Headnotes Jul. 11, 2024: One-sentence summaries of this week’s below-the-fold cases

Tim Kowal July 11, 2024

Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention:

Carjacking is nonviolent? Gutierrez v. Garland (9th Cir. Jul. 2, 2024) held that lawful permanent resident’s carjacking conviction was not a crime of violence because carjacking can be accomplished by mere fear without resorting to actual or attempted physical force. (The mixed panel, including Clinton, Obama, and Trump nominees, was unanimous.)
Private prisons are not unconstitutional: Nielsen v. Thornell, No. 22-15302 (9th Cir. May 21, 2024) upheld dismissal of a lawsuit challenging the constitutionality of private prisons. The panel rejected plaintiffs’ arguments that private prisons are less safe, and that prisoners do not have a constitutional right to avoid private prisons.
Religious exemption to Covid vaccine mandate may proceed: A split panel in Bacon v. Woodward, No. 22-35611 (9th Cir. June 18, 2024) reinstated Spokane firefighters’ suit to vindicate their right to a religious exemption to the Covid vaccine mandate. The district court had dismissed their claims for free exercise, due process, and equal protection, applying watered-down strict scrutiny. The panel majority reversed, noting the claims deserved “the most rigorous of scrutiny.” (Note: As in the *Health Freedom Def. Fund v. Carvalho* case (my write-up here), Judge Hawkins dissented, arguing for rational basis review.)
Arb costs denial reversed: *Sanzone v. DCH Korean Imports, LLC* (D4d3 Jul. 3, 2024 No. G063483) [nonpub. opn.] held that, by denying the right to statutory fees, the arbitrator denied “an opportunity to be heard” on the amount. While arbitration awards are generally nonreviewable, this denial of a right to be heard triggers the exception under Code of Civil Procedure section 1286.2. (Comment: Every now and then one of these decisions come up giving hope for greater reviewability of arb awards, but they are woefully inconsistent. Note this one is unpublished and uncitable.)

(Artwork by Randall Holbrook, RNDL.DESIGN.)

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

"A judge is a law student who grades his own papers."

— H.L. Mencken

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

Headnotes Jul. 11, 2024: One-sentence summaries of this week’s below-the-fold cases

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"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"A judge is a law student who grades his own papers." — H.L. Mencken

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia