The Limit of its Logic: Ninth Circuit Blog

2003-08-26T12:24:00.000-07:00

San Jose Preclearance Update

There will be a hearing on an Order to Show Cause on Friday in San Jose. While the TRO was heard only before Judge Fogel, the OSC will be in front of a three-judge panel consisting of Judges Fogel and Whyte, district judges in San Jose, along with Judge Consuelo Callahan, the most recently confirmed judge on the Ninth Circuit Court of Appeals.

2003-08-20T12:07:00.000-07:00

Latest Development in the Preclearance Cases

In the Salazar case (Prop 54), the State of California has filed a communication from the DOJ dated August 19, 2003. Of note is the following excerpt:

"We also write to seek clarification about whether, in its August 4, 2003 letter to the Department, the state intended to submit for preclearance under Section 5 the change in the date for the initiative election from March 2, 2004, to October 7, 2003, and the several attendant changes to the timetable for certain events leading up to this election. It is our understanding that on August 15, 2003, the United States District Court . . . held that these changes were covered by Section 5, and that the State may not implement them in the absence of compliance with Section 5. To enable us to meet our responsibility to enforce the Voting Rights Act, please inform us of whether the State of California intended to submit these changes in its submission of August 4 or whether it will make a subsequent submission."

The letter is signed by Joseph D. Rich, Chief of the Voting Section.

2003-08-15T17:18:00.000-07:00

Judge Fogel's Order in the Preclearance Cases

Judge Fogel's has issued an order; it directs Defendants to "appear before this Court at 3:00 PM on Friday, August 29, 2003, there and then to show cause, if any they have, why they . . . should not be restrained and enjoined pending trial of this action from accepting any ballots, including absentee ballots, or operating any polling place in connection with the special election . . . ."

He also issued a TRO preventing the County of Monterey "from mailing absentee ballots to overseas voters registered to vote in Monterey County until Section 5 preclearance has been obtained or until further order of the Court."

It looks like the preclearance clock is now running.

2003-08-15T12:30:00.000-07:00

Preclearance and the Recall

Judge Fogel, District Judge in San Jose, held a hearing on a TRO this morning in a case challenging the recall election under the Voting Rights Act. The State of California and the County of Monterey conceded that election changes related to the recall election required federal preclearance under the Voting Rights Act and that such preclearance had not been obtained.

The defendants also did not dispute that the election cannot proceed unless preclearance is obtained. Judge Fogel seemed to be searching for a preclearance deadline after which it would simply be too late to wait any longer for the Justice Department to clear the election. For the recall portion at least, he seemed to key on the date that the first vote could be cast -- absentee, overseas or otherwise. The parties did not speculate on when a preclearance decision could be expected from the Justice Department

Judge Fogel asked the parties if they were available for a hearing on August 29 and September 5. It looks like another hearing will be set for one of those days, and that if preclearance has not occurred by the date of that hearing, the election may well be postponed.

2003-08-13T16:54:00.000-07:00

More Recall in Federal Court

Judge Fogel's calendar lists two recall election-related cases set for a hearing on a TRO:

FRIDAY, AUGUST 15, 2003 CV-03-3584-JF AURELIO SALAZAR ET AL V. MONTEREY COUNTY, ET AL. Temporary Restraining Order @ 9:30 AM Related to CV-03-3658 CV-03-3658-JF JUAN OLIVEREZ, ET AL V. STATE OF CALIFORNIA, ET AL Temporary Restraining Order @9:30 AM Related to CV-03-3584

These suits challenge the recall election and the inclusion of Proposition 54, alleging that state officials have failed to obtain pre-clearance from the US Attorney General or the DC District Court under Section 5 of the Voting Rights Act. The next few months should be interesting.

2003-08-07T01:08:00.000-07:00

Judge Alsup Strikes Back

Yesterday, I attended a Federal Bar Association event entitled "Remembering Justice William O. Douglas: A Reply to Recent Critics." Chief Judge Patel introduced the two speakers, Judge William Alsup and Jerome Falk, Jr., former clerks of Justice Douglas. More than a dozen other former Doulgas clerks were also on hand, including David Ginsburg, Douglas' first clerk, and former Secretary of State Warren Christopher. (Two former wives of Doulgas were also in attendance.)

Judge Alsup's detailed presentation focused on refuting the factual record as set forth in Bruce Allen Murphy's Wild Bill. Judge Alsup was passionate in his oration and took umbrage with Judge Posner's review of Wild Bill, James Ryerson's review in the New York Times, and of course BAM himself. He challenged these men to get their facts straight before attacking a great American. Judge Alsup also mentioned a Washington Post article casting doubt on the proposition that Douglas never should have been buried at Arlington National Cemetery.

If Judge Alsup's portion was the mind of the presentation, Falk's was the heart. He corroborated an anecdote attributed to him in the book, but noted that BAM focused only on the negative stories relating to Douglas' interactions with his clerks, turning a blind eye to the more compassionate side of his character. Falk speculated that events not fitting within BAM's view of Douglas were simply omitted from the book.

Judge Alsup

Jerome B. Falk, Jr.

2003-08-04T12:47:00.000-07:00

Math Answers

The Criminal Justice Legal Foundation was kind enough to provide me with the cases referenced in the recent San Francisco Chronicle article on the Ninth Circuit and criminal law:

Habeas

Woodford v. Visciotti 04-Nov-2002; Early v. Packer 04-Nov-2002; Lockyer v. Andrade 05-Mar-2003; Woodford v. Garceau 25-Mar-2003.

Criminal

Nguyen v. United States 09-Jun-2003; Smith v. Doe 05-Mar-2003; U.S. v. Jimenez Recio 21-Jan-2003.

Civil – Section 1983

Inyo v. Paiute-Shoshone 19-May-2003; Chavez v. Martinez 27-May-2003.

Administrative – Immigration

Demore v. Kim 29-Apr-2003.

