Category Archives: Judges

March 30, 2009

Judge Bea calls out his colleagues

In a dissent from a Ninth Circuit denial of en banc review in Lopez-Rodriguez v. Holder, case no. 06-70868 (9th Cir. Aug. 7, 2008, r’hng en banc denied March 27, 2009), a case concerning the application of the exclusionary rule to civil deportation proceedings, Judge Bea authors an opinion that puts his view of the panel decision — specifically,the reasoning by which the panel reached its decision — rather bluntly.  

In [INS v. Lopez-]Mendoza [, 468 U.S. 1032 (1984)], the Supreme Court clearly held the exclusionary rule does not apply to bar illegally procured evidence from admission in a deportation hearing. Mendoza, 468 U.S. at 1050 (holding that the “balance between costs and benefits comes out against applying the exclusionary rule in civil deportation hearings”). The panel in Lopez-Rodriguez v. Mukasey (Rodriguez), 536 F.3d 1012 (9th Cir. 2008), held precisely the opposite. How we got there is an interesting— and perhaps cautionary—tale. We seem to have turned Supreme Court plurality dicta into majority dicta simply by saying so. Then, we have applied that dicta, in a manner not consistent with the sole case cited in the dicta, to create a new rule—one never envisioned by either the Supreme Court majority or the plurality.

Judge Bea then provides detail of the 4-step analysis he claims the panel engaged in. That analysis is nicely summarized by attorney and blogger Gabriel Malor:

Step One is to dig through Supreme Court decisions for dicta (that is, non-binding editorializing) that is arguably on point. Step Two is to mischaracterize that dicta as binding and creating a new constitutional test. Step Three is to “rephrase” the new rule so as to reach wider conduct. Step Four is to impose the new rule, while acting as if it was obvious all along.

And if you don’t mind mild profanity (by today’s standards, anyway), and especially if you are usually in sync with Judge Bea, I think you’ll find it ’s worth clicking on the link to Malor’s post just to read the title, which is even more blunt.

Judge Bea’s dissent is joined by three others, including original panel member Judge Bybee, who warned in his separate concurrence with the panel opinion that Ninth Circuit precedent “has set us on a collision course with the Supreme Court.” 

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Posted in: Constitutional Law, Immigration, Judges, Search & Seizure

March 30, 2009

Another Supreme Court Justice Meet-Up at Pepperdine

After hosting Justice Alito and Justice Scalia, Pepperdine recently hosted an event with Justice O’Connor. Read appellate attorney Ben Shatz’s account of the Justice O’Connor event at the Los Angeles County Bar Association blog, en banc, where you can also find his previous posts on the Justice Alito and  Justice Scalia events.

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Posted in: Events, Judges

March 10, 2009

Scalia and Starr at Pepperdine

Too late, you’ve missed it.  But if you want to read all about the “conversation” between Dean Kenneth Starr and Justice Antonin Scalia held at Pepperdine yesterday, check out the very detailed write-up of the event  by appellate attorney Ben Shatz at En Banc.  Consider Ben the Pepperdine bureau chief, as he also had a good write-up last August on Justice Samuel Alito’s appearance there.

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Posted in: Events, Judges

January 2, 2009

Judge Kozinski’s “Dirty” Pictures May Not Be So Dirty

Remember the big “to do” about Judge Kozinski having posted material from an obscenity trial on his website?  My prior coverage concentrated mainly on how this could affect his qualification to preside over the trial, and noted the interesting fact that Kozinski, an appellate judge, was presiding over a trial at all.

There is another aspect to the media coverage that I did not give much thought to, and that is the way that the media painted the materials as sexually graphic and/or obscene.  Considering the mischievousness that is usually attributed to Judge Kozinski, I figured that would be water off a duck’s back.  And while it might have been just that for Judge Kozinski, a long-time critic of the Los Angeles Times isn’t taking it so lightly.

Blogger Patterico blasts the Times’s coverage of the Kozinski incident in his round-up of 2008 L.A. Times reporting at Patterico’s Pontifications.  Among his findings is that the source for the article is a man with a long-running feud with Judge Kozisinski.  And to give you an idea of his post, here’s what Patterico describes as one distortion:

The paper also referred to “themes of defecation and urination” — but vastly understated the humorous context of any such themes. Rather than graphic depictions of bodily functions, material with themes of urination turned out to be stuff like this:

womens-bathroom.jpg

Patterico appears to come at the issue as much from the Right as the Times does from the Left, and I didn’t follow all of his links, so I don’t know if his own critique is fair. But anyone who wants to give Judge K a fair shake should probably look at Patterico’s post, which includes many links to prior coverage.  (That link leads to a very long post — you can find the part about Judge Kozinski by searching for his name or scrolling down until you see his picture.)

