In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

As a result of the decision, Prop 8 proponents will be able to proceed with their appeal in the Ninth Circuit, where the proponents’ appeal has been hanging by a thread since the Ninth Circuit certified its question to the California Supreme Court last January, acknowledging that the appeal would have to be dismissed if the Prop 8 proponents lacked standing to defend the law.

Related post at Ninth Circuit Blog of Appeals.

The Judicial Council of the Ninth Circuit issued a press release yesterday (PDF) announcing a pilot program allowing use of cameras in district court courtrooms. The release included this comment from Chief Judge Alex Kozinski:

“We hope that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law. The experiment is designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding,” Judge Kozinski said.

I’ve heard heavy criticism of the use of cameras in court.  Many criticized the gavel-to-gavel coverage on the O.J. Simpson case because they believed it caused the attorneys (and even the judge) to grandstand, and some felt that it contributed to Judge Ito “losing control” of his courtroom. Assuming the validity of those criticisms, I don’t think one need worry that those problems will be replicated in the federal district courts. Federal judges are hardly known for allowing attorneys to get away with misconduct.

And the question everyone is asking in the wake of this announcement: will the Proposition 8 trial be televised? Here’s the only clue given by the press release:

Cases to be considered for the pilot program will be selected by the chief judge of the district court in consultation with the chief circuit judge. The participating district courts will be asked to evaluate their experiences and report to the Council.

I wonder what “consultation” means in this instance. At one extreme the chief circuit judge would have veto power. At the other, the chief circuit judge would merely advise and leave the final decision to the chief district judge. If I can find more detail about this, I’ll post it.

But a lack of press buzz is no barrier to discussing the circuit’s checkered reputation. WSJ.com Law Blog summarizes Judge Bybee’s funny presentation about how the Ninth is viewed through the eyes of various institutions.

Update (8/1/08): Judge Bybee isn’t the only judicial joker this week.  Tenth Circuit Judge Michael McConnell earned some laughs this week by noting that the Constitution refers to his court as an “inferior” one.  his remark came during a recent panel discussion that included SCOTUS Justice Alito, which will be the subject of a separate post later today.  Thanks to Ben Shatz.

Within the past seven days, the Ninth Circuit has issued two orders asking the California Supreme Court to rule on controlling legal questions pursuant to California Rule of Court 8.548[.]

***

Such orders are relatively rare, so it is rather unusual to see two issued within five days of each other. There is no overlap on the panels.

Unusual, indeed.

Professor Martin says the request in one of the cases is particularly polite and respectful.  I’m sure the Ninth is hoping for a better response than they got last October!

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.

In yesterday’s Daily Journal, Staff Reporter John Roemer has a front-page article about an apparent surge in en banc rehearings granted by the Ninth Circuit since Alex Kozinski became Chief Judge. (Full disclosure: yours truly is quoted in the article.)

Are the two phenomena related? Not according to Judge Kozinski, whom the article quotes:

“I’ve always been more en banc friendly than many of my colleagues,” he wrote in the e-mail. “But I frankly doubt that my being chief judge will have any effect on the process. I’ve had my share of successes as well as failures when calling for en banc review.

“There are not – and should not be – extra points for being chief judge. It is not a bully pulpit, nor is it a platform for proliferation of my substantive views .”

Roemer provides interesting background on Judge Kozinski’s history of fervent advocacy for en banc review, including a colorful description of his frequent dissents from orders denying rehearing en banc as “prose hand grenades lobbed to blast the court away from the status quo.” I think Judge Kozinski would approve.

It seems possible, at least, that the judges may be more willing to take on en banc rehearings since last July, when it reverted to 11-member en banc panels after a brief experiment with 15-member panels. That would make a greater number of en bancs more manageable. But I don’t have any information on whether en bancs went down during the roughly 18 months they required 15-member panels, so I have no idea if the size of the panel is affecting the judges’ thinking.

For anyone considering petitioning for rehearing en banc, the article contains some sobering numbers: 1,097 petitions for rehearing en banc were filed in 2007, and through November, only 18 had been granted. That’s less than 2%.

By the way, Judge Kozinski is the subject of the cover article in April’s California Lawyer.

As everyone knows, a published opinion resulting from any of those cases will become precedent in nine western states and two Pacific Island jurisdictions. Which means that for the panel to uphold the “What happens in Vegas, stays in Vegas” motto, they’ll have to resist certifying the opinions for publication.

Thanks to Criminal Appeal for the link.

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.”

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

In the Ninth Circuit, to a degree not seen in any other federal appellate courts, published opinions often resemble works in progress. A three-judge panel will issue an opinion, the losing party will petition for rehearing and/or rehearing en banc, and then months later the panel will withdraw its original opinion and substitute in its place a new and presumably improved decision.

Bashman watches courts all over the country, and he seems to think the Ninth has more “do-overs” than any other circuit.  Maybe they ought to call them tenative opinions?

UPDATE (12/12/07):  For commentary on the merits of Dukes, see Decision of the Day.

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.

Thanks to Appealing in Nevada for the link.

My colleagues dismiss the petition for review based on a nine-line motion, filed almost a month after this case was argued and submitted, which says nothing more than that petitioner has suddenly lost interest in the case. Granting the motion in such circumstances casts aside the time and effort of the 15-judge en banc panel, as well as the time and effort of the full court in considering whether to take the case en banc in the first place. It also threatens the integrity of our processes by inviting manipulation by parties unhappy with the questions at oral argument and fearful of the result they believe the court is going to reach. Worse still, by allowing counsel to dismiss the petition without requiring confirmation from the client that he wishes to abandon the petition for review, we put petitioner’s rights in jeopardy and leave the door open to future litigation as to whether counsel’s representations can bind the client.

I’ve always detected a sense among lawyers — sometimes explicitly stated, at least in private — that judges are always grateful for anything that clears up their dockets a little bit. Thus, we tend to assume a judicial bias in favor of any resolution short of final disposition on the merits — whether by voluntary dismissal of a case or appeal, settlement of a case, or even a stipulated reversal of a judgment on appeal. Not to be sycophantic here (besides, I have no reason to believe any judge has seen this blog), but I think this is somewhat cynical and does not give credit to the hard work of the judiciary.

UPDATE (10/19/07): Decision of the Day comments on the case with more detail and a focus on concerns that attorneys were gaming the system, as does California Appellate Report.  Appellate Law & Practice has somewhat less respect for Judge Kozinski’s concerns.

