First Amendment - Anti-SLAPP - California Constitution - grpub.net

First Amendment

Obstructing injustice. - May 22, 2018
A Twitter dialogue between Max Boot and Scott Adams:Boot:The White House is the one that’s doing the stonewalling. As I write today, Trump is imitating a tried and true authoritarian tactic—investigate the investigators—to escape accountability: https://wapo.st/2IUWtlbAdams:What was the alternative?Boot:The alternative is pretty simple: don’t obstruct justice. Let the lawful investigation proceed unimpeded. Uphold the oath of office. Defend the Constituon [sic].Adams:Obstructing justice would be bad. Obstructing INJUSTICE is why voters hired him. It's his job to know the difference, and he's showing his work. I appreciate his transparency on this. Presidents have freedom of speech too.Ah! Now, I'm seeing that Adams is in the middle of a live Periscope. I'll just put this post up and watch this later when I can start at the beginning. I like this term "obstructing injustice," so let's see where Adams goes with it:Scott…
A Bad Sign for Gerrymandering Opponents - May 22, 2018 - Anthony Gaughan
Opponents of partisan redistricting have reason for concern this morning. There is still no decision yet in the two major partisan gerrymandering cases before the U.S. Supreme Court: Gill v. Whitford, the Wisconsin case argued in October 2017, and Benisek v. Lamone, the Maryland case argued in March 2018. But we received a big clue yesterday when the Court announced its decision in Epic Systems Corp. v. Lewis, a case that has nothing to do with election law.  Roberts Has Gill? The majority opinion in Epic Systems was authored by Justice Gorsuch, which leaves Chief Justice Roberts as the only member of the Court who has not yet written an opinion from the October sitting. What makes that important, as Prof. Rick Hasen pointed out as soon as the Epic Systems ruling was released, is the fact that there is only one case from the October sitting that the Court has not yet ruled on: Gill v. Whitford. The circumstantial evidence thus suggests that Chief Justice Roberts will…
Titles of works including 'Oh, the Places You'll Boldly Go!' don't get any less First Amendment protection.read more
“Appeal court sides with Florida ban of inmate magazine”: Dara Kam of News Service of Florida has this report. And Daniel Rivero of Miami public radio station WLRN reports that “Inmate Magazine Loses First Amendment Case Against Florida Department Of Corrections.” My earlier coverage of last Thursday’s Eleventh Circuit ruling can be accessed here.
In 2016, the American Bar Association proposed a new ethical rule for lawyers, 8.4(g) (plus the official comment). Many, including me, have argued that this rule, if adopted, would create an unconstitutional speech code for lawyers—and one that extends not just to speech in court or in other litigation activities, but also to "bar association, business or social activities in connection with the practice of law" (in the words of the official comment): It is professional misconduct for a lawyer to ... engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude…
When the Supreme Court rejected warrantless cell phone searches incident to arrest in Riley v. California, it emphasized that “many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives,” and that “allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.” That powerful recognition of the privacy interests implicated by electronic devices promptly raised the question whether courts should rethink the way that other warrant exceptions apply to cell phones, laptops, and the like (the Ninth Circuit has since applied Riley to vehicle and probation searches). On May 9, in an important extension of the Supreme Court’s logic, the Fourth Circuit ruled that authorities may no longer conduct forensic searches of electronic devices at the border without some degree of…

