California Appellate Report

Kaye v. Trustees of San Diego County Public Law Library (Cal. Ct. App. - Nov. 10, 2009)

2009-11-11T11:34:00.000-08:00

Things were not happy at the San Diego County Public Law Library. Read the whole thing for a peek inside an office that was at least partially dysfunctional. Whether the result of one whacko staff member or a broader institutional problem is, of course, the genesis of the dispute.

Though I'll add that the individual employee -- Michael Kaye -- loses this case, on summary judgment at that, which may shed some light as to at least how some people see the thing.

More generally, this case is a concrete reminder that you should not -- I repeat, not -- send long, rambling e-mails to your work colleagues. Even about things that you think are deeply important and worthy of profound workplace discussion. Yes, it seems important at the time. Yes, you have really strong feelings on the topic, and really think that these issues need to be addressed. And trust me that I know it's so, so easy to just hit the "send" button.

But pause. Sleep on it. Take a fresh look at the proposed e-mail the next day. Ask a trusted friend to review it first. Make sure you really, really want to send it.

Doing that may well save your job. As I strongly suspect it would have saved Kaye's job here.

National Parks v. Kaiser Eagle Mountain (9th Cir. - Nov. 10, 2009)

2009-11-10T13:09:00.000-08:00

Here's a quick quiz for the afternoon. It's an incredibly easy one, so if you fail it, you should give yourself a serious spanking, and study some more regarding who's who on the Ninth Circuit.

Judges Pregerson, Paez and Trott are drawn for an environmental law case. There's a majority opinion and a dissent. Judge Pregerson writes one of 'em, and Judge Trott write the other.

Who's the author of the following, which are in the first and final paragraphs of his opinion:

"What sane person would want to attempt to acquire property for a landfill? Our well-meaning environmental laws have unintentionally made such an endeavor a fool’s errand. This case is yet another example of how daunting — if not impossible — such an adventure can be. Ulysses thought he encountered fearsome obstacles as he headed home to Ithaca on the Argo, but nothing that compares to the “due process” of unchecked environmental law. Not the Cyclops, not the Sirens, and not even Scylla and Charybdis can measure up to the obstacles Kaiser has faced in this endeavor. . . .

I end with the Technical Advisory Panel’s evaluation: “the proposed Eagle Mountain Landfill could well become one of the world’s safest landfills and a model for others to emulate.” Don’t hold your breath."

Does that sound like Judge Pregerson, or Judge Trott?

Read the entire 87 pages of this one to figure out the answer. Which, coincidentally, is an entirely appropriate punishment if you don't know enough already to figure out who's who.

POSTSCRIPT - I definitely can't take credit for the following, by the way, but a reader in black robes e-mailed me to mention that Ulysses wasn't on the Argo. And to chide me -- and rightly so -- for not catching it. My bad. Though, in retrospect, yeah, I totally knew this story (at least in vague terms), so wonder why I skipped over that. I even knew about the Sirens and the Cyclops (though had forgotten about Scylla and Charybdis). Also funny that Judge Trott knows all this stuff but still makes the error. I put that down to a temporary mental block, and am sure we'll see an amendment. (Which also leads me to wonder if Pregerson and Paez's chambers made the same oversight that I did, or whether they noticed the error in the dissent but decided not to mention it. Which would be totally harsh.)

In Re Matter of Smith (9th Cir. - Nov. 10, 2009)

2009-11-10T12:23:00.001-08:00

For all those civil lawyers out there (and even you criminal folks), let me ask you this: How many hours do you think it would take you -- total -- to defend a complex multi-count fraud, money-laundering and conspiracy felony trial in federal court? Five hundred? A thousand? More?

Plus, ask yourself this: If a client came in and asked you to offer them a flat fee, what would you quote them? Assume, of course, that you had the expertise to do the case. Here's one more fact that might be relevant: The trial alone is going to take a full week.

I ask all this because this morning, Judge Tallman -- acting in his capacity as the Chief Judge's delegate in the Northern Administrative Unit for indigent defendant CJA fee issues -- reminds everyone what the actual federal compensation regime is. You get a maximum of $8600. At the princely rate of $110/hour.

Which makes me think about asking my students: "Do you really want to be an appointed private criminal defense attorney?" Or simply to remind everyone of the vast, vast disparity between compensation in the private versus public sector -- or civil versus criminal sector, or appointed versus retained, etc.

I'm not complaining about what Judge Tallman actually does here. The court's allowed to go over the $8600 cap if the case is especially "complex", and that's precisely what the court did here. Mind you, the attorney still makes only $110/hour. But you're at least allowed to spend more hours (or, more accurately, get paid for them) if, in retrospect, the court believes that the matter was complicated.

But Spokane attorney Gerald Smith still gets around half of his requested fees cut. He says in an interim fee request that he wants another $47,000, and he only gets approved for $27,000. At, again, $110/hour. So Smith complains. But Judge Tallman notes that Judge Quackenbush, who is the one to administered the haircut, was both at the trial and is extremely experienced in the assessment of how much work a criminal trial case. Plus, Smith didn't exactly help himself by giving a 10-minute opening statement and not putting on any witnesses. Even if you really did spend an extra 700 hours on the case -- which no one's doubting -- sometimes it's hard to pump your fees up even extra-beyond the statutory maximum when you've got very little to show for it. Either at trial or in the results (since your client was convicted on all counts).

But the larger point is that no one's getting rich on $110/hour and $8600 felony caps. Plus don't forget you've got to pay your overhead with that as well. Plus those $100,000+ in student loans.

Sort of makes you want to get an MBA or go into investment banking, huh?

People v. Hernandez (Cal. Ct. App. - Nov. 9, 2009)

2009-11-09T16:24:00.000-08:00

I can count on one hand the number of times I've seen a petition for rehearing actually succeed in changing the result. It's generally one of the biggest wastes of time -- at least in terms of practical effect -- that you can do in the Court of Appeal.

Can it occasionally (and, even then, rarely) result in minor nonsubstantive changes? Sure. Can an exceptionally well-argued petition for rehearing even sometimes alter the court's legal reasoning? Yep. That very, very rarely happens as well.

But change the actual result? That's almost unheard of. If only because the Court of Appeal has already heard the appeal and decided it. They're busy. They're locked in. Your additional words generally aren't going to matter.

But for even the most ironclad judicial rule, there are exceptions. And here's the exception from earlier today that proves it.

I congratulate Justices Elia, Rushing and Premo. It's very, very easy to just stick with what you have already done. It's harder -- both practically and intellectually -- to devote real effort and think about a petition for rehearing and decide that, you know what, the losing party is actually right. And then change both your mind as well as the result of the appeal. But that's precisely what happens here.

