Countrywide should be allowed to force the plaintiff to pay 965 filing fees and undertake 965 trials.

Justice Fybel disagrees with Justice Bedsworth, and dissents.  I'm sure that Judge Fybel would disagree with my approach even more.

Read both opinions.  See who you think's right.

Pacific Corporate Group Holdings LLC v. Keck (Cal. Ct. App. - Dec. 12, 2014)

What a jurisdictional mess.

If you think it's easy to figure out if you can appeal -- and/or on what issues -- when the trial court imposes an additur (e.g., grants a conditional new trial) and the defendant doesn't consent, this case will disabuse you of that notion.  Instead, it's an absolute nightmare to figure out, and Justice Aaron goes through the various conflicting opinions and caveats and exceptions that govern this topic and sorts them out as best she sees fit.

My own opinion, upon reading this whole thing, was that a much more straightforward solution was in order:  Just don't allow an appeal until the new trial on damages is over.  On anything.  At all.

That's what we essentially do in the federal system.  And it seems to work out just fine.

I understand that's not an option that the Court of Appeal has given existing state precedent.  But it's something the California Supreme Court might well want to consider.

If only because cases like this one are a sloppy mess of piecemeal review.

Thursday, December 11, 2014

People v. Hernandez (Cal. Ct. App. - Dec. 11, 2014)

The police are interrogating a 16-year old murder suspect.  The kid is in a gang, and he's worried that if his gang friends find out that he's said anything to the police, they'll kill him in prison.  The 16-year old tells the officer:

"You’d be surprised all the things they know, man. Everybody [who] snitches, they get killed in prison, sooner or later. They know, they know somehow. They find out. That’s, that’s, that’s how bad those people are. And you say you’re not gonna say nothing. Someone’s gonna find out no matter what. What I just said right now, is gonna get me killed sooner or later. By my own people, man. I know you’re gonna tell someone else."

A legitimate fear, to be sure.

But fear not.  We can trust the police.  Here's what the officer tells the 16-year old:

“[Defendant]: If I talk, nobody’s gonna know?
Detective: It’s gonna be between us, bro. It’s between us right here.
[Defendant]: Promise?
Detective: I promise. It’s with us right here. Okay? I do have to write everything down, eventually, because I gotta type, uh, for, like, ever. But just be honest, brother.”

Don't worry.  It's between us right here.  I promise.

Oh, and I also have a beautiful bridge in Brooklyn I would like you to see.

I'll not further complicate things by adding the stuff about the 16-year old repeatedly saying that he wanted to pee but the officer not letting him.  That'd be piling on.

The Court of Appeal affirms the conviction notwithstanding the promises on the basis of wiggle room in the officer's representations to the kid.  So, yeah, the officer repeatedly promised that whatever was said would stay "between us right here".  But he also said that he would eventually "have to write everything down."  A caveat that I'm certain the 16-year old understood meant that the "promise" had absolutely no significance and that any admission would be played out in front of his gang member friends in a public trial.  Because 16-year olds are incredibly, incredibly smart.  Especially 16-year old gang members.

The Supreme Court allows officers to deliberately lie to suspects.  So that's the law.  But cases like this demonstrate that there's nonetheless a downside -- both public relations and otherwise -- to this permitted (and routine) practice.

Once everyone learns, as they should, that you can't trust a word that a police officer says to you -- even when (as here) they expressly say "I promise" -- that realization may have profound significance for future interactions between the police and the citizenry.

Wednesday, December 10, 2014

Fiorini v. City Brewing Co. (Cal. Ct. App. - Nov. 6, 2014)

The first line of this opinion reads:  "Ron A. Fiorini (Fiorini), a 23-year-old college student at Fresno Pacific University, was shot to death by police on October 5, 2010. . . ."  So you already know what the suit is about, right?  Particularly timely given the current disputes in Ferguson, New York, etc.

Wrong.  Look again at the title of this post.  And I'll complete the first sentence:  ". . . after drinking two 23.5-ounce cans of Four Loko."

Now you know where it's going, right?  Yep.  "Fiorini’s father, Brett Fiorini (plaintiff), sued City Brewing Company, LLC (City Brewing), the company that brewed, bottled, and labeled Four Loko, for negligence and strict liability."

Seriously?  No way he's going to win that lawsuit, right?  You can't sue Corona for getting you killed (or sunburned), can you?

