The California Appellate Law Podcast

“Disgrantles,” peaceful carjackings, for-profit prisons: July 9th Cir. cases

• Tim Kowal & Jeff Lewis • Season 1 • Episode 142

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While the Supreme Court wrapped up its term, the Ninth Circuit had some interesting cases of its own. Carjacking is “nonviolent,” for-profit prisons are constitutional, and Covid vaccine religious exemptions are on the table. Practitioners might also look forward to focus letters and earlier panel notifications. All this and other recent cases and news.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

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Announcer  0:03  
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis, welcome

Jeff Lewis  0:17 
everyone. I am Jeff Lewis

Tim Kowal  0:18 
and I'm Tim Kowal, a certified appellate specialist. Both Jeff and I face a lot of unusual problems that come up at trial and on appeal, and in this podcast, bringing you recent cases and guests, we expose you to the unusual. You find this podcast helpful, please recommend it to a colleague. Yeah. If

Jeff Lewis  0:33  
you find it unhelpful, turn up the volume of it. All right, Jeff, we've

Tim Kowal  0:36  
got some more cases and tidbits. These are more just quick shots. My disclaimer is that I have not read any of these decisions. They only came across my wire as cases that I might want to write up, but didn't get around to writing up, but I thought that they were interesting nonetheless. So let's just get right, right to them. This is, this will be kind of like the equivalent of YouTube shorts, if you you don't have time to listen to a full treatment on something you can just watch, like a YouTube short and get like 30 seconds. So by the time you figure out what the heck is going on, it's over. That'll be it'll be kind of like what's gonna happen today. Okay, so the first, first case that I that I wanted to talk about quickly, Jeff, is a case that says that carjacking is nonviolent, or at least it's not intrinsically violent. That's a case out of the Ninth Circuit, Gutierrez versus garland. Garland. It's a ninth circuit. July two 2024 held that on that a lawful permanent residence carjacking conviction was not a crime of violence, because carjacking can be accomplished by mere fear without resorting to actual or attempted physical force. But that was an interesting one. It kind of seemed a little jarring and out of line with common sense. But on the other hand, this was a mixed panel that included a Clinton appointee, an Obama appointee, and a Trump appointee, or nominee, I should say, and and it was unanimous. So, so you can't chalk it up to to partisanship or the the R or d label of the of the nominee. So I didn't get a chance to read this one. But if, if you do find it jarring, then you then you should at least be assuaged by the fact that it was a split a split panel, or not a split panel, but a mixed panel, various RND nominees. Okay, next one, private prisons are not unconstitutional. This is kind of a back and forth controversy about whether the institution of private prisons involve, you know, lack of due process or cruel and unusual punishment. It just seems, it does seem a little jarring to the uninitiated to the idea that prisons can be a for profit enterprise. But a recent challenge in the Ninth Circuit resulted in a holding that private prisons are not unconstitutional. The Ninth Circuit upheld the dismissal of a lawsuit that challenge the constitutionality of private prisons, and rejected plaintiffs arguments that private prisons are less safe and that prisoners do not have constitutional rights to avoid private prisons. That is, the Court held that there is no constitutional right to be in a public prison. You can be constitutionally incarcerated in a private prison. Yeah, I actually

Jeff Lewis  3:24  
read this decision. It's super interesting in that I didn't know that it was still legal in the United States in 2024 to have illegal servitude. I had to reread the 13th Amendment quoted in this case that said involuntary servitude is abolished, except in cases of incarceration, conviction for a crime following due process. So who knew? Yeah,

