Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, theofficial proponents of an initiative measure possesseither a particularized interest in the initiative’s validity or the authority to assert the State’s interestin the initiative’s validity, which would enable themto defend the constitutionality of the initiative uponits adoption or appeal a judgment invalidating the initiative, when the public officials charged with thatduty refuse to do so.

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.

Whatever Liu’s jurisprudential philosophy, three things virtually guaranteed controversy over his nomination:  (1) Liu is President Obama’s first nomination to the court; (2) the Ninth Circuit is a lightning rod for criticism from the right side of the political spectrum (more so, I think, than the Fourth Circuit is for the left side of the political spectrum), and (3) did I mention Liu’s a professor at Cal Berkeley?

H/T: How Appealing.

If you are an iPhone-using lawyer, you really should subscribe to the iPhoneJD blog, where New Orleans attorney Jeff Richardson keeps you updated not only on specific legal uses for the iPhone, but on all things iPhone.

Yesterday, he reviewed Fastcase, an iPhone app for legal research, and the opening paragraph could hardly have been more glowing:

I will start this review with what probably belongs in my conclusion:  Every single lawyer using an iPhone should download the Fastcase app.  Moreover, the availability of the free Fastcase app is a compelling reason for any attorney not using an iPhone to purchase one today.  This app is that useful.

The rest of his review is very thorough.

The application itself is free, but the two subscription plans offered have an annual cost of  $700 and $1000. While that’s a heck of a lot less expensive than commercial services like Westlaw and Lexis, Fastcase will hardly replace either. It will be most useful for quick lookups on the go.

A lucky few won’t have to conduct any cost-benefit analysis. Seventeen bar associations (so far) offer Fastcase to their members free. That includes several statewide bar associations. Unfortunately, California is not among them, but a couple of Ninth Circuit states are: Arizona, Nevada and Oregon. [CORRECTION: I was confusing the desktop and iPhone versions. The subscription fee is for the desktop version of Fastcase only. The iPhone version is free for everyone.]

UPDATE (2/2/10): On second thought, this application might be good for a lot more than just the occasional quick lookup. On an iPad, it will be a lot more readable. Hmmm, up until know, I was pretty sure I wasn’t going to buy an iPad.

(Cross-posted at The California Blog of Appeal.)

In a word: No. In the abstract, the ultimate issue in any appeal is whether the trial court’s decision was the correct result or not, not why it was or wasn’t the correct result. Thus, the Court of Appeals can affirm a judgment on any ground justified by the record. This makes it possible in some cases for the Court of Appeals to affirm on a ground different from the trial court’s faulty basis.

More, the appellate court may resort to alternate grounds even without first determining that the trial court erred in its stated grounds. Alternate grounds for affirmance may jump out from the record so strongly that the appellate court will latch onto them without any analysis of the trial court’s reasoning, now rendered beside the point.

The recent decision in Hells Canyon Preservation Council v. U. S. Forest Service, case no. 0735456 (9th Cir. Feb. 25, 2010) provides an excellent example of the Court of Appeals’ reliance on alternate grounds. Plaintiff in that case alleged three claims arising from the Forest Service’s alleged mismanagement of federal lands, and the trial court granted summary judgment to the forest service on all three claims on the ground that they were filed beyond the statute of limitations (i.e., were untimely). The Ninth Circuit Court of Appeals affirms as to all three claims, but relies on the statute of limitations for only one of them.

On one of the other counts, the Ninth holds that the judgment was correct because of the alternate ground the Forest Service had argued in the trial court: that the plaintiff lacked standing to sue because it lacked any injury. In fact, the Forest Service didn’t even try to defend the untimeliness rationale of the trial court on that claim and argued only the standing issue. It undoubtedly made that decision because the standing issue seemed so strong in its favor, and that proved to be correct, with the court stating, “We do not think that the question of plaintiffs’ standing to challenge the filing of the 1978 map is a difficult one.”

The Ninth’s resolution of the third claim is an even greater illustration of the appellate court’s power to affirm on alternate grounds. The basis on which it affirms with respect to the third claim — plaintiff’s failure to state a claim because it failed to allege any failure of the Forest Service to take a required action — was apparently never even raised in the trial court. (At least, the court makes no mention of it.)

Hells Canyon is a reminder to parties to look outside the rationale of the trial court when evaluating their prospects on appeal. A prospective appellant should not just evaluate the viability of his argument in terms of the correctness of the trial court’s reasoning, nor should an appellee who is trying to decide whether settlement makes more sense than fighting the appeal. Each needs to make sure that he examines the record as a whole for other — and perhaps stronger — support for the adverse judgment, and take into account the possibility that the appellate court will affirm on that alternate ground.

The event is January 27 from 5-7 p.m. on the UCLA campus. More details are here, and you can RSVP here.

The Ninth Circuit joined several sister circuits today in holding that a district court has “discretion to entertain successive motions for summary judgment.” The holding in Hoffman v. Tonnemacher, case no. 08-16166 (9th Cir. Jan. 21, 2010), is not too much of a surprise, given the rule in those sister circuits.

The circumstances under which the court found a proper exercise of discretion here are, however, quite unusual. Defendant did not make its second motion for summary judgment until the case had gone to trial, defendant’s motion at the close of evidence for judgment as a matter of law was denied, the court declared a mistrial after the jury deadlocked, and the court, on defendant’s motion, amended the pretrial conference order to allow defendant to name a new expert witness and file a second motion for summary judgment prior to retrial.