Well, wait a minute.  Four Loko ain't exactly Corona Light.  Check out the next two sentences of the opinion:  "He alleged a single can of Four Loko contained as much alcohol as five to six 12-ounce cans of beer and as much caffeine as approximately four cans of Coca-Cola. He also alleged that combining alcohol, a depressant, with caffeine and other stimulants created a product that had unreasonably dangerous propensities because it masked the intoxicating effect of the alcohol and increased the risk of violent and other high-risk behavior."

Okay.  So not good.  But it's a legal product.  Not like it's methamphetamine.  Maybe the police are liable.  Maybe the deceased is responsible.  But surely not the brewer, right?

That's indeed what the defendant said.  Next sentence:  "City Brewing moved for judgment on the pleadings, contending that the proximate cause of an alcohol-related injury was the consumption of the intoxicating beverage, not the manufacture and sale of the beverage."

Result?  Next sentence:  "The trial court granted the motion, concluding City Brewing was protected by the civil immunity in California’s dram shop statutes because (1) Four Loko was fit for beverage purposes, and (2) City Brewing furnished the beverage to Fiorini."

Simple enough.  The Court of Appeal will surely affirm, right?  No way we're going to expand liability this far.  Even for a crazy mix of alcohol and caffeine.

Next three paragraphs:

"We must determine whether the civil immunity provided by California’s dram shop statutes protects the manufacturer of Four Loko from liability for injuries to consumers. The immunity applies to persons who furnish alcoholic beverages to the individuals who drink them. Prior cases have interpreted “furnish” to require the defendant to have some control of the alcohol and to take an affirmative step to supply it to the consumer. Here, the complaint does not allege City Brewing (1) exercised any control over the cans of Four Loko after they were delivered to a regional distributor or
(2) took an affirmative step to supply the Four Loko to Fiorini. Therefore, we conclude City Brewing did not “furnish” the beverage to Fiorini and, therefore, the civil immunity in California’s dram shop statutes do not extend to City Brewing.

In addition, judgment on the pleadings cannot be upheld based on the statutory immunity that bars product liability claims for certain inherently unsafe common consumer products. (Civ. Code, § 1714. 45, subd. (a).) That statute lists alcohol as such a product, but plaintiff has alleged Four Loko was unreasonably dangerous due to the combination of high levels of alcohol and stimulants and the risk posed by stimulants that mask the intoxicating effect of the alcohol. The allegations about the interactive effect of Four Loko’s ingredients preclude us from finding, as a matter of law, that Four Loko’s combination of alcohol and stimulants constitutes a “common consumer product” within the meaning of Civil Code section 1714.45, subdivision (a)(2).

Therefore, the judgment must be reversed and the matter remanded to the trial court for further proceedings."

Read the remaining 23 pages for more details.  But the net effect is that plaintiff's lawsuit goes forward.

Fascinating stuff.

Tuesday, December 09, 2014

In Re Jose O. (Cal. Ct. App. - Dec. 9, 2014)

Jose thinks that he should merely be a dependent of the court, not a delinquent.  But when the court summarizes your problems like this, you're not in an especially favorable situation:

"Jose has struggled to abide by the rules and regulations of his group homes. Jose has failed to obey the law . . . and has shown a pattern of delinquent,high-risk behavior. Jose appears to have issues regarding substance abuse and gangs. Jose poses a risk to himself and to the community and appears to be in need of supervision and immediate consequence. [¶] . . . Jose’s gang status has increased to a point that child welfare services have been ineffective in addressing his needs or the needs of the family. He has been AWOL from group home placement since September 10, 2013. During this time relatives knew of his whereabouts but remained voiceless about assisting in his return. Meanwhile, his criminal and gang issues exacerbated."

I'm not going to even attempt to list all of Jose's assaults, gang-related behavior, etc.  There's only so much (virtual) space on this blog.  Suffice it to say that Jose is, indeed, a delinquent.

Which is not to say that it's entirely Jose's fault.  "[T]here had been “37 referrals for the investigation of child abuse or neglect associated with [Jose’s] family' dating back to late 2002, when Jose was four years old. As a result of these referrals, several child-welfare cases were opened, the most recent resulting in Jose’s placement in the Antioch group home from which he had run away."  He's in part a product of his environment.

But at some point, we start holding you accountable for who you are and what you do.