Hernandez was convicted, and the Court of Appeal initially affirmed the conviction. It was, indeed, so easy and straightforward that this initial decision was unpublished. But then his counsel -- Marc Zilversmit (kudos to Marc as well) -- filed a petition for rehearing, basically arguing that what he had said all along was right. And the Court of Appeal agreed, and on that basis reversed the conviction and remanded for a new trial. This time, in a published opinion.

I'm impressed. Extremely, extremely impressed.

It's easy to get it right the first time. It's even easier to think -- or pretend -- you got it right the first time even if you start to doubt yourself.

It's much, much harder to do what the Court of Appeal does here. As well as exceptionally rare.

So when it happens, the Court of Appeal deserves a shout out.

So consider this precisely that.

U.S. v. Ruckes (9th Cir. - Nov. 6, 2009)

2009-11-09T14:00:00.000-08:00

I feel like I shouldn't have to say this. Yet the same basic fact pattern -- with only slight variations -- comes up again and again.

Let's assume you have some crack cocaine and a loaded weapon with you in your vehicle. Is it really wise to go over 80 mph on the I-5? Remember: that's going to give the police probable cause to stop you. Can you really not limit yourself to 65 miles per hour regardless of the cost? You're really that itching to go to prison for the next decade or so?

Oh, yeah. Did I forget to mention that you're driving on a suspended license? Shouldn't hat maybe should factor into your equation too when you're thinking: "Hmm. 65 or 80? What's the best speed for me to choose on this one?" Right?

As for the crack itself, do you also think you could hide it a little better than spack dab in the center console of the car? I mean, come on. During a search the police are going to look there pretty much first thing. And find it. And arrest you. And send you to prison.

And even if the Ninth Circuit subsequently finds that, yeah, they technically shouldn't have searched (because you were already under arrest at the time of the search, and didn't have access to the car any longer), since the stuff was so freaking easy to find, they're still going to affirm. On the ground that the stuff would have been found in an inventory search anyway. Since, again, you made it totally easy.

To summarize. Don't carry crack. Especially alongside weapons. And if you do, don't speed. Or put the stuff virtually in plain sight.

Something to think about as we start our workweek.

Toal v. Tardif (Cal. Ct. App. - Oct. 30, 2009)

2009-11-09T09:16:00.000-08:00

I thought I'd have a problem with this one. But in the end, I probably don't. At least with the end result.

The Toals buy a house from the Tardifs and have a beef with them, and end up suing. Two months after the Tardifs answer, attorneys for both parties say in court that they hope to arbitrate, and the next month the attorneys sign a stipulation to arbitrate. The clients don't personally sign, but the attorneys' signatures say they're "for" the clients.

Then the arbitration proceeds, with no one objecting. As you'd expect, at the arbitration, one of the parties (the Toals) prevails. They then attempt to confirm the award. At which point the Tardifs say: "Hey, we never agreed to arbitrate. Our attorney did that without our knowledge, and then during the arbitration called us a crybaby when we complained [not publicly, of course] about it."

Which, in my opinion, is utter crap, and not at all credible. So the trial court confirms the award. At which point Justice Ikola reverses.

Which, again, I thought I'd be irate about. Since (1) I think the Tardifs did indeed consent, (2) clients are generally bound to what their attorneys do, and (3) I'm sure the Tardifs would not have complained if they had won the arbitration. To me, (3) seems a pretty easy way to affirm. Your "secret" reservations aren't good enough. Call it waiver. Call it forfeiture. When you are willing to obtain the advantages of arbitration by remaining silent, you can't thereafter object if the proceeding doesn't come out your way.

I still think that's right, and would have liked to see someone make that point (and for Justice Ikola to respond to it if he thinks it's wrong). But while Justice Ikola reverses the confirmation, in the end, I think it'll be fine. Since rather than denying confirmation, he just holds that the trial court is required to hold an evidentiary hearing to see whether or not the Tardifs indeed granted their consent. And since I know (or at least think I know) how that one's coming out, I guess I'm okay with the end result. Even if I think a better -- and quicker -- resolution of the appeal might have been to hold that you're not allowed to sandbag your opponent and objecting to arbitration (on the grounds of alleged lack of consent) only after you lose.

Credit Suisse First Boston v. Danning, Gill, Diamond & Kollitz (Cal. Ct. App. - Nov. 3, 2009)

2009-11-06T11:13:00.000-08:00

There are few areas of the law about which I know so strikingly little that I can't tell you in the slightest whether an opinion is totally wrong or totally right. But this is one of those areas.

Judgment debtor statutes, ORAP liens, etc. It's all Greek to me.

But I can say one thing. The opinion by Justice Flier totally sounds right. Even though it might as well be in a foreign language, the writing is so clear and concise that I feel like what she's saying is correct even as I am forced to admit that from sentence to sentence I'm not even sure what she's saying -- and hence, definitionally, shouldn't be able to form an opinion one way or another about whether what she's said is right or not.

That's pretty darn impressive. Good job, Justice Flier.

People v. Medlin (Cal. Ct. App. - Oct. 29, 2009)

2009-11-06T09:43:00.000-08:00

This was especially chilling to me. If only because I could only imagine what it feels like to be totally helpless, and under someone else's total control, when they stick a feeding-tube into your abdomen (rather than your stomach, where it belongs) and you slowly, slowly die over the next several days -- with your eyes wide open, helpless and in pain -- as food continues to pump in your gut and the people in control of your very life do nothing.

Here are the (fair warning: grisly) facts:

"Jeremiah Allen nearly drowned in a surfing accident in October 2003. He was rendered semi comatose and paraplegic. In January 2004, he was admitted to Care Meridian, a long-term care facility at which respondent Medlin was director of nursing and Monterroso was employed as an LVN. . . .

From the time of his accident, Allen had been fed with a size 20 gastrostomy tube, or "G-tube." . . . On June 2 at 3:00 a.m., Monterroso found Allen's G-tube lying beside him on the bed. She did not know how long it had been out. She noted in his chart that he had pulled it out forcibly, but she did not see that happen. She did not call Allen's physician or alert Medlin, and she did not check the standing orders. She had not recently been trained in G-tube placement.

Monterroso replaced the G-tube. She used two methods to try to verify that she had placed the tube in the stomach. First, she used a stethoscope to listen to air passing from a syringe into the stomach (auscultation) and heard a whooshing sound in the abdominal area. Next, she unsuccessfully attempted to aspirate (pull up) gastric fluids. From the absence of gastric fluid, she concluded Allen's stomach was empty.

Monterroso proceeded with Allen's scheduled feedings after 3:00 a.m. and again at 6:00 a.m. She reported in his chart that he tolerated his 3:00 a.m. feeding well, but in the medication check-out record she noted that at about 4:00 a.m. she gave Allen ibuprofen for "discomfort with G-tube removal" and Ativan for "G-tube reinserted, (increased) anxiety." She did not recall any problems with the 6:00 a.m. feeding.