Anti-SLAPP

At its Wednesday conference, the Supreme Court granted the petition for review in Gonzalez v. Mathis.  The justices will be taking a look at the published opinion in that case by the Second District, Division Seven, which reversed a summary judgment against a window washer who fell off the roof of the defendant homeowner’s house while cleaning a skylight.  As stated by Supreme Court staff, the issue is, “Can a homeowner who hires an independent contractor be held liable in tort for injury sustained by the contractor’s employee when the homeowner does not retain control over the worksite and the hazard causing the injury was known to the contractor?” Other conference actions of note include: The court issued a grant-and-hold order in an anti-SLAPP case, Duchan v. Los Angeles Unified School District.  The Second District, Division Two, in an unpublished opinion, affirmed the granting of an anti-SLAPP motion.  The case is on hold for…
That's the top story in today's DJ about this opinion here, affirming a district court's denial of an anti-SLAPP motion against a case by Planned Parenthood. It's an interesting case. But where it really gets interesting is the special concurring opinion by Judge Gould (joined by Judge Murguia) urging the 9th Circuit to review en banc whether anti-SLAPP rulings should be reviewable by interlocutory appeal. The DJ points out that "Gould himself sat on a 2003 panel that first adopted the interlocutory appeal rule for anti-SLAPP motions, joining a majority opinion written by Judge Marsha S. Berzon that permitted the procedure. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)." In the past, several 9th Circuit judges have expressed the view that immediate appeals should not be allowed (e.g., Kozinski, Paez, Watford, Bea)."I have since receded from that opinion because I now believe the interlocutory appeal of this issue incorrect, potentially…
How the mighty have fallen.He ultimately wins today's appeal, which concerns an anti-SLAPP motion filed against him that should never have been attempted.  He even gets awarded his costs on appeal.But General Charles E. "Chuck" Yeager nonetheless doesn't enhance his reputation with the present lawsuit.  Here's in part what the Court of Appeal says in footnote 3:"It may be, as Holt claims, that the Yeagers have filed baseless litigation, but an anti-SLAPP motion is not the right vehicle to litigate this case. The trial court pointed out at the hearing that claim or issue preclusion might bar this suit or Holt might have a claim for malicious prosecution. We express no view on these points, but note with disapproval the ad hominem attacks against Yeager made by Holt in the trial court and on appeal. “Trying to win an argument by calling your opponent names . . . only shows the paucity of your own reasoning.” (Huntington Beach…
It is often a worthy strategy for the lessee to be aggressive with counterclaims against the lessor. Lessees should think twice about that strategy if it means complaining about the lessor’s public statements. In Lona Hills Ranch v. Creative Oil & Gas Operating LLC et al, that strategy ran afoul of the Texas Citizens Participation Act, Texas’s “anti-SLAPP” statute (“Strategic Lawsuits Against Public Participation”). The TCPA authorizes dismissal of a legal action based on, relating to, or in response to a party’s exercise of the right of free speech, right to petition, or right of association. The lessor’s actions Lona Hills Ranch, lessor of a Lee County lease, sued operator Creative Operating for trespass and trespass to try title, alleging that the lease had terminated. In connection with the dispute the Ranch took three actions: Before suing, filed a complaint at the Railroad Commission challenging…
A recent California Court of Appeal decision held that the receipt, retention and dissemination of confidential information by a whistleblower’s attorney is protected by the state’s anti-SLAPP statute. MMM Holdings, Inc. v. Reich, 21 Cal. App. 5th 167 (2018). Factual Background In 2010, Jose “Josh” Valdez was promoted to president of MSO of Puerto Rico, Inc. (“MSO”), a wholly-owned subsidiary of MMM Holdings, Inc. (“MMM”). MMM offers Medicare advantage health insurance plans in Puerto Rico and contracted with the U.S. Centers for Medicare and Medicaid Services, part of the U.S. Department of Health and Human Services. MSO and MMM (“Plaintiffs”) terminated Valdez’s employment six months after he became president. Valdez contended he was terminated in retaliation for his vocal opposition to Plaintiffs’ alleged fraudulent overbilling practices. Plaintiffs contended Valdez was terminated for incompetence and…
Gersh, the plaintiff, is a realtor living in Whitefish, Montana. She heard about a planned protest of businesses housed in a building owned by Sherry Spencer, the mother of Richard Spencer. (Richard, among other things, went viral for getting punched in the face by an Inauguration day protester.) Sherry apparently called Gersh asking her what she should do, and Gersh said Sherry should sell the building, donate the profits, and disclaim Richard’s views. Sherry allegedly initially agreed and asked Gersh to represent her in the sale, but then changed her mind. She published a blog post accusing Gersh of threatening and harassing her into selling the property. After Sherry’s blog post, Anglin published the first of thirty articles relating to Gersh in The Daily Stormer. I won’t repeat the titles here, but they generally attacked Gersh for being Jewish and called for a “troll storm” against Gersh. Anglin published publicly available contact information…