Blake and Hobson wrote: "Of 72 cases decided by the U.S. Supreme Court in the 2002-03 term, 28 of them were criminal cases or directly related to issues of criminal law. Ten of these 28 were from the Ninth Circuit and all 10 were reversed. That means the Supreme Court reversed the Ninth Circuit 100 percent of the time when considering criminal cases."

You be the judge whether or not the linked cases above represent instances where the Ninth Circuit was "considering criminal cases."

2003-08-04T12:34:00.000-07:00

Disappearing Arks and Plea Enforcement

Two noteworthy opinions today:

In Kesel v. UPS, Judge McKeown recounts the tale of Ukranian art “that vanished like the Ark of the Covenant” from a Kentucky warehouse.

In Brown v. Poole, the Court reversed the district court’s denial of habeas relief and ordered specific performance of a plea agreement. Judge Silverman dissented.

2003-07-31T19:54:00.000-07:00

Math Problems

In this editorial from the San Francisco Chronicle, the authors claim that in the 2002-03 term, the Supreme Court reversed the Ninth Circuit in 10 out of 10 cases that were criminal in nature or directly related to criminal law issues. Regardless of the premises asserted and the conclusions drawn therefrom, I am having trouble figuring out which 10 cases the authors are referencing.

Here is my breakdown of the most recent term:

Civil

American Insurance Association v. Harry Low (California insurance code provision) Black & Decker Disability Plan v. Nord (ERISA) Boeing Company v. United States (tax regulation) Borden Ranch Partnership v. US Army Corps of Engineers (Clean Water Act) Chavez v. Martinez (Section 1983) Clackamas Gastroenterology v. Wells (ADA) Dastar Corporation v. Twentieth Century Fox Film (Copyright) Desert Palace, Inc. v. Costa (Title VII) Dole Food Co. v. Patrickson (personal injury, FSIA jurisdiciton) Hillside Dairy, et al. v. Lyons/Ponderosa Dairy (dormant commerce clause, 1996 Farm Bill) Inyo County v. Paiute-Shoshone Indians (Section 1983) Los Angeles v. David (Section 1983) Meyer v. Holley (Fair Housing Act) Nevada Dept. of Human Resources v. Hibbs (FMLA) Washington Legal Foundation v. Legal Foundation of Washington (IOLTA)

Administrative – Immigration

Demore v. Kim (detention pending removal hearing) INS v. Ventura (asylum)

Habeas

Early v. Packer (was state court determination unreasonable application of clearly established federal law?) Lockyer v. Andrade (habeas – three strikes) Woodford v. Garceau (when is a habeas appeal "pending" for the purposes of the AEPDA?) Woodford v. Viscotti (ineffective assistance under Strickland)

Criminal

Nguyen v. United States (conviction reversed by the Supreme Court because a unanimous three judge panel consisted of two Article III judges and one Article I judge instead of three Article III judges) Smith v. Doe (sex offender registration regime does not violate Ex Post Facto Clause) United States v. Recio (termination of conspiracy)

Certainly the three criminal cases and the habeas cases were counted, and the immigration cases likely were also in the mix. Presumably, one of the Section 1983 cases must have also been a part of the study. I wonder which one.

2003-07-29T22:09:00.000-07:00

Partnoy's Order

Read Judge Moskowitz's order here.

2003-07-29T13:37:00.000-07:00

Partnoy's Victory

The AP is reporting that Judge Moskowitz has struck down Cal. Elections Code Section 11382 as unconstitutional. This ruling allows those who do not wish to vote on the recall issue to vote for Davis' replacement if the recall is successful.

2003-07-28T23:20:00.000-07:00

Partnoy's Complaint

The LA Times is reporting that U.S. District Court Judge Barry T. Moskowitz, from the Southern District of California, "plans to hold a hearing Tuesday on the constitutionality of a portion of the recall law that says voters who chose not to cast a vote either way on whether Davis should be recalled cannot vote on successors."

The case is styled Partnoy v. Shelley; you can read the complaint here (sorry for the gratuitous and unoriginal Phillip Roth reference). The Partnoy here is USD law professor Frank Partnoy .

The allegations track the analysis offered in a recent Findlaw article by Vikram Amar and Alan Brownstein positing that Cal. Elections Code Section 11382 is unconstitutional. The complaint states: "Voters may be, and often are, agnostic or morally opposed to voting on the recall of a particular official, but nonetheless have strong feelings (and wish to vote) on the successors(s) to that office."

The AP has a report on the San Diego suit here. The story claims that "two separate elections challenges were filed Monday with the California Supreme Court, which has yet to act on them. If one of the petitions, filed late Monday, is successful, the San Diego federal case may become moot." The San Diego federal case raises Equal Protection and Due Process claims under the 14th Amendment, so would the case become "moot" even if the California Supreme Court struck down Section 11382? See Article VI, Clause 2.

2003-07-28T17:26:00.000-07:00

Equal Protection Behind Bars

In Johnson v. California, a three judge panel decided “whether a prison reception center housing policy, which uses race as one factor in assigning a new inmate’s initial cell mate for 60 days, violates the Equal Protection Clause.”

The court found no Equal Protection violation: “Although there may be many ways in which to achieve the state’s objective in reducing racial violence in the CDC, the path chosen by the State of California is reasonably related to the administrators’ concern for racial violence and thus must be upheld. If this policy were implemented beyond the prison walls, undoubtedly, we would strike it down as unconstitutional.”

The Ninth Circuit denied rehearing en banc today, with Judges Ferguson, Pregerson, Nelson, and Reinhardt dissenting. They argued that as a racial classification, the policy should have been reviewed using strict scrutiny. Read the Reuters account here.

2003-07-28T17:22:00.000-07:00

Uncertified Conversion of Intangible Property

If the unending saga that is the sex.com case, the Ninth Circuit has ruled that the tort of conversion applies to intangible property under California law. The background of Judge Kozinski’s opinion begins: “‘Sex on the Internet?,’ they all said. ‘That’ll never make any money.’ But computer-geek-turned-entrepreneur Gary Kremen knew an opportunity when he saw it.” Let me know if you figure out the antecedent to the pronoun “they.”