After his 3:00 a.m. feeding, Monterroso noted that Allen was sweating, grimacing and groaning. She testified that she was not concerned because she had seen him sweat, grimace and groan before. She left her shift at 7:00 a.m. without notifying Allen's physician or Medlin of Allen's condition. She did inform the morning LVN, Patsy Carper, that she had replaced Allen's feeding tube. Before Monterroso left Allen appeared restful to her.

Carper observed that Allen was sweating and straining. She testified that he always sweated and strained before having a bowel movement. Carper had worked at the facility for two weeks and had not completed orientation. . . . At about 7:00 a.m., Certified Nursing Assistant, Lazara Lavano, took Allen's vital signs. She noticed that Allen was pale and felt that something was wrong. She had not seen him this way before. She had cared for Allen since his arrival at the facility six months earlier.

Medlin arrived at the facility sometime after 9:00 a.m. At about 10:00 a.m., Lavano and another staff member put Allen in a therapeutic standing frame. Lavano saw that he was breathing fast and perspiring. Allen's therapist saw that he was pale, sweating profusely and his eyes were wide open whereas they were usually closed. The therapist was new at the facility and had treated Allen only once before.

Staff returned Allen to his bed to rest before a scheduled therapy session. Lavano told LVN Carper what had happened. The therapist continued checking on Allen during the morning and Allen continued to sweat profusely.

Sometime between 11:00 a.m. and noon, Lavano took Allen's vitals. He had a fever over 101 degrees. She tried to take his blood pressure but could not hear anything. Another staff member tried and also could not hear anything. Lavano told the morning nurse that Allen had a fever, she could not get his blood pressure and he was pale and did not look good. Lavano used ice to try to cool Allen.

At about 11:00 a.m., Carper asked Medlin to check Allen because he was sweating. Medlin entered Allen's room. Carper told Medlin that Lavano could not hear Allen's blood pressure, but that it was fine because she, Carper, was able to get his blood pressure using palpitation. Medlin, who was sick with a cold, left the room and returned sometime before 1:00 p.m. When he returned, he said, "Oh, he's fine. He's probably competing with me."

Between 11:30 a.m. and noon, Medlin spoke by phone with Allen's treating physician about a routine meeting. Medlin did not mention Allen's condition.

By 1:30 p.m., Allen's temperature was 101.2. Carper reported this to Medlin. She gave Allen Ibuprofin.

Sometime during the afternoon a friend of Allen's came to visit. Allen's eyes were wide open and he looked desperate. Allen's eyes were usually closed. The friend had visited several times before for about an hour each time. He called for help and nurses came in and said, "[Y]ou have to leave now."

At about 1:00 p.m., Allen's physician received a message that Medlin was trying to report a change in Allen's condition. The physician called Medlin's cell phone between 1:00 p.m. and 1:15 p.m. Medlin told the physician that Allen's pulse was under 60 and his oxygen saturation levels had dropped dramatically. Medlin did not tell the physician that Allen's G-tube had been changed. The physician told Medlin that Allen needed to be sent to the emergency department.

Dispatch records showed that facility staff called an ambulance company about an hour later, at 3:21 p.m., requesting a routine transfer of a patient with fever. The call did not come through 911 and there was no dispatch note that transfer was urgent. Paramedics arrived within eight minutes at 3:29 and found Allen dead. They reported that he had rigor mortis in the jaw, his skin was cold and he had lividity. These signs indicated that he had been dead for at least half an hour. . . .

An autopsy determined that Allen's cause death was peritonitis: an infection of the lining of the abdominal cavity which can develop and cause death within hours. The G-tube was found in Allen's abdominal cavity, and the cavity was filled with all of the formula and water that he had been given in the 12 hours before death."

What a nightmare. A chilling, horrible nightmare.

Monterroso and Medlin were ultimately criminally charged with recklessly causing Allen's death, but were both acquitted by the jury. They then moved for a finding of actual innocence and the destruction of all their criminal records, which the trial court granted. But the Court of Appeal reversed, holding that there was legitimate probable cause and thus "objective factors justified official action" sufficient to preclude a finding of actual innocence.

A holding that may well have been motivated by the especially touching facts of the case. At least if the reaction of the panel was at all similar to mine.

U.S. v. Hinkson (9th Cir. - Nov. 5, 2009)

2009-11-05T10:28:00.000-08:00

Sometimes it helps to take things in chronological order, if only to see how things develop over time.

(1) On May 30th of last year, the panel issued this opinion. [Pardon me for the lack of links right now; I'm in DC using a Mac, and can't quite figure out how to get the links to work -- I'll figure it out soon enough.] Which reversed the district court and granted a new trial to a defendant who was convicted of, inter alia, hiring a hit man to take out a federal judge.

(2) That same day, I posted this. Which basically said: Wow. You had on the one hand a massive, detailed opinion by Judge Willy Fletcher. Strident, too. But you had an equally strident dissent. By Judge McKeown, no less. I pointed out that you don't see something like this that often. Two people who are generally sympatico nonetheless going at it in their respective opinions. With not a single hold barred.

(3) Later that year, the case then gets taken en banc. Your faithful reviewer then comments on that event, saying (among other things) that "I bet this one results in a split opinion" in the en banc court.

(4) Today the en banc court issues its opinion. Guess who wins as between Judges Fletcher and McKeown? I'll give you a hint. The dissent to the en banc opinion is written by . . . Judge Fletcher.

But let me say this as well. This is about as conservative an en banc panel as you're likely to draw in the Ninth Circuit. As well as a hard-core right/left split. Who's in the dissent? The four judges drawn for the en banc panel appointed by Democrats: Judges Fletcher, Pregerson, Wardlaw and Paez. Who's in the majority? Seven judges, each of whom was appointed by a Republican: Judges Kozinski, O'Scannlain, Kleinfeld, Callahan, Bea, Ikuta, and Randy Smith.

Mind you, a Clinton appointee -- Judge McKeown -- authored the panel dissent. I'm also quite positive -- even with no inside information -- that several Democratic appointees voted to take the case en banc, which suggests that they too may have been sympathetic to what ends up in the en banc court as the exclusive view of Republican appointees.

That said, this case shows you a couple of things. First, panel draws may well matter. Second, they can occasionally be unrepresentative of the court as a whole. Finally, as I mentioned to Chief Judge Kozinski at dinner one evening, there may well be practical, concrete consequences as a result of the Ninth Circuit's decision to go back to 11- (from the "experiment" with 15-) judge panels.

I'm not saying that the extra four would have all broken with the dissent on this one and thus turned a 7-4 into an 8-7 the other way, particularly given our knowledge of either certain or likely Democratic defections here. But it's definitely possible. And, both more importantly as well as more generally, the case assuredly raises an issue regarding the representativeness -- or lack thereof -- of limited en banc panels. Sometimes they mirror the court as a whole. Other times, not so much.