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Posted in: Judges, Media and the Law

November 3, 2008

The Mindset of Appellate Judges

Here is a well-stated look into the minds of appellate judges, from a 2-year old column by Howard Bashman:

One essential trait that an appellate lawyer must possess is the ability to think about legal issues from the perspective of judges who serve on appellate courts. Appellate courts are not only responsible for trying to reach the correct result in the cases on appeal, but their rulings often create precedents that will govern other cases that don’t even exist yet. Thus, an appellate lawyer must be cognizant not only of how existing precedent will affect an appellate court’s view of a newly filed appeal, but also about how the precedent created in the course of deciding the new case will affect the future direction of the law.  

Not every appeal has such an issue.  If all appeals did, you wouldn’t see so few decisions published.  But this is a question that must be part of every case evaluation and, if such an issue is present, the question of “what if” must be anticipated and answered before it is asked.

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Posted in: Appeals, Judges

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October 31, 2008

Does it Matter Who’s On Your Panel?

Our local appellate court in Ventura (Second District, Division Six) can be a good place to hang out if you’re looking for a chuckle. I don’t think I’ve ever left a session there without having at least once laughed, or at least smiled — just not in my own case. No, I don’t laugh at anybody . . . I laugh with them.

At a recent session, a somewhat mischievous question from the presiding justice brought some grins to those waiting and provided food for thought.

Presiding Justice Arthur Gilbert is well known for his wit, and recently it even came out during the criminal case calendar. Usually, all four justices in the division are on the bench, and Justice Gilbert will announce with each case called which of the four justices are on the three-justice panel for that case. One appellant’s counsel took the podium and asked if Justice Gilbert could repeat which of the three justices were on the panel. After repeating the names, Justice Gilbert asked the attorney how she was going to do anything different now that she knew. It seemed like a mischievous question.

Wanting to know who’s on your panel, though, isn’t all that bizarre a request, especially if you’ve become familiar (or at least think you have) with the idiosyncrasies of each justice. Everyone’s heard experienced (and sometimes not-so-experienced) attorneys offer such sage wisdom as “If you draw Justice Razzamatazz, remember that he’s still bitter that the Supreme Court reversed him in Folder v. Screen, so he’s susceptible to arguments that situations shouldn’t be be governed by Folder.” True or not, attorneys act on such “revelations.” (One of the other Justices even quipped in response to Justice Gilbert’s question that if swing Justice Kennedy were on the panel, he’s the only justice the lawyer would have bothered to address.)

In fact, Justice Gilbert may have inadvertently been on to something. A while back, Tom Caso highlighted a study noting that certain substantive areas of the law draw more opinions from some judges more than others. In the words of the author “opinion specialization [is an] unmistakable part of every day judicial practice.” Tom took note of the practical implications:

If true, this suggests a more focused approach for the federal appellate lawyer. One of the difficulties for the appellate practitioner is not knowing the audience for the brief. If, however, opinions are assigned based on the specialities of the individual judges, the brief can be written with those individual judges in mind. This population of potential opinion writers is still larger than the ultimate panel that will hear the case. Nonetheless, by studying whether a particular subset of judges in your circuit write most of the opinions in your area of the law, you have the opportunity of focusing your presentation to address the concerns of those particular judges.

I think a lot of lawyers put too much stock in what they think they know of a judge’s biases. Most of the time a lawyer expresses a negative opinion about the judge, I find it is due to sour grapes over a loss.

However, a judge’s legal approach to things is certainly a fair factor to take into account. For instance, it’s probably not wise to rely on the aforementioned “Justice Razzamatazz’s” purported “bitterness,” but it strikes me as practical to look at his reasoning in the Folder case to see if you can craft an argument that is more likely to persuade him.

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Posted in: Appeals, Judges, Legal Humor

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October 30, 2008

Got a stay? Challenge the judge anyway!

Under Code of Civil Procedure 170.3, subdivision (c), a party may apply to disqualify the trial judge for cause, but must submit the statement of objection “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.”  In Tri Counties Bank v. Superior Court (Amaya-Guenon), case no. F055084 (5th Dist. Oct. 28, 2008), Tri Counties tried to convince the court of appeal that its seven-month delay met the “earliest practical opportunity standard” under the circumstances of the case.  No dice.  And in rejecting that contention, the court of appeal makes an interesting exception to a stay of proceedings in the trial court.

Tri Counties asserted that the the judge should be disqualified for conducting an independent investigation into a factual issue relevant to class certification.  It learned of the investigation from the trial court’s tentative ruling in the class certification motion and, in a supplemental memorandum, urged it as a ground to deny certification.  When the trial court certified the class, Tri Counties sought appellate review of the certification order by petitioning for a writ of mandate, citing the improper investigation as a ground to grant the petition, but did not seek the trial judge’s disualification.  Only after that petition was denied did Tri Counties submit its 170.3 statement of objection, which the trial court struck as untimely.  Tri Counties then filed a writ petition challenging that order.

