• Appellate Procedure,  Articles by Greg May,  Confrontation Clause,  Constitutional Law,  Criminal Procedure,  Federal Procedure,  Standard of Review

    “Confronting Confrontation”

    November 30, 2007

    That’s the title given by the Los Angeles Daily Journal to my article, which it published in its November 19, 2007 issue, regarding U.S. v. Larson, the en banc Ninth Circuit’s confusing “resolution” of the perceived split of authority on the standard of review in Confrontation Clause challenges based on limitations on cross-examination. The article (PDF link) grew out of this blog post giving my initial impressions about the case on the day it was published. I followed up that post with another providing links to some other blog coverage of the case.

    Read More
  • Appellate Procedure,  Civil Rights,  Federal Procedure

    Sufficient Merit to Proceed

    November 30, 2007

    When does an appeal or petition have “sufficient merit to proceed” so that a vexatious litigant subject to a pre-filing review order can move forward with it without counsel and without a certification of good faith from the district court? The Ninth realizes in In re Keith Thomas, case no. 01-80091 (9th Cir. Nov. 29, 2007) that it has never quite made it clear: Because our decisions pursuant to a pre-filing review order are rarely published, we have not yet clarified the standard for determining whether an appeal or petition has sufficient merit to proceed. We take the opportunity to do so now. The court examines standards in cases of…

    Read More
  • Appellate Procedure,  Briefing,  Federal Procedure,  Sanctions

    Follow the Rules – A Lesson from the Ninth

    November 29, 2007

    Today’s decision in Sekiya v. Gates, case no. 06-15887 (9th Cir. November 29, 2007) is a reminder that the dismissal sanction is lurking out there for any parties to an appeal that fail to follow the rules. The Ninth finds the appellant’s opening brief so deficient that it is “compelled to strike it in its entirety and dismiss the appeal.” The brief wasn’t merely “deficient.” It sounds like it did not resemble a brief at all. The brief fails to provide the applicable standard of review, and makes virtually no legal arguments. Furthermore, it lacks a table of contents, a table of authorities, citations to authority, and accurate citations to…

    Read More
  • Drugs,  Writ Practice,  Writ Review,  Writ Standing

    Medical Marijuana Buzz . . . and Writ Standing, Too

    November 29, 2007

    Looks like the new marijuana radio talk show on Inland Empire radio station KCAA (which is also available via podcast, and which I learned about from this post at Drug Law Blog) will have plenty to talk about tomorrow. Yesterday, in City of Garden Grove v. Superior Court (Kha), case no. G036250 (4th Dist. Nov. 28, 2007) the Court of Appeal denied a writ petition by the City of Garden Grove (joined by 4 law enforcement associations and 15 cities all over the state as Amici Curiae) seeking to vacate a trial court order to its police department to return medical marijuana seized from a person that the DA declined…

    Read More
  • Legal Research

    Free Online Constitutional and other Federal Research Resources

    November 29, 2007

    2/65/17 Update: A reader alerted me that these links don’t seem to work anymore. Sorry! Thanks to Fifth Circuit Blog for this link to The Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States.  It is provided by the Government Printing Office at its GPO Access website. The site has a great index page.  Took me all of five seconds to find online versions of the Code of Federal Regulations, Federal Register, and United States Code that are searchable, browsable, and have a find-by-citation function. That’s barely scratching the surface.  There’s plenty more, and all of it…

    Read More
  • Federal Procedure,  Habeas Corpus,  Writ Practice

    Looking for Help re Anonymous Habeas Case

    November 28, 2007

    Howard Bashman at How Appealing is looking for an explanation why the habeas petitioner in yesterday’s Doe v. Woodford, case no. 06-16054 (9th Cir. Nov. 27, 2007) opinion was kept anonymous despite the facts that (1) it appears to be a substitute opinion for an earlier opinion under the same case number, in which the petitioner was identified and (2) the PACER records for the case continue to identify the petitioner by name.  The opinion itself is silent on the reason for anonymity. Anyway, Bashman would appreciate it if you can e-mail him with any information that may help explain the anonymity of the habeas petitioner in yesterday’s opinion.