So, as I predicted, a split opinion. A split, as it turns out, in the most traditional manner. In a case that raises broad institutional questions equally important as the difficult doctrinal issues upon which both the majority and dissent rightly spill much ink.

People v. Reyes (Cal. Ct. App. - Oct. 30, 2009)

2009-11-04T11:39:00.000-08:00

It's funny. As I was reading this case, which involves a kidnapping for ransom, I was thinking to myself the whole time: "I hope these guys get a huge amount of time in prison." Because what they did -- while not the worst kidnapping in the world (by far) -- still seemed totally brazen and wrong.

And yet despite that fact, when I got to the end of the opinion and discovered that the sentence was a mandatory one -- life in prison -- that seemed harsh to me. Especially since two of the four (equally culpable) kidnappers, as a result of a guilty plea, only got eight years, and another one of the kidnappers (who agreed to testify) only got one year in prison. That seems wrong on both ends; I'd have been happier if the co-conspirators had to spend more time in prison and this guy slightly less.

I say all this, by the way, even though I'm extremely -- and some might say overly -- concerned about the ease of kidnapping. It seems like a very lucrative (and relatively easy) crime, at least as compared to your traditional drug dealing, bank robbery, etc. Which is why you've started to see a huge rise in this stuff in other nations (e.g., Mexico). So I do think we need to be incredibly careful here, and also super-deter this stuff lest it become more common. And yet in a particular case, in which no one is truly injured, it looks like my sentiment in this regard becomes fuzzy and not very hard core. Interesting.

Parenthetically, I must admit that I thought the way they kidnapped the guy here was fairly creative. It first looks like the kidnappers are pulling the usual "black van" job (though here the van is white), which pulls up alongside the victim in a shopping mall parking lot and the kidnappers try to push him in it. But that doesn't work: the victim struggles and breaks free, screaming for assistance. At which point a silver Honda pulls alongside and offers the victim help, and the victim jumps into the car through an open back window, and the Honda speeds away. Escape!

Except the Honda's in on it. That's the second group of kidnappers. Oopsies.

Zhang v. Superior Court (Cal. Ct. App. - Oct. 29, 2009)

2009-11-04T09:31:00.000-08:00

I like it.

Justice Richli authors an opinion that disagrees with another decision of the Court of Appeal and that explains this disagreement both extremely well and extremely concisely. That's not easy.

Personally, I have a tendency -- as readers likely well know -- to ramble on, especially when I disagree with something. Not Justice Richli. She doesn't say everything she can; instead, she says what she has to, and then moves on. Without leaving anything important out.

It's a talent. I'm envious. Great job.

Applied Medical Distribution Corp. v. Surgical Company B.V. (9th Cir. - Nov. 3, 2009)

2009-11-03T13:36:00.000-08:00

A battle of the big law firms. It's Jones Day -- with 2300+ lawyers (represented here by svelte Brian Hoffstadt) -- on the side of the plaintiff-appellant, and Baker & McKenzie -- with 3800+ attorneys (represented here by the tanned, rested and ready Bruce Jackson) for the defendant-appellee.

Jones Day won most of what it was asking for below, but appealed on the one thing (an injunction against a pending suit in Belgium) that the district court didn't give 'em.

And the winner in the Ninth Circuit is . . . Jones Day. By a knockout.

So there you have it. Jones Day 2, Baker & McKensie 0.

(Don't get too excited, mind you. Jones Day had the better case on the merits. According to me as well as everyone who actually matters; e.g., Judges Fisher, Gould and England [the latter sitting by designation from the Eastern District of California].)

Norse v. City of Santa Cruz (9th Cir. - Nov. 3, 2009)

2009-11-03T12:28:00.001-08:00

Giving a Nazi salute ain't exactly nice. It can also properly get you kicked out of a City Council meeting. Or so the Ninth Circuit holds today.

Judge Tashima dissents, arguing that the salute was silent and far from disruptive, and hence that the plaintiff's ejection might well have been in retaliation for his viewpoints.

Regardless, I must say that I strongly encourage everyone to keep Nazi salutes to a minimum. At City Council meetings, at anti-Obama rallies, and pretty much everywhere else for that matter. I have a vague sense that they're -- how can I put this -- in poor taste. Since analogy to six million dead is pretty much, well, a bit overstated, if you know what I mean.

Trust me on this one.

U.S. v. Garcia-Villalba (9th Cir. - Nov. 2, 2009)

2009-11-02T11:14:00.000-08:00

Keeping with today's "light reading is good reading" theory, here's another opinion in which everything after the first couple of sentences is merely support for what you already know.

Though this one has a twist. Here, you aren't actually told how the opinion comes out at the outset.

Nonetheless, if you have even a little bit of knowledge, you still know where it's ending up. If only from the verbal and nonverbal clues.

I'll prove it. Here are the first two sentences of the opinion:

"We venture into the world of organized crime to evaluate the legality of a wiretap and a search of a stash house for illegal drugs. This case is about a wiretap that led to the takedown of a

sophisticated drug-trafficking organization. . . ."

So whatchathink? Are they reversing the conviction on the grounds of an illegal search? Or affirming?

I'll add one more sentence just in case you're unsure. A sentence that's not actually part of the formal opinion, but that nonetheless comes right before its text. Which reads:

"OPINION. O’SCANNLAIN, Circuit Judge:"

Any doubt which way this one ends up? I thought not.

Vivendi S.A. v. T-Mobile USA (9th Cir. - Nov. 2, 2009)

2009-11-02T10:06:00.000-08:00

Here's another example of an opinion that really says virtually all that need be said in the first paragraph. Which reads:

This appeal concerns a French corporation’s allegations that a German corporation and a Polish billionaire colluded fraudulently in Europe to wrest control of a Polish wireless telephone company from the French corporation. The French corporation sought a remedy for these alleged wrongs in—of all places—the United States District Court for the Western District of Washington. [FN: The French corporation, Vivendi S.A., also has initiated litigation and arbitration proceedings in Poland, Austria, France, Germany, Switzerland, and the United Kingdom related to this same alleged fraud.] The district court dismissed the case on the ground of forum non conveniens. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm."

You could read the subsequent ten single-spaced pages if you'd like (as I did). But all you'd learn are additional details that demonstrate that, yep, the first paragraph is correct.

This one you could easily -- easily -- predict. Both in the district court and in the Ninth Circuit.

I hope that Orrick (which represented the plaintiff/appellant) got paid on an hourly, rather than contingent, basis. And fully expect that's the case as well.