Tri Counties contended that the stay issued in connection with the first writ petition prevented it from filing its statement of objection until the conclusion of that proceeding.  The court notes, however, that the stay did not take effect until more than three moths after Tri Counties became aware of the improper investigation, leaving it plenty of time to challenge the judge.

The second reason the court gave was more interesting.  It holds that proceedings regarding the qualification of a judge are distinct from the ordinary proceedings, and the stay affects only the latter:

Second, although unnecessary to our conclusion that the statement of objection was untimely, it is our view that petitioner could have filed a statement of objection even while the stay was in effect.  Our general stay of proceedings was obviously directed to the underlying proceedings between the parties to the action (i.e., to the litigation itself), not to questions of the judge’s qualification to preside over those proceedings.  A judge’s qualification to preside as judge in a particular case is foundational to, and hence distinct from, the ordinary proceedings between the parties that would be tried or heard by the judge.  (See § 170.5, subd. (f).)  Because of this basic distinction between a judge’s qualification and the underlying litigation, we do not believe that our stay could reasonably be understood as barring petitioner from promptly filing a statement of objection in the trial court.  We note further that disqualification of the trial judge was not raised in the writ of mandate petition challenging the class certification order, thus the filing of a statement of objection to pursue disqualification would not have interfered with or affected our appellate review of that order.

This is an interesting and important distinction.  It’s also quite interesting that the court went out of its way to discuss it, since it was unnecessary once it found Tri Counties had delayed too long even before the stay went into effect.

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Posted in: Judges, Mandamus/Prohibition, Stays & Supersedeas

September 15, 2008

Peremptory Challenge to Judge After Remand Has Its Limits

Virtually every civil litigator knows about the procedure afforded by Code of Civil Procedure section 170.6 for disqualification of the judge assigned to the case.  Commonly called “papering the judge,” the requirements of the section are so meager that such challenges are also referred to as “peremptory” challenges, though not technically so (to my mind), and my guess is that any civil litigator who has practiced for more than a few years has invoked section 170.6 at least once.

Maybe you didn’t know that this disqualification procedure is available even after reversal on appeal.  Subdivision (a)(2) of section 170.6 provides

A motion under this paragraph may be made following reversal on appeal of a trial court’s decision, or following reversal on appeal of a trial court’s final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.  Notwithstanding paragraph (3), the party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion under this section regardless of whether that party or side has previously done so.  The motion shall be made within 60 days after the party or the party’s attorney has been notified of the assignment.

Since appellants frequently feel they were treated unfairly by the trial judge in the first instance, the ability to “paper the judge” after a reversal on appeal is a critically important consideration.  It may be the one thing that convinces an aggrieved party to appeal, when that party might otherwise have been resigned to accept an adverse judgment because the prospect of having to retry the case before the same judge the party thinks is an idiot is simply too daunting.

But you’ve got to be careful about when you count on it and when you don’t, as the real parties in interest learned in C.C. v. Superior Court, case no. G040580 (4th Dist. Sept. 11, 2008), a juvenile dependency proceeding in which, after succeeding on appeal by obtaining a reversal of a reunification order, real parties “papered the judge.”  Petitioner filed a petition for writ of mandate, and the court of appeal grants the petition.

The language allowing a peremptory challenge on remand was added in 1985 to avoid perceived bias against an appellant of a trial judge whose judgment or order had been reversed on appeal.  (Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 575-576.)  But the statute applies only where the remand requires “a ‘reexamination’ of a factual or legal issue that was in controversy in the prior proceeding.”  (Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 424.)  It does not apply to the performance of a ministerial act.  (Stegs Investments v. Superior Court, supra, 233 Cal.App.3d at p. 576.)

The problem for real parties, however, is that the remand order required the trial court to perform only ministerial acts.  Those were: (1) to enter a new order denying reunification services and (2) setting a permanent plan selection hearing.  The court rejected the real parties’ argument that the subsequent hearing would require a reexamination of the same issues considered in the reunification hearing.

The real parties in interest claim, “the juvenile court in the present case will undoubtedly revisit the core determinations upon which this Court based its reversal,” meaning it will have to consider the strength of the bond between the children and the mother at the permanent plan selection hearing.  This claim is true, but the consideration of the parent-child bond at the permanent plan selection hearing is not for purposes of reunification; rather, it is to determine whether to avoid the termination of parental rights and select a different permanent plan.  (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)  This consideration will take place in a different legal context from the disposition hearing and will involve facts as they then exist.  On remand, however, the juvenile court was merely directed to enter an order denying reunification services and to set a permanent plan selection hearing.  The implementation of these directions will not constitute a reexamination of an issue of fact or a retrial of the dispositional issues. 