The Ninth appeared to be telling the California Supreme Court that its jurisprudence on the issue is, shall we say, less than crystal clear. I wrote:

Another thing I like about this request from the Ninth Circuit is that it doesn’t claim there are no California cases on point. It says the most relevant case on the issue is impossible to figure out:

We certify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).

In other words, “Please tell us what the heck you were trying to say in that mess (and in the seemingly inconsistent cases that followed).” But they asked it nicely.

Then the Supremes took their shot in an order denying the Ninth’s request for an answer to the certified question, doing so in language suggesting that the Supremes are shocked — shocked — that the Ninth can’t figure it out from the existing cases:

[The request from the Ninth Circuit] is denied. California law is clear that content-neutral time, place, and manner regulations affecting protected speech are subject to an intermediate standard of scrutiny. Currently, California law does not suggest that restrictions upon the hours that adult businesses may operate require review under any test other than the intermediate scrutiny standard applicable to other content-neutral regulations.

I’m sure nobody was really “taking shots” here. That’s reading between the lines on my part, and cynical to boot.

Anyway, when the Ninth takes up the case again, it applies the “intermediate scrutiny” standard and upholds the hours-of-operation restrictions. The adult bookstore failed to “cast direct doubt” on the negative secondary effects of the adult business that the county used to justify the restrictions, including . . . increased noise and traffic? That’s the same objection people raised around here when they wanted to build a Lowe’s home improvement store!

there are plenty of cases where the Supreme Court uses an appeal from the Ninth as an opportunity to reverse decisions from other circuits, albeit with much less fanfare.

He describes one recent instance in his post.

The Ninth Circuit is one of two he praises. Specifically, he lauds the Ninth for providing free access at its website to a list of cases pending rehearing en banc, the issues as to which rehearing has been granted, the rehearing petitions and oppositions.  Indeed, he calls it “a wonderful example of what the other federal appellate courts should be doing.” 

Now I feel a little guilty.  I agree the Ninth Circuit provides some great resources on its web site (my favorite being its guide to standards of review), but I’ve never liked the organization of the site.  Thanks to Mr. Bashman, I’m now counting my blessings.

Aukai, after passing through the metal detector and having his personal effects screened without event as part of his entry to the secure area of the airport, was subjected to secondary screening because he had no ID.  This screening eventually turned up a glass pipe for smoking methamphetamine. He was arrested, and the search incident to arrest turned up several bags of meth.

The wrinkle: during the secondary screening, Aukai told the Transportation Security Administration officers that he no longer wished to board a plane, but the search continued.

The court finds the search is a constitutional administrative search even tough it continued past the time Aukai said he no longer wished to board the plane.  The court finds that passengers subject themselves to search as soon as they try to access the secure area of the airport.

The majority opinion invokes 9/11 and the terrorism threat to argue that if passengers could force cessation of the search, terrorists could probe for security weaknesses by revoking their consent just before discovery or have multiple opportunities to get through security.

Three judges write a concurring opinion saying that the majority should not have relied specifically on the terrorist threat.  They argue that the terrorism discussion is irrelevant and will only provide ammunition for future defendants to challenge the continuing validity of the “solid” holding once the terror threat subsides.

At California Appellate Report, Professor Martin explains why he thinks the case “is worth reading wholly apart from the merits. ”

Decision of the Day’s coverage is written from the perspective of someone who also blogged the original panel decision and the decision to hear the case en banc.  Rather interesting to read the posts in sequence.  The last includes an interesting observation about the authorship of the panel and en banc opinions.

Ninth Circuit Blog  writes, “and so the Constitution keeps on turning.”

The Ninth Circuit explains the prerequisites for application of the exception (citations omitted):

Jurisdiction exists in only a “small class” of cases that are deemed “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”  To qualify as a collateral order suitable for appellate review, an order must: 1) “conclusively determine the disputed question”; 2) “resolve an important issue completely separate from the merits of the action”; and 3) “be effectively unreviewable on appeal from a final judgment.”

The court finds that the order denying the motion to issue a notice of collective action would not be “unreviewable on appeal.”  This standard is met only where “the legal and practical value of [the right at stake will] be destroyed if [ ] not vindicated before trial.”  (Citations omitted.)  The court rejects plaintiffs’ claims that some employees may lose their chance to litigate:

Appellants argue that the statute of limitations will continue to run, and that some employees may lose their opportunity to participate in a collective action if they wait until after an appeal from final judgment. Although employees who may be similarly situated but have not opted in to the action are not bound by its conclusion, and may pursue their actions individually, [citation], we understand Appellants’ concern. However, these arguments have been made in the context of class action suits as well, and it is well established that there is no collateral order jurisdiction over a district court decision to certify or not to certify a class action under Rule 23.  [Citations.]  Although, as we have pointed out, there are differences between a collective action brought pursuant to § 216(b) and a class action brought under Rule 23, those differences are not relevant to whether we may exercise collateral order jurisdiction.

Another interesting point about the case is that the plaintiffs filed an appeal and a writ petition — a practical tactic when the appealability of the order is in doubt.  Here, however, it doesn’t pay off.  The same factors that defeat appellate jurisdiction also defeat the writ petition.

What gives a special appellate twist to Fantasyland Video v. County of San Diego, case no. 05-56026  (August 7, 2007) is that the Ninth Circuit asks the California Supreme Court to specify the standard of review to apply in the case.  Plaintiff, operator of an adult “arcade, bookstore, novelty shop, and video store,” challenged a county ordinance that required adult businesses to close between 2 a.m. and 6 a.m.  The question certified by the Ninth Circuit is very specific:

Under the California Constitution’s liberty of speech clause, should we review the constitutionality of an ordinance that sets closing times for adult entertainment establishments under strict scrutiny, intermediate scrutiny, or some other standard?

Another thing I like about this request from the Ninth Circuit is that it doesn’t claim there are no California cases on point.  It says the most relevant case on the issue is impossible to figure out:

We certify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).

In other words, “Please tell us what the heck you were trying to say in that mess (and in the seemingly inconsistent cases that followed).”  But they asked it nicely.

California Appellate Report offers some details on the “frenetic pace” at which the Ninth Circuit has been certifying questions to state supreme courts this year, as well as some tongue-in-cheek commentary on the wisdom of the ordinance challenged in this case.