U.S. v. Kilbride (9th Cir. - Oct. 28, 2009)

2009-10-30T10:49:00.000-07:00

There's a lot about Judge Betty Fletcher's opinion in this case that's very good. Including a nice (and accurate) primer about how lower courts properly interpret and apply precedent from a fractured Supreme Court opinion in which there's no majority opinion. Plus a good application of those principles as applied to the present case, which involves (inter alia) obscenity convictions in an internet spam case in which there's a huge fight about what "community" a jury is supposed to use in applying "community standards" when the alleged obscenity is transmitted over the web to a gazillion people.

But what I especially liked, wholly beyond the doctrinal stuff, was the mere fact that these two spammers -- Jeffrey Kilbride and James Schaffer -- get sentenced to do real time (around five to six years each) for their conduct. The dudes sent out unsolicited porn to so many people that the FTC alone received 662,000 complaints. Do you realize how much spam you have to send out to get over half a million people off their butts to complain? Wow. That's a lot of spam.

My in box thanks you, United States. So does my wife. Two less worldwide spammers is a good start. As is the deterrent to others.

People v. Tuggles (Cal. Ct. App. - Oct. 29, 2009)

2009-10-29T12:23:00.000-07:00

Read pages 4 through 12 of this opinion and see if you had the same reaction that I did.

My reaction was an immensely palpable sense that even though I'm on the same planet (indeed, in the same country and even the same state) as every one of the participants, I nonetheless live in a totally -- completely -- different world. What occupies their thoughts and minds and days is just radically different from mine.

For some reason, I was just especially struck by the fact that individuals from the same species and (rough) geographic areas can have such completely different lives. And, needless to say, felt like I have the much, much better end of things.

311 South Spring Street Co. v. Dep't of General Svcs. (Cal. Ct. App. - Oct. 28, 2009)

2009-10-29T11:15:00.000-07:00

Here's a hypothetical. Tell me how you think it's should come out.

Landlord rents office space to Tenant. Tenant breaches the lease and stops paying, and Landlord sues. Landlord wins, and the trial court enters a judgment against Tenant for $5.4 million plus 12 percent per year postjudgment interest. Tenant never objects to that rate, but does appeal the merits, an appeal that Tenant loses in the Court of Appeal (in which, again, Tenant never objects to postjudgment interest). No petition for review is filed, the remittitur issues, and shortly thereafter, Tenant sends Landlord a check for the judgment. But not for the whole thing; Tenant unilaterally decides to limit the interest to 10 percent a year, deducting over $440,000. Landlord says: "No way. Where's my extra $400K+?" Tenant says: "The interest rate should have been legally limited to 10 percent under the California Constitution, and even though we never raised the issue, we're raising it now -- post-remittitur -- and refusing to pay." Landlord files (and the trial court grants) a motion compelling Tenant to satisfy the full amount of the judgment awarded by the Court. Tenant appeals, and attempts to collaterally attack the final judgment on the ground that the postjudgment interest rate should be 10 rather than 12 percent. Landlord opposes the appeal and asks for sanctions for a frivolous appeal.

Two questions. (A) Who wins: Landlord or Tenant? (B) Does Tenant get sanctioned?

Ponder that. My prediction, on this straightforward set of facts, would be that Landlord would win and that Tenant might well be sanctioned. Tenant had its appeal but never objected in any forum to the interest rate. That judgment's now final. It's got to pay.

But I'd have been wrong. At least if the case was before Justices Mallano, Rothschild and Johnson. The Court of Appeal holds that since the postjudgment interest rate was in excess of the court's "jurisdiction," it can be collaterally attacked even after the judgment is final.

I've fiddled with the facts a tiny bit; here, Tenant is a state agency (the Department of General Services) and the relevant interest rates are 7 and 10 percent rather than 10 and 12. But the holding here -- based on "jurisdiction" -- would be equally applicable to private parties as well.

Interestingly, I think that if the case had been a private party, the panel might have come out a different way. Indeed, might have sanctioned the Tenant. Because private litigation would have had a different "feel" to it even though the relevant jurisdictional principles are identical. But my sense is that the Court of Appeal's jurisdictional spidey-sense got all tingly when the issue was whether an agent of the state should be forced to pay what's pretty clearly more than they should. The rate should have been 7 percent.

But, of course, the State should have argued this below. Or on appeal. Or at any time before the decision became final. And didn't. There's a big freaking finality interest to judgments. One that is obviated by the Court of Appeal's holding here.

Now I readily concede that deciding what's "jurisdictional" (and hence potentially subject to a collateral attack) and what's not is freakishly hard. Academics have started to grapple with this issue in some depth in the last decade or so and it's an incredibly tough field even for those of us with plenty of time on our hands and who devote ourselves to the subject. It's even more tough for individuals (like Justice Mallano) who've got to decide hundreds of disparate cases a year.

That concession aside, I don't that, properly interpreted, the issue here is in fact jurisdictional in the sense of allowing a collateral attack. I think that Justice Mallano -- like many others -- gets slightly blinded by the fact that the 7 percent rate is a constitutional limitation, which (especially when combined with the fact that it's a limit) makes the thing sound mighty jurisdictional.

But that's not enough, nor does it authorize collateral attacks. There are lots of limits in the state constitution, for example, on judicial power, all of which are analogous to this one and all of which we'd easily recognize aren't jurisdictional. Article 6, Section 13, for example, says that courts can only set aside (or grant a new trial) a judgment for an instructional or evidentiary error when there's a been finding of a miscarriage of justice. Assume that, notwithstanding this provision, a trial court granted a new trial (or set aside a judgment) on some other grounds, without finding any miscarriage of justice, and the now-losing party filed an appeal that only raised other objections to what transpired below (e.g., the judge should have been disqualified, etc.), never mentioning the relevant deficiency. After losing in the Court of Appeal, years later, they refuse to pay the judgment and want to raise the new issue of the new trial grant, claiming that the trial court had no "jurisdiction" under Article 6 to do what it did. We'd all readily agree, I think, that this argument would lose; they had their chance to raise this issue, they didn't, and the trial court's alleged error didn't deprive it of jurisdiction or the judgment of legitimate finality. Doctrinally, however, this hypothetical is the same as the "jurisdictional" deficiency here -- both are limitations established by the state constitution on judicial acts, so if one's in the form of jurisdiction, so's the other.

Here's a briefer hypothetical about Article XV itself -- which concerns "usury" and is the precise constitutional provision that contains the 7 percent limitation at issue in the present case. That part of the California Constitution says that, generally, the rate of interest on a loan can only be 7 percent, with various exceptions. Imagine that Alpha loans Beta $100,000 for a year at a rate of 10 percent under a written contract, a year later Beta pays Alpha $107,000, and Alpha sues for the extra 3,000 owed. Beta never argues, either below or in the Court of Appeal, that none of the constitutional exceptions apply, but instead just says "I paid it" or "statute of limitations" or other meritless defenses, which the trial court rejects, a decision affirmed by the Court of Appeal, and the decision becomes final. I have no doubt that we wouldn't allow Beta an additional shot at avoiding this final $3000 judgment even if Beta said -- as the DGS did here -- that the $3000 award was in "excess of the court's jurisdiction" under Article XV. Yep, as here, Article XV did in fact say the $3000 was a no go. But you had your chance to so argue and didn't. It's final. The appeal to "jurisdiction" doesn't work even though this is, as here, (1) in the constitution, and (2) can in one sense be viewed -- in precisely the way the Court of Appeal views the present case -- as a "limitation" on judicial power to award above 7 percent interest.

