Monthly Archives: April 2012

Martel v. Clair, 132 S.Ct. 1276 (2012)

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Clair was convicted in 1984 and immediately started “gaming the system.”  He repeatedly refused to accept legal assistance from appointed counsel, but the court did substitute lawyers for him on more than one occasion. Clair filed a motion to substitute counsel and a petition for habeas corpus. The District Court consolidated and denied both motions. Clair also submitted petitions in state court seeking post conviction relief

Clair appealed both District Court motions.  The the 9th Circuit panel  (in a non published memorndum opinion) reversed on grounds the trial judge had abused his discretion because had  not stated the  reasons for his decisions; 403 Fed Appx.3d. 276.

The Supreme Court reversed the 9th Circuit again.  The legal issue is not “ineffective counsel,” but “substitution  of counsel.” Inmates are rarely satisfied with court appointed lawyers and use this stalling tactic to delay-particularly in death penalty cases.  The Supreme Court held that substitution of counsel can occur on the grounds of “interest of justice.”  The 9th Circuit used this vague and subjective test in its decision and, of course,  found it should reverse. The Supreme Court agreed this conceptual test is appropriate but the 9th Circuit applied it wrongly.  Reversed.

If “interest of justice” is the test for whether the court should substitute counsel, the 9th Circuit can use it repeatedly.  The Supreme Court held the test must be closely guarded but of course cannot set any standard because the test is subjective and fact intensive.   

Diaz v. Brewer, 676 F.3d 823 (9th Cir. (2012)

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Again rejecting voters and state legislatures, a 9th Circuit panel has continued its imposition of public policy  instead of legal analysis.  In addition, the court has constitutionalized Initiatives and legislation by applying the unbounded limits of “equal protection,” “liberty interests” and “due process” foreclosing the opportunity for any further democratic input or correction. Only a short time ago a 9th Circuit panel rejected California voters, and the California Supreme Court in Perry v. Brown, 2012 WL 372713 (C.A. 9 2012), by disallowing state law prohibiting same sex marriage in an opinion emphasizing sociology rather than law. The 9th Circuit panel in Diaz v. Brewer prohibited Arizona from implementing savings to its budget crisis by ruling its legislation discriminates against same sex couples; Diaz v. Brewer, 656 F.3d 1000 (9th Cir. 2012. Rehearing denied. En banc denied.

The only issue in the case: legislation reducing health care benefits to all state employees whether married or unmarried.  All employees, without exception, took a deduction in health benefits in an attempt by the state legislature to produce a balanced budget.  According to the 9th Circuit panel, this legislation included unmarried domestic partners, therefore the legislation discriminated against them-despite the fact only a tiny percentage would be affected.  Why?  Because under Arizona law, same sex marriage is disallowed. 

The dissenting judges in Diaz, lamenting the failure of 9th Circuit judges to order an en banc hearing, comment on the omission of the three judge panel to use the equal protection analysis necessary to invalidate state law, i.e., a specific intent to discriminate.  Aside from the fact that Arizona legislation manifests no intent to discriminate in a budget, and there is no rational basis for challenging the law, and impliedly rejecting the constitutional basis for opposite sex marriage, the opinion is another sociology lesson.

The 9th Circuit has already achieved another record of reversals during the current Supreme Court term, and this case should be added to the list.

Filarsky v. Delia, 132 S.Ct. 1657 (2012)

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The 9th Circuit notches another reversal on the issue of qualified immunity.

The City of Rialto retained an experienced and qualified lawyer to assist in the investigaton of an employee suspected of falsifying his work injury record and allegedly was constructing a house.  After unuccessful attempts by City employees to convince the employee to confirm his disability, the attorney asked the employee to bring out building materials he had purchased for his house. The employee retained counsel who refused cooperation, threatened litigation, and subsequently sued City employees and the private lawyer for Fourth Amendment violations. The U.S. District Court held the attorney and City employees immune from litigation. The employee appealed.

The 9th Circuit on appeal from the district court decision held a private lawyer retained by a public agency, which employed no one with the experience to investigate work fraud, did bit not qualify for immunity. Although the City employees could exercise immunity, the lawyer retained by the City could not.

The Supreme Court reviewed the doctrine of immunity extensively, and held the lawyer essentially did the work of a public employee in the absence of a trained person on the City staff.  Reversed.

Although not a breathtaking case, the Supreme Court discussion of immunity is an excellent summary of a  doctrine (soverign immunity) initiated as far back as the early days in the United States.  A 9-0 ruling.

See 9th Circuit on remand to the district court  (above, June 27, 2012)

Gonzales v. State of Arizona, 677 F.3d 383 (9th Cir. 2012)

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Attempting to stem the tide of illegal aliens and their potential to cast votes in federal and state elections, the State of Arizona enacted modest statutory restrictions requiring evidence of citizenship from anyone in registering to vote and at the polling place itself.  The 9th Circuit (en banc) upheld the identification requirment at the polling place but not in completing the registration form.  Only the Supreme Court decision in Crawford v. Marion County Elections Board, 553 U.S. 181 (2008) compelled the court to allow evidnece of citizenship at the polling place.

Gonzales (en banc) is a split decision with a variety of results.  The majority of the court cited the Elections Clause of the Constitution, Art.I section 4, cl.1, as the governing authority.  This Clause permits the states to govern the mechanics of an election but reserves the right of the federal government to alter those conditions. Pursuant to the Election Clause, Congress enacted the Voting Rights Act (42 U.S.1973) authorizing the federal government to issue a “federal form” for voter registration, mandatorily imposed on the states, although each state could use its own form in compliance with the federal form.  According to the majority, presenting evidence of citizenship was not included in the federal form.

This conclusion of statutory construction of the VRA defies understanding for the average American.  To buy groceries, enter buildings, or purchase products, a person must display a drivers licence or similar identification. But in registering to vote it is unnecessary to require identification.

Whatever the result, the Gonzales case in another example of 9th Circuit duplicity. This case has been  before the 9th Circuit previously (and noted in this blog).  At one point, two 9th Circuit judges assigned to motion practice set aside a decision of the district court denying plaintiffs’ challenge to the Arizona statute without requiring any briefing or explanation; Gonzales v. Arizona, 485 F.3d 1041 (9th Cir. 2007.)  Reversed by the Supreme Court; Purcell v. Gonzales, 549 U.S.1 (2007). On remand, a 9th Circuit panel upheld the Arizona registration law and polling place statute. Another panel reversed the original 9th Circut panel decision and ignored the “rule of the case” disallowing reversal of one panel by a subsequent panel. In addition, the 9th Circuit panel ruled that the requirement for identification at registration violated the Election Clause and VRA; Gonzales . Arizona, 624 F.3d 1162 (9th Cir. 2010).

The instant case is a rehearing of that decision. The majority in a footnote rejects the 9th Circuit panel who wrote an exception to the “law of the case rule” in its decision. The en banc court continued to accept a different understanding of the rule in the footnote equally ambiguous.