We agree with the district court that Riedl’s petition must be denied. She has failed to provide any valid reasons for waiting so long to challenge her convictions on these grounds, and thus plainly does not satisfy the requirements for the highly unusual remedy of coram nobis relief. See Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987) adopting four factors as predicates for coram nobis relief, including that “valid reasons exist for not attacking the conviction earlier”). Riedl attempts to overcome her unjustified delay by invoking the equitable doctrine of laches, arguing that the government has not been prejudiced by her tardiness. Cf. Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994) (addressing laches in coram nobis context). We reject the notion that a petitioner can employ laches in such a fashion. To follow Riedl’s suggestion under the circumstances of this case would transform the extraordinary writ of coram nobis into a free pass for attacking criminal judgments long after they have become final.

Riedl was attempting to turn laches from a shield into a sword.  The Ninth Circuit finds offensive use of the doctrine . . . well, offensive:

Nevertheless, Riedl is incorrect that coram nobis relief is available as long as it is not barred by laches. Our decisions that have considered laches have done so only because the government invoked the doctrine as a supplemental defense.  Those decisions have not purported to overrule the Hirabayshi framework, which places the initial burden of justifying delay squarely on the petitioner, nor as three-judge opinions could they have done so.

(Emphasis in original.)

While my post concentrated on the intra-circuit split, Split Circuits gives you coverage of the split among the federal circuits on the same issue.

California Appellate Report comments on the odd 4-4-7 split vote of the en banc panel that results in one of the 4-judge opinions being the opinion of the court.

Larson is Ninth Circuit Blog’s Case o’ the Week, where the federal defenders’ blog digs into the substantive aspects of the case and notes that despite the intent of en banc review to clarify important issues, this case will be “all things to all people” and the poster, Steve Kalar, also responds to my comment.

 UPDATE (8/3/07): University of Michigan Law School Professor Richard Friedman addresses the standard of review issue in depth, along with some of the substance.  It’s the most comprehensive post about the case that I’ve run across.

We resolve this conflict by concluding that the third approach is most appropriate. We hold that the following approach should be used to review whether a trial court improperly restricted a defendant from cross-examining a prosecution witness: If the defendant raises a Confrontation Clause challenge based on the exclusion of an area of inquiry, we review de novo. In reviewing a limitation on the scope of questioning within a given area, we recognize that “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such crossexamination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). A challenge to a trial court’s restrictions on the manner or scope of cross-examination on nonconstitutional grounds is thus reviewed for abuse of discretion.

(Footnote omitted.)

I think the court confuses matters with this wording. On its own, it suggests two mutually exclusive dichotomies.

First, a dichotomy between constitutional and nonconstitutional challenges. De novo review would apply to the former and review for abuse of discretion to the latter.

Second, a dichotomy between Confrontation Clause challenges based on the complete exclusion of an area of inquiry, and Confrontation Clause challenges based on limited questioning into an area of inquiry. Again, de novo review would apply to the former while the latter would be reviewed only for abuse of discretion.

It seems clear that the second dichotomy is the intended approach:

Applying this approach here, Defendants’ Confrontation Clause claims challenge the district court’s limitation on the scope of cross-examination within an area of inquiry: the biases and motivations to lie of the Government’s cooperating witnesses, Poitra and Lamere. We therefore review Defendants’ claims for abuse of discretion.

(Emphasis added.)

Yet this last statement seems hard to reconcile with the court’s explanation that the split standard it adopts “recognizes that whether there has been a Confrontation Clause violation is ultimately a question of law that must be reviewed de novo.” If it is ultimately a question of law, then how can review for abuse of discretion ever apply?

Perhaps one way to reconcile these statements is to view the opinion, in cases of limitations on examination rather than exclusion of examination, as an application of the more general principle that a discretionary trial court ruling constitutes an abuse of discretion if based on an incorrect legal conclusion. Here, the incorrect legal conclusion (as to one witness, anyway) was that a Confrontation Clause violation would not result from the court’s limitation of cross-examination. Since the Ninth Circuit finds that such a violation did occur, it concludes that the district court abused its discretion in limiting cross-examination.

The net effect of the court’s opinion appears to be the same as if it had simply adopted a straight de novo standard for all Confrontation Clause challenges. Whether it subjects the challenge to de novo review in the first instance or evaluates the existence of a Confrontation Clause violation in order to determine whether the district court abused its discretion, the court is effectively applying de novo review.

These are only my initial impressions of the opinion, so maybe I am missing something that would be obvious after more careful reading. I remain open to persuasion, and would be very interested in any comments from people who feel differently about the case.

I’ll also be interested to see what Split Circuits and The Confrontation Blog have to say about it.

UPDATE (8/3/07): I’ve put up a new post with links to three other blogs discussing the case.

UPDATE (8/3/07) #2: Make that four other blogs.

In my observation, the tendency to confuse jurisdiction with procedure is way too common.  I recently posted, for example, about confusion between forum selection and jurisdiction in a civil case. 

The Ninth Circuit likewise notes the lamentable prevalence of confusion, citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004):

[c]larity would be facilitated if courts and litigants used the label “jurisdictional” not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.

Amen.

Technorati Tags: Ninth Circuit, Federal Courts

UPDATE: (7/31/07): California Appellate Report offers some thoughts on how Judge Callahan’s dissent in this 14-1 decision might affect her chances for a nomination to the U.S. Supreme Court.

While a bill to split the nation’s largest federal appeals court lies dormant in Congress, that didn’t prevent grumbling at the opening of the 9th Circuit’s annual judicial conference over repeated efforts to divide the circuit.

There are several quotes from judges on their views — and fears — about a potential circuit split, including Chief Judge Schroeder’s reaction to the L.A. Times opinion piece arguing that the Ninth Circuit has a high reversal rate because its size makes it more likely that two “extremist” judges will be assigned to any given panel.  My coverage of the L.A. Times piece, with links to coverage by other blogs, is here.

Technorati Tags: Ninth Circuit

First, the procedural maneuvering.  Landowners sued Clark County for inverse condemnation in Nevada state court.  While the action was pending, the Landowners filed a voluntary Chapter 11 bankruptcy petition, listing the inverse condemnation claim as a contingent and unliquidated claim of the estate. When the Landowners advised the state court judge that they were not ready to proceed with trial, the court advised them that there were no available trial dates between then and the expiration of the five-year limitations period under state law for bringing a claim to trial (which was about three months off) and that the case would be automatically dismissed when the limitations period ran.

What to do?

Why, remove the case to bankruptcy court!  Which is exactly what the Landowners did.  The case was tried to the bankruptcy court three and one-half years later, well after the expiration of the state limitations period.  The district court then withdrew the reference to the bankruptcy court and entered judgment of more than $10 million for the Landowners.  Slick.