Tim Kowal  3:50  
that is a good, interesting nuance. So you can be, you can be incarcerated, and you can be subject to involuntary servitude in the in the prison. And apparently makes no difference that that prison is is owned privately, so you can be made to do to forced labor in a private prison. Yeah. Again, you can, you can see why. There is a just, kind of an intuitive objection to the idea, but that is the result of this of the panel in Nielsen versus thornell. Okay, next case, it's another covid Max vaccine mandate case. The case is bacon versus Woodward. It involved a split panel on the question of a religious exemption to the covid vaccine mandate, and the panel, the upshot is that the panel held that that challenge may proceed. So the the panel reinstated the case filed by some Spokane Washington firefighters to vindicate their right to a religious exemption to the covid vaccine mandate. The district court had dismissed their claims on Free Exercise grounds. Their claims were based on free exercise grounds and. And also on due process and equal protection. And the court seemed to apply what, what might be, might be characterized, or is all characterized, as kind of a watered down strict scrutiny. And the panel majority reversed, noting that the claims deserved, well, the most rigorous of scrutiny, not, not any kind of strict scrutiny light or a watered down strict scrutiny. But as we covered another vaccine mandate case, Jeff in health freedom Defense Fund versus arval arvalho, where Judge Hawkins dissented, and judge Hawkins is on the panel here as well in the bacon versus Woodward case, and he dissented here too, arguing that that rational basis should apply, not not strict scrutiny, not even a watered down strict scrutiny, but just plain rational basis. And I think these cases probably eventually are going to have to be decided by the Supreme Court. So we just kind of keep our keep our eye out for these kinds of cases. I think there's a lot of them kind of winding up their way eventually, yeah,

Jeff Lewis  6:09 
although I don't think this one's gonna end up at the Supreme Court, because this one is an as applied challenge, as opposed to a facial challenge. And I think at the end of the day, if, if a law or policy has religious exemptions, it's not really going to be subject to attack and but if it's as applied, it doesn't really allow for religious exemptions, it's going to die on the vine of the trial court. Nobody's going to take that up for review. You know, bad facts make for bad law,

Tim Kowal  6:36 
but you don't think so. I again, I didn't, didn't read the case, so I don't know how, how nuanced the challenge is. But recall, during the the covid, the covid days and there were a lot of shutdown orders, and the ninth circuit or the Supreme Court came down with a lot of a lot of decisions that that vindicated the right of for religious practices to proceed if, even during covid shutdowns, if there's if there's an exception for some kind of business activities, and that exception should also apply to allow religious worship and religious related activities to go forward. And I wonder if that a similar gloss is going to apply to religious exemptions for vaccine mandates? Yes, wonder if there is a similar appetite to reach down and vindicate those kinds of challenges. So we'll keep continue keeping an eye on these kind of these vaccine mandate cases. Next case involves arbitration costs. The cases Sani versus DCH, Korean imports and ARB arbitration cost denial was reversed. What struck me as interesting about this case, even though it's non published, is that it involved reversal of an arbitration decision. And while arbitration awards are generally non reviewable. The the arbitrator here had denied a right to statutory fees and denied an opportunity to be heard on the what the proper amount of fees should be. And so the court found that this denial of a right to be heard triggered the exception for review ability of arbitration awards, codified at Code of Civil Procedure, Section 12, 86.2 and again, Jeff, we talk about how rare it is to get review of a of an arbitrators decision, but every now and then, one of these decisions come up, kind of giving some renewed hope that maybe the courts will take a closer look at some arbitration awards, but they seem to be, in my eyes, woefully inconsistent. Every time there's a decision like this that says, hey, one of these exceptions might maybe we can construe it broadly so we can get more review of arbitrator decisions. But these, these one off glimmers of hope, always tend to fizzle out. And in my experience, what do you think,

Jeff Lewis  9:01 
Jeff, yeah. Well, look, you and I are chatting with some employment side, employer side employment attorneys to get them on here to interview him on the podcast. And I have questions about this arbitrations and why the remedy is throwing out the entire arbitration award, if the issue is just an award of cost and attorney's fees, is there? Is there a way of partially keeping an award intact,

Tim Kowal  9:21  
even with just the denial of Arbor arbitration costs. Oh, I see the underlying award

Jeff Lewis  9:28  
got it okay, but, yeah, I'm hoping to get some employment, employer side employment attorneys on here to help explain the other side of these arbitration clauses, because I'm sure there's an argument there for why arbitration clauses are a good thing and they shouldn't be subject to appellate review.