There are indeed jurisdictional things that can properly be collaterally attacked. Subject matter jurisdiction is the classic example. But this ain't that. For reasons that might require legions of law review articles to fully and properly explain; and even then, one might rightly still be more than a bit uncertain about the distinction between "jurisdictional" (in the sense of permitting a collateral attack) and "non-jurisdictional" deficiencies. But even not being the world's expert in this incredibly difficult area, I think that the present case falls somewhat readily on one side of the line and not the other. And it's not on the side adopted by the Court of Appeal.

To reiterate: I'm not harshing on Justice Mallano. This is tough stuff. And I totally see why the Court of Appeal comes out the way it does as a descriptive matter. When something seems to be the kind of thing that involves judicial power, especially when it's part of the constitution, and to put the icing on the cake add the doctrinally irrelevant but nonetheless distracting complexity of potential sovereign immunity, I totally get why the Court of Appeal does what it does.

But that doesn't make it right. And while, as a taxpayer in California, I'm sort of happy we don't have to pay this particular landlord an extra $440,000, as a principled guy, I'm forced to admit that I think that's what we rightly owe. Not because we truly owe it -- the relevant cap is indeed seven percent. But because our lawyers were stupid and didn't argue it when they should have.

I've got another interesting piece of the opinion about which I'd ordinarily make a big deal that arises out of the third-to-last paragraph, in which the Court of Appeal somewhat boldly decides not to follow a holding of the California Supreme Court (on this exact point) on the ground that this 1944 decision was "incorrectly decided." But I've said way too much already. I'll leave that separate issue regarding the allocation of precedential responsibility (which is also complicated, and on which the Court of Appeal is much less wrong, if wrong at all) for another universe. One in which I've been far more concise than I've been in this one.

Cohen v. DIRECTV (Cal. Ct. App. - Oct. 28, 2009)

2009-10-28T17:44:00.000-07:00

I'm glad that the Court of Appeal decided to publish this opinion. I guess. Because it clearly meets the standards for publication. Even if that's because its holding seems profoundly pernicious.

It's a class certification case. DIRECTV allegedly heavily advertised that the channels in its HD package "were in the . . . 1920x1080i standard and at 19.4 Mbps," but in an attempt to reduce bandwith racheted down to 6.6 Mbps and no longer met the 1920x1080i standard. So plaintiff brought a class action that alleged, inter alia, unfair competition. Which is all they could allege because, not surprisingly, there was nothing in the standard (DIRECTV-drafted) contract that obligated DIRECTV to do what it advertised.

You'd think this was a pretty straightforward class action. But the trial court denied the motion for class certification for lack of an ascertainable class (which the Court of Appeal correctly held wasn't the case) as well as failure to establish commonality. And Justice Bigelow's opinion says, yep, the claims aren't common enough for a class since there's no proof that everyone in the class relied on (or even saw) the advertising at issue, or even knows what the 1920x1080i standard is or what 19.4 Mbps means. (And DIRECTV helpfully submits affidavits from selected individuals in its tens of thousands of consumers that indeed prove that a lot of them are not very bright.)

What the Court of Appeal says is, of course, true. It's also true also for pretty much every single false advertising class action in the universe as well. You can never establish that everyone in a class of consumers saw or relied upon an advertisement. This apparently means that you can't have class actions involving such claims, since you'll never be able to establish commonality (and if you limit the class to only those who saw and relied upon such advertisements, you've now lost on ascertainability).

So apparently companies like DIRECTV entirely get off. Or, to put it more accurately, they take a hit from those one-in-a-million customers who bother to file a lawsuit for $39.95 or so, but it's totally worth it, since the savings are well-worth the expense. Why not, at this point, advertise "DIRECTV -- Super HD, In Three Dimensions, With Syrup and Free Chocolate Milk" despite the fact it's totally not true. You can't prove commonality there either, right? Because surely some customers didn't see the ad and/or don't like chocolate milk anyway.

I agree that causes of action that require reliance -- as most do -- create a problem of proof in class action cases. But I don't think that the solution is to simply refuse to certify the plethora of cases in which such allegations are made. The holding here seems to me to be wrong if only as a matter of policy (and since this is mostly common law stuff, that's saying a lot). It seems to me that for commonality, it's sufficient if there's proof -- perhaps from the nature and contents of the advertisement itself -- that much of the class would indeed have relied, at least in part, on the claims therein.

Now, does that exist here? Maybe, or maybe not. But it's too simplistic to say -- as Justice Bigelow does -- that there's no commonality because there's no proof that everyone saw or relied upon the particular practice at issue (or that reliance would be one issue among many that would have to be addressed at trial). Yep, that's an issue. But it shouldn't kill class actions. Especially in situations where a jury might rationally find reliance by viewing the advertisement itself, by using its common sense and experience as consumers, and by hearing from (say) thousands and thousands of potential witnesses that, yep, we indeed relied upon the thing and here's why it was important to us and others like us.

That seems to me class actions that we like. Especially when, as here, you're talking about small claims that we all know full well ain't gonna be litigated at all -- even if valid -- if you don't allow aggregation in a class setting.

Let the defendants move for summary judgment, or prove at trial that there probably wasn't widespread reliance. But don't boot the thing at the certification stage merely because it's surely the case that even if 99,000 relied upon Advertisement X, there are 1,000 others who didn't (and defendant has affidavits from 10 of the 1000).

So this one's unanimous. And now published. But I'd have at least been more nuanced, and may well perhaps have gone the other way.

P.S. - I feel a tiny bit bad about saying all this, since I don't think I've ever commented on an opinion by Justice Bigelow -- who was elevated only a little over a year ago -- and hate to start out this way. That said, I think what I think.

Law Offices of Andrew Ellis v. Yang (Cal. Ct. App. - Oct. 27, 2009)

2009-10-28T10:53:00.000-07:00

Think that the other side's anti-SLAPP motion is going to prevail? Forgot (or were unable) even to file an opposition to the motion?

No matter. You may perhaps have to pay their attorney's fees and costs. But as long as the court hasn't yet issued a tentative, you can still dismiss the lawsuit without prejudice and file it again -- indeed, you have an absolute right to do so, and the court is thereafter without jurisdiction to decide the anti-SLAPP motion.