The case was somewhat of a personal victory for Judge Kozinski who had argued strenuously that a question should not be certified to California Supreme Court: “Certifying the case shifts the difficult work of deciding it to the state court, which is often so busy keeping its own house in order that it scarcely has time for our overflow laundry.” Not wishing to do another load, the California Supreme Court denied the request to certify the question at issue. (An unrelated laundry point: the opinion discussed a California Court of Appeal decision holding that a laundry route was not subject to conversion.)

2003-07-24T21:55:00.000-07:00

More Circuit Blogging

Welcome Abstract Appeal, covering news in the Eleventh Circuit, to the blogging world.

2003-07-23T13:50:00.000-07:00

Freedom Not to Speak

District Judge Lawrence Karlton has issued an order dismissing the complaint of tobacco companies who were challenging California's anti-smoking ads based on the First Amendment compelled speech doctrine. Read the AP report here.

2003-07-23T12:37:00.000-07:00

Circuit City Redux, Again

For the third time in the last year and a half, the Ninth Circuit has ruled that an arbitration provision in a Circuit City employment contract is unconscionable under California law. Read the opinion here; and reports on the opinion here and here.

2003-07-23T12:09:00.000-07:00

To Certify or Not to Certify?

In Palmer v. Pioneer Inn, the Ninth Circuit certified the following question to the Nevada Supreme Court: "What test does Nevada use in applying Supreme Court Rule 182 to an employee of a represented organization? If so, does Nevada interpret that portion of the commentary by analogy to FED. R. EVID. 801(d)(2)(D), by application of agency principles, or by a different analysis?"

The certification occurred on July 20, 2001 and the Nevada Supreme Court responded on December 27, 2002. In this instance, the answer to the certified questions was worth the wait: "The Nevada Supreme Court's enunciation of the applicable test for contact with a represented party dramatically changes the landscape of our case."

2003-07-22T01:09:00.000-07:00

Nevada Legislature Case Now Moot?

In what could lead to the end of the legal challenges in Guinn v. Nevada Legislature, the AP is reporting that Nevada lawmakers in both the Senate and Assembly have approved a tax increase by a super-majority. The writ issued by the Nevada Supreme Court ordered the legislature to proceed with a special session using the simple majority rule. Even if this ruling was in fact violative of the U.S. Constitution, it appears that the case is now moot. (Although one can imagine an argument that the actions of the most recent special session of the legislature were ultra vires and impermissibly tainted by the writ of the Nevada Supreme Court).

2003-07-22T00:17:00.000-07:00

Northern Goshawk

In Center for Biological Diversity v. Badgley, the Ninth Circuit affirmed a decision of the Fish and Wildlife Service not to classify the Northern Goshawk as an endangered species. The Court ruled that the Agency "considered the relevant factors and articulated a rational connection between the facts found and the choice made." Judge Lay, sitting by designation from the Eighth Circuit, authored the opinion.

2003-07-18T17:44:00.000-07:00

The Seven District Judges in Nevada

In my earlier post on this issue, I linked to an AP report discussing the rare en banc district court hearing in Angle v. Nevada Legislature. That report had me scratching my head for two reasons: (1) it claims that the en banc district court would be comprised of 8 judges; and (2) it do not offer an explanation for why the en banc procedure was chosen. The order in Angle was issued today and clears up both issues.

First, the en banc court consisted of seven active district judges, not eight judges as earlier reported. Second, the court sat en banc because it anticipated "that other actions would be filed in the District of Nevada" raising similar challenges.

To my delight, the merits were decided based on the wildly popular Rooker-Feldman doctrine.

2003-07-17T14:02:00.000-07:00

Defendants Wanted

Judge Tallman's opinion in Anderson v. Pacific Maritime, a Title VII case, begins: "This case presents a cause of action in search of a defendant." While Judges Tallman and Reavley did not find one, Judge Betty Fletcher dissented, stating: "I accept their assertion that there is a cause of action because I have found the defendant, and it is PMA. "

2003-07-15T17:46:00.000-07:00

En Banc District Court?

The AP has this report about a hearing to be held tomorrow before all of the district judges in Nevada. At issue is the recent Nevada Supreme Court decision allowing a tax increase without the 2/3 super-majority required by the Nevada Constitution because the Legislature "failed to accomplish its constitutionally mandated tasks of funding Nevada's public education system and balancing the budget." The Court found the 2/3 requirement "procedural" and the funding of schools "substantive." The federal district judges sitting en banc will be located in both Reno and Las Vegas.

The Volokh Conspiracy is all over this case.

District courts sitting en banc are rare but not unheard of in the Ninth Circuit. See United States v. Ortega Lopez, 684 F. Supp. 1506 (C.D. Cal. 1988) (in a "historic session," the en banc court found the U.S. Sentencing Guidelines unconstitutional); Matsumoto v. Pua, 775 F.2d 1393 (9th Cir. 1985) (reversing an en banc Hawaii district court decision in a local election dispute).

2003-07-14T22:06:00.000-07:00

Abandoned Green Cards

Judge Clifton authored the opinion in Khodagholian v. Ashcroft ruling that an Iranian citizen had not abandoned his status as legal permanent resident based on several trips back to his home country. The opinion reversed the decision of the Board of Immigration Appeals even under the deferential "substantial evidence" standard of review.

2003-07-12T22:57:00.000-07:00

Jury Verdict Against Nursing Home

The Mercury News has this report about a jury verdict returned against a Santa Cruz nursing home. Plaintiffs alleged that the defendants enticed them to work at a nursing home by promising work permits and citizenship.

2003-07-10T14:36:00.000-07:00

Who Needs a Functioning Government?

The AP has this report on oral argument in the case of Ali v. Ashcroft. District Judge Marsha J. Pechman had granted an injunction prohibiting the federal government from deporting Somalis because there is no functioning government in Somalia. The panel consists of Judges Paez, Tashima, and Reavley. Read the OBP story here.