The court finds the district court was within its discretion to hear the second motion largely because all the activity between the first and second motions resulted in an expanded factual record that made the second motion more than just a repeat of the first:

We review for abuse of discretion a district court’s decision to permit a successive summary judgment motion. In this case, the district court did not abuse its discretion by allowing Defendant to file another summary judgment motion after the mistrial. The deposition of an expert witness after the deadline for pretrial summary judgment motions, the testimony at trial, and the addition of a new expert witness after the mistrial expanded the factual record beyond what it had been at the time of the pretrial summary judgment motion.

Lesson: don’t give up on getting summary judgment just because you lost the first time . . . and don’t assume it’s too late just because deadlines have passed. If you have more undisputed facts than you did before, give serious consideration to bringing the motion again.

We are asked to stay the broadcast of a federal trial. We resolve that question without expressing any view on whether such trials should be broadcast. We instead determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on oth- ers, and must follow those requirements themselves.

Further, since it stays the district court’s January 7 order, it appears at first glance that there will not even be live streaming allowed within the same courthouse. From my quick skim (and I do mean quick), it looks like the opinion even precludes taping of the proceedings, since that was likewise allowed for in the January 7 order.

We need not decide, however, whether Pineda-Moreno’s vehicle was parked within the curtilage of his home. Even assuming it was, it was parked in his driveway, which “is only a semi-private area.” United States v. Magana, 512 F.2d 1169, 1171 (9th Cir. 1975). “In order to establish a reasonable expectation of privacy in [his] driveway, [Pineda-Moreno] must support that expectation by detailing the special features of the drive- way itself (i.e. enclosures, barriers, lack of visibility from the street) or the nature of activities performed upon it.” Maisano v. Welcher, 940 F.2d 499, 503 (9th Cir. 1991). Pineda- Moreno offers no such evidence. To the contrary, the driveway had no gate, no “No Trespassing” signs, and no features to prevent someone standing in the street from seeing the entire driveway. Additionally, one of the investigating agents testified that “an individual going up to the house to deliver the newspaper or to visit someone would have to go through the driveway to get to the house.” If a neighborhood child had walked up Pineda-Moreno’s driveway and crawled under his Jeep to retrieve a lost ball or runaway cat, Pineda-Moreno would have no grounds to complain. Thus, because Pineda- Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of his home.

Subtle distinctions from precedent are often asserted in Fourth Amendment cases, but they are often not enough. Here, it was only the government’s concession that the driveway was within the curtilage of defendant’s home that distinguished the case from otherwise foursquare precedent (United States v. McIver, 186 F.3d 1119 (1999)). The court’s reasoning makes that distinction it immaterial.

That sinking feeling has to be exponentially worse when (1) you’ve been sentenced to life imprisonment and (2) you managed to waive two issues. Such is the case in United States v. Mausali, case no. 08-50062 (9th Cir. Jan 11, 2010). Mausali was arrested on various conspiracy charges after planning a crime with a robbery crew that included a government agent, then was tried with a co-defendant after the district court denied the co-defendant’s motion to sever the trials.

On appeal, Mausali asserted that the government had engaged in outrageous conduct because it had essentially masterminded the planned robbery and provided meeting places and equipment for planning it and carrying it out. As the Court of Appeals put it: “Defendant claims that the Government violated his right to due process by supposedly directing the entire criminal enterprise from start to finish and by promoting a crime of violence.”

Mausali claimed that the trial court had an independent duty to dismiss the case, regardless of his failure to raise the issue of outrageous conduct, because the outrageous conduct was disclosed on the face of the indictment. The court cites the policy behind the waiver rule, already adopted by three other circuits with respect to coaims of outrageous government conduct:

The policy behind the rule is sound. Outrageous government conduct claims involve alleged “ ‘defects in the institution of the prosecution’ itself,” questions of law that the court should decide before trial. [United States v.] Nunez-Rios, 622 F.2d [1093] at 1098 (quoting what is now Fed. R. Crim. P. 12(b)(3)(A)); accord [United States v.] Pitt, 193 F.3d [751] at 760. Furthermore, pretrial assertion of the claim permits the trial court to “conduct a hearing with respect to any disputed issues of fact.” Nunez-Rios, 622 F.2d at 1098. Indeed, the Federal Rules of Criminal Procedure require a defendant to “alleg[e] a defect in instituting the prosecution” before trial, Fed. R. Crim. P. 12(b)(3)(A), or else waive the objection on appeal, Fed. R. Crim P. 12(e)[.]

Applying that rationale, the court finds the issue waived because Mausali failed to raise the issue despite having knowledge of the facts for many months before trial.

Secondly, Mausali claimed the trial court erred in refusing the sever the trials, even though he never moved for severance. This time he asserted that moving to sever would have been an “unnecessary formality” in light of the court’s denial of his co-defendant’s motion to sever. That doesn’t get him very far. A failure to renew a motion has been deemed an unnecessary formality, but not a failure to make one in the first instance.

None of this is to say, of course, that Mausali would have prevailed on either argument had the court considered them on the merits. Unfortunately, he’s got a lifetime of wondering ahead of him.

UPDATE: (1/11/10): The Supreme Court’s order is now up at its website.