The County says too slick.  It contends on appeal that, under the Rooker-Feldman doctrine, the district court lacked subject matter jurisdiction because any judgment undercut the state court’s ruling regarding dismissal, which was inextricably intertwined with the claim the Landowners intended to pursue in the adversary proceeding.  The Ninth disagrees and holds that the Rooker-Feldman doctrine is inapplicable.  The district court did not have to find that the state court was wrong in order to find for the Landowners because the state court never actually dismissed the case.  It only stated that the case would be dismissed when the limitations period ran, by which time the case had been removed from the state court.

Where did the double duty judge come in?  Believe it or not, the bankruptcy judge and the district court judge were the same person.  After trial in the bankruptcy court, the bankruptcy judge, Robert Jones, was confirmed as a district court judge of the same district.  A year after his confirmation as district judge, he issued Findings of Fact and Conclusions of Law in the bankruptcy action, which he signed as a “United States Bankruptcy Judge.”  He then withdrew the reference sua sponte for reasons of judicial efficiency and entered judgment in his capacity as a district judge.  And the Ninth says, “No problem.”

“It was pretty unanimous that we were not gaining anything by going from 11 to 15 judges,” said 9th Circuit Judge Diarmuid O’Scannlain, who is based in Portland, Ore. O’Scannlain, an appointee of President Ronald Reagan, said, “I would have preferred to wait until the two years were up because that is what we notified the bar we would do.”

The Ninth Circuit is the only circuit that does not have every judge sit on every en banc panel.  This has been one of the size-related criticisms leveled against it.  The Ninth Circuit’s unique en banc procedure has been defended by judges from the circuit in testimony to Congress, including Judge Thomas and Judge Kozinski, each in his capacity as the en banc coordinator for the court.

Judge Thomas’s testimony in 2005 included his view that the 15-judge panels would “ameliorate” the concern that the use of only 11 judges on en banc panels results in a decision by less than a majority of the court’s judges.

Long before the court adopted the 15-judge panel, Judge Kozinski’s statement in 2003 claimed that the large size of the court was a benefit to en banc review because even though not all judges sit on the en banc panel, “[t]he fact that a large number of judges look at a decision to decide whether it should be taken en banc means that cases get a much more thorough review in a large circuit.”

As this testimony demonstrates, the debate over the size of the Ninth Circuit court has been going on for years.  And if this recent spike in blog posts about the size of the court is any indication, the debate isn’t going to end any time soon.

Technorati Tags: Ninth Circuit, Federal Courts

I can’t offer empirical evidence, but my observation is that the Ninth Circuit addresses this issue explicitly much more consistently in its writ opinions.  This is probably because its decisions usually evaluate the Bauman factors, as we are reminded by Douglas v. United States District Court for the Central District of California, case no. 06-75424 (July 18, 2007):

Because a writ of mandamus is an extraordinary remedy, we have developed five factors that cabin our power to grant the writ:

1. “The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires.”

2. “The petitioner will be damaged or prejudiced in a way not correctable on appeal.”

3. “The district court’s order is clearly erroneous as a matter of law.”

4. “The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules.”

5. “The district court’s order raises new and important problems, or issues of law of first impression.”

Bauman v. U.S. Dist. Court, 557 F.2d 650, 654–55 (9th Cir. 1977).

I wish the California Court of Appeal was as methodical.  It would make for a much better developed body of law on when the court will exercise its discretion to review a writ petition on the merits.

Technorati Tags: California Procedure, Federal Procedure, Ninth Circuit, Writ Review

Coincidentally, today the Ninth Circuit issues United States v. Jimison, case no. 06-30417 (July 16, 2007), in which Judge Kozinski frames the issue as “when a defendant can be subject to a sentencing enhancement” under U.S. Sentencing Guidelines “for possessing a firearm in connection with an offense that he never commits.”  Specifically, the issue in this case is whether the evidence was sufficient to support an enhancement to felony firearms possession where the possession by the defendant is “with knowledge, intent, or reason to believe that [the firearms] would be used or possessed in connection with another felony offense.”  U.S.S.G. § 2K2.1(b)(6) (formerly § 2K2.1(b)(5)). 

The defendant, after beating up his girlfriend, stole her car.  He “stumbled upon” an unlocked ranch house from which he stole some guns, then went to a friend’s home.  Clearly distraught, he told is friend he thought he had killed his girlfriend and that he was “going to go Rambo.”  (Link added.)  Is this enough for the sentencing enhancement?

The Ninth Circuit (without benefit of precognitives, of course) says it is not enough.  The defendant’s “Rambo” remark is “an offhand comment” that “lacks sufficient specificity to establish that [defendant] formed a firm intent to shoot it out with the police.”  The court finds that lacking any evidence of context to the contrary, the defendant’s remark is the equivalent of a parent who says “I’m going to wring his neck” upon learning that is child his in trouble at school again.

It also didn’t hurt that the defendant called the owner of the guns, apologized and arranged to return them!  Why can’t all criminals be so polite?

Proponents of splitting the 9th Circuit largely have been unable, however, to connect the colossal court’s size to its high rate of reversal. But there is a connection. Indeed, it can be shown mathematically that, as a court grows larger, it is increasingly likely to issue extreme decisions.

We know that all judges are not created equal. Some are more ideologically extreme, more willing to push the law in a liberal or conservative direction, to find ways around precedents they do not like. Such extreme jurists are a minority on any federal court of appeals, but these courts don’t typically decide cases by a majority vote of their entire memberships. Rather, cases are heard by panels of three judges selected at random. So, despite their small overall numbers, extreme judges will occasionally make up a 2-1 majority.

Professor Fitzpatrick goes on to a more specific numerical analysis.

Prawfs Blawg challenges Fitzpatrick’s contention that the Ninth Circuit’s reversal rate indicates that it is “not doing a very good job.”  There’s some lively debate in the comments there.

This post by Jonathan Adler at The Volokh Conspiracy briefly summarizes Fitzpatrick’s piece and likewise generates some energetic discussion in the comments.

SCOTUSBlog has the most detailed statistical counter-analysis.  Again, check the comments.

Finally, the Wall Street Journal Law Blog summarizes Fitzpatrick’s piece. Do I even need to tell you to check the comments?

After reading all the comments, one conclusion is inescapable: an “extreme judge” is in the eyes of the beholder.  Now there’s a shock.

