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Judges in their own words

December 2017

“Even the government has First Amendment rights.”

—Presiding Justice Arthur Gilbert, writing for Division 6 of the Second District of the California Court of Appeal, in Santa Clara Waste Water Co. v. County of Ventura Environmental Health Division, 2017 WL 5898576. Per the anti-SLAPP statute, the court affirmed dismissal of a claim that the plaintiff’s rights had been violated when a county agency advised the plaintiff that it was referring uncorrected environmental violations to the district attorney so they might be included as part of an ongoing investigation of possible criminal activity.

September 2017

“I write separately to explain why it is unfair for the Government to encourage noncitizens to apply for immigration relief, and at a later date use statements in those relief applications against noncitizens in removal proceedings…..The Government’s practice in this regard contradicts the principle of welcoming immigrants into our communities….We should encourage, not punish, noncitizens who come out of the shadows seeking avenues to lawful status.”

—Ninth Circuit judge Harry Pregerson, concurring in Sanchez v. Sessions, 2017 WL 3723238 (9th Cir.). The court terminated removal proceedings against Luis Sanchez after concluding that government officials “committed an egregious Fourth Amendment violation and violated an immigration regulation because they seized Sanchez based on his Latino ethnicity alone.”

June 2017

“The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.”

—Justice Anthony Kennedy, writing for the court in Packingham v. North Carolina (No. 15-1194), a case in which the Court held that a North Carolina statute that restricted a felon’s right to use the internet violated the First Amendment.

June 2017

“To resolve this defense appeal, we descend down a rabbit hole into the upside-down world of health care billing, where different payers pay different prices for the same services and those least equipped to pay, pay the most; yet an injured, uninsured plaintiff….must somehow prove the reasonable value of the medical services she incurred following a motor vehicle collision.”

—Presiding Justice Vance W. Raye of the California Court of Appeal for the Third Appellate District, lamenting the complexity of medical insurance and the appropriate standard to apply in personal injury cases when injured parties seek compensation for their injuries. The case is Moore v. Mercer, 4 Cal. App. 5th 424 (2016).

March 2017

“Our law punishes people for what they do, not who they are.”

—Chief Justice John R. Roberts, Jr., writing for the majority in Buck v. Davis, 2017 WL 685534, a case in which the U.S. Supreme Court reversed a death sentence because it was tainted by discredited testimony that appealed to the racial stereotype that African-American men are “violence prone.” The Chief Justice further noted that “when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.”

February 2017

“Executive power favors the party, or perhaps simply the person, who wields it. That power is the forbidden fruit of our politics, irresistible to those who possess it and reviled by those who don’t. Clear and stable structural rules are the bulwark against that power, which shifts with the sudden vagaries of our politics. In its haste to find a doctrine that can protect the policies of the present, our circuit should remember
the old warning: May all your dreams come true.”

—Ninth Circuit judge Alex Kozinski, dissenting from a denial of rehearing in Arizona DREAM Act Coalition v. Brewer, 2017 WL 461503 at *5) (9th Cir.). The case involved an Arizona policy that nullified certain aspects of the federal “DACA” program that protected certain undocumented persons and enabled them to obtain certain benefits, including the issuance of federal employment authorization documents. The Ninth Circuit affirmed the trial court injunction against the Arizona’s policy on the ground that it was preempted by federal law, including President Obama’s Executive Order. The 9th Circuit denied a rehearing en banc.

September 2016

“Now, I like good customer service as much as the next guy, but it is not a constitutional right.”

—Ninth Circuit Judge Barry G. Silverman, concurring in part, and dissenting in part, from the court’s decision to reverse and remand a case involving the question of whether Alameda County’s law restricting the location of a gun store violates the Second Amendment. The case is Teixeira v. County of Alameda, No. 12-17132 (opinion filed May 16, 2016).

March 2016

“I am going to start with an observation: even among flyspecks, this case is a nothing.”

—Ninth Circuit Judge Jay S. Bybee, concurring in the judgment but (in his words) “vigorously disagreeing with everything else” in Ozenne v. Chase Manhattan Bank (In re Ozenne), No. 11-60039, a case in which the court held that Bankruptcy Appellate Panels are not “courts” established by an Act of Congress for purposes of applying the All Writs Act (28 U.S.C. section 1651(a)). Bybee would have resolved the case on one of several alternate theories.

March 2016

"How best to balance th[e]se interests is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago. But that debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive. It would betray our constitutional heritage and our people's claim to democratic governance for a judge to pretend that our Founders already had that debate, and ended it, in 1789.”

Federal magistrate judge James Ornstein, rejecting the argument that the All Writs Act (28 USC § 1651) authorizes an order compelling Apple, Inc. to create software that allows the government to obtain encrypted information from a person’s cell phone. A full copy of Judge Ornstein’s opinion in In re Order Requiring Apple, Assist in the Execution of a Search Warrant, No. 15-mc-1902 (E.D.N.Y Feb. 29, 2016) can be viewed here.

January 2016

“We are reminded of the song lyric from a half-century ago: ‘You don’t miss your water/Till your well runs dry.’ (William Bell, “You Don't Miss Your Water” (Universal Music Pub. Group 1961).)”

—Presiding Justice Conrad Rushing, writing for the California Court of Appeal, Sixth Appellate District, in Great Oaks Water Co. v. Santa Clara Valley Water Dist., 242 Cal. App. 4th 1187 (2015). The court of appeal reversed a trial court ruling that had awarded a refund of extraction fees to a water retailer and remanded the case for a new trial.

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