California Constitution

Here is a summary of this week's Riverside County Superior Court order that strikes the California End of Life Options Act as unconstitutional. I discussed this case with NPR here and built a page of resources here. First, the order has nothing to do with the content of the EOLOA act. It pertains only to the manner in which it was enacted. The EOLOA was enacted during a "special" session of the California Legislature. The California Constitution requires that special session legislation relate to the subject of Governor's Proclamation that called the special session. Here, the Governor's Proclamation mentioned both healthcare finance and healthcare generally. Therefore, pursuant to state supreme court precedent that interprets the special session clause of the constitution, the legislature had the power to enact "any" healthcare related legislation during the special session. It strains credulity to suggest that the EOLOA, which focuses on…
TAKING A DUI CHARGE TO TRIAL IN CALIFORNIA - May 15, 2018 - William Weinberg
While most DUI charges conclude with a plea bargain, some DUI defendants chose to put their case before a jury.  A trial before a jury of his or her peers is the DUI defendant’s right under the U.S. and California Constitutions. Whether the DUI is charged as a felony or a misdemeanor, the defendant has this right to a jury trial. When would a jury trial be a better choice? There are situations where a defendant might choose to go to trial on a DUI charge. Some examples include: When the prosecution refuses to negotiate on a charge even though the prosecution’s evidence is less than certain, when the charges are serious felony charges (such as DUI enhancements), when the BAC evidence is right on the threshold, or when a commercial driver’s license in on the line. Continue reading →
Ten years ago next Tuesday, in one of its most momentous decisions, a divided Supreme Court used a strict scrutiny standard of review to hold that, “in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”  (In re Marriage Cases (2008) 43 Cal.4th 757, 782.)  Although soon overturned by a state constitutional amendment adopted by initiative, the opinion presaged the U.S. Supreme Court’s decision seven years later under the federal constitution that superseded the initiative. On Tuesday, Morrison & Foerster LLP and the National Center for Lesbian Rights are sponsoring a program in San Francisco to discuss the state court decision.  Justice Goodwin Liu, who joined the court three years…
A water district, with regulatory approvals and permits from the California Department of Health Services, added chemicals -- "secondary disinfectants" -- to the tap water system to make the water safe to drink. The water complied with all federal and California drinking standards.  Sounds good. No one wants undrinkable drinking water. Problem was these additives caused copper pipes in private homes to corrode. The owners brought class actions under both nuisance (tort) and inverse condemnation theories. The Superior Court concluded the claims were preempted by both federal and state law.  In Williams v. Moulton Niguel Water District, No. G053002 (May 3, 2018), the California Court of Appeal affirmed, although for different reasons.  The nuisance claim was out because the District is immune from nuisance liability. Under California Civil Code section 3482, "[n]othing which is done or maintained under the express authority of a statue can be…
It is time for an update on a proposal—about which I wrote two columns (the second of which is here) last summer—that seeks to carve California up into three separate states. Last week, Silicon Valley venture capitalist Tim Draper, the driving force behind the proposal, announced that his organization had gathered more than 600,000 signatures from registered voters throughout the state’s 58 counties. That volume of signatures, if verified by the California Secretary of State, would easily exceed the number of signatures required by state law to put the measure on the statewide ballot this November. If California voters were to adopt the measure, it would then move on to be considered by the federal government; the US Constitution requires federal as well as state approval before new states are added to the union.Given that the measure may be before California voters in a matter of months, I offer below a brief summary of the proposal, and then three key…
It's a slow news day in the appellate courts.  Nothing at all from the California Supreme Court or Court of Appeal.  And only an amendment to an opinion from the Ninth Circuit.  Zzzzzzz.Though it does give me a chance to go back a tiny bit.See what you think about this opinion from last month.  The question is whether the defendant is such a threat to public safety that he should be denied bail entirely.  (The California Constitution says that you can only deny bail in this setting if  "the court finds based on clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others.")You could see strong feelings being raised on both sides.  Do you think there's "clear and convincing" evidence that there's a "substantial likelihood" that this guy will reoffend while on bail?"Fifteen-year-old J.D. lived with her family near the…