UPDATE (7/16/07): University of Richmond law professor Cullen Seltzer has a column at Slate entitled “In Defense of the 9th Circuit.” I’m guessing that all those commenters who told the Tennessee-based writer of the L.A. Times piece not to tell us how to do things in California are going to find commentary from this Virginia professor to be less objectionable.

Any person who knowingly and willfully makes a materially false statement to the federal government is subject to criminal liability under 18 U.S.C. § 1001(a).  Congress chose to exempt from liability, however, false statements submitted to a judge by a party to a judicial proceding.  18 U.S.C. § 1001(b).  We must decide whether the exception in § 1001(b) for “statements . . . submitted by [a] party . . . to a judge” encompasses a false statement submitted to the judge in a presentence report (“PSR”), when the defendant in a criminal proceeding made the false statement to the probation officer during the defendant’s presentence interview, rather than to the judge directly.  We hold that when, but only when, the probation officer is required by law to include such a statement in the PSR and to  submit the PSR to the judge, the statement falls within the exception in § 1001(b).  We therefore reverse the district court’s denial of Defendant’s motion to dismiss the indictment.

What was the lie?  The Defendant told the probation officer that he had been in the U.S. Marine Corps from 1986 to 1991, achieved the rank of Sergeant (E-5), and was awarded the Purple Heart during service in Panama.

As someone who really was in the Marine Corps (1982-1987), this makes me a little mad.  If I had been a noncommissioned officer instead of an officer, I’d be even madder.  (You know the line from movies even if you weren’t in the service: “I’m not an officer.  I work for a living.”)  If I had received a Purple Heart for wounds . . . well, madder yet.

On the bright side, the decision recognizes that lying about military service is a material misrepresentation  in this context.  The defendant just isn’t criminally liable in this case despite the materiality of the misrepresentation.

Other blog coverage of the case:

Professor Shaun Martin has some kind words at California Appellate Report for the respectful tone of the dissent.  So does Brian McDonough at Legal Pad, who also provides a more detailed and somewhat humorous analysis.

Howard Bashman at How Appealing notes one of the main points of the dissent.

UPDATE (7/12/07): Ninth Circuit Blog has a take on the case.

Nothing from Ninth Circuit Blog yet (which is almost certain to weigh in on this), but Professor Martin notes that the 22-year sentence means Garner will die in prison.

One wonders if this has to be some sort of record.  The oldest conduct utilized for enhancement in any of the cases cited by the court was 26 years before the conviction.

The staged collision, “theft” of the car (and all of its contents), car chase and search of Alverez-Tejeda’s apparently innocent companion had the potential to spin out of control and exceed reasonable bounds. Nonetheless, on the record before us I agree with my colleagues that the agents’ ruse stayed within bounds (even if they pushed the envelope in some respects). Although we do not sustain the district court’s thoughtful analysis, I do not thereby mean to endorse this police action as a model for future creative seizures.

The staging is best described in the words of the opinion:

Ascension Alverez-Tejeda and his girlfriend drove up to a traffic light. As the light turned green, the car in front of them lurched forward, then stalled. Alverez-Tejeda managed to stop in time, but the truck behind him tapped his bumper. As Alverez-Tejeda got out to inspect the damage, two officers pulled up in a police cruiser and arrested the truck driver for drunk driving. The officers got Alverez-Tejeda and his girlfriend to drive to a nearby parking lot, leave the keys in the car and get into the cruiser for processing. Just then, out of nowhere, someone snuck into their car and drove off with it. As the couple stood by in shock, the police jumped into their cruiser and chased after the car thief with sirens blaring. The police then returned to the parking lot, told the couple that the thief had gotten away and dropped them off at a local hotel.

The whole incident was staged. DEA agents learned that one of the leaders of a drug conspiracy was dealing drugs out of his car and deduced from several intercepted calls and direct surveillance that Alverez-Tejeda, one of the conspiracy’s subordinates, was using the leader’s car to transport illicit drugs. The agents decided to stage an accident/theft/chase in order to seize the drugs without tipping off the conspirators. Every character in the incident, other than Alverez-Tejeda and his girlfriend, was either a DEA agent or a cooperating police
officer.

So how did this pass constitutional muster? Well, in the first place, the police didn’t actually search the car until they obtained a warrant. The parties agreed that the police had the right to seize the vehicle without a warrant. The agents staged this scenario to avoid breaching the anonymity of the investigation. Neither the physical force involved, nor the misrepresentations by the officers, nor the invasion of Alverez-Tejada’s presumably innocent companion’s Fourth Amendment rights, were so far outside the bounds of reasonableness under these circumstances so as to render the case unconstitutional.

A short post about the case at The Volokh Conspiracy has generated dozens of comments. Many of the early comments miss the point about why the police used the ruse.

Professor Martin at California Appellate Report has his usual pithy and wry analysis, starting with, “I’d swear that this case was a made-up law school hypothetical if I hadn’t actually read it in the advance sheets myself.” Hard to disagree with that.

Thai Airways contended in its motion to dismiss for lack of subject matter jurisdiction in the district court that it was immune from suit under the Foreign Sovereign Immunities Act (the airline is 76% owned by the Thai government) .  The airline contended that an identical state court action brought by Gupta was res judicata on this issue because it was dismissed for lack of subject matter jurisdiction on FSIA immunity grounds.  It also argued the merits of FSIA immunity independently of its res judicata argument.  The district court rejected both arguments, finding that the prior ruling was not res judicata because it did not go to the merits of the dispute and that an exception to the FSIA applied.

On appeal, however, the airline did not assert the district court erred in its determination that an exception to the FSIA applied.  It relied exclusively on its res judicata argument. 

This turns out to be what splits the dissent from the majority on appeal.

The Ninth Circuit (and its sister circuits) have long recognized the appealability of an order denying a motion to dismiss based on FSIA immunity.  The majority classifies this as such an appeal, and thus asserts jurisdiction under this well-established exception to the final judgment rule.

The issue becomes thornier when you read the dissent, in which Judge Tashima argues that the court must examine “each claim or issue presented separately to determine their jurisdiction on interlocutory appeal.”  Conceding that he would find jurisdiction over the issue of whether the district court erred in finding that the FSIA exception applied, Judge Tashima contends that the res judicata issue is sufficiently distinct to take it outside the rule allowing review of orders denying FSIA immunity:

While it is true that our case law permits an immediate interlocutory appeal from an order denying a motion to dismiss based on foreign sovereign immunity, it is equally well-settled that the denial of a motion to dismiss based on res judicata grounds is not immediately appealable.