To be sure, this is far from an absolute victory on your part. But you do live to fight again.

Mohamed v. Jeppesen Dataplan (9th Cir. - Oct. 27, 2009)

2009-10-27T13:02:00.000-07:00

Even beyond its mere presence (which is significant itself), there are two additional things worth mention about the Ninth Circuit's order this morning that took en banc the "private lawsuit against enhanced interrogation" opinion.

First, this shows both the upside as well as downside of getting a really good panel draw. As I mentioned when the opinion first came out, this was a very pro-plaintiff (i.e., left-of-center) panel. That's good for initially winning. But it has its downsides when it comes to the en banc vote, since it's not only people like me who can recognize a panel's particular tilt. Something that makes an en banc vote more likely, particularly (as here) in a high-profile, politicized case.

Second, the en banc order is exceptional for the number of judges recused. Some of the judges who recuse themselves do so for the typical reasons; e.g., Judge Reinhardt because the ACLU is counsel to the plaintiff (his wife is the executive director of the Southern California ACLU). But you've got others here that are case-specific; e.g., Judge Bybee, who's name by now is virtually synonymous with enhanced interrogation. Add to these two Judges McKeown, Gould, Milan Smith, and Ikuta and you're looking at 7 total recusals -- a really high number, and something you don't usually see.

So we'll see how this one comes out in the en banc process. It's bound to let a lot of attention.

People v. Munoz (Cal. Ct. App. - Oct. 13, 2009)

2009-10-27T11:29:00.000-07:00

Here's a lesser known downside to performing a drive-by shooting: You may miss and end up accidentally shooting your own cousin in the chest.

You're not psyched about spending 58+ years in prison. You're even less psyched to be doing so for shooting someone you like and had no intention of harming.

Consider this argument 45 of 2300 against pulling a drive-by.

Myers v. Trendwest Resorts (Cal. Ct. App. - Oct. 26, 2009)

2009-10-26T15:19:00.000-07:00

It's a tale of two cities. Or, here, a tale of two different versions, and two different takes.

On the one hand, we have plaintiff's factual recitations and arguments on appeal. Which assert that plaintiff was severely sexually harassed and that the trial court should thus have granted a JNOV notwithstanding the jury's finding of no liability. It is, according to plaintiff's counsel, an easy case.

On the other hand, we have the actual evidence at trial, alongside the applicable standard of review. Which together make it crystal clear that the motion for a JNOV was properly denied.

Which Justice Sims amply understands. He's also not very happy with plaintiff's counsel's inability to follow these principles. And tells them so. In spades.

So, for example, check out these quotes, all of which are directed at counsel for the plaintiffs, Stephan Williams and Daniel Bartley:

"[Plaintiff's] statement of facts gives the impression that little else occurred at trial other than her direct examination during her case-in-chief. . . . [W]e shall highlight a few of the most glaring omissions from [her] statement of facts. . . . [Justice Sims then goes on to write ten full pages of devastating comparisons between plaintiff's version of events and the contrary evidence at trial introduced by defendant.] . . . . Professional ethics and considerations of credibility in advocacy require that appellants support their arguments with fair and accurate representations of trial court proceedings. . . . [Plaintiff's] opening and reply briefs fall far short of complying with the rules regarding statements and discussions of evidence adduced at trial."

Justice Sims then goes on to describe a litany of other sins of plaintiff's counsel. Arguing things that were waived/forfeited below. Failing to include citations to the record. Misrepresentations of evidence. Stuff like that. Stuff that you definitely don't want directed at you if you ever hope to do credible appellate work again.

Plus there's the discussion of some of the merits. Including plaintiff's novel assertion that once you admit, in connection with a summary judgment motion, that a fact is "undisputed" for the purposes of that motion (e.g., because you're the moving party and have to admit that the other side's evidence raises a certain fact), you all of the sudden have conclusively admitted that fact at trial. Absurd. As Justice Sims rightly holds.

Continuing the "tale of two cities" analogy, so you have this huge number of slams directed at the counsel for the plaintiffs. Then, in two different places, Justice Sims goes out of his way to throw compliments towards the trial judge. Including the final section of the opinion (Section X), which states in its entirety: "We commend the trial judge, the Honorable Brian R. Van Camp, for doing an exemplary job on a case presenting some difficult legal issues."

This, mind you, after Justice Sims (and the panel) had, two years ago, reversed the grant of summary judgment to the defendant by a different judge.

Given this history, Ms. Myers might well have thought that she'd have a sympathetic panel here. Perhaps also that Mr. Williams, who represented her in the prior appeal, would do equally well in the present case.

Not so. Indeed, far from it.

U.S. v. Rivera-Alonzo (9th Cir. - Oct. 26, 2009)

2009-10-26T11:54:00.000-07:00

Sometimes judges write an opinion so that it seems obviously correct, while relegating the only relevant discussion -- an analysis of the losing side's best argument -- to a footnote. That's what happens this morning.

Check out footnote four. Judge Randy Smith writes a good opinion, and I'm not saying that it's necessarily wrong. But defendant's best argument that he's entitled to a lesser included offense instruction is based on a previous Ninth Circuit case called Arnt -- a case that's not too different from the present one, and in which the court held that a lesser included offense instruction was required. And Judge Smith confines his discussion of this central case to a single footnote.

For good reason, since his attempts to distinguish this case are fairly lame.

Judge Smith first says that "[u]nlike Arnt, the present case does not involve a killing. Therefore, the constitutional concerns arising from a capital case [which Judge Smith discussed in the previous footnote] are not present in this case." That's true. But Arnt wasn't a capital case either, and held that even without those concerns, a lesser included offense instruction was still required. Moreover, not only does a "killing versus nonkilling" distinction not exist in any lesser included offense doctrine, but such a distinction would also be manifestly silly. So this purported distinction of Arnt clearly doesn't work.

Judge Smith's only other attempt to distinguish Arnt in the footnote asserts that "the jury in this case was not forced to choose between convicting Rivera of one offense supported by the record and acquitting him of everything. The district court instructed the jury on felony assault on a federal officer using a deadly weapon and felony assault of a federal officer involving physical contact, which carried a significantly less severe sentence. Thus, the jury was not precluded from reaching a compromise verdict supported by the record by the lack of instruction on a still less serious offense not supported by the record." True again, as far as it goes.

But this again utterly fails to distinguish Arnt, since the same was true in that case as well. Here, Rivera-Alonzo's jury could have found him of X (a greater offense; here, assault with a deadly weapon) or Y (a slightly lesser offense; here, assault with physical contact), but Rivera-Alonzo wanted them to be instructed on Z, an even lesser lesser-included offense than Y. Judge Smith says that you're not entitled to be instructed on Z because the jury can already acquit you of the greater offense X and convict you on Y -- which is exactly what transpired here.

