Archive for November, 2007

Police must return medical marijuana

Thursday, November 29th, 2007

Stating that the case was one “more a matter of analytical accouchement than precedential accretion” the court of appeal has ruled that police can be compelled to return medical marijuana seized during a traffic stop.

The case is City of Garden Grove v. Superior Court (Kha), and the court ruled that local governments have no option but to run items that state law considers “lawfully possessed” even if possession is a crime under federal law.

The Perils of Pauline … and the 998 offer that failed to mention attorney fees

Monday, November 26th, 2007

Where else but a judicial opinion can you find references to both Refer Madness and the Perils of Pauline in the same sentence?  Today’s example comes from the decision in Engle v. Copenbarger and Copenbarger:

Cautionary tales rarely have happy endings. From the 19th Century German classic, “The Dreadful Story of Pauline and the Matches,” in which the fate of the child heroine can be deduced from the title, to the more familiar Thirties cult film, “Reefer Madness,” the protagonist almost never does well in them. This case is no exception. We present here a cautionary tale, published, like all of its ilk, in the hope of providing a warning.

The issue in the case is whether a plaintiff who accepts a Section 998 offer in exchange for “a release and discharge of all claims” but which is otherwise silent on the question of attorney fees may nonetheless apply to the court for an award of fees and costs.

The court ruled that a plaintiff who accepts a 998 offer “is entitled to fees and costs unless they are excluded by the offer.”  This, the court says, is a “bright-line rule” meant to resolve situations precisely as that before the court where there is a question as to whether the 998 offer included or excluded fees.

The lesson — make the offer very precise.

Waiver of Jurisdictional Defects?

Monday, November 26th, 2007

In a ruling filed today, the Fourth District Court of Appeal ruled that failure to raise the issue of exhaustion of administrative remedies in the trial court operates as a waiver and the issue cannot be raised for the first time on appeal (Mokler v. County of Orange).

Since the California Supreme Court’s 1941 decision in Abelleira v. District Court of Appeal, 17 Cal. 2d 280, failure to exhaust administrative remedies has been treated as a jurisdictional defect.  The Mokler court engaged in a close reading of Abelleira and concluded that not all jurisdictional defects are created equal.

The court noted that there is a split of authority in the courts of appeal on this issue.  Given this split, you should look for this issue to appear sometime soon on the California Supreme Court’s docket.

Hold Everything — the Notice of Unavailability does not freeze the trial court — and may not be filed in the appellate court

Monday, November 26th, 2007

In Tenderloin Housing Clinic v. Sparks, 8 Cal. App. 4th 299 (1992), the court of appeal upheld sanctions against an attorney for scheduling depositions and court hearings after being informed that opposing counsel would be unavailable during that time frame.  As the court explained,

“it is widely held that ‘An attorney has an obligation not only to protect his client’s interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.’ … The rule set out above makes it obvious that even if a legal step taken or legal procedure pursued has justification in law, the timing thereof may be oppressive and may constitute harassment if it unjustifiably neglects or ignores the legitimate interest of a fellow attorney.”

Since this decision, counsel have made it a practice to serve and file a Notice of Unavailability to put opposing counsel on notice not to schedule events in the case during a particular time period.

Last week, however, the court of appeal made clear that this notice does not bar the trial court from acting during the period of unavailability.  (Carl v. Superior Court)  As the court of appeal explained: “To the extent this practice attempts to put control of the court’s calendar in the hands of counsel–as opposed to the judiciary–it is an impermissible infringement of the court’s inherent powers.”

The appellate court expressed a measure of exhasperation with the Notice of Unavailability practice:

“We explain our reasons for summarily denying the petition in part because the common practice of filing a “notice of unavailability” in the superior court now permeates the appellate court system. We receive them on a regular basis and at all times during the appeal process: they come before the record is filed, they come while the matter is being briefed, and they have even come after a matter has been submitted for decision.”

The court concluded by explaining that the Notice of Unavailability has no place in the court of appeal, and that it is not a “fileable document” under the rules of court. 

New Arguments on Appeal

Monday, November 19th, 2007

In a comment to my post on new arguments on appeal, Pennsylvania Appellate Blog  expresses surprise at the 9th Circuit’s conclusion that a party can raise new “arguments” (as distinguished from a new “claim”) on appeal.  In fact, however, the United States Supreme Court has also noted the distinction between new “arguments” and new “claims” — ruling that litigants are free to make new arguments in support of their legal claims:

We must also reject respondent’s contention that the regulatory taking argument is not properly before us because it was not made below. It is unclear whether petitioners made this argument below: Portions of their complaint and briefing can be read either to argue a regulatory taking or to support their physical taking argument. For the same reason it is equally ambiguous whether the Court of Appeal addressed the issue. Yet petitioners’ regulatory taking argument stands in a posture different from their substantive due process claim. 
 