***

Although the cases discussing the collateral order doctrine sometimes loosely refer to interlocutory orders as being appealable, in fact, the cases actually analyze the specific claim or issue presented in determining the scope of their jurisdiction on an interlocutory appeal. And each claim presented must independently meet the requirements of the collateral order doctrine in order for it to be considered on interlocutory appeal. Appellate jurisdiction over one claim rejected in a district court order does not confer jurisdiction over all other claims rejected in the same order.(Citations omitted, emphasis in original.)

It seems clear that had the airline appealed on both grounds, Judge Tashima would assert jurisdiction over the merits of the FSIA immunity claim but not over the res judicata argument for the same claim of immunity. 

This is too much hair-splitting for the majority, which responds in a footnote to its statement that “It is from this order that Thai Airways is appealing.”  (Emphasis in original.) The majority contends that the dissent relies on a false premise that the FSIA immunity issue and res judicata issues are distinct.  It says that since the res judicata issue involves and is based solely on FSIA immunity, and is indeed determinative on the issue, the appeal falls within the rule of appealability under the collateral order doctrine for orders denying FSIA immunity.

Whatever the asserted ground of error, the majority has a point that in the end, the order appealed from determined that there was no FSIA immunity.  And that is all they needed to bring it within the well-established exception to the final judgment rule.

Fearing that new standards for California arbitrators imposed by the Judicial Council would make its arbitrations in California more difficult, NASD and the New York Stock Exchange sought a declaratory judgment that the California standards were preempted by federal securities laws, could not constitutionally be applied to the plaintiffs’ arbitration programs, and were not applicable to those programs as a matter of state law.  The district court dismissed the suit on the ground that the defendants were state entities with Eleventh Amendment immunity from suit in federal court.

The plaintiffs appealed. In an intervening decision in another case the Ninth Circuit held that the California standards were preempted by federal securities law, and the California Supreme Court reached a similar holding in yet another case involving different parties.  These intervening cases rendered the present appeal moot.

The issue before the court was whether, in light of the appeal’s mootness, the court should vacate the trial court’s dismissal of the case or instead let the trial court judgment stand and dismiss the appeal.  The state defendants did not want the trial court ruling disturbed, since it held that the Judicial Council and its members were immune from suit in federal court. 

The usual action in the event of a moot appeal is to vacate the decision below with a direction to dismiss, which is what the court does here.  Generally, only when mootness is the result of conduct by the party seeking appellate relief — such as by settling on appeal — should the court dismiss and leave the judgment below intact.  This sufficiently serves the public interest by protecting the district court decision against “a refined form of collateral attack” — an appellant settling on appeal so as to have the judgment below vacated.

The Judicial Council urged that equity and public policy weighed against vacatur because NASD and NYSE were unlikely to sue the Council or its members again, and the public has an interest in preserving judicial precedent.  The court spends a short time on the value of district court opinions as “precedent” and the effect of a “vacated on other grounds” history for a district court case. Since the district court decision will remain in the Federal Supplement and is useful only as persuasive authority anyway, the public interest in preservation of precedent does not require that the ruling remain intact.

This last point is especially sensible and relevant to the discussion in this earlier post regarding the utility of citing district court decisions.

The Bill of Rights was ratified in 1791. The United States produced its first automobile in 1877, and the first traffic ticket issued in 1904.

This appeal to the Ninth Circuit was over a traffic ticket. Specifically, the penalty imposed for the violations as a result of the form of ticket used. Notwithstanding the minor nature of the offenses, the case implicates a major constitutional doctrine — equal protection.

Trimble was ticketed on a military base. The officer who wrote Trimble’s ticket did so on a brand new form that imposed a $25 processing fee in addition to any fine. Because of a shortage of the new forms, other officers at the exact same time were still writing tickets on the old form of ticket, which made no mention of a processing fee. At her court appearance, the fine imposed on Trimble included the processing fee on three violations (for a total of $75). She appealed, claiming that the imposition of the processing fee based solely on the form of ticket written violated the equal protection clause. The court agrees.

The irony? The $25 processing charge was instituted, according to the court, “to offset the costs of managing petty offense cases in the federal courts.” Yet Trimble invoked the appellate jurisdiction of the Ninth Circuit, and successfully avoids the fee that was intended to offset the costs of routine federal court management.

On the equal protection issue, the court finds no rational basis for allowing different penalties despite its “excursion into imaginative recreation of possible justifications.”

Professor Shaun Martin isn’t sure the court exhausted the possibilities and is taken aback at the resources poured into an appeal over $75. His post at California Appellate Report ends (emphasis in original):

But let me add one more thing. Seventy five dollars. For that we appoint a public defender and have a U.S. attorney and the P.D. brief and argue an entire appeal? We can’t just save some money by confessing error and refunding the piddly seventy-five bucks?

Perhaps in the long run it will turn out to be money well spent. Professor Berman at Sentencing Law and Policy thinks the case may have broader implications:

Based on a quick read, I am not entirely sure whether the Trimble holding might provide a basis for questioning other sorts of criminal justice “injuries large and small.” Any readers have any suggestions or creative litigation thoughts?

Anyone who wants to respond to Professor Berman should go to his post.

Howard Bashman at How Appealing suggests that “the Administrative Office of the U.S. Courts might wish to adjust its revenue projections to reflect that it won’t be receiving a $25 processing fee” for tickets issued at the base.

Small stakes, big issue, interesting case.

UPDATE: (5/31/07): A short post on this case at the Volokh Conspracy gathers some interesting comments. Decision of the Day also wrote up this one, and follows up with a post today that suggests the first circuit isn’t so solicitous of small cases.

Technorati Tags: Equal Protection

Both bloggers recognize that anonymity was probably a condition of the defendant’s guilty plea (although the decision never says). Decision of the Day is appalled that the circuit judges would allow this, especially in light of their reputations:

Shame on the prosecutors and the courts for allowing a criminal defendant to remain anonymous, especially in light of the fact that this was his fourth time getting caught with kiddie porn. Neither the district judge – GWB appointee Klausner – nor the three appellate panelists – Reagan appointees O’Scannlain and Hall and GWB appointee Callahan – have a reputation for being generous with criminal defendants.

“S. COTUS” at Appellate Law & Practice takes a slightly different view –

Perhaps these appointees wanted to make things easier for a prosecutor, or the so-called “victims.” In reality, there are a lot of sealed proceedings out there, but usually both sides agree to it, and I suspect that these judges were well-aware of this, and didn’t want to rock the boat.

