Wasserman's Appellate Summaries

May 25, 2000
By Lawrence Wasserman, Esq.

Netlaw Libraries welcomes attorney Lawrence Wasserman as a new website contributor. We are pleased to announce that his guest column, which synopsizes the recent decisions from the Ninth Circuit Court of Appeals, the California Supreme Court, the six California appellate districts, as well as some of the recent and interesting decisions from the U.S. Supreme Court, will be appearing as a regular feature for members and guests visiting the Netlaw Libraries website. We hope that you will find it to be a good way to start your legal research day and welcome your comments and criticisms regarding the column.

Washington Initiatives Now!(WIN) v. Warheitt
Case No. 98-35412
U.S. Court of Appeals for the Ninth Circuit

CONSTITUTIONALITY-FIRST AMENDMENT-STATUTE PROVIDING FOR DETAILED DISCLOSURE OF NAMES OF INDIVIDUALS PAID FOR SOLICITATION OF SIGNATURES FOR PEOPLE ORIGINATED INITIATIVES-RIGHT TO ANONYMITY
In 1972, Washington State voters passed an initiative requiring very detailed financial reports from political committees, both before and after an election. In 1993 the initiative was amended to provide for reporting of payments made directly or indirectly to compensate a person for soliciting or procuring signatures on an initiative or referendum petition. Washington Initiatives Now! (WIN) is in the business of collecting signatures for initiatives. WIN filed suit challenging the constitutionality of the amendment. The State's motion for summary judgment was granted.
HELD: The statute implementing the initiative requires the disclosure of the names and addresses of persons paid to collect signatures on initiative petitions to the people, and the amounts paid to them. Anonymity is a shield from the tyranny of the majority. It is the purpose behind the First Amendment to protect unpopular individuals from retaliation. The requirements of the measure chill political speech protected by the First Amendment, and do not significantly advance any substantial state interest. The statute, and the regulations promulgated under it, are unconstitutional. Reversed.


Secular Organizations v. SOS
Case Nos. 98-15143/98-15317/98-15407
U.S. Court of Appeals for the Ninth Circuit

TRADEMARK-REQUIREMENT FOR USE IN COMMERCE
The parties are involved in providing a secular approach to elimination of drug and alcohol dependency. They are contesting which of them have the right to use the names"Secular Organizations for Sobriety" and "SOS" in conjunction with their alcohol and drug dependency meetings. James Christopher initially used the name in drug treatment programs. Janis Goodall, with the assistance of Christopher, used the name in early 1988. In January 1, 1990 the Goodall group formally incorporated as a non-profit membership corporation, under the name of SOS-West Secular Organizations for Sobriety, Inc. ("SOS-West"). One month later Christopher incorporated Secular Organizations for Sobriety, Inc. ("SOS Inc.") without input from any of the loosely associated local groups. Suit was filed. After trial the court ruled against SOS Inc. on all of its claims, and granted an injunction in favor of SOS-West forbidding SOS Inc. from using the disputed marks in Northern California, but rejected SOS-West's counterclaim to cancel SOS Inc.'s federal registration.
HELD: It is clear that neither party had established any rights to the marks prior to early 1988. Although the phrases "Secular Organizations for Sobriety" and "SOS" may have been conceived before that time, neither term was used in commerce until early 1988. A fundamental tenet of trademark law is that use of a mark in commerce in connection with products or services creates rights under state and federal law. SOS Inc. did not use the marks at issue in commerce prior to SOS-West's use. The Court was not confident that the record was fully developed on the issue of trademark cancellation. Affirmed in part and remanded for further appropriate proceedings and entry of judgment accordingly.