    Read More
  • Appellate Jurisdiction,  Appellate Procedure,  Articles by Greg May

    My Article in Santa Barbara Lawyer

    November 27, 2007

    I am finally able to provide a copy of my article published in the September 2007 issue of Santa Barbara Lawyer. The article, which grew out of this blog post, is an examination of the historical and existing rules regarding the appealability of an order denying a statutory motion under Code of Civil Procedure section 663 to vacate the judgment and enter new judgment. It also proposes a resolution of the confused law on that issue. (Just in case the Supreme Court was looking for my advice.) I know, I know. Geeksville. The magazine still is not available online, but I scanned the article and have posted it for download.…

    Read More
  • Legal Research,  Legal Writing

    Footnote Guidance

    November 27, 2007

    Footnotes. Some people love ’em, and some people hate ’em. And if you don’t know which way the judges deciding your appeal lean on the issue, and you can’t resist using footnotes, you’ll want to at least use them “correctly” — if there is such a thing. In this post at the (new) legal writer, New Orleans appellate attorney Raymond Ward notes an article by The John Marshall Law School’s Prof. William B.T. Mock, Jr. entitled When a Rose Isn’t ‘Arose’ Isn’t Arroz: A Student Guide to Footnoting for Informational Clarity and Scholarly Discourse, which, according to Ward, divides footnotes into three types and describes the appropriate use of each…

    Read More
  • Appellate Procedure,  Jurisdiction,  Waiver of Issues

    Failure to Exhaust Administrative Remedies is a Waivable Defense

    November 27, 2007

    At first glance, it might appear that the Court of Appeal in Mokler v. County of Orange, case no. G036029 (4th Dist. Nov. 26, 2007) did the unthinkable: hold that a defendant had waived a jurisdictional defect. Not so fast. The fact of the matter is that not all jurisdictional defects are created equally. Mokler provides a fairly good discussion of the difference between acts in the absence of fundamental jurisdiction — that is, acting in the absence of power to preside over the case — and acts in excess of jurisdiction, in which a court that has fundamental jurisdiction violates a restriction on the manner in which it can…

    Read More
  • Judges,  Legal Writing Blogs and Resources

    Writing Advice from Scalia and Garner is Coming

    November 26, 2007

    Via Carolyn Elefant at Law.com (whose blog post title, by the way, is quite clever) comes news that Justice Antonin Scalia has teamed up with legal writing guru Bryan Garner to author a book on legal writing.  Ms. Elefant links to an article at Legal Times giving more details, and then asks some excellent (and amusing) questions: Given that Scalia’s opinions (or in particular, his dissents), are often known for their nastiness or sarcasm, I’m particularly curious about the advice that he’ll provide to lawyers.  Will Scalia counsel restraint and professionalism in legal writing, and if so, how will he reconcile that with his own opinions?  Will Scalia offer “real…

    Read More
  • Appellate Jurisdiction,  Appellate Procedure,  Federal Procedure,  Sentencing

    Is a Sentence within the Range Stipulated in a Plea Agreement Appealable?

    November 26, 2007

    UPDATE (4/23/08): The holding described in this post was changed by the court’s amended opinion of April 17, 2008).  See my coverage. The Ninth Circuit rejects such a challenge in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007), at least where the plea agreement was not contingent on the sentencing guidelines and the only error asserted was a miscalculation of the guidelines or failure to properly consider the factors in Title 18 United States Code section 3553. The two defendants challenging their sentences in this case claimed that the trial court erred even though the sentences imposed were within the ranges stipulated in their respective plea agreements…

    Read More
  • Appellate Jurisdiction,  Appellate Procedure,  Federal Courts,  Federal Procedure,  Jurisdiction

    Appeal from Non-Appealable Order Does not Deprive District Court of Jurisdiction

    November 26, 2007

    Nasciemento v. Dummer, case no. 06-35062 (9th Cir. Nov. 21, 2007) presents a host of jurisdictional issues in a concise opinion. I recommend you read the entire opinion and will concentrate on just one of the issues here, since most of the principles in the opinion are well-established. Nasciemento purported to appeal from a non-appealable order of the Nevada district court that dismissed some, but not all, defendants and transfered the case to the Montana district court (the “transfer order”). After his appeal was dismissed, but nine days before the mandate issued, the Montana district court entered a discovery scheduling order. When the Montana court refused to extend time for…

    Read More
  • Legal Research,  Standard of Review

    New Book on Federal Standards of Review

    November 26, 2007

    West has published a new book on federal standards of appellate review: H. Edwards and L. Elliot, Edwards and Elliott’s Federal Courts – Standards of Review: Appellate Court Review of District Court Decisions and Agency Actions (West 2007). Here’s the description from the book’s page at the West website: This sophisticated but easy to understand exposition of the standards of review offers an invaluable resource for law students, law clerks, and practitioners. Decisions of the U.S. Courts of Appeals invariably are shaped by the applicable standards of review. “Fill[ing] a huge gap in the literature,” Standards of Review masterfully explains the standards controlling appellate review of district court decisions and…

    Read More
  • Blogging,  Legal Writing

    150 Resources for Legal Writing

    November 23, 2007

    the (new) legal writer links to the Online Education Database’s “collection of 150 resources to help you write better, faster, and more persuasively.”  Terrific.  To help me get through all of those, one of them has to help me read better and faster. But seriously, there’s nothing like regular blogging to hone your speed-writing skills!