2003-07-10T12:35:00.000-07:00

Rights, Rights, Rights

A Department of Transportation regulation forbidding disparate impact racial discrimination does not create a federal right that can be enforced under 42 U.S.C. § 1983. So says the court in Save Our Valley v. Sound Transit. In fact, the majority held that an agency regulation can never create a right enforceable through § 1983.

Judge Berzon was having none of the second point. In her dissent she writes that such a rule “flies in the face of seventy years of administrative law jurisprudence. Applying contemporary administrative law principles rather than antiquated ones, I can see no reason why valid agency regulations cannot create individual rights and do so independently of specific Congressional intent regarding the rights created.”

2003-07-09T12:05:00.000-07:00

Rooker-Feldman Last Week, Feres Doctrine this Week!

In Zaputil v. Cowgill the Ninth Circuit held “that the Feres doctrine bars a military reservist, who had been discharged from the National Guard but not from the Reserve, from bringing an action for damages against the military personnel who allegedly wrongly revoked her National Guard discharge and ordered her back to duty.” Read the Met-News account here.

2003-07-09T12:01:00.000-07:00

Defining the Irreconcilable

In Miller v. Gammie, an en banc court tackled the “sometimes very difficult question of when a three-judge panel may reexamine normally controlling circuit precedent in the face of an intervening United States Supreme Court decision . . . .”

The unremarkable answer: “where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled.”

Of course, determining when a case is “clearly irreconcilable” with Supreme Court precedent and therefore “effectively overruled” is the real question. Judges O’Scannlain and Tallman sat on the original three judge panel in Gammie and felt bound by a prior circuit opinion. In their view, the intervening Supreme Court cases did not clearly undermine the previous holding and therefore they were not permitted to disregard circuit authority.

2003-07-08T11:29:00.000-07:00

Certified Question Purgatory

In Malabed v. North Slope Borough, a three judge panel held that a local ordinance giving employment preferences to members of federally recognized Indian tribes violated the Equal Protection Clause of the Alaska Constitution. The district court had ruled that the ordinance at issue "cannot withstand even cursory analysis under the principles set forth in J.A. Croson and Adarand Constructors" and was therefore violative of federal law.

This case originally was argued on appeal in March of 2000. In the name of constitutional avoidance, the panel certified a question to the Alaska Supreme Court on July 28, 2000. On May 16, 2003, the Alaska Supreme Court responded. This time lag raises some of the concerns expressed by Judge Kozinski in his recent dissent from an order certifying a question to the California Supreme Court.

2003-07-08T10:42:00.000-07:00

The Feds & Medical Marijuana, Again

Professor Gerald Uelmen argued a medical marijuana case yesterday before District Judge Jeremy Fogel in San Jose. Read the San Jose Mercury News article here. Plaintiffs, including the City of Santa Cruz, are seeking a preliminary injunction against further DEA raids of state-sanctioned medical marijuana co-ops.

2003-07-07T16:43:00.000-07:00

Dean Dunlavey

The LA Times has this obituary for Dean Dunlavey, who argued the famous Betamax case 20 years ago.

2003-07-07T16:02:00.000-07:00

Asylum En Banc

The Ninth Circuit has ordered rehearing en banc in Li v. Ashcroft. In that case, a three judge panel affirmed the Board of Immigration Appeals' refusal to grant asylum to a Chinese couple who claimed that they would be subject to forced abortion and sterilization if deported.

2003-07-03T14:21:00.000-07:00

Kozinski on the 2nd Amendment

The opinion in Sundt v. Dynamic Finance begins: "One commentator describes the frontier equivalent of mechanic’s liens: If you furnish lumber to a man to build his house and he doesn’t pay you, you shoot him. If he sells the house and the new owner refuses to pay you, you shoot the new owner. What this regime lacked in due process, it made up for in clarity . . . . "

It's all downhill from there.

2003-07-02T16:05:00.000-07:00

If a Tree does not Fall in the Forest . . .

The Missoulian is reporting that District Judge Don Molloy has halted logging in the Kootenai National Forest.

2003-07-02T14:40:00.000-07:00

One More Reason to Stay on the Strip

In this opinion, authored by Judge Paez, the Ninth Circuit reversed the district court's determination that "The Fremont Street Experience" in Las Vegas is not a public forum. On remand, city regulations dealing with solicitation and tabling on Fremont Street will now face the heightened scrutiny of speech regulation applicable to a traditional public forum.

2003-06-27T11:41:00.000-07:00

Rooker-Feldman Mania

Sick of Ninth Circuit opinions dealing with habeas appeals, immigration cases, and drug sentencings? This one is for all of you Rooker-Feldman afficionados out there.

2003-06-27T08:32:00.000-07:00

End of the Road for Abortion Protestors

The Supreme Court denied cert. in Planned Parenthood v. Amer. Coalition of Life. In that case, the Ninth Circuit ruled in favor of physicians who had brought suit under the Freedom of Access to Clinics Entrances Act in order to have their names removed from wanted posters and websites advocating the killing of doctors in the name of a "pro-life" agenda. Judge Kozinski's dissent is, as always, entertaining: "The apparent thoroughness of the opinion, addressing a variety of issues that are not in serious dispute, masks the fact that the majority utterly fails to apply its own definition of a threat . . . ."

Bloomberg has a report here. Read the Solicitor General's brief arguing against grant of cert. here. That brief was filed by invitation of the Supreme Court.

2003-06-26T23:45:00.000-07:00

Habeas: Watch What You Wish For

This opinion addresses a case where a man was convicted in Oregon state court of kidnapping and rape. He was sentenced to 360 months. A writ of habeas corpus was subsequently granted in federal court. The case was remanded for resentencing, where the man received a sentence of 900 months. He then filed a second habeas petition, which was also granted. At some point the 9th Circuit should skip the remand and sentence this man itself.