Tim Kowal  9:43 
Oh yeah, yeah, there, there are many arguments, or many, many attorneys who support that view, and I hear about it every time I take to LinkedIn and talk about how there should be more reviewability of arbitration awards, but then also undermining the. The likelihood that this that this exception to arbitrary arbitration, non reviewability will be widespread. This opinion is unpublished and therefore uncitable. All right, next case, if you don't meet and confer on your discovery motions, you will get sanctioned. That's the lesson of Gordon versus Chandler, a party and her attorney in that case were sanctioned almost $10,000 for failing to meaningfully meet and confer before filing a discovery motion. Kind of ho hum. Everyone knows you need to meet and confer before filing a discovery but it's just a good reminder that if your meet and confer letters, don't persuade the court that you hate filing the motion as much as the court is going to hate reading it. Then you the court is going to scrutinize your meet and confer to see if there's something that you couldn't have done to avoid bothering the court with your discovery dispute. That's

Jeff Lewis  10:55  
absolutely true. You know you and I know an attorney. You will go nameless, but you and I know an attorney who, in one deposition instructed a witness over 100 times to not answer a question based on asked and answered, the objection of asked and answered, and the other side threatened a motion to compel. And I came in late in the case, I said, All right, you got us. We'll reappear for depo. And the other side said, No, I'm gonna, I'm gonna bring a motion for sanctions. And so our motion a motion to compel. And so he went to court, and the judge sanctioned him for bringing an unnecessary motion, because I agreed to bring my guy back in for a deposition. It's unbelievable. So, yeah, you got to go through the process and be genuine, Yep,

Tim Kowal  11:35  
yeah, that's a great, a great anecdote. That's that's the way you do it. You given, give them the discovery if they think that they can shortcut it or do a gotcha by filing a discovery motion that is going to come back and bite them. Gonna backfire. Yeah. All right, next one, a point of appellate procedure, a minute order is not a statement of decision cases. O'Neill versus Cara. This is a lesson that I think you know. It's needs perennial reminder. The defendants in this case tried to impeach the judgment, to challenge the judgment, by saying, by pointing to another minute order that seemed to contradict it. And the Court of Appeal said, No, a minute order is not a statement of decision, unless you went through the process to request a statement of decision and object any omissions or deficiencies in the statement of decision. You can't just take random minute orders that seem to say something that that can be used to impeach or challenge a judgment and try to leverage that on your appeal. It's not going to work. Okay. Next one judge, Van Dyke proposes a neologism, the disgruntle we, we appellate nerds know what a dissental is. It's when one of the one of the judges on on the circuit will dissent from denial of en banc review, the win that when, when a one of the judges thinks that, hey, this, this panel decision really needs to be taken up by the entire court. And I'm disappointed that the entire court didn't take it up on bonk, and I'm going to let the world know about it. They file a dissental. Well, what happens when the when the court agrees to take up a panel decision on bonk, and one of the one of the judges thinks that it shouldn't be taken up en banc. It's not a dissental. Instead, Judge Van Dyke proposes the term disgruntle, and this is the first sentence of his disgruntle from last week. Let's see, or I guess, by the time we publish this, it'll be two weeks ago. He says, quote, what would you do if you were stuck in one place and every day was exactly the same, and nothing that you did mattered. And he goes on to say that in the ninth circuit, if a panel upholds a party's Second Amendment rights, it follows automatically that the case will be taken on bond. This case bends to that law. I continue to dissent from this Court's Groundhog Day approach to the Second Amendment. And end quote, we talked about this problem previously on our Second Amendment, Second Amendment podcast episode

Jeff Lewis  14:14 
on Hammond, Yeah, but look, I gotta imagine the other justices, the ones who always vote for en banc, are having the same groundhog thought saying, here's another three judge panel ruling the wrong way on a Second Amendment case, and here we go again, having to go on bonk. When are these dissenters going to learn their lesson?