Petitioners unquestionably raised a taking claim in the state courts. The question whether the rent control ordinance took their property without compensation, in violation of the Fifth Amendment’s Takings Clause, is thus properly before us. Once a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.   Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 78, n. 2, 100 L. Ed. 2d 62, 108 S. Ct. 1645 (1988);Gates, supra, at 219-220;Dewey v. Des Moines, 173 U.S. 193, 197-198, 43 L. Ed. 665, 19 S. Ct. 379 (1899).Petitioners’ arguments that the ordinance constitutes a taking in two different  [*535]  ways, by physical occupation and by regulation, are not separate claims. They are, rather, separate arguments in support of a single claim — that the ordinance effects an unconstitutional taking. Having raised a taking claim in the state courts, therefore, petitioners could have formulated any argument they liked in support of that claim here.
Yee v. City of Escondido, 503 U.S. 519, 534-535 (U.S. 1992)

Free Speech/Election law decision from the 9th Circuit

Friday, November 16th, 2007

Attorney Jim Bopp has posted another Free Speech victory — this time in a challenge to the manner in which California election disclosure regulations are applied to 501(c)(4) organizations.  The case is California Pro-Life Council v. Randolph, about which I commented below.  Here is Jim’s take on the decision:

James Madison Center for Free Speech
1 South 6th Street
Terre Haute, IN 47807
www.jamesmadisoncenter.org

PRESS RELEASE
November 15, 2007

Contact: James Bopp, Jr.
Phone: 812-232-2434; Fax 812-235-3685
jboppjr@aol.com

Ninth Circuit Strikes Down PAC-Style Burdens on Groups Making Independent Expenditures Advocating for or Against Ballot Measures

Yesterday, the U.S. Court of Appeals for the Ninth Circuit dismantled a large portion of California’s disclosure scheme with regard to ballot measure advocacy. The case was brought by  California Prolife Council (“CPLC”), a state prolife group that occasionally supports or opposes ballot measures. For example, CPLC sometimes adds a small item asking readers to vote for or against a ballot measure to its newsletters or voter guides.

However, California imposes complex requirements on groups doing ballot measure advocacy. A group whose major purpose is not ballot measure advocacy can still find itself treated like a political committee (“PAC”). If forced into such PAC status, the group can be required to have a treasurer, do extensive recordkeeping, and make multiple and ongoing reports, even if they aren’t making expenditures for ballot measure advocacy. The only way to escape PAC status is to dissolve as a group and dispose of all the group’s assets in state-approved ways.

Moreover, California law requires groups like CPLC to report people who make a “contribution” to the group, on the theory that they are supporting the ballot measure advocacy. Although the law says that a gift is properly a “contribution” only if the donor has the “purpose” of influencing a ballot measure, California presumes that donors have such a “purpose” if they give to a group that has in the last 4-5 years made two expenditures for ballot measure advocacy. So after the group’s second expenditure, a donor who gave just to support the group in general is reported as giving to support a ballot measure, which may not be true at all. For a variety of reasons, many donors do not wish to have their donations to a group publicly disclosed, especially when the group takes strong positions on matters of public controversy.

CPLC challenged the law because it wanted to do ballot measure advocacy on occasion but did not want to assume the endless burdens of PAC status. And it did not want to have to report its donors as persons who support a ballot measure when they did not give to CPLC for that purpose.

The Ninth Circuit struck down the PAC burden requirement, holding that such burdens could not be imposed on groups just doing ballot measure advocacy. Rather, California could only require simple one-time reports when expenditures for ballot measure advocacy were done. And the Ninth Circuit limited the way in which donors would have to be reported as having made a “contribution” in support of a group’s ballot measure advocacy. If donors really did not have the “purpose” of supporting ballot measure advocacy, they would not have to be disclosed.

This means that multi-purpose groups like CPLC that do occasional ballot measure advocacy only have to file a report when they actually do ballot measure advocacy. And they don’t have to report donors if the donor did not intend to support ballot measure advocacy.

When can you make a “new” argument on appeal?

Friday, November 16th, 2007

The Ninth Circuit’s decision this week in in California Pro-Life Council v. Randolph makes an interesting distinction between new arguments and new claims on appeal — the former are allowable but the latter forbidden.

At issue is whether the nonappealing party (the state in this case) was permitted to raise a new argument on appeal that they had not made in the District Court.  The District Court had ruled that a presumption in the state’s regulations was not rebuttable.  On appeal, however, the state argued for the first time that this presumption was rebuttable.  The appellant attacked this as a “new argument on appeal.”