2003-06-25T20:17:00.000-07:00

Thinking Twice About that Helicopter Trip

The EEOC has filed suit against Boeing in District Court in Phoenix. A female mechanic working on Apache helicopters was allegedly harassed at a Mesa facility. "The EEOC said much of the harassment was designed to make it difficult for Miles to do her job. Male co-workers took her tools and broke them, hid them or changed adjustments on them . . . ."

2003-06-25T20:07:00.000-07:00

USDA in Contempt

The AP has this report that Forest Service employees are seeking to have the USDA Secretary held in contempt for failing to comply with the terms of a settlement in a sexual harassment case. The hearing will be held in District Court in Oakland.

2003-06-24T23:04:00.000-07:00

A Portrait of a Schizophrenic Conservative

In this laughable "critique" of the decision in US v. Odom, the commentator states: "Conservative judges were kept out of the judiciary during the Clinton years, and the liberals used the judiciary to circumvent the will of the people, foisting their agenda upon the nation via the bench." In the same paragraph he opines: "Judges like Reinhardt, Goodwin, and Clifton do a disservice to the citizens of this country with their innovative interpretations."

2003-06-24T19:24:00.000-07:00

Flying Late With the SaberCats

Judge Fogel, District Judge in San Jose, held a hearing yesterday on a preliminary injunction. Plaintiff, following the lead of Larry Ellison, wanted to force the City of San Jose to allow him to land his plane during the night curfew at Mineta Airport. Apparently, the plaintiff ferries the arena league SaberCats to and from games. The Mercury News has a report here.

2003-06-24T19:14:00.000-07:00

Anti-SLAPP and ISP Immunity

This opinion issued today holds that a denial of an anti-SLAPP motion under California law is immediately appealable in federal court. The Court also addressed the issue of ISP immunity for defamation under federal law. Reuters has a report here.

2003-06-21T18:35:00.000-07:00

Not All Latin Words End in "us"!

A recent How Appealing post pointed out the "scandalously incorrect" bastardization of the Latin phrase "de minimis" as "de minimus." Those unfamiliar with Latin must be of the opinion that "us" is the proper ending in all circumstances. This article in the San Jose Mercury News refers to a state court judge issuing a writ of "habeus corpus." Ouch. I have also noticed that incorrect variants of the contractual interpretation doctrine "contra proferentem" have become epidemic. (Ok, I admit this post is off-topic, but when I read that SJ Mercury News article this morning, I had to get it off my chest.)

2003-06-20T22:49:00.000-07:00

Bar Exam Flashbacks

The Ninth Circuit issued three opinions today. Nothing too exciting, however, this one brought back some serious bar exam flashbacks due to the subject matter: California community property law.

2003-06-20T22:46:00.000-07:00

Ninth Circuit takes Hawaii

Next week should be very slow in all courts within the Ninth Circuit because of the annual Judicial Conference. This year's venue: the Hyatt Regency Resort on Kaua'i. Nice work if you can get it. Check out the conference schedule here.

2003-06-20T22:37:00.000-07:00

Man Let out of Prison Three Months Early

District Judge Lawrence Karlton, of the Eastern District of California, has granted the habeas petition of a Fairfield doctor who was convicted of sexual assault in state court. Apparently one of the jurors was a nurse who had formerly worked with the defendant but did not reveal this fact during voir dire. The defendant was scheduled to be released on parole in 3 and a half months. The Fairfield Daily Republic offers this report. The Fairfield Daily Republic is reporting that the Solano County DA will not retry the case due to the petitioner's "advanced age, health problems, and the fact he was scheduled to be released on parole soon anyway."

2003-06-19T21:40:00.000-07:00

Delta Smelt

A report about a settlement in a case from the district court in Fresno involving delta smelt.

2003-06-19T21:29:00.000-07:00

"Sub-prime" Pitfalls

The LA Times has this article reporting a big jury verdict in a Santa Ana federal court. Lehman Brothers looks like it's on the hook for the misdeeds of a rogue lender that it financed.

2003-06-19T19:38:00.000-07:00

Railroad Wins Fight over Safety Rules

The Sacramento Bee has this report on the Union Pacific v. CPUC case. The case involved California's attempt to implement regulations governing railroad track standards. The regs were adopted in response to train derailments within the state. The Ninth Circuit ruled that the regulations were preempted by federal laws.

2003-06-19T13:41:00.000-07:00

Opinions

Three opinions were issued today. Of note, USA v. Britt addresses the question of whether the government can impose certain occupational restrictions as a term of supervised release. The restrictions in question had required Britt to inform his "credit repair" clients of his prior criminal convictions. The Court vacated the occupational restrictions as not being sufficiently related to the crime for which defendant was convicted.

2003-06-19T13:28:00.000-07:00

Downward Departure Opponents

The Billings Gazette has this report of a scuffle outside of the federal courthouse in Billings which erupted after the resentencing of a man convicted of "shooting part of his cousin's head off in the aftermath of a night of drinking and smoking marijuana." The defendant received 78 months in prison.

2003-06-19T09:36:00.000-07:00

More Ninth Circuit Bashing

The National Review has this sky-is-falling article about the Doe v. Tenet opinion. Pambianco fails to include this portion of the opinion: "We acknowledge at the outset that it could very well turn out, after further district court proceedings, that the Does will still be left without redress even if everything they allege is true. When the government asserts that the interests of individuals otherwise subject to legal redress must give way to national security interests for the larger public good, the result can end in a balance tipped toward the greater good, with resulting unfairness to the individual litigants as the acknowledged corollary."

2003-06-18T18:00:00.000-07:00

Opinions and Orders

The Ninth Circuit issued 6 opinions and orders today. Most notably, a panel consisting of Judges Reinhardt, Pregerson, and Browning ruled in favor of an immigration petitioner seeking to avoid removal by invoking the UN Convention Against Torture. Reuters has a report here.

In Taniguchi v. Schultz, the panel voted to deny a rehearing. However, Judge Pregerson joined by Judge Reinhardt dissented. They argued that the immigration statute in question, which treated illegal aliens more favorably than legal permanent residents, did not pass muster under the rational basis test. It seems to me that if slots on boats can be taxed at a different rate than slots at racetracks, then all bets are off as far as that argument goes.