Tim Kowal  14:31 
Yeah, yeah. The episode I was thinking of was episode 26 where we talked with with Sean Brady about the Ninth Circuit's troubled history with the Second Amendment cases. We talked about a lot of a lot of curious movements in the circuit, concerning nights, concerning Second Amendment cases. And we talked about Judge van dykes, other shot at the en banc procedure and movements. Taken in the ninth circuit there, where he wrote the majority, the panel majority decision, and also a concurrence to his own majority, in which he began the I believe the dissent to en banc review. Yeah. Okay. Another other bit of news out of the ninth circuit. The Ninth Circuit recently polled its practitioners, asking various questions, and among those questions was whether the court should announce the panel sooner, that is more than two weeks before oral or two weeks before oral argument, rather than a short one week before oral argument. And another question that the court asked its practitioners was whether to include focus letters. Focus letters is when the when the court will send out a list of issues that it that the panel is is most interested to hear about during oral argument, to help the advocates focus their oral arguments.

Jeff Lewis  16:01 
Yeah. You know my vote on that, by the way, I was in oral argument earlier this week, or no last week on the in the second district, Division four in the first two matters on calendar, Division four received detailed verbal tentatives. It was fantastic. Yeah. So I think the trend is going in the right direction.

Tim Kowal  16:23  
Yeah, yeah. What do you think about what? What do you think about these verbal tentatives, oral tentatives, at the hearing itself, why not just publish it a day or two before to give a little bit more opportunity? Or is it, or is it better just to, just to get the, get the advocates hot takes.

Jeff Lewis  16:40 
I'll tell you why, because there are lawyers, not you, not me, but there are lawyers out there that if you get a bad tentative, you'll call in sick, you'll say, hey, I need to continue the hearing. You'll try to submit more briefing. You leave wiggle room for shenanigans, and by doing it the day of you allow a well prepared advocate to focus in on the key issues and disregard the garbage. Yeah, that's my two cents as

Tim Kowal  17:07 
to the as to that first question that I mentioned about whether the court should announce the panel sooner. There's other developing opinion on that, and from other circuits, some appellate attorneys want the Fourth Circuit, Seventh Circuit and federal circuits to join other federal appeals courts in giving more than same day notice of the judges who will hear their case. Fourth, seventh and federal circuits reveal names of panel members only on the day of oral arguments. The policies stem from fears of that, advocates will tailor their arguments based on who's going to be on the panel. Some lawyers say it creates undue stress and hurts the quality of presentations. Sure if that means which, which one hurts the quality of presentations knowing the panel members or not knowing the panel members?

Jeff Lewis  18:00 
Yeah. Yeah, I'm out on that one.

Tim Kowal  18:06 
Let's see. Okay, just a couple more in there was a three judge concurrence. I thought this was unusual on a three judge panel. You either, well, here, I'll just tell you what happened here in in Ray, Sue Manu, s, e, u, M, a, n, u. This is out of the California Court of Appeal. It's back from back in March. Justice Streeter wrote a unanimous published opinion, and then justice Goldman wrote a separate concurrence, which everyone joined. And why would they do that? Why wouldn't the why wouldn't justice Goldman's just be the majority or unanimous opinion, or why not include that all in justice? Streeters unanimous published opinion. Why would they do that? The only reason I can think of why you would have that where you have a unanimous opinion and then also a unanimous concurrence, is that maybe they don't want the content of the concurrence to be part of a published decision,

Jeff Lewis  19:11 
right? Yeah, I suppose that it's related to in the interest of justice as the parties right before them,

Tim Kowal  19:20 
okay, as we know you, we can, we can disqualify trial court judges with the one 70.6 on a peremptory challenge, but we can't. There is no right to disqualify appellate judges on a peremptory ground, but Assembly Member Garcia has proposed a bill to allow for the disqualification of appellate justices. That's AB 2125 it states that existing law specifies that these provisions do not apply to a judge designated or assigned to serve on the Appellate Division of the Superior Court. Let's see it said this bill would repeal that exclusion and would extend the provisions to off. Rise a party or attorney to disqualify a justice or justices of an appellate court for prejudice against a party or attorney, or in the interest of a party or attorney.