Here, that's at the age of fifteen.

Monday, December 08, 2014

Alvarez v. Tracy (9th Cir. - Dec. 8, 2014)

If you're a judge on the Ninth Circuit, it's gotta make your week if you wake up and find that you're on the receiving end of a blistering dissent by Judge Kozinski.  You gotta be thinking:  "This is why I wanted to be on the Ninth Circuit?!"

Not that Judge Kozinski is always right.  At all.  But he's got a way of saying things that's flashy.  As well as memorable.  And this just in:  He pulls punches.  Not.

You can read the couple of dozen single-spaced pages that he devotes to his dissent in this one, which responds to an opinion by Judge Randy Smith joined by Judge O'Scannlain.  But the following is sufficient to give you a good feel for the thing.  As well as, perhaps, to entice you to read it:

"When we take the judicial oath of office, we swear to “administer justice without respect to persons, and do equal right to the poor and to the rich . . . .” 28 U.S.C. § 453. I understand this to mean that we must not merely be impartial, but must appear to be impartial to a disinterested observer. Today we do not live up to this solemn responsibility. Relying on a ground not raised by either party here or in the district court, we refuse to consider petitioner’s serious and, in my opinion, meritorious claims. This is only the latest indignity inflicted on a criminal defendant who, despite having a seventh-grade education, was forced to defend himself at trial; although having the right to a jury, was never told that he had to ask for one; and who was therefore convicted and sentenced to eight years in prison in a bench trial where neither the prosecution nor the judge lifted a finger to bring the accusing witness into court. He’d have had a fairer shake in a tribunal run by marsupials.

I am troubled by the disparate way we treat the parties. Alvarez and the Community both failed to raise legal issues at the proper time and in the proper manner. Alvarez failed to raise his jury trial and confrontation claims by way of a direct appeal within the tribal court; the Community failed to raise an exhaustion defense in district court. The Community committed an additional default by also failing to raise this issue on appeal—something we’ve repeatedly held is an independently sufficient basis for declining to address it. [Cites]

The majority forgives the Community’s double-default but holds Alvarez strictly to his single oversight. I can’t see the justice in this, but it gets worse: Alvarez committed his default when he stood before the Community court without representation. It’s not clear that he was ever advised of a
right to take an appeal. But if he was, it happened months before his trial. After he was convicted and sentenced to eight years in prison, he was not reminded of his right to appeal; he was given no notice-of-appeal form or other guidance about how to take an appeal. He was incarcerated with no ready access to legal materials and faced a 5-day filing deadline—shorter than any I’ve ever heard of.

The Community, by contrast, was at all times represented by competent (and presumably well-compensated) counsel. It was fully aware that failure to exhaust was a plausible defense, and raised three separate exhaustion arguments in the district court (though not the one that my colleagues are so taken with). It then chose not to argue exhaustion at all in its appeal to us.

Confronted with this checkered procedural history, we might hold both parties to their defaults. That would have an appearance of fairness. Or, we could forgive both parties their defaults, which also seems fair. But if we do either of these things, the exhaustion issue drops out, and we must rule on the merits of Alvarez’s petition. The only way to reach the majority’s result here is by excusing the Community’s defaults while holding Alvarez strictly to his—which is just what my colleagues do.

I have read the opinion many times and disagree with pretty much everything in it, including the numerals and punctuation. I explain why in the pages that follow, but first I pose a more basic question: How can a court committed to justice, as our court surely is, reach a result in which the litigant who can afford a lawyer is forgiven its multiple defaults while the poor, uneducated, uncounseled petitioner has his feet held to the fire? I attribute no ill will or improper motive to my excellent colleagues. They are fair, honorable and dedicated jurists who are doing what they earnestly
believe is right. But we see the world very differently. See, e.g., United States v. Pineda-Moreno, 617 F.3d 1120, 1123 (9th Cir. 2010) (Kozinski, C.J., dissenting from denial of rehearing en banc). I can find no justification for showing such solicitude for the overdog while giving the underdog the back of the hand."

The "I disagree with even the punctuation" point perhaps goes a bit too far (as well as is silly).  But you get the point.

Clearly.

P.S. - The Ninth Circuit's web site lists the opinion as authored by Milan Smith.  But it's actually Randy.  Which is not just a "Smith v. Smith" error.  The two might actually have come out opposite ways in this one had both been on the panel.