But that's exactly what transpired in Arnt too. There, Arnt was charged with murder (X, the greater offense) as well as voluntary manslaughter (Y, the lesser offense) and, as here, the jury acquitted on X but convicted on Y. But even though there were both X and Y, the Ninth Circuit still held that a lesser-included offense instruction was required on Z (involuntary manslaughter) in Arnt, for reasons that clearly belie Judge Smith's attempt to distinguish it.

That's it. That's what the footnote says. Two arguments that simply don't work.

Again, this is not to say that the present case is wrongly decided. It was indeed difficult to argue that a jury could rationally find Rivera-Alonzo guilty of simple assault but, on the facts presented at trial, acquit him of the greater offenses. But Judge Smith's purported distinctions of Arnt not only seem to me demonstrably wrong, but by relegating them to a footnote, it almost seems like Judge Smith knows they're wrong (or at least incredibly weak). And that the opinion will seem pretty clearly right as long as you respond to defendant's best argument in a part of the opinion that most people will skim over rather than respond to it directly.

This is also, I might add, how bad law gets created. By creating distinctions that make no sense (and that don't exist) in order to avoid doing the (admittedly hard) work necessary to rationalize precedent and come up with something coherent.

So the opinion sounds right. It sounds good. But there's something lurking here. Something that's not so good, that hurts more than helps, and that avoids doing the tough work which both the parties as well as precedent deserves.

In Re Ramon M. (Cal. Ct. App. - Oct. 22, 2009)

2009-10-23T14:13:00.000-07:00

I've seen a lot of obscenities used in opinions published by the California Court of Appeal. Lots. They come from quotations, of course. Often by the defendant. When they say "f**k" in the transcript, for example, or to the police, we generally print the whole word.

But check out the top of page four of this opinion, which is authored by Justice Moore. In which Justice Moore says (and I'm copying the original): "When States asked why he had approached the African-American men, Ramon [the defendant] responded that he 'did not like [racial epithet] in his neighborhood.'"

So Justice Moore clearly deletes the n-word. Which made me wonder: "Why?"

Not that I'm necessarily complaining. I express no view regarding whether one should categorically refuse to use -- even purely as a description of what someone else said -- that particular word. Or any other word, for that matter. Some people, including appellate judges, print out the obscene word (or epithet). Others don't. It's a style issue.

But seeing what Justice Moore did made me wonder whether this was something unique to Justice Moore -- perhaps she's relatively prude (or formal, or careful; however you want to describe it), and hence does what she does as a typical practice.

But then I checked by looking at Justice Moore's prior opinions. Nope. It's not that. She's been historically willing to use all sorts of words. Earlier this year, for example, she quoted someone as using both the f- and b-words. (I personally abbreviate them, by the way, solely because I like to call this a "family blog," even though I strongly doubt there are very many minors who regularly peruse it.) Indeed, back in December, Justice Moore even authored an opinion that printed the same word at issue here -- the n-word -- plus the s-word to boot. And there are many, many others. Moreover, as far as I can tell, Justice Moore's never deleted the n-word and replaced it with "[racial epithet]" before this opinion.

So what changed? Arguably, those prior opinions of hers were unpublished, so maybe it's just she (and others like her) don't want to degrade the published pages of the California Appellate Reporter with various filth. But it could also be something about this particular word; there's a heightened sensitivity -- at least among some -- that this particular term should never be used, in any form, and perhaps that explains Justice Moore's decision. (She was, again, willing to use that same word 10 months ago, but perhaps she's a recent convert.)

Which then got me thinking beyond Justice Moore. What about everybody else in the California judiciary? Has there been a deliberate reduction in the number of times readers have seen the n-word used in judicial opinions?

So, because it's a lazy Friday, I checked it out. (Thank you, Lord, for being an academic for a living, and not having to bill these hours.) The n-word's been used by the California Supreme Court and California Supreme Court in 617 opinions (both published and unpublished) contained in Westlaw. Here's the breakdown for this year as well as the past five years:

2004: 52 times

2005: 66 times

2006: 52 times

2007: 68 times

2008: 41 times

2009: 49 times (thus far)

A couple of things stand out. First, there did indeed seem to be a noticeable dip in 2008 in how many times the n-word was used. My recollection is that this may perhaps have also been the peak of when people started to get very sensitive to even the recitation of this word and, maybe not entirely unrelated, was also the key year of Barack Obama. So maybe the dip in 2008 was a reflection of justices not using this word as much.

Of course, there might be other explanations as well. Maybe people in general weren't using this word as much in the several years prior to the opinion, so there was less of it to report. Though I doubt this is actually true, it's at least a possibility. Or maybe there were simply fewer opinions in general during the "down" years, though I doubt that as well. Or maybe it was just random. Though a 40% year-over-year drop seems a fair piece, and too coincidentally related to BHO, to be merely the result of chance.

Which brings me to my second observation. Notice the ebb and flow of what I readily concede is an admittedly incomplete data set. One year the number is high, the next year it's low, the next year it's high, and so on. It's as if there's an ongoing cycle here. Like you start using a word, get bored with (or jaded by) it, then (with prior disuse) use it more, then less, etc. Sort of like a kid who uses swear words because they're unusual and "jarring," but then gets bored, then back into them, etc. I wonder if there's a little bit of that going on as well? Or, again, whether it's instead that everything's simply random.

So I then looked at one last thing. What's the data everywhere? I used the ALLCASES data set in Westlaw (i.e., all state and federal cases) and looked at the use of this full-text word for each of the years above. Now, here, it may well be that data sets slightly change over time, unlike in the pure California example, as Westlaw gets more opinions in this database over various years. But with this caveat, here's the data:

2004: 291 times

2005: 352 times

2006: 459 times

2007: 454 times

2008: 422 times

2009: 391 times (so far)

So what we seem to see nationwide is a steady (noncyclical) rise since 2004, but then a drop in 2008 -- as in California, though not as pronounced. You then see, for 2009, a rise -- as we have seen in California, of the use of this word over the previous years, both absolutely (in CA) as well as in the entire nation. (While the 391 times thus far in 2009 nationwide is admittedly less than the 422 seen during 2008, don't forget that 2009 isn't finished, and the current figures suggest that the final national numbers for 2009 will bounce back up to around 455 -- this time in 2008, for example, there were only 362 references, less than this year's 391.)

So maybe there has been something going on, at least during the past two years. Maybe in 2008 we saw a heightened sensitivity to having this particular word in print, while in 2009 it seems we have either "gotten over it" or have had a backlash to the backlash.

So as we enter the weekend, these are my thoughts on the use of the n-word. Nothing from me that's normative. At least on this topic, I'll leave that to others. But purely descriptively, it looks to me like there's something going on here. Not only potentially with Justice Moore, but with a number of other folks as well.