    Read More
  • Appellate Jurisdiction,  Appellate Procedure,  Judgment

    Are Stipulated Judgments Appealable?

    November 21, 2007

    Well . . . yes and no. Or better yet, mostly no, and occasionally yes. And to discover the difference between those that are and those that aren’t, an excellent starting point is yesterday’s decision in Harrington-Wisely v. State of California, case no. B190431 (2d Dist. Nov. 20, 2007). Plaintiffs in this case alleged 10 causes of action for damages and one for injunctive relief, alleging that their constitutional rights were violated by overly intrusive x-ray technology (more about that later) used by the California Department of Corrections to search visitors at certain state penitentiaries. The CDC successfully moved for summary adjudication on the class damages claims on the ground…

    Read More
  • Blogging,  Confrontation Clause,  Constitutional Law

    Welcome to all Los Angeles Daily Journal Readers — and a Happy Thanksgiving to All

    November 21, 2007

    Welcome to all those visiting this blog for the first time after reading my article in the November 21 Los Angeles Daily Journal! Click and scroll around, check out some of the links in the blogroll, and come back again. Better yet, subscribe to this blog’s RSS feed. My regular readers of more than a few months’ duration have seen my posts about the subject of that article — last August’s en banc decision in U.S. v. Larson, in which the Ninth Circuit resolved a 3-way intra-circuit split on the standard of review for Confrontation Clause challenges based on limits placed on cross-examination — here and here. The article in…

    Read More
  • California Court of Appeal,  California Courts,  California Supreme Court,  Death Penalty

    Death Penalty Appeals to Shift from Supreme Court to Court of Appeal?

    November 21, 2007

    Monday’s announcement that the Supreme Court is seeking a constitutional amendment to have death penalty appeals heard in the Courts of Appeal (press release here) has predictably triggered blog coverage. Legal Pad calls the announcement a “bombshell,” poses several questions regarding the potential impact of such an amendment, and seeks answers from their readers. Crime & Consequences questions whether the proposed summary affirmance procedure for the Supreme Court to affirm Court of Appeal dispositions is functionally any different from discretionary review. The first comment on the post questions the propriety of justices “publicly lobbying to modify their jurisdiction” because practitioners who appear before them will be hesitant to publicly oppose…

    Read More
  • Constitutional Law,  Internet Law

    New Amicus Briefs in Roommates.com Case

    November 21, 2007

    Professor Eric Goldman continues to stay on top of the Roommates.com case with a new post at his Technology & Marketing Law Blog linking to some amicus briefs filed in connection with the en banc rehearing. If you’re not familiar with this case about whether the immunity provision of the Communications Decency Act protects an online roommate locating service from liability for discriminatory roommate advertisements — as well as the issue of whether one’s right to free intimate association precludes liability for discrimination in advertising for and selecting a roommate — check out my prior posts on the occasions of last May’s panel decision and last month’s order granting rehearing…

    Read More
  • Appellate Jurisdiction,  Appellate Procedure,  Attorney Fees,  Costs,  Federal Courts,  Federal Procedure,  Removal

    Appeal after Remand to State Court: Was Removal Reasonable?

    November 20, 2007

    The Ninth Circuit reminds us in Gardner v. MEGA Life & Health Ins. Co., case no. 06-55045 (9th Cir. Nov. 19, 2007), that even though no appeal lies from an order remanding a removed action to state court, the removing defendant may appeal an order to pay costs and fees imposed in connection with the remand under 28 U.S.C. § 1447(c). Here, it pays off. MEGA was ordered to pay costs and fees when the action was remanded. It claimed the only non-diverse defendant, an individual, had been fraudulently joined for the purpose of defeating diversity jurisdiction because the statute of limitations had run as to that defendant. Applying the…

    Read More
  • California Courts,  Stare Decisis

    A Group Passionate about Changes to Publication/Citation Rules

    November 20, 2007

    I had occasion to do some research recently into the fight for changes in the rules for publication and the California ban on citation of unpublished California opinions (Cal. Rules of Court, rule 8.1115) and ran across The Committee for the Rule of Law. According to its mission statement, it “seeks to revive full publication of all decisions of the United States Court of Appeals and the Court of Appeal of California in official reports and to eliminate all rules of court prohibiting the citation of approximately 90% of all decisions of our appellate courts to any court for any purpose.” The name of the group and the passion with…

    Read More
  • Constitutional Law,  Ethics,  Fifth Amendment - Takings

    Can an Attorney’s Labor be Taken under the Fifth Amendment?