The so called victims? I’ll get to that later. Back to anonymity for now.

The court notes that allowing the use of a pseudonym is reserved for “exceptional cases where necessary to protect a person from injury or harassment.” But the judges never tell us how that standard applies in this case. In fact, the whole issue of anonymity rates no more than a footnote in the opinion. The defendant made a motion for the disposition to be filed using a pseudonym, and instead of explaining why this was necessary, the court merely continues the sealed nature of the proceedings begun in the district court. Unless they could not discuss this without imposing the harm they sought to avoid through use of the synonym, why did they avoid this discussion? The docket shows no separate order on the motion.

The defendant’s anonymity seems especially inappropriate in light one of his assertions of error: that the victim statements in the pre-sentencing report were anonymous! He loses on this issue, though.

While he also loses on the issue of whether he should have to pay the restitution ordered by the district court, it’s somewhat shocking to see that the restitution the court affirms amounts to $16,475 total for eight victims – about $2,060 per victim. Amazingly, this includes two years of monthly counseling, vocational training (to make up for some of the victims having to leave school), and a management fee to the organization coordinating the services. For traveling abroad to an unnamed “developing world” country, Doe gets bargain basement restitution costs — then complains about them.

Doe is sentenced to 204 months. As for “S. COTUS’s” reference to “so-called ‘victims’ ” — read the excerpt from the plea agreement, then see if you agree.

UPDATE (5/30/07): “S. COTUS” at Appellate Law and Practice has updated his post to explain why he used the term “so-called ‘victims.’ ” He concedes that the children in this case were genuine victims. He makes a decent case for attributing it to carelessness, and I take him at his word.

Foote filed suit against his assigned attorney and the public defender’s office a month after his arraignment, claiming that his assigned defender’s handling of the case deprived him of his Constitutional rights. The public defender’s office moved to withdraw, claiming the lawsuit created a “clear conflict of interest.” After sentencing, the state trial court granted the request of Foote’s retained counsel to assign the public defender to represent Foote on appeal. Foote’s direct appeal to the Nevada Supreme Court was dismissed, and that court also declined his state habeas petition, characterizing the alleged conflict of interest as a potential conflict only.

Foote’s federal habeas petition alleged ineffective assistance of counsel as a result of th conflict of interest. He claimed the public defender failed to raise meritorious appellate issues and never responded to his demand to withdraw and ask for the appointment of independent counsel counsel.

The Ninth Circuit denies the petition because it is an “open question” whether the defendant’s conflict of interest with appellate counsel violates the Sixth Amendment. Under the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), habeas relief cannot be granted unless the decision of the state court is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Since the Supreme Court has never held that a conflict with appellate counsel violates the Sixth Amendment, habeas relief is denied.

This is an unsettling decision because the Ninth Circuit’s reasoning denies relief even assuming the alleged conflict of interest actually exists. Though it recognizes that an “irreconcilable conflict” between defendant and trial counsel may entitle the defendant to new trial counsel, the lack of a comparable Supreme Court holding with respect to appellate counsel means that habeas relief must be denied.

Is this distinction between trial counsel and appellate counsel splitting hairs?

The Ninth Circuit Blog says that “This “Foote-note” to the Sixth Amendment seems too narrow as it is not a large step from trial counsel to appellate counsel.”

Likewise, anonymouos blogger “J” at the The AEDPA Law and Policy Blog says:

I’m not an expert on this particular area of the 6th Amendment. That being said, isn’t there an argument that the 6th Amendment rights of a defendant at trial are the same as his 6th Amendment rights during his first appeal as of right vis-a-vis the right to conflict-free representation? If that is correct, then wouldn’t the failure to provide conflict-free counsel based on the difference between the trial and the first appeal implicate the “unreasonable application of” prong? (Emphasis in original.)

I tend to agree. Why should a distinction be drawn between trial counsel and appellate counsel in this situation? The Ninth Circuit doesn’t even attempt to draw one, even though it relies on the distinction to establish the lack of controlling Supreme Court precedent.

The same year, while the action was pending, Abercrombie started using a new “outline” moose trademark in addition to its silhouette moose mark. The parties settled the lawsuit with an agreement that allowed each of them to continue using their marks.

After the case settled, Moose Creek started using two new moose trademarks, and now it was Abercrombie’s turn to allege infringement. Now making the argument in favor of likelihood of confusion under the venerable 8-factor analysis of AMF Inc. v. Sleekcraft Boats , 599 F.2d 341 (9th Cir. 1979), several of Abercrombie’s arguments were challenged as factually inconsistent with those it made in the first lawsuit, and the district court held that Abercrombie was thus judicially estopped from making those arguments.

The Ninth Circuit finds that the district court was within its discretion to preclude arguments on two of the Sleekcraft factors but abused its discretion by precluding arguments on two others. The parties’ reversal of position — Abercrombie having the senior mark this time, and Moose Creek having the junior mark — is instrumental in the analysis, as it changes the focus of inquiry regarding the relevant field of marks and which party’s customer base is the appropriate focus for evaluating likely confusion. On the other hand, two Sleekcraft factors — marketing channels and the likelihood of expansion in the product lines — are unaffected by the parties’ flip-flop in junior and senior status, and thus inconsistent arguments from Abercrombie are precluded absent an actual change in underlying facts. The court declines to reverse the trial court’s denial of a preliminary injunction against Moose Creek’s use of the marks, instead remanding to the district court for reconsideration in light of the arguments previously precluded.

All that said, this case caught my interest because of the business decision, not the legal one. My question: What the heck was Moose Creek thinking when it came out with two new moose marks? It already had a settlement agreement in place allowing it to continue using the old marks (which presumably continued to strengthen with time), and it knew that any new marks would be junior to Abercrombie’s marks, making them a potential litigatgion target. There must have been a strong market factor at work to justify the risk of litigation. My two cents to Moose Creek: when you settle this one, make sure you can live for a long, long time with the marks the agreement lets you continue to use.

The most written about aspect of the decision is the court’s finding that Google’s display of thumbnail images in its image search results constitutes a non-infringing “fair use” of the images.  Since Perfect 10 failed to show that it was likely to overcome Google’s fair use defense, the court reverses the grant of preliminary inunction.

Kevin O’Keefe of Lexblog says that the decision is “[f]urther evidence that Google is rewriting American copyright law (not saying good or bad).”  It certainly gathered some attention, with bloggers writing about the case at How Appealing, Appealing in Nevada, and Decision of the Day.