Akiak Native Community v. U.S. Postal Service
Case Nos. 98-35466 U.S. Court of Appeals for the Ninth Circuit

ENVIRONMENTAL-USE OF HOVERCRAFT TO DELIVER MAIL TO REMOTE ALASKAN VILLAGES-COASTAL ZONE MANAGEMENT ACT-NATIONAL ENVIRONMENTAL POLICY ACT
The U.S. Postal Service initiated an experimental program for delivering mail to eight remote Alaskan Native villages by hovercraft, instead of fixed wing aircraft. The Natives sought an injunction on the ground that the project violates the Coastal Zone Management Act and the National Environmental Policy Act. Summary judgment was for the postal service.
HELD: The Postal Service program may be enjoined only if the action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The CZMA requires that development projects in a coastal zone must, to the maximum extent practicable, be consistent with approved state management programs. In this case the Alaska Division of Governmental Coordination and the Postal Service agreed that the Project was consistent with the Plans. There is no compelling reason to challenge this conclusion. The Postal Service also prepared an Environmental Assessment report, which found no significant impact on the environment. The Postal Service seeks to improve the reliability and efficiency of mail delivery service to remote Alaskan villages. The Postal Service was not required to consider alternatives that would not serve this reasonable purpose. There is no violation of CZMA or NEPA. Affirmed.


United States v. Ramirez-Cortez
Case No. 98-50774
U.S. Court of Appeals for the Ninth Circuit

CRIMINAL-SPEEDY TRIAL ACT-DELAY IN TRIAL UNDER THE DISTRICT COURT FAST TRACK PROGRAM TO ALLOW CONSIDERATION OF PLEA BARGAIN
Cortez was detained by San Diego police officers, which informed the INS of their suspicion that he was in the country after having been deported previously. The INS issued a complaint for that offense. The day before the preliminary hearing, the government sent a proposed standard plea agreement to Cortez's attorney in accordance with the Southern District's fast-track policy. Cortez first requested and received a six-week and a two-week additional continuance to work out a plea agreement. He then rejected the plea agreement. The standard plea agreement was part of the fast-track program to expedite resolution of the large number of illegal re-entry cases in the Southern District of California. Typically, the government makes a plea offer contingent upon acceptance prior to the issuance of an indictment. After an indictment is returned, the offer is rescinded. To allow more time for considering the offer, defendants often move to continue the proceedings beyond the thirty-day pre-indictment period required by the Speedy Trial Act. A federal grand jury then returned an indictment. Cortez motion, to dismiss the indictment for violation of the Speedy Trial Act, was denied. Ramirez was convicted and sentenced.
HELD: The Speedy Trial Act requires that any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. The Act enumerates several specific types of excludable delay, and also allows exclusion if the judge finds that the ends of justice to be served by continuing trial outweigh the best interest of the public and the defendant in a speedy trial. Negotiation of a plea bargain is not one of the factors supporting exclusion. There is no record that the delay was in the interest of justice. Because excessive pre-indictment delay in this case violated the Speedy Trial Act, the charges against Cortez must be dismissed.


Singh v. Immigration and Naturalization Service
Case No. 98-70663 U.S. Court of Appeals for the Ninth Circuit

IMMIGRATION-DENIAL OF PETITION FOR ASYLUM IN ABSENTIA-DENIAL OF MOTION TO REOPEN-EVIDENCE REQUIRED TO REOPEN HEARING OF PETITION FOR ASYLUM IN ABSENTIA
Singh, a 38-year-old native and citizen of India, entered the United States without inspection on August 8, 1993. On January 14, 1994, Singh filed an application for asylum claiming persecution based on religion, membership in a particular social group, and political opinion. Singh was ordered to appear before the immigration judge on June 19, 1996. Singh did not appear at his asylum hearing. The Immigration Judge ruled that because Singh had received notice and a reasonable opportunity to be present, and had not presented any cause for his absence, the hearing could proceed in absentia. After hearing evidence presented by the INS, the Immigration Judge found Singh to be deportable. Singh's motion to reopen was denied by the BIA because of lack of evidence. The BIA ruled that even assuming that a twisted foot can amount to exceptional circumstances," Singh had not provided sufficient evidence that his injury falls into this category.
HELD: An order for deportation entered in absentia may be rescinded if the alien demonstrates that the failure to appear was because of exceptional circumstances. The INS regulation provides only that a motion to reopen proceedings shall be supported by affidavits or other evidentiary material. Neither the regulations, nor the applicable case law required a petitioner to produce an affidavit from a doctor or his employer, or to contact the court immediately. Fundamental fairness requires that Singh be given an opportunity to satisfy the BIA's evidentiary requirements. Due process requires that an alien receive a full and fair hearing. Petition for review granted and remanded.