    November 20, 2007

    In Scheehle v. Justices of the Supreme Court of Arizona, case no. 05-17063 (9th Cir. – Nov. 15, 2007), the Ninth Circuit holds that a local court requirement for attorneys to serve periodically as arbitrators for nominal compensation ($75/day) is not an unconstitutional “taking” under the Fifth Amendment’s Takings Clause. Whether you think that “mandatory volunteering” is a fair trade-off for the privilege of practicing law or you prefer to think of this kind of arrangement as involuntary servitude, you should check out the posts about this case at California Appellate Report and Decision of the Day. 

    Read More
  • California Procedure,  Judgment,  Judgment,  Jurisdiction,  Summary Judgment,  Summary Judgment

    Potentially Void Judgment Reversed on the Merits

    November 19, 2007

    Here’s a post I’ve been saving for a time where I’m too busy to spend much time on new content. I may get a post up later in the day, but in the meantime, I’ll get on my soapbox about why I think the Court of Appeal blew it on a jurisdictional question in Holland v. Union Pacific Railroad Co., case no. C052833 (3d Dist. July 30, 2007, certified for publication August 29, 2007). The case came up on appeal from a summary judgment granted on the ground that the plaintiff’s administrative complaint was untimely. The timeliness of the administrative complaint turned on whether the Department of Fair Employment and…

    Read More
  • Appellate Procedure,  Family Law,  Standing to Appeal

    Petition by One Parent in Juvenile Proceedings Does not Give other Parent Standing to Appeal Resulting Order

    November 17, 2007

    Rooting for the mother of your children to win her petition for modification isn’t enough to give you standing to appeal the ensuing order denying modification.  Thus, in In re D.S., case no. C055069 (3d Dist. Oct. 31, 2007), the court of appeal dismisses the father’s appeal from the order denying the mother’s petition for modification. Appellant father appealed both from the order denying mother’s petition for modification and from the order terminating his and the mother’s parental rights.  But he never joined in the petition, which the court denied as untimely.  Since he did not join in the petition, he is not aggrieved by its denial, which had no…

    Read More
  • Appellate Procedure,  Waiver of Issues

    “Forfeiture” vs. “Waiver” of Issues on Appeal

    November 16, 2007

    The Court of Appeal in People v. Campos, case no. B191256 (2d Dist. Nov. 14, 2007) points out in a footnote the difference between “forfeiture” of one’s right to raise an issue on appeal and a “waiver” of that right: While the People use the term “waiver” in reference to defendants’ failures to preserve their instructional claims for appeal because they did not raise them in the court below, the correct term which we use in this opinion is “‘forfeiture.’” “‘Waiver’” is the express relinquishment of a known right whereas “‘forfeiture’” is the failure to object or to invoke a right. (In re Sheena K. (2007) 40 Cal.4th 875, 880,…

    Read More
  • Appellate Procedure,  Jurisdiction,  Standing to Appeal,  Waiver of Issues

    Not Every Procedural Error is Jurisdictional

    November 16, 2007

    I know that sounds self-evident. But a jurisdictional challenge is your last hope on appeal if you’re relying on procedural irregularities that you let pass without objection. That’s because a jurisdictional defect can be raised any time in the course of the proceedings, so a party on appeal does not have to worry about having waived it. But the appellant in In re Angel S., case no. C054446 (3d Dist. Oct. 23, 2007, modified and ordered published Nov. 13, 2007) isn’t able to pull it off. The appellant in Angel S. had her probate guardianship of her 2-year-old great niece terminated after the girl suffered severe head injuries in appellant’s…

    Read More
  • Ninth Circuit

    Defense of the Ninth Circuit

    November 15, 2007

    The Ninth Circuit Court of Appeals gets plenty of criticism.  Not like you need me to point it out to you, but I have done so, along with pointing out some defenses.  See here, here and here. NLJ’s L.A. Legal Pad links to an article in The National Law Journal (unfortunately, behind a subscription wall) with this introduction: “[C]atcallers should recognize that 27-judge court does not get to pick its cases and faces a great mix and concentration of cases compared to other circuits, finds a story in The National Law Journal.” Might be worth checking out.

    Read More