Professor Orin Kerr at The Volokh Conspiracy calls it “Another Clash Between Virtual And Physical Perspectives in Internet Law,” and I agree that is one of the more interesting aspects of the case.  I also think the decision does a very good job of distinguishing between the virtual and physical display of an image.  Professor Kerr’s post links to a law review article of his on this issue of perspective.

Technorati Tags: google, copyright law

In this case, two municipal fair housing councils sued Roommates.com, an online clearinghouse for those seeking to obtain roommates or move in as one. They alleged that the website published discriminatory roommate preferences in violation of the Fair Housing Act and various state laws. The district court found Roommates immune under the CDA and granted summary judgment on the FHA claim.

Judge Kozinski’s majority opinion succinctly summarized the bounds of immunity under the CDA:

In other words, if Roommate passively publishes information provided by others, the CDA protects it from liability that would otherwise attach under state or federal law as a result of such publication. But if it is responsible, in whole or in part, for creating or developing the information, it becomes a content provider and is not entitled to CDA immunity. (Footnote omitted.)

The majority opinion then finds that Roommates lacks immunity under the CDA for publishing and e-mailing member profiles containing members’ gender, sexuality, and children information and preferences, which it collects from its members via an interactive, drop-down menu registration process. But it finds that Roommates is immune from liability for publishing the free-form comments submitted by its members. Concurring and dissenting, Judge Reinhardt would also find immunity lacking for the latter publication.

Some bloggers suggest a possible relationship to anti-blogging sentiment recently expressed by Judge Kozinski. Howard Bashman at How Appealing says this “decision screwing-up the protection from liability for online postings” might have been foreshadowed by “Judge Kozinski’s recent expression of anti-blogger sentiment,” to which he links. David Lat at Above the Law headlines his post about the case: “Does Judge Kozinski Hate Blogs?” University of San Diego School of Law Professor Shaun Martin, blogging at California Appellate Report, spies a “tangential slam on bloggers” in footnote 1 of the opinion, but doesn’t seriously tie the decision to anti-blogging bias.

In a subsequent post, Bashman links to an article about the case that will appear in Wednesday’s New York Times.

UCLA law professor Eugene Volokh at The Volokh Conspiracy has two posts about the case. The first is a detailed analysis of the decision. His second is a commentary on the (un)constitutionality of limiting free speech and free intimate association rights to advertise for and select a roommate of one’s choice.

Professor Eric Goldman of the Santa Clara University School of Law, blogging at Technology and Marketing Law Blog headlines his take “Ninth Circuit Screws Up 47 USC 230.” He sees a “180” being pulled by the court:

Just a couple months ago, in Perfect 10 v. CCBill, the Ninth Circuit issued an incredibly expansive 230 ruling. Today, in a highly fractured opinion, they go in the completely opposite direction, creating a significant exception to 230’s coverage that’s bound to spur plenty of new unmeritorious and ill-advised lawsuits from plaintiffs. Why the 180? Such is life in the Ninth Circuit.

The Decision of the Day blog provides analysis supporting its opinion that the “decision suggests that § 230 may be a lot narrower than some websites would like.”

Bashman’s and Goldman’s posts suggest ramifications for pending suits against DontDateHimGirl.com and the insanely popular Craig’s List.

Thanks to the bloggers mentioned above for providing many of the links.

Technorati Tags: Communications Decency Act Immunity, internet law, law and technology

The Ninth Circuit affirms in Vasquez v. Los Angeles County, case no. 04-56973 (May 15, 2007). (The “before” and “after” seals are appendices to the opinion but are provided in a separate PDF file here.)  The court finds that Vasquez has standing because he is a county employee that has frequent regular contact with the offending county seal.  It also ruled that the claim was not mooted by the inclusion of the Spanish mission as a substitute for the cross, finding that the district court’s conclusion to the contrary, based on its rationale that substitution of one Christian symbol for another could not be considered hostile to Christianity, confused mootness with the merits of the case.

That’s where plaintiff’s luck runs out.  The court turned next to the oft-vilified Lemon test (Lemon v.Kurtzman, 403 U.S. 602 (1971)), under which a government action is consistent with the Establishment Clause if it: (1) has a secular purpose; (2) has a principal or primary effect
that neither advances nor disapproves of religion; and (3) does not foster excessive governmental entanglement with religion.  Reaching beyond the pleadings, the court concludes that the cross was removed from the seal for the secular purpose of avoiding threatened litigation over an alleged Establishment Clause violation and that the purpose of the removal was to restore neutrality.  Finally, it rejects plaintiff’s contention that the political divisiveness arising from the controversy was sufficient to plead excessive entanglement.

Perhaps I have greater interest in this case because I live in a neighboring county and closely followed the original controversy over the cross and seal as it developed, but I am surprised to find only one other blog post about it.  That post is here at the “Decision of the Day.”  (It’s also possible that bloggers will pay more attention to this case in the coming days but were too busy posting about the Fair Housing Council v. Roommates.com, LLC case, which also came out yesterday and, as I posted earlier today, took the legal blogosphere by storm.)

Technorati Tags: First Amendment, Establishment Clause

Rules 1-86 were “restyled” — revised with the intent to make them easier to read and understand without substantively changing them.  For example, rule 59, governing new trial motions, is amended so subsection (a) is changed from a single, lengthy paragraph into paragraphs (a)(1)(A), (a)(1)(B), and (a)(2).  Not only easier on the eyes, but much easier to comprehend.

The amendments contain substantive changes as well, but none directly relating to the rules regarding entry of judgment and post-trial practice.

Helpful links to the advisory committee reports, including a side-by-side run-down of the style changes between old and proposed new rules, are provided here and here courtesy of Professors Counsellor and Ryan at Baylor Law School (blogging at Civil Procedure Prof Blog), and Professor Spencer at the University of Richmond School of Law (blogging at Federal Civil Practice Bulletin), respectively.

Technorati Tags: Ninth Circuit, criminal law

within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

The deadline becomes a thorny issue when multiple defendants are served at different times. Some district courts in the Ninth Circuit hold that the date of the first service is the trigger, others hold that the last date of service controls. Professor Benjamin’s post quotes extensively from Coleman v. Assurant, Inc., 463 F. Supp. 2d 1164 (D. Nev. 2006), which discusses this split.

UPDATE: Jon Sands at Ninth Circuit Blog gives his detailed take on the case here.

CORRECTION: The author at Ninth Circuit Blog is Steve Kalar, posting here.