Thus, “[b]ecause the matter was not remanded for a reexamination of an issue of fact or a retrial of the dispositional issues, we grant the petition and direct that the case be returned to [the challenged judge].”

The same considerations should not apply in the typical civil trial, where past facts are what are at issue.  But any time that future consideration of an issue will depend on facts as they then exist, “papering the judge” is apparently not an option after remand.

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Posted in: California Procedure, Judges, Juveniles

August 22, 2008

A Running Feud Between Courts?

Well, maybe “running feud” is a tad strong, but Legal Pad notes a history of bad blood between a California superior court judge and his district court of appeal.

Hat tip: Cal Biz Lit.

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Posted in: Judges

August 11, 2008

It’s Kennedy’s Court

So says UC Irvine School of Law Dean Erwin Chemerinsky about the U. S. Supreme Court in his front-page piece in this month’s California Bar Journal.

Simply put, on issues that are defined by ideology, the conservative position prevails in the Roberts Court except when Justice Kennedy joins with Justices Stevens, Souter, Ginsburg, and Breyer. Occasionally this term, Justice Stevens or Justice Breyer joined with the five most conservative justices to create a 6-3 or 7-2 vote for a conservative result. But never did one of the four most conservative justices — Chief Justice Roberts and Justices Scalia, Thomas and Alito — vote for a more liberal result in a case defined by ideology. The bottom line is that when the Court is divided 5-4 on issues where there are clear liberal and conservative positions, Justice Kennedy is always the swing vote.

Dean Chemerinsky never defines what constitutes an issued defined by “ideology.” I’m wondering . . . are there any that aren’t?

In his wrap up of the court’s year, I found this to be Chemerinsky’s most interesting observation:

[I]n some areas of criminal procedure — especially sentencing and the Confrontation Clauses — ideology does not predict outcomes. The conservatives on the Court, such as Justice Scalia, have taken the lead in these areas in expanding the rights of criminal defendants.

Maybe “law & order conservative” means something different than the sense with which it is usually used.

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Posted in: Judges, U.S. Supreme Court

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August 8, 2008

Pepperdine’s Justice Alito Event — Video Available

Pepperdine has video of the conference on judicial opinion writing that I commented on here (actually, I was commenting on Ben Shatz’s write-up of the event).  Here’s the description accompanying the video:

The Honorable Samuel A. Alito, Jr., associate justice of the United States, spoke on “Lawyering and the Craft of Judicial Opinion Writing” at the School of Law on Wednesday, July 30, to a crowd of more than 200 students, alumni, law professors, journalists, judges, and special guests.

Justice Alito was joined by The Honorable Michael W. McConnell, United States Appellate Judge for the Tenth Circuit; The Honorable Walter E. Dellinger III, former United States Solicitor General; Pepperdine School of Law dean and former Solicitor General Ken Starr; and Professor Douglas W. Kmiec, former United States Assistant Attorney General (OLC).

Hat tip: Crime & Federalism.

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Posted in: Events, Judges, Legal Writing

July 2, 2008

Mistakes in Big SCOTUS Cases? (UPDATED)

The US Supreme Court building in Washington.Image via Wikipedia

I ran across a couple of interesting posts claiming that various SCOTUS justices got the facts just plain wrong in at least three significant cases, including two very recent ones. Make of them — both the blog posts and the mistakes — what you will.

CAAFlog, a military law blog, reports that both the majority and dissenting SCOTUS justices in Kennedy v. Louisiana, case no. 07-343 (June 25, 2008), were wrong in noting that the federal government had not made child rapists eligible for the death penalty. According to CAAFlog, the Uniform Code of Military Justice makes child rapists in the military eligible for the death penalty. Get more details at CAAFlog, where a couple dozen commenters opine on the significance of the omission.

Gabriel Malor, an anonymous blogger and recent law school grad studying for the bar, notes the CAAFlog post as a follow-up to his own post last week that Justice Stevens got some facts wrong in Hamdan and Heller.

UPDATE (7/7/08):  SCOTUSBlog explains how the mistake in Kennedy may play out, and how the Department of Justice accepted responsibility for the error.

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Posted in: Judges, U.S. Supreme Court

July 1, 2008

The Ninth Offers a Party a Hint on a “Non-Issue”

It’s hardly uncommon to see a reviewing court remanding a case to give some pointers to the trial court and even to the parties or their counsel.  But it’s usually across-the-board advice or a warning against future misconduct.