2003-06-18T17:42:00.000-07:00

Time for Summary Judgment, Plan B

Guidant Corp. manufactured a medical device called the ANCURE ENDOGRAFT system. Many plaintiffs have filed suit against Guidant alleging products liability. In a motion involving several related cases pending in San Jose before District Judge Jeremy Fogel, Guidant argued that federal law preempts all state law tort claims. Its preemption argument focused on the fact that the FDA had approved the device. Guidant subsequently pled guilty to misleading the FDA during the approval process and has since withdrawn its summary judgment motion. The Mercury News has a report here.

2003-06-18T13:33:00.000-07:00

Freedom Solstice Parade?

The Seattle Post-Intelligencer has this report of a man seeking federal imprimatur to bare it all at an upcoming parade. District Judge Robert Lasnik denied the request.

2003-06-18T13:17:00.000-07:00

When you Subpoena an "Activist" . . .

The Santa Cruz Sentinel has this story about Lindsay Parme. She is an animal rights activist who refused to answer a subpoena ordering her to appear before a grand jury in New Jersey. Not surprisingly, she was arrested for contempt, sparking protests at the federal courthouse in San Jose. The San Jose Mercury News account is more informative, but perhaps less entertaining.

2003-06-18T13:05:00.000-07:00

Filed Where?

The Long Beach Press-Telegram has this report on the discrimination suit filed against Abercrombie & Fitch. The article cryptically informs the reader that the case was filed in "the United States Courts for the Ninth Circuit in San Francisco."

2003-06-16T22:37:00.000-07:00

Tax "Protester" Introduced to Article I, Section 8 and the 16th Amendment

District Judge Lloyd D. George has issued an injunction against the distribution of Irwin Schiff's "book" The Federal Mafia. The book essentially claims that the federal income tax is "voluntary." You can access the AP report here. Judge George is a Senior District Judge serving the District of Nevada in Las Vegas.

2003-06-16T18:27:00.000-07:00

The Eve of Unocal

There were no opinions issued today. Big day tomorrow as oral argument is held in the Doe. v. Unocal case before an en banc Court. This case is getting a lot of press; most recently, this Reuters article.

2003-06-16T18:16:00.000-07:00

Civil Disobedience, Hawaiian Style

This article in West Hawaii Today describes how a man is engaging in civil disobedience by checking in to a beach-front Hilton and not paying. His beef stems from a decades-long litigation related to 1.75 acres of submerged, coastal property which the State should have held in trust for the people.

2003-06-16T18:05:00.000-07:00

Discrimination by Make-up

Reuters has this report that a plaintiff is appealing a Nevada District Court decision dismissing her case. Darlene Jespersen alleged a violation of Title VII where her employer, Harrah's Casino, forced her to wear make-up while she tended bar. Apparently, this requirement is only placed on women.

2003-06-15T13:29:00.000-07:00

Blog Changes

I have come to the realization that the previous scope of my blog was too broad. I am going to experiment with restricting its scope to legal issues and news pertaining to the Ninth Circuit; so as of today this blog is The Limit of its Logic: Ninth Circuit Blog .

2003-06-13T11:24:00.001-07:00

Ninth Circuit Acronym Minutiae

In a recent Ninth Circuit opinion dealing with the Truth in Lending Act, Judge Noonan ascribed the acronym “TiLA” to the Act. I have always seen this act referred to as “TILA.” I know that in Green Tree Financial v. Randolph, Chief Justice Rehnquist invoked the latter.

Perhaps Judge Noonan is of the opinion that because the preposition “in” is not afforded the dignity of a capital letter in the full title of the Act, it likewise should remain lower case in the acronym. I personally do not share this view. To me, the lower case “i” implies that it signifies the second letter in a word starting with a “T.”

Noonan’s acronym would be perfectly suited to the Timid Lending Act (regulating risk-adverse lenders), the Tired Lending Act (protecting weary consumers), or the Tidal Lending Act (regulating loans on beach-front property), but not the Truth in Lending Act.

2003-05-28T15:12:00.000-07:00

Nike v. Kasky: With Friends Like This ...

In the Supreme Court case of Nike v. Kasky, the issue to be resolved appears to test the boundaries of what can properly be considered “commercial” speech and thus susceptible to regulation and what type of speech is political in nature and thus subject to greater First Amendment protection.

Not so, says Ted Olson, Solicitor General-cum-First Amendment champion. In his amicus brief filed with the Supreme Court, he argues that is does not matter whether the statements made by Nike were commercial speech or non-commercial speech. Rather, he argues that the entire “regime” (his word, not mine) set up in California to regulate false advertising is facially violative of the First Amendment.

The California Court of Appeal held that Nike’s statements were not commercial speech and therefore sustained defendant’s demurrer. The California Supreme Court addressed the question of whether Nike’s “false statements are commercial or noncommercial speech for purposes of constitutional free speech analysis under the state and federal Constitutions.” Finding that the Nike statements could be construed as commercial speech, the California Supreme Court reversed.

Justice Janice Rogers Brown dissented from the California Supreme Court decision, however, she was also of the view that the commercial v. non-commercial distinction carried the day: “If Nike’s press releases, letters and other documents are commercial speech, then the application of Business and Professions Code sections 17204 and 17535 – which establish strict liability for false and misleading ads – is constitutional. Otherwise, it is not.”

So everyone is talking about commercial speech in this case except Olson. Here is what he says: a state cannot, consistent with the First Amendment, allow a private individual, who has not suffered harm as a result of a particular false advertisement, to file suit to enjoin the false advertisement. Olson’s syllogism looks something like this: (1) to be consistent with the First Amendment, systems which allow suits that curb speech have must have self-limiting features; (2) the private attorney general aspect of California’s false advertising statute does not have any self-limiting features; and therefore (3) California’s statute is not consistent with the First Amendment.