The court noted in a footnote, however, that the legal conclusions of the District Court in this case were reviewed de novo, and that there was no bar to the state raising a new argument on appeal.  The bar to new matters on appeal, according to the panel, was limited to new claims.

A later footnote pointed out, however, that any arguments (new or otherwise) must be presented in the parties’ opening briefs.  New arguments raised for the first time in a party’s reply brief will not be considered.

Is the State required to be consistent in its legal arguments?

Tuesday, November 13th, 2007

I am currently involve in a case before the California Supreme Court (representing amici) that raises this interesting issue.  (The case concerns whether a charge imposed on water rights applicants is a fee or a tax under Proposition 13.)

The petitioners have located a brief filed by a different state agency in a different case that argues for a particular analysis on whether a charge is a fee or a tax.  The problem is that this analysis is very different from what the state is arguing in the current case.  Petitioners have lodged this contrary analysis with the Supreme Court as part of a motion for judicial notice.

The state, of course, objects to judicial notice in this instance.  One of the arguments they raise is that judicial estoppel cannot apply because “Agencies of the State of California are separate legal entities and cannot bind each other in litigation.”

I find that argument troubling on a number of different levels.  First, unless we are talking about different constitutionalagencies, the agencies involved are part of the Governor’s executive staff.  In that instance, it is hard to understand how the agencies could be treated as separate legal entities — especially where they are all represented by the Attorney General who takes an active role in formulating the legal policy argued in the brief.

At a more fundamental level, how do we explain to the public that state agency A can make an argument to the California Supreme Court regarding interpretation of the California Constitution that is diametrically opposed to the argument being made by state agency B?

On the other hand, I suppose, we need to worry about centralizing all legal policy-making authority in the hands of the Attorney General.  The Supreme Court has already ruled that as between the Governor and the Attorney General, the Governor is the final arbiter of the state’s public policy position in litigation.  People ex rel. Deukmejian v. Brown, 29 Cal. 3d 150 (1981).

Perhaps we need a “Solicitory General” at the state level that can represent all executive state agencies before the State Supreme Court.  The next question, however, is whether the SG would answer to the Governor or the Attorney General — and that is a whole different debate.

Stare Decisis in the California Supreme Court

Monday, November 12th, 2007

The California Supreme Court’s decision to dismiss review in Lockheed Litigation Cases, S132167 is stirring some comment about what qualifies for “stare decisis.”

The Supreme Court dismissed review after four justices recused themselves from hearing the matter.  (The California Blog of Appeal has more detail on the dismissal)  Attorneys for the plaintiffs expressed surprise that the court did not simply go forward with the case using pro tem justices.

Mike McKee of the Recorder quotes Chief Justice George dismissing that idea in this case:  “If you had three or four pro tem justices, that wouldn’t carry any precedential value.”

The plaintiffs attorneys, according to McKee’s article, had a different view of stare decisis, arguing “The court is an institution.  These cases are not decided by individuals.  They are decided by a body of judges sitting and acting collegially.”

The Chief Justice’s comment may reveal some of his thinking about stare decisis in California — and it may just be that he agrees with plaintiff’s attorney on point.  The precedential force of a decision derives, in part, from collegiality.  Collegiality here, however, is the long-term relationships between the members of the court.  The fact that the justices need to continue to work with each other for the long term provides a powerful reason to adhere to past decisions in the absence of new and overriding considerations.

Due Process rights for property owners live again in the 9th Circuit

Thursday, November 1st, 2007

Since 1996, property owners in the 9th Circuit have not been able to state a claim for violation of due process based on regulations claimed to be irrational.  That was the year that the court issued its en banc decision in Armendariz v. Penman, 74 F.3d 1311 (9th Cir. 1996), holding that such claims were covered by the Takings Clause of the Fifth Amendment and therefore could not form the basis of a substantive due process claim.

Two years ago, however, the United States Supreme Court ruled in Lingle v. Chevron, 544 U.S. 528 (2005), that an allegation that a local property regulation failed to “substantially advance a legitimate government interest” was a due process, rather than a Takings, claim.

Today, the 9th Circuit caught up to this ruling by the Supreme Court.  In Crown Point Development v. City of Sun Valley, the 9th Circuit recognized that a property owner’s claim that government regulation of property is irrational is not a claim that can be stated under the Takings Clause.  Thus, the court recognized that its decision in Armendariz can no longer be used to prevent property owners from stating a cause of action based on violation of substantive due process rights.

Congratulations to my former colleague at Pacific Legal Foundation, Dave Breemer, for his victory in this case.  [NOTE:  The Court's criticism of Crown Point for failing to make the argument based on Lingle in the District Court does not apply to Dave -- he did not take over representation until after the District Court had issued its decision.]