I thought the advice offered in Duarte v. Bardales, case no. 06-56808 (9th Cir. July 1, 2008 [order denying rehearing and rehearing en banc]) was a little different and arguably partisan.  In the original opinion, the Ninth had reversed the trial court’s denial of a motion to vacate, under Federal Rule of Civil Procedure 59(e), of a judgment denying Duarte’s “petition for the return of her children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (‘Hague Convention’), as implemented by the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (‘ICARA’).”  In opposing the petition for rehearing and rehearnig en banc. Bardales apparently raised the prospect that the children would be “subject to a potentially abusive environment if returned to the custody of the mother, Duarte, in Mexico.”  Because the petition had been denied in the trial court due to Duarte’s failure to appear, the trial court had never reached this issue, but is certain to encounter it on remand, which led the Ninth to offer this:

The matter of abuse is not before us and was not reached by the district court. Thus, it is a non-issue but, nevertheless, a matter of concern. The proper place to assert such claim is in the district court under appropriate provisions of the Hague Convention and the affirmative defense of “Grave Risk” which Bardales has asserted in district court but which was never reached by the district judge.

We remind Bardales and his counsel that the Hague Convention, Article 13(b) provides: “The requested State is not bound to order the return of the child if the person . . . which opposes its return establishes that (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

Bardales will have the opportunity to establish by appropriate evidence that returning the children to the mother in Mexico will put the children at great risk of physical or psychological harm and that, therefore, the children should remain in California.

Perhaps concern over the welfare of the children is what led the court to address this “non-issue.”

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Posted in: Judges

June 26, 2008

It’s not just Bill Clinton . . .

. . . who says it all depends on what the meaning of “is” is. A Ninth Circuit opinion filed today begins: “This appeal presents the single, seemingly straightforward question whether the word ‘is’ really means ‘is,’ at least as that word is employed in 25 U.S.C. § 81.”

And it turns out the answer isn’t that easy:

Motivated largely by the plain meaning of Section 81—but after also taking into account related statutes, relevant legislative history and the language of the contract itself—we conclude that the word “is” means just that (in the most basic, present-tense sense of the word)[.]

As if to prove the answer isn’t simple, there’s a dissenting opinion.

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Posted in: Judges, Oddities

June 24, 2008

You’re Probably Wrong about How Judges Think

Me, too, for that matter.  That’s what Judge Posner’s blurb on the jacket of his book, How Judges Think, seems to say.  It seems to me that most commentators tend to agree that judges are often inscrutable on the bench, but many who advise on legal writing seem to assume they know what the judges want.  Do we?  Says Judge Posner:

[M]ost judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule-bound it is), and often to believe it, though it does not describe their actual practices. . . This book parts the curtain a bit.

You can read the full text of Judge Posner’s comment at the (new) legal writer.

You can also keep up with Judge Posner’s thoughts at his blog.

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Posted in: Judges

June 11, 2008

A Glitch In Kozinski’s Presiding over Obscenity Trial?

Ninth Circuit Chief Judge Alex Kozinski may be feeling a little embarrassed today. According to this piece in the Los Angeles Times, he accidentally posted materials from an obscenity trial on a publicly accessible portion of his web server that he thought was for private storage.

Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged in an interview with The Times that he had posted the materials, which included a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he defended other sexually explicit content as “funny.”

Kozinski, 57, said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends. After the interview Tuesday evening, he blocked public access to the site.

***

Kozinski said he must have accidentally uploaded those images to his server while intending to upload something else. “I would not keep those files intentionally,” he said. The judge pointed out that he never used appeals court computers to maintain the site.

Oops! It seems doubtful, however, that many people accessed the files:

Before the site was taken down, visitors to http://alex.kozinski.com were greeted with the message: “Ain’t nothin’ here. Y’all best be movin’ on, compadre.”

Only those who knew to type in the name of a subdirectory could see the content on the site, which also included some of Kozinski’s essays and legal writings as well as music files and personal photos.

Geek that I am, one of the more interesting aspects of this story is that Chief Judge Kozinski is actually presiding over the trial in U. S. District Court. Thus, the article addresses the appropriateness of his continuing to preside over the trial. Above the Law, which originally posted about this here, later dubbed Kozinski “Judge of the Day” and reported that its online poll (scroll down at that link) was running 60-40 against recusal as of this evening..

Stephen Bainbridge discusses the impact on Kozinski’s chances for elevation to the U. S. Supreme Court and poses an interesting and entertaining list of questions generated by the situation.

The story even made news n the U.K.

There are hundreds of reader comments at the Times and dozens more at the WSJ.com Law Blog post.

One thing about Kozinski’s presiding over the trial really jumped out at me (my emphasis):

The judge said it was strictly by chance that he wound up presiding over the Issacs trial in U.S. District Court in Los Angeles. Appeals court judges occasionally hear criminal cases when they have free time on their calendars and the Isaacs case was one of two he was given, the judge said.

Free time is not a luxury I would expect any chief judge of any circuit to have!

