The Supreme Court Limbers Up to Aid and Abet Trump’s Coup

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan describes how the U.S. Supreme Court is readying itself to declare Trump the winner of the election. Professor Buchanan points out that no court acting in good faith would apply the text of the Constitution or existing Supreme Court precedents in a way that would allow any of this scheme to see the light of day, but based on what Justice Kavanaugh has written and what Justice Gorsuch strongly suggests, the Court might not even have that minimum amount of good faith.

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If the Challengers Prevail on the Merits of the ACA California v. Texas Case, What is the Appropriate Remedy and What Effect Should the Ruling Have on the Entirety of the ACA? Part Four in a Series

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this fourth of a series of columns examining the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider what the appropriate remedy should be if the challengers prevail on the merits of the case. The authors explain why enjoining the 2017 amendment, which zeroed out the potential tax penalty for failure to maintain the specified health insurance coverage, is a more appropriate remedy than striking down the entire ACA.

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The U.S. Supreme Court Cannot Determine the Election Result

AUSTIN SARAT, DANIEL B. EDELMAN

Amherst College Associate Provost Austin Sarat and attorney Daniel B. Edelman argue that there is nothing the Supreme Court can do to prevent governors from certifying slates of electors that actually reflect the vote of the people in their states. Sarat and Edelman explain why Bush v Gore is both inapplicable, and by its own terms, never supposed to be used as precedent.

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Pinto Lake MHP LLC v. County of Santa Cruz

Docket: H045757(Sixth Appellate District)

Opinion Date: October 30, 2020

Judge: Grover

Areas of Law: Civil Procedure, Landlord - Tenant

Under the Santa Cruz Mobilehome Ordinance, a park owner may make an annual general rent adjustment without notice to the county, based on specified criteria. An owner who believes the annual adjustment does not provide for “a just and reasonable return” may petition for a special rent increase. Pinto, a 177-space mobile home park, filed a special petition seeking to increase rents by 47 percent. Notice was provided to the residents, who hired counsel and submitted objections. A hearing officer denied the proposed increase. Pinto filed a petition for administrative mandamus and complaint for declarative relief naming the county and the hearing officer as respondents. The county argued that Pinto failed to join the mobile home park residents as indispensable parties under Code of Civil Procedure section 389. Instead of amending its complaint/petition, Pinto elected to stand on the original pleadings. A judgment of dismissal was entered. The court of appeal remanded The trial court, citing Code of Civil Procedure section 389(a), concluded that the residents are necessary parties but did not address section 389(b)--whether the case should be dismissed due to the residents’ absence. The parties disagreed about whether the statute of limitations had run on joinder and the owner’s election to stand on its original pleading truncated the process. The court granted the unopposed motion to dismiss without deciding whether the residents could be made parties or whether the lawsuit could continue without them.

California v. Kruse

Docket: D077038(Fourth Appellate District)

Opinion Date: October 30, 2020

Judge: Patricia D. Benke

Areas of Law: Constitutional Law, Criminal Law

A jury convicted Cody Kruse of: making a criminal threat (count 1); attempting to deter or prevent an executive officer from lawful performance of his duties by means of violence or threat of violence (count 2); and possession of a controlled substance (count 3). The trial court sentenced Kruse to three years and eight months in state prison. Kruse contended on appeal the trial court prejudicially erred by: (1) allowing the prosecutor to question him on cross-examination about being investigated for killing his former girlfriend’s baby; and (2) refusing to instruct the jury on Penal Code section 148(a)(1) (willfully resisting, delaying or obstructing a public officer) as a lesser included offense of Penal Code section 69 (attempting to deter an executive officer from performing any duty by means of threat or violence). Finding no reversible error, the Court of Appeal affirmed Kruse's convictions and sentence.

Niedermeier v. FCA US LLC

Docket: B293960(Second Appellate District)

Opinion Date: October 30, 2020

Judge: Bendix

Areas of Law: Consumer Law

After plaintiff filed suit under the Song-Beverly Consumer Warranty Act, commonly known as the "lemon law," the jury awarded her the full purchase price of her defective vehicle, offset by mileage accrued before she first delivered it for repair, plus incidental and consequential damages and a civil penalty. The trial court subsequently denied defendant's motion to reduce plaintiff's damages by the credit she received towards the purchase price of a new vehicle when she traded in her defective vehicle to a GMC dealer. As a matter of first impression, the Court of Appeal held that the Act's restitution remedy, set at "an amount equal to the actual price paid or payable" for the vehicle, does not include amounts a plaintiff has already recovered by trading in the vehicle at issue. The court stated that the Legislature chose to call the Act's refund remedy "restitution," indicating an intent to restore a plaintiff to the financial position in which she would have been had she not purchased the vehicle. Therefore, granting plaintiff a full refund from defendant in addition to the proceeds of the trade-in would put her in a better position than had she never purchased the vehicle, a result inconsistent with "restitution." The court also held that allowing plaintiff a full refund also would undercut other parts of the Act. Therefore, the court reduced the damage award to reflect the value of plaintiff's trade-in and reduced the civil penalty. The court affirmed the judgment as modified.