Although the facial constitutionality of the false advertising statute was not addressed in any of the lower courts’ decisions, I cannot help but to indulge Olson. Even conceding the validity of the argument and the truth of his major premise (which has no precedent in the case law and appears to be invented whole cloth), I must take issue his with the assumption in his minor premise that the California system does not have self-limiting features.

In Olson’s view, since anyone in California can sue to prevent false advertising, regardless of whether the person has been damaged by or relied upon the false statements, the state is crawling with 34 million potential censors. This notion is flawed.

First, anyone in any state can file suit against another person and plead damages or reliance. Ted Olson could sue me in the District of Columbia alleging that false statements in this column tarnished his reputation and that he been damaged as a result. His suit would be frivolous, but I would have to go to the District and defend myself. The very filing of such a suit could chill speech, but it is tolerated because I am given a fair chance to fight the charges. In California, a false advertising defendant may be brought into Court without an allegation of damages or actual reliance, but the plaintiff still must prove that the speech was misleading. In addition, the plaintiff must show that he is acting for the benefit of the general public. The burdens on a false advertising plaintiff create self limiting features in the California scheme. It is not as though all citizens in California have the power to silence a speaker by filing a complaint.

Second, California has a unique statute which discourages a plaintiff from filing suit simply to silence a speaker. The anti-SLAPP statute in California contains a special motion to strike a complaint. The coverage for the statute is broad. It applies to any complaint which arises from an act in furtherance of the defendant’s right to petition or free speech in connection with a public issue. Once the special motion to strike is brought, the plaintiff must demonstrate a probability that he will succeed on the merits. If the special motion to strike is successful, the defendant is entitled to costs and attorney’s fees. In addition, all discovery is stayed upon the filing of the motion.

Olson argues that the First Amendment “does not allow States to create legal regimes in which a private party who has suffered no actual injury may seek redress on behalf of the public for a company’s allegedly false and misleading statements.” The First Amendment contains no such limitation. A state can, consistent with the First Amendment, empower citizens to file suit to prevent false advertising. Judicial oversight ensures that the California “regime” is not broadly speech-restrictive in violation of the First Amendment.

2003-05-16T16:20:00.000-07:00

Thanks to Denise at Bag and Baggage and Tom at inter alia for providing links to my fledgling blog. It is appreciated. I am off to New York for a week, saying goodbye to the grind in California.

2003-05-14T19:19:00.000-07:00

No More Spam

I have been mulling Lawrence Lessig’s proposal to reduce spam. His bounty plan is simple: (1) make spammers label their spam in the subject line of emails; and (2) the first person to track down a spammer violating the labeling requirement is entitled to $10,000 from the spammer upon furnishing proof to the FTC.

I have several questions regarding the second part of this plan. Does the plan amount to a spammer simply paying a $10,000 license to send bulk email? Only the “first” person to notify the FTC of a spam violator is entitled to the bounty. Couldn’t big spam (or "direct marketers" if you like euphemism) simply violate the proposal, fail to label, and pay the piper?

As for small-time players, wouldn’t many of these people be judgment proof? Say a vigilante tracks some 19-year-old kid peddling herbal Viagra and the FTC imposes the $10,000 fine, how is this judgment enforced?

I have no idea how to reduce spam. However, it seems to me that product manufacturers and service providers whose wares are being pushed should be on the hook for big time liability even if they are not directly responsible for their spam arriving in the consumer’s inbox. Such a law would be premised on the theory that the large, solvent companies are inducing or contributing to spam by way of their business models. Such a law could work. However, I am not willing to bet my job on it.

2003-05-07T18:43:00.000-07:00

De facto Arrest & the Material Witness Statute

In my May 2nd post, I criticized the federal government’s use of the material witness statute in the Hawash case. Brian Lehman writes that using the material witness statute in the grand jury context violates the Fourth Amendment: "[i]mprisoning material witnesses based solely on the stated need to guarantee their testimony for a grand jury is inherently unreasonable."

I do not address Lehman’s conclusion that the use of the material witness statute in the grand jury setting amounts to a per se Fourth Amendment violation. Rather, I argue that the illegitimate co-option of the material witness statute for law enforcement purposes implicates the Sixth Amendment and the Speedy Trial Act.

A material witness warrant should never issue when the government fully intends to file criminal charges against the witness. However, a magistrate cannot look into the heart of an agent submitting a material witness arrest warrant. How does he differentiate between the well-intentioned and the duplicitous? A court should examine whether the stated purpose for detention matches what actually happens in a case. This can only be done after the fact.

Detention is serious business. If the federal government says to a judge: "detain this guy, I want to present him to a grand jury," it had better follow through. In the Hawash case, he was arrested in order to appear before a grand jury. The presiding judge called the government’s hand and told prosecutors to either take his deposition or present him to the grand jury. The government did neither. It filed criminal charges a day before the judge’s ultimatum was to take effect. All of the material facts related to the charges against Hawash were known by investigators prior to his arrest as a material witness over a month previous.

In such a circumstance, a defendant’s initial arrest as a material witness should be treated as a de facto arrest for the underlying criminal charge. Law enforcement action has the "identifying indicia" of a de facto arrest when it serves to "disrupt [the defendant’s] employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends." See United States v. Clardy, 540 F.2d 439, 441 (9th Cir. 1976). Clearly these factors apply in the Hawash case.

The Supreme Court has recognized that at some point an investigative Terry stop can transform into a de facto arrest. United States v. Sharpe, 470 U.S. 675, 685 (1985). Similarly, the nature of a material witness arrest can also transform when it becomes clear that the witness was not arrested to give testimony, but to face charges. A finding of a de facto arrest triggers the Sixth Amendment guarantee of a Speedy Trial, opens the door for a motion to dismiss a criminal complaint pursuant to Rule 48(b) of the Federal Rules of Criminal Procedure, and implicates the Speedy Trial Act, 18 U.S.C. § 3161. Under the Act, an indictment or information must issue within 30 days of arrest. Failure to abide by this provision requires that "such charge against that individual contained in such complaint shall be dismissed or otherwise dropped." 18 U.S.C. § 3162(a)(1).