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Posted in: Judges

June 9, 2008

Justice Gilbert Profiled

Justice Arthur Gilbert, presiding justice of the Second District Court of Appeal, Division Six, was profiled in the Palisadian Post last week.  This comes not long after he was honored with The Beacon of Justice Award.

Thanks to Curt Cutting of California Punitive Damages blog for the tip.

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Posted in: Judges

May 16, 2008

Judges Read Blogs

I’ve noted before some intersections between actual law practice and blogging. There was the blogging jury foreman and the blog where lawyers complained about judges, for example.  There are even some blogs by judges (look in the left sidebar).

Now, we have at least anecdotal evidence that judges are reading blogs. Texas appellate lawyer D. Todd Smith posts at his Texas Appellate Law Blog about his chance encounter with a blog-reading judge at a professional event. In fact, the judge is not just a blog reader, but a regular reader of Smith’s blog.

So, now I’m really curious. I’m going to fiddle around with some of the poll gadgets for blogs, and hopefully by Monday I’ll have a poll up at the top of the right sidebar that allows visitors to identify themselves as a lawyer, judge, law person, etc.

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Posted in: Blogging, Judges

May 15, 2008

A Conspiracy Theorist’s Delight

In In re Complaint of Judicial Misconduct, case no. 07-89012 (Judicial Council of the 9th Cir. May 14, 2008), the complainant was an attorney who was also a plaintiff in a civil action. He filed a complaint against both the district judge and the magistrate judge to whom the district judge referred the civil case. The title of this post relates to the charges made by the complainant.

The complainant alleged misconduct regarding both judges with respect to discovery rulings and their decisions to continue with the case following his filing of a notice of appeal. Chief Judge Kozinski’s order characterizes these charges as challenges to the rulings themselves. Complainant had his chance to appeal, and did so. He lost. He can’t collaterally attack the rulings in the guise of a judicial misconduct complaint.

Complainant also alleged that the judges “fixed” the civil case to cover up corruption in the state judicial system. But the allegations related to the complainant’s suspension from practice are where the conspiracy theory really started to fly.

Complainant was suspended from practice by the supreme court of his home state, which prompted the district judge to order the complainant to show cause why he should not also be suspended from practice before the district court. Complainant claimed that the district judge lied about the misfiling of the complainant’s response to the OSC, refused to open a docket number for the proceedings, falsified the docket once open, hid evidence, intercepted complainant’s mailings of his state court records sent to other federal judges in the district, tore and returned documents to plaintiff in order to intimidate him, and “framed” complainant and “fixed” complainant’s suspension from practice before the district court in retaliation for complainant’s exposure of corruption in the state judicial system. Finally, he claimed that the magistrate engaged in misconduct for refusing to report the district judge.

That’s quite a story. The order disposes of the charges in less then seven pages, concluding that none of them are supported by objectively verifiable evidence sufficient to raise an inference that misconduct occurred.

But there does appear to be some misconduct here: by the complainant. The order chastises him thus:

Complainant is an attorney, so he should know better than to file such an obviously frivolous and abusive complaint. He has wasted considerable judicial resources for no purpose whatsoever. The standards for filing a complaint of judicial misconduct have been established for decades, [citation], and complainant most likely knew, and certainly should have known, that the complaint he filed comes nowhere near stating a viable claim of judicial misconduct. [Citations.]

He is ordered to show cause why he should not be sanctioned. Good luck.

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Posted in: Ethics, Judges

April 15, 2008

Chief Judge Kozinski Profiled

Alex KozinskiImage via Wikipedia

All my California readers undoubtedly know this already, but for the benefit of readers elsewhere in the Ninth Circuit, here’s a link to the cover article of this month’s California Lawyer magazine, which is a profile of Chief Judge Alex Kozinski. You do not have to be a subscriber to get to the article.

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Posted in: Judges, Ninth Circuit

April 3, 2008

Congratulations to Justice Arthur Gilbert

Presiding Justice Arthur Gilbert, one of our local (Second District, Division Six) appellate jurists, was honored last night in a ceremony held in the main reading room of the Los Angeles County Law Library, where he was presented with the Beacon of Justice award. The award was created by a group called Friends of the Los Angeles County Law Library, which describes the award this way:

Created by the FRIENDS OF THE LOS ANGELES COUNTY LAW LIBRARY in 2005, the BEACON OF JUSTICE AWARD is given to those whose character and outstanding service to the legal community, especially in the areas of access to justice and legal information, education, scholarship, writing and/or journalism, and public service and/or advocacy, have inspired others and brought them the respect and admiration of the legal community.

This page at the Friends’ website gives their reasons for giving this year’s award to Justice Gilbert. The first few lines:

We recognize Justice Gilbert because of his exemplary service and significant contributions to the quality of justice, legal scholarship and legal education. The quality of his writing has earned him the title, “The Court of Appeal’s poet laureate.”