People v. Reyes

Docket: A158095(First Appellate District)

Opinion Date: October 30, 2020

Judge: Streeter

Areas of Law: Criminal Law, Legal Ethics

Reyes, a deputy public defender who began practicing law less than three years ago, was charged with witness tampering under Penal Code section 136.1(b)(1), which proscribes an attempt to dissuade any victim of or witness to a crime from reporting “that victimization” to law enforcement, and under section 137(b), which proscribes the attempted inducement of any person “by the use of fraud” to “withhold” “true material information pertaining to a crime” from law enforcement. The superior court granted Reyes’s motion to set aside the information. The court of appeal affirmed the dismissal of the section 136.1(b)(1) count. Neither the statutory text, the structure of the statute, nor the legislative history addresses whether, to constitute "dissuasion," the suppressed report of “victimization” must be of a past, completed crime or may be either a past crime or an ongoing course of criminal conduct expected to continue into the future; the court resolved the ambiguity in Reyes’s favor under the rule of lenity. The court reversed the dismissal of the 137(b) count. The statute has no language requiring, even arguably, that the withholding of testimony or information to which it is directed must involve a past crime. All it requires is that the attempt to induce the withholding must be made “by the use of fraud,” which was indisputably alleged.

People v. Braud

Docket: A158186(First Appellate District)

Opinion Date: October 30, 2020

Judge: Burns

Areas of Law: Criminal Law

Braud was convicted of unlawful possession of a firearm. Braud’s sentence was deemed served and he was immediately released on post-release supervision. His three-year period of supervision was originally scheduled to end in January 2019. Braud’s supervision required that he “not engage in conduct prohibited by law.” Braud’s supervision was revoked and reinstated three times for violations he admitted. As a result of the first two violations, the termination date of Braud’s supervision was ultimately extended to October 2020. In July 2019, the San Francisco Probation Department filed the third petition to revoke Braud’s supervision, alleging a new arrest. The trial court summarily revoked Braud’s supervision. At the formal revocation hearing, Braud admitted the violation but reserved his rights to challenge the new termination date of July 2021. The court of appeal affirmed, rejecting an argument the trial court lacked authority to extend the termination date beyond three years from his release date under section 3455(e), which imposes a three-year limit on supervision with exceptions. The court stated that it cannot presume that the trial court misunderstood or abused its discretion when it ordered the termination of Braud’s supervision extended for periods of time during which his supervision was revoked.

People v. Lopez

Docket: H047254(Sixth Appellate District)

Opinion Date: October 30, 2020

Judge: Elia

Areas of Law: Criminal Law

In 2014, Lopez was convicted of second-degree murder under a natural and probable consequences theory, Later, Senate Bill 1437 amended the natural and probable consequences doctrine as related to murder and enacted Penal Code section 1170.951, which permits a person convicted of murder under a natural and probable consequences theory to petition to have his murder conviction vacated and to be resentenced on any remaining counts if he “could not be convicted of first or second-degree murder” following the enactment of Senate Bill 1437. Lopez filed a section 1170.95 petition. The prosecutor conceded that Lopez had made a prima facie showing of entitlement to relief but opposed his petition on the ground that he could be convicted of second-degree murder under a still-valid theory— implied malice. The prosecutor bore the burden “to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” The court denied the petition, concluding that Lopez could still be convicted on an implied malice theory. The court of appeal affirmed. The trial court properly applied the "beyond a reasonable doubt" standard and its ruling is supported by substantial evidence. Section 1170.95 does not implicate Lopez’s federal constitutional rights to have essential facts found by a jury beyond a reasonable doubt.

People v. Roldan

Docket: B298570(Second Appellate District)

Opinion Date: October 30, 2020

Judge: Victoria Gerrard Chaney

Areas of Law: Criminal Law

The Court of Appeal affirmed the superior court's denial of defendant's petition for resentencing under Penal Code section 1170.95 and request for the appointment of counsel. Defendant was convicted of second degree murder under an implied malice theory for killing a person while driving under the influence of alcohol (DUI). The court held that defendant was convicted under a theory of actual implied malice, not malice imputed under the natural and probable consequences doctrine, and thus failed to meet the threshold requirement of showing he was convicted under a natural and probable consequences theory. Therefore, defendant failed to demonstrate eligibility under the statute. Furthermore, defendant's arguments contesting that failure have all been fairly presented by his appellate counsel, and an appellate record preserved.

Hoffman v. Young

Docket: B292539(Second Appellate District)

Opinion Date: October 30, 2020

Judge: Kenneth R. Yegan

Areas of Law: Personal Injury, Real Estate & Property Law

Where, as here, a child of the landowner is living with the landowner on the landowner's property and the landowner has consented to this living arrangement, the child's express invitation of a person to come onto the property operates as an express invitation by the landowner within the meaning of Civil Code section 846, subdivision (d)(3), unless the landowner has prohibited the child from extending the invitation. Appellant filed suit against her friend and his parents after she was injured while riding her motorcycle on the parents' motocross track. The jury found that the parents had no liability for the collision or the allegedly negligent medical care provided to appellant after the collision. The court held that the friend's express invitation to appellant stripped his parents of the immunity that would otherwise have been provided to them by the recreational use immunity defense under section 846. In this case, the trial court erroneously instructed the jury that the express invitation exception to the immunity defense applies only if one of the friend's parents, i.e., the actual landowner, expressly invited appellant onto the property. The court held that the erroneous instruction was prejudicial to appellant. Furthermore, the trial court erroneously instructed the jury that the express invitation must be for a recreational purpose. The court reversed as to the general negligence and premises liability causes of action. The court affirmed in all other respects.