United States v. Martinez-Vitela
Case No. 98-50440
U.S. Court of Appeals for the Ninth Circuit

ORDER
The opinion filed on October 26, 1999, and appearing at 193 F.3d 1047 (9th Cir. 1999) is hereby withdrawn. The case was ordered resubmitted for decision without further argument or briefing.

People v Superior Court (Barrett)
Case Nos. D034139
California Court of Appeal, Fourth District, Division One

CRIMINAL-DISCOVERY-NECESSITY FOR DEFENDANT TO USE SUBPOENA DUCES TECUM TO PRODUCE RECORDS FROM A STATE AGENCY NOT IN THE CONTROL OF THE DISTRICT ATTORNEY
Barrett is charged with the murder of his cellmate in the Administrative Segregation Unit at Calipatria State Prison. Barrett, who at the time was serving a life sentence for murder, is charged with the capital offense of murder while serving a life sentence for a previous murder. Barrett requested pretrial discovery of 73 categories of documents. At issue are 17 categories of documents that involve records maintained by CDC. The trial court also ruled it would review the documents at an in camera hearing with defense counsel present to make an offer of proof as to why each item is relevant. The trial court excluded the People from the in camera hearing.
HELD: The procedural mechanisms of the discovery statutory scheme are exclusive. The parties to a criminal proceeding may not employ discovery procedures other than those authorized by the Penal Code. However, the statutory scheme expressly permits discovery outside its terms, as provided by other express statutory provisions, or as mandated by the Constitution of the United States. A defendant maintains his or her right to discovery of material exculpatory evidence under the Due Process Clause and continues to have the right to use statutory discovery procedures not expressly repealed by Proposition 115. When a discovery request asks for disclosure of materials specifically covered by other statutes, the procedural mechanisms provided in the other statutes prevail. The prosecutor's duties of disclosure under the due process clause are wholly independent of any statutory scheme of reciprocal discovery. The due process requirements are self-executing and need no statutory support to be effective. Procedurally, the issuance of a subpoena duces tecum is required to have CDC produce the bulk of the materials Barrett seeks, which is Barrett's responsibility. The prosecution has no general duty to seek out information from other agencies or sources that might be beneficial to the defense, except for information that is reasonably accessible to the prosecution and not to the defendant. Writ issued to vacate the order for production and to enter new orders consistent with this opinion.

Boon v. Rivera
Case No. B134897 California Court of Appeal, Second District, Division Four

TORTS-DUTY OF CARE NOT TO MISLEAD POLICE OFFICER RESPONDING TO CALL-FIREMAN'S RULE
Boon a Los Angeles police officer was shot and injured by Rivera after responding to a call that he had barricaded himself in his residence. River's wife, Milagro did not disclose that there was an M-16 rifle and a gun in the house and that Reynaldo had threatened to kill the first police officer that arrived. Rivera's wife also told Boon that Rivera was not violent. Boon sued Rivera's wife, Milagro and the hospital, which had initiated the call. Rivera's demurrer was sustained, based on the firefighter rule.
HELD: The firefighter's rule eliminates liability to firemen by one whose negligence causes or contributes to the fire which in turn causes the death or injury of the fireman. The same rule applies when it is a police officer that responds to an emergency call. A member of the public whose conduct precipitates the intervention of a police officer does not owe a duty of care to the officer with respect to the original negligence that caused the officer's intervention. The rule does not apply to conduct other than that which necessitated the summoning of the firefighter or police officer, and it does not apply to independent acts of misconduct that are committed after the firefighter or police officer has arrived on the scene. The principle of assumption of risk, which forms the theoretical basis for the fireman's rule, is not applicable where a fireman's injuries are proximately caused by his being misled as to the nature of the danger to be confronted. The firefighter's rule does not bar plaintiffs' claims against Milagro. Milagro owed a duty of care to Boon not to misrepresent affirmatively the nature of the hazard that he had encountered. Reversed and remanded.

Wasserman's Archived Appellate Summaries


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