The California Appellate Law Podcast

No More Anti-SLAPPs in Fed Court? With Cory Webster

January 30, 2024 Tim Kowal & Jeff Lewis Season 1 Episode 118
No More Anti-SLAPPs in Fed Court? With Cory Webster
The California Appellate Law Podcast
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The California Appellate Law Podcast
No More Anti-SLAPPs in Fed Court? With Cory Webster
Jan 30, 2024 Season 1 Episode 118
Tim Kowal & Jeff Lewis

The 9th Circuit is taking up the ostensible narrow issue of appealability of anti-SLAPP orders. But it could be broader. Much broader. If the court decides anti-SLAPPs are procedural rather than substantive, says Cory Webster, that would mean no more anti-SLAPP motions in federal court.

We also discuss that recent panel that departed from an earlier decision, ruling it was “clearly irreconcilable” with recent Supreme Court precedent, even if it arguably wasn’t.

And why was that homelessness case—which ultimately came down to a procedural question of waiver—published? Did Judge Bumatay, who authored the dissent, request publication? We indulge in some rank speculation.

Cory Webster’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at

Other items discussed in the episode:

Show Notes Transcript

The 9th Circuit is taking up the ostensible narrow issue of appealability of anti-SLAPP orders. But it could be broader. Much broader. If the court decides anti-SLAPPs are procedural rather than substantive, says Cory Webster, that would mean no more anti-SLAPP motions in federal court.

We also discuss that recent panel that departed from an earlier decision, ruling it was “clearly irreconcilable” with recent Supreme Court precedent, even if it arguably wasn’t.

And why was that homelessness case—which ultimately came down to a procedural question of waiver—published? Did Judge Bumatay, who authored the dissent, request publication? We indulge in some rank speculation.

Cory Webster’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at

Other items discussed in the episode:

Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:17 

Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists and as uncertified podcast hosts we try to bring our audience with trial and appellate attorney, some legal news and tidbits they can use in their practice. As always, if you find this podcast helpful, please recommend it to a colleague. Right

Jeff Lewis  0:32 
before we jump into this week's discussion, we want to thank casetext for sponsoring our podcast casetext is a legal technology company that developed AI backed tools to help lawyers practice more efficiently since 2013. Casetext relied on by 10,000 firms nationwide from solo practitioners to amla 200 firms and in house legal departments in March 2023 casetext launched co counsel, the world's first AI legal assistant co counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy listeners of the podcast enjoy a special discount on casetext, basic research at case That's

Tim Kowal  1:10 
All right, Jeff. Today we've got Corey with us