It seems to me that this acknowledges that good legal writing from judges is itself a public service.

As for the awards ceremony . . . awards ceremonies can sometimes seem to drag on forever, but this one didn’t. All of the speakers were engaging and witty — even Attorney General Jerry Brown, whom most people, I suspect (then again, maybe its just me), would never guess could be so charming. Justice Gilbert’s Division Six colleague, Justice Steven Perren, did a great job as emcee.

The library was crowded with active and retired judges, and lots of appellate heavy-hitters were on hand. I met some new people and am glad I attended.

Attendees received a copy of Justice Gilbert’s recently published book, Under Submission: The Columns of Arthur Gilbert (The Rutter Group 2008), a collection of his columns that have appeared in the Daily Journal since 1988. Many of his columns are also republished on his blog, Gilbert Submits, which he subtitles, “Court of Appeal Justice Arthur Gilbert in a rare display of poor judgment shamelessly posts selected columns he has written for the Daily Journal during the last decade.”

Hmmmm . . . . turning a blog into a book. Nah, it’ll never happen here. Not because I’m a blogging purist, but because no one would ever want to assemble my posts into a book.

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Posted in: Judges

March 6, 2008

You’ve Heard of Doubting Thomas. Here’s Silent Thomas.

This AP article explores the curious silence of Supreme Court Justice Clarence Thomas. According to the article, Justice Thomas has not asked a question at oral argument in two years. I knew he was a man of few words that rarely asked questions . . . but two years? That’s stunning.

He says he asks questions when he needs to.

Which reminds me of the kid who wouldn’t talk. At age 2, his parents took him to the doctor, who could find nothing physically wrong with him.

But at age 4, he still hadn’t said a word. To the doctor again. Again, nothing physically wrong.

And so it went for years, with his parents taking him to the doctor every year or so, only to be told again and again that there was no physical explanation.

Finally, one day when the boy was about 12 years old, he said during dinner, “The potatoes are cold.” His parents dropped their silverware in stunned disbelief.

“You can talk!” they shouted in unison.

“Of course I can talk,” said the boy. “So what?”

His parents made the obvious point: “You never talked before!”

“Up until now,” said the boy, “everything was fine.”

I wonder if they ever told that one in the Thomas household.

UPDATE (3/6/08): I’m curious who you readers in California or the Ninth Circuit find least likely to ask questions. Name your favorite silent California justice (Supreme Court or Court of Appeal) or Ninth Circuit judge in the comments.

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Posted in: Judges, Oral Advocacy, U.S. Supreme Court

March 4, 2008

Something Fishy about the “Smell Test” and the Standard of Review

Fish2A couple of interesting dissents filed today in a denial of rehearing en banc in United States v. Jenkins, case no. 06-50049 (9th Cir. Mar. 4, 2008). I blogged about the panel decision in this post because the decision resolved an open issue on the standard of review to apply when reviewing an order dismissing an indictment for prosecutorial vindictiveness. My post referred readers to California Appellate Report for Professor Martin’s write-up of the merits.

Judge O’Scannlain, joined by five other judges, dissents from the order denying rehearing en banc, and Chief Judge Kozinski writes a second — and very brief — dissent to highlight Judge O’Scannlain’s criticism of the “smell test” that the district court explicitly applied in granting the motion to dismiss. It’s hard to say how sarcastic the district court was when it made that remark on the record, but Chief Judge Kozinski writes: “A test based on the olfactory apparatus of each district judge, rather than on well-defined and closely cabined legal standards, would give the district courts far too much say over who gets prosecuted and when.”

Clever, but initially I thought that was a bit over the top. After all, the panel did not defer to the district court’s discretion; it adopted a de novo standard for reviewing an order dismissing the indictment on the ground of prosecutorial vindictiveness, then set about a very detailed review of the facts and law. Neither Judge O’Scannlain nor Chief Judge Kozinski take issue with the panel adopting a de novo standard of review, but both appear to believe that the analysis the panel conducted under that standard doesn’t improve much — if at all — on the district court’s “smell test.”

(Public domain image courtesy of United States Fish & Wildlife Service.)

UPDATE (3/6/08): Robert Loblaw at Decision of the Day “smells” a law review article to be spawned from the case.

UPDATE #2 (3/6/08): I noticed after posting the first update that the type offset caused by the photo may have made it look like the excerpt from Judge Kozinski’s opinion (which was intended to be in a block quote format) was my writing. I’ve removed it from the block quote and placed it in quotation marks to clear that up.

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Posted in: Appellate Jurisdiction, Judges, Standard of Review

March 3, 2008

Would this have Worked for the California Supremes?

