9th C grabs class actions it denies are class actions

I suppose this is one of those issues that only law students (and big corporate defendants) could love.

The ninth circuit, the local Federal appellate level, just decided that a law that allows the Federal courts to "remove" a class action lawsuit asking for more than $5 million from a state court should be interpreted to keep the case in the Federal court system even after concluding that it was never properly a class action case to begin with, and if properly brought, was originally ineligible to be considered by the Federal courts.

The court was United Steel (Union) v. Shell Oil Co.

Usually the Federal courts only have jurisdiction if a Federal law is involved, or if no defendant is from the same state as the plaintiffs and the amount in controversy exceeds a particular level. Under the law in question the rules for diversity are much looser if it is a class action and the amount in controversy is $5 million.

The court reasoned that once a Federal court takes a "diversity case", jurisdiction continue even though, for example one of the parties moves, or the amount in controversy falls below the required limit. However here the court considers the preliminary matter: does the case constitute a class action?, and decides it doesn’t, but keeps jurisdiction under a law that only applies if it does.

The judicial decision admitted that the law as written does not demand this result, but goes along with two other appellate circuits.

Since this decision favors big corporate defendants who are the most likely targets of class action suits, do not expect the tea party types to challenge this new expansion of Federal power at the expense of the states, just as they have not challenged diminution of individual rights represented by the the Supreme Court's Citizens United case that gave unlimited rights to corporations to buy election advertising.

Is language part of the environment?

The earth and its non-human life forms need, as the saying goes, a good lawyer.

Is a party a development? Nonetheless, the language that we mutually use to navigate our human interactions is also part of our environment, and this last week a state appeals court case Gualala Festivals Committee v California Coastal Commission in my view trashed the environment of the English language to protect some startled cormorants.

The case arose when, presumably on the strength of concern that the event had ruffled the feathers of some local seabirds, the Commission decided that a Fourth of July fireworks display in Gualala California, was a “development” subject to licensure by them (the Commission, not the birds).

Sometimes, I have imagined going before a jury with a nice cheesy pizza and slowly pulling apart two slices and explaining that while the cheese retains its shape and attachment, you may still be speaking the truth if you say you have only one piece. But as the cheese stretches and sags your argument becomes more and more tenuous. Finally when there is only a long stretchy shred connecting them, or they have separated entirely, then the “truth” is that they are no longer the same piece of pizza, and any argument otherwise is dishonest. In the Gualala case the shred was thin to the point of invisibility connecting a single traditional Independence Day celebration with the kind of “development” for which the Coastal Commission is supposed to issue or withhold permits. If a one-time noisy celebration of a political event, must be permitted by the Coastal Commission then any human activity near the coast, particularly a loud political demonstrations, could theoretically be subject to such permitting or a cease and desist order if not obtained.

Fireworks used to scare the heck out of my dog, and no doubt some birds would be alarmed. I don't doubt they pollute the air for at least an evening, but fireworks regulation should be decided by political process, not by courts adding unintended meanings to common words in order to protect the natural environment.

But add 73,500 feet to a shopping center....
In contrast with the above case: an appellate court case reported today, Melom v. City of Madera, hacked away at the usual meaning of the flexible but common word "substantial" to diminish environmental protection. A state appellate court decided that expansion of a mega store in a shopping mall by 73,500 square feet,-fifty-nine percent bigger than had been approved under the project's Environmental Impact Report- was not a “substantial change" that would require major revisions of the environmental impact report.”

Should Children of Republicans be denied Citizenship?

"All persons born or naturalized in the United States...are citizens of the United States..." (14th Amendment).

In considering immigration “reform,” the very worst thing we can do is create a class of people native to the United States but without any country. The faction that wants to deprive children born here to an education or medical care or civil rights because their parents are without documents should read the 14th Amendment to the Constitution and realize what a wise and appropriate thing it is that anyone naturally born here is our fellow citizen. They should also consider what an evil and destructive act it is to declare a baby born on our soil stateless.

It astounds me that so many people people who talk about curbing illegal immigration pass quickly from espousing a respect for law, and concern for the American labor, to saying that a baby born here of an undocumented mother has no rights as citizen, or to health care or education. That so many of the people who claim to want to control illegal immigration espouse this view, strikes me as evidence of a deep racism and hatred of foreigners, particularly women and children, that has nothing to do with defending our country's sovereign right to control its borders.

Additionally to deprive people born here of rights as citizens is not just a slippery slope but a dive down a chasm of conditional citizenship. If we are to deprive the child born here of an “illegal” immigrant what about the grandchildren of at least one person who came here without documentation? What about their grandchildren? If born here, and you may still be disqualified as an American, why should having an undocumented mother be the only criteria? Could having an ancestor who is Jewish, or Chinese, or felonious, or a registered Republican disqualify you?

"We hold these truths to be self-evident, that all men are created equal..." (the declaration of Independence) It is still a good starting point for policy in our country.
Peter H. Liederman

Baseline for EIR decision is what is, not the worst it could be.

On has to wonder what side the South Coast Air Quality Management District is on. It took the California Supreme Court to order the district to order ConocoPhillips to prepare and EIR for a significant change to their refinery. Conoco and the District took the position that they didn’t need an EIR because the new refinery couldn’t possibly pollute as bad as the current one if it were operating at the maximum operation allowed in its permits. The court had to point out that the California Code of Regulations on CEQA calls for a comparison of the future facility with conditions “as they exist at the time . . . environmental analysis is commenced . . .”
The case was Communities for a Better Environment v. South Coast Air Quality Management Dist. (ConocoPhillips Co.) decided March 15.

Thought - on trust and distrust

Nothing makes things work so efficiently as well-placed trust, nor so inefficiently as misplaced trust. Unjustified distrust is a close runner up. Relying on a team that truly works together or an expert who knows his/her stuff is a good example of well placed trust. Anyone who has experienced the betrayal and sense of loss from relying on false promises or pretenses knows the inefficiency of misplaced trust. As for unjustified distrust, these days every time you enter a courthouse you see the taxpayers are supporting up to four uniformed folks whose sole job is to treat citizens with suspicion almost completely unjustified by facts.
P. Liederman

Cal Supreme Ct likely to reverse damages decision

It’s been a short time coming:
Back in November a state appellate court ruled that a plaintiff could collect the full cost of his medical care from a defendant, even if the medical care had been provided at a fraction of that cost because of an agreement between the medical provider and the insurance company.
While the decision may have been celebrated by a few plaintiff’s attorneys hungry with the notion of judgments much bigger than actual damages, the Supreme Court this week voted to hear an appeal of the case. I will hazard a prediction that it will be overturned. The case was and will be Howell v Hamilton Meats.
Peter Liederman.

Prostitutes can't advertise in NV per 9th Circuit

Prostitutes can’t advertise wares.

3/11/10: The ninth circuit upheld a Nevada law barring advertising by brothels in counties where the selling of sex is illegal, and sharply limiting ads even where, unique in the United States, the sale of sex is allowed.

After dodging around various Supreme Court decisions that have gradually raised commercial speech almost to the level of protection of political electioneering by corporations, the court decided that the selling of sex was a category unique in itself and that the state could allow the transactions, but pass laws to prevent turning the practice into a commodity. The case is Coyote Publishing v. Miller.