When the government arrests a person as a material witness and then turns around and charges him with the crime to which he was ostensibly a witness, this raises red flags. If no new information is discovered during the material witness’ detention regarding his involvement with the crime, the initial arrest is transparently a ruse and should be treated as such.

2003-05-05T22:52:00.000-07:00

Special Circumstances

I came across this article by Jeffrey Toobin regarding the Scott Peterson case. He is undoubtedly a smart guy, but his statement that the California Supreme Court has not visited the issue of whether the murder of a mother and her viable fetus can constitute a special circumstance for the death penalty is inaccurate. See People v. Bunyard, 45 Cal.3d 1189, 1237-38 (1988) (“it is clear that the multiple-murder special circumstance is applicable to the killing -- by a single act -- of a pregnant woman and her viable fetus.”)

The multiple murder special circumstance in the Peterson case is rather straightforward. More tellingly, in the criminal complaint the District Attorney does not allege the special circumstance of intentional murder for financial gain. There has been much speculation that Scott Peterson had taken out a $250,000 life insurance policy on Laci prior to the murders. If Peterson stood to gain a chunk of money as a result of Laci’s death, I imagine the prosecutor would have included the murder for financial gain special circumstance in Cal. Penal Code Section 190.2(a)(1).

2003-05-04T18:12:00.000-07:00

"When you've got to choose, Every way you look at it you lose"

The Democratic presidential debate last night at Drayton Hall brought forth a couple of legal subpoints. First, George Stephanopoulos asked the candidates if they believed that a state has a right to criminalize homosexual sodomy or whether the Constitution protects such activity. All of the candidates appeared to be in agreement that states should not have the power criminalize homosexual sodomy. However, they did not seriously engage the legal issue presented in the pending Supreme Court case of Lawrence v. Texas even though Stephanopoulos' question was clearly aimed at states' rights and the general extension of 14th Amendment rights. Instead, the answers were general affirmations of homosexual rights.

The other legal issue presented was affirmative action. Again, all of the candidates seemed to show their support. The debate itself demonstrated the value of diversity, which the University of Michigan is using to justify its admissions policy in the Grutter and Gratz cases. George Will, in a recent Washington Post article, bemoaned the fact that the stated value of diversity has no connection to past suffering. Fair enough. However, Michigan is simply playing the cards it was dealt by the Supreme Court in Bakke. The value of diversity is real. Although their seats at the table will be short-lived, last night's debate was more compelling because Carol Mosley Braun and Al Sharpton were there.

2003-05-02T12:51:00.000-07:00

The Abuse of the Federal Material Witness Statute

I set up The Limit of its Logic a few days ago, but had not found a topic worthy of an inaugural post until I came across the criminal complaint in the case of United States v. Hawash. I originally found out about this case via the website http://www.freemikehawash.org.

On March 20, 2003, Hawash was arrested on a material witness warrant. Although many decried this action, at that time I did not have any reason to question the government’s position that Hawash may indeed have material testimony to present to a grand jury and that it could become impractical to secure his presence by subpoena. Under the Material Witness Statute, 18 U.S.C. § 3144, a material witness cannot be detained "if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice." I assumed that Hawash's lawyer would make a motion under Rule 15 of the Federal Rules of Criminal Procedure to have his deposition taken and his detention terminated. Days went by and nothing happened in the case (at least publicly).

On April 7, 2003, Judge Jones issued an order in the Hawash case. It turns out that his detention hearing was held under seal. The judge's findings ordering detention were also under seal. The reasoning provided for the sealing stands on suspect legal ground. The Court reasoned that because grand juries are secret, and Hawash’s proposed testimony pertains to the grand jury, his detention hearing should also be secret. Judge Jones stated that the detention of a material witness requires the judge to examine: (1) that the witness’s testimony is “material in a criminal proceeding” and (2) that it “may be impracticable to secure the presence of the person by subpoena.” 18 U.S.C. § 3144. No such examination takes place at a detention hearing. The standard articulated is applicable when a judge initially issues a material witness warrant. The detention hearing does not require a judge to inquire into the materiality of the witness’s testimony before the grand jury because such a determination has already been made.

Detention issues are governed by 18 U.S.C. § 3142, where the judge makes a determination whether release conditions will “reasonably assure the appearance of the person as required and the safety of any other person and the community . . . .” While it is true that some of the reasons offered by the government why Hawash is a flight risk or a threat to the safety of the community might relate to his testimony before the grand jury, I am not convinced that an open proceeding discussing this issue would compromise the grand jury. If the government takes the position that a person is a material witness to a crime, has not charged that person with any crime, and seeks to detain that person, it should be able to articulate its § 3142 detention justifications in open court. If the government is not prepared to show its cards, purportedly in deference to grand jury secrecy, it should let the witness free or charge him with a crime. “Democracies die behind closed doors.” Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002).

While the sealing issue is troubling, Judge Jones admirably forced the government to either present Hawash to a grand jury or take his deposition by April 25, 2003. He scheduled a second detention hearing for April 29, 2003. If the government would have presented him to a grand jury or taken his deposition as directed, he would have been freed because the government would have had no basis to hold him. On April 28, 2003, the government filed a criminal complaint against Hawash charging him with conspiring to aid the Taliban and Al-Qaeda. The affidavit filed in support of the complaint did not present any material evidence that was unavailable in the days immediately following Hawash's arrest as a material witness.

Hawash may well be guilty of the crime charged. However, the process used by the government when originally arresting him as a material witness is disturbing. Section 3144 should only be invoked when the government believes in good faith that the person being arrested is a witness to a crime as opposed to a participant in the crime. When a defendant is formally charged, he is vested with certain rights which are not triggered when he is arrested as a material witness. By using the material witness statute for investigatory purposes, the government engages in an end-run around the Constitution and federal law. Courts should not countenance such tactics. In addition, detention hearings for material witnesses in the grand jury setting should not be sealed based solely on a general plea to the sanctity of grand jury secrecy.