The WSJ.com Law Blog posts today about possible remedies for the problem of recusal of Supreme Court Justices due to stock ownership in one of the parties, noting that Chief Justice Robert’s recent recusal from a case resulted in a “problematic even-numbered panel” that rendered a 4-4 decision in Warner-Lambert Co., LLC v. Kent, case no. 06-1498 (Mar. 3, 2008). The Law Blog links to this post at The Volokh Conspiracy, where Professor Volokh floats the idea of requiring justices to sell stock in a party upon the granting of certiorari.

The availability of designated justices may make this seem like a moot consideration for our own Supreme Court, but keep in mind that the California Supreme Court dismissed a case last year because four of the seven justices had developed conflicts (through corporate mergers occurring after the grant of review). Would selling off the stock have been adequate to remove the conflicts?

More on the topic generally from Professor Bainbridge at BusinessAssociationsBlog.com.

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Posted in: Ethics, Judges

February 11, 2008

Superheroes or Superegos?

Which best describes bloggers? That depends on whether you listen to Chief Judge Kozinski, whose opinion is noted at The Volokh Conspiracy, or to a tongue-in-cheek appraisal in The New York Review of Books, as excerpted at The UCL Practitioner. Can you match the opinions to the commentators before you look?

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Posted in: Blogging, Judges

January 28, 2008

Grisham Pens “The Appeal”

Perhaps I’m in the minority, but I can’t stomach most of the John Grisham I’ve read. Maybe it’s because The Firm was the first book of his that I read, and I found it (and the movie) excellent, that the others I tried seemed so bad. I thought A Time to Kill was horribly written, The Pelican Brief was inane, and I lost interest in The Client around ten or twenty pages in. After that, I gave up on Grisham, so I’ll concede there’s a possibility I’ve missed some good novels since then.

But the title of his latest novel caught my eye. The premise of The Appeal, based on my reading of Random House’s web page for the book, is that the owner of a chemical company appealing from a huge verdict against it in a “cancer cluster” case decides to finance its own candidate for election to the Mississippi Supreme Court. As publisher Random House describes:

Through an intricate web of conspiracy and deceit, [the chemical company owner's] political operatives recruit a young, unsuspecting candidate. They finance him, manipulate him, market him, and mold him into a potential Supreme Court justice. Their Supreme Court justice.

Thanks to How Appealing, who also provides a link to a review of the book.

UPDATE (1/29/08): Here’s a post at WSJ.com Law Blog discussing real life corruption and the intersection of judicial campaign contributions and judicial decision-making: Tulane Law Prof Examines Whether Justices are for Sale.

UPDATE (1/30/08):  Prawfsblawg writes up Adam Liptak’s coverage of the Tulane Professor’s article.

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Posted in: Judges

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January 18, 2008

Toning Down the Snark

California Appellate Report notes an order from the Fourth District Court of Appeal yesterday in which it modified its original opinion by eliminating a snide comment about lawyering skills. As Professor Martin points out, this is an unusual amendment.

Even more interesting to me: the order does not set out the entirety of the language to be deleted. Instead, it references the sentence to be deleted only by the beginning words in that sentence: “Lawyers should learn . . . .” Which gives you a hint that the excised language is a little snarky, and may even prompt the average reader to look up the original opinion. Which you won’t have to do if you go to California Appellate Report.

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Posted in: Appellate Procedure, Judges, Legal Writing

January 17, 2008

Ninth Circuit Oral History Project

This post at the Legal History Blog links to an article in National Law Journal about work on oral histories of the Ninth Circuit, specifically the work of Stanford law professor Michele Dauber with Judge Stephen Reinhardt.

As one might expect, the always-present “controversy” over the Ninth Circuit is discussed in the article. Professor Dauber notes one result of that controversy, in what I think is an interesting way to think about it: “People in Maine know about the 9th Circuit. That’s weird,” Dauber said. “No one in California knows anything about the 1st Circuit.”

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Posted in: Judges, Ninth Circuit

January 11, 2008

Ninth Circuit Judicial Complaint Disposition Orders Published Online

Via NLJ’s L.A. Legal Pad comes news that, according to this press release from the Ninth Circuit, “disposition of judicial misconduct and disability complaints against federal judges sitting in the Ninth Circuit will be publicly available via the Internet” starting this month.  Three orders are already up.

The main page includes links to the governing rules,  a page listing the orders, and a downloadable complaint form.

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Posted in: Ethics, Judges, Ninth Circuit

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December 18, 2007

California’s 90-Day Rule

The California Constitution (Article VI, sec. 19) prohibits a judge from drawing pay “while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision.” A one-page “barrister’s tips” column by Ben Shatz at page 11 of this month’s Los Angeles Lawyer (in PDF format here) gives some nifty background on how this rule is enforced and how it can affect proceedings, including decisions to vacate submission and the scheduling of oral argument.

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Posted in: Appellate Procedure, California Procedure, Judges

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