Jeff Lewis  20:12 
Yeah. How many times, Tim, have you appeared before a panel where you think, here we go again. This panel's got it for me. Got it in for me. I see the current disqualification rules should be left as is, because if you open the door to disqualifying appellate justices, you're going to have, as I said before, shenanigans and people abusing the disqualification process.

Tim Kowal  20:34 
What just filing challenges indiscriminately?

Jeff Lewis  20:38  
Yeah, and by the way, the fact that you have three justices deciding your case, as opposed to one, provides some measure of insulation from from bias and prejudice. And I can't imagine any scenario where all three justices of one panel would be biased. And if you, if you have that kind of situation, maybe you should be seeking to change the courthouse change venue for that particular appeal.

Tim Kowal  21:02  
Yeah, yeah. I can't say I see the need for this. And you may be right that this could, could cause downstream negative effects, but I guess we'll, I guess we'll see what, what becomes of this bill if it turns into law. If any of our listeners have strong opinions one way or the other. Please let us know. Yeah, yeah, okay. And then my last tip before we get to the all important typography debate, I've cleaned up justice bedsworth has announced his retirement again. I don't know if this is the third or fourth time. But in one of his recent columns, Justice bedsworth states that he is, quote, trying to retire again. He says, I'll be 77 in November. While that is not exactly a good round number, it does seem like a reasonable finish line for a legal career end. Quote, yeah, I

Jeff Lewis  21:57 
think that decision survives rational basis review, and it's going to be a bummer, never hearing again in the courthouse. Welcome to the Hotel California as the opening line to oral argument.

Tim Kowal  22:07  
Yeah, yeah. He is a favorite among many practitioners. All right, Jeff, now tell us about the war on the cleaned up parenthetical.

Jeff Lewis  22:17 
Well, a war suggests that there's actually a realistic chance of one side winning and another side losing. This is more

Tim Kowal  22:30  
sniping. Yeah,

Jeff Lewis  22:31  
an assistant professor at a Mercer University School of Law has written a paper in the Georgetown Journal of legal ethics. It's coming sometime this year, suggesting that, you know, taking the what I'll call the Tim Cole purist view of citations, signals and citations that cleaned up shouldn't be used and that cleaned up has been misused and cleaned up has been applied incorrectly, and it should just be thrown away. And if you want to see an entertaining retort by the godfather of cleaned up Jack, who we had on our podcast a few episodes back, he has a vicious thread that, tweet by tweet, goes in and suggest perhaps the paper doesn't understand, A, how cleaned up was intended, and B, how cleaned up is actually being applied in the in the wild. But if you're into this, maybe we could put in the podcast on link to the tweet and where he links the article that is downloadable. Yeah,

Tim Kowal  23:37 
and I'm going to link to our episode number 92 where we were able to interview Jack Metzler about the origin story of the cleaned up parenthetical, its proper uses. It's it's improper uses. And I thought we had a good conversation, because you, you, you and Jack are, are firmly in the pro cleaned up camp. I was on, I have been on the moderately anti cleaned up camp where I I endorse it for use in judicial opinions, but not but I would suggest proceeding with extreme caution in putting it in in an advocates brief, but, but Jack warm me up to its use even further so i i would not scowl at anyone for using cleaned up. Wow. Hey, you know that brings

Jeff Lewis  24:25 
up a great idea. We need to have a cage match. Let's see if we can invite Jack and Professor alsbrook onto the podcast to debate the merits of cleaned up. Hey,

Tim Kowal  24:35 
let's see if we can make it happen. Okay, yeah, nothing, nothing better than a citation format debate that's going to really draw crowds. Yeah, I

Jeff Lewis  24:46 
could just hear the podcast unsubscribe buttons being clicked as we speak.

Tim Kowal  24:51  
Okay, all right, Jeff, well, that's going to wrap up this episode of cases and tidbits and and legal citation. Arcana, yep,

Jeff Lewis  24:58  
if you have suggested. Questions for future episodes or future cage matches, please email us at info@calpodcast.com, and in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for a

Tim Kowal  25:09 
trial. Thanks. See you next time you

Announcer  25:11 
have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cal podcast.com that's Cal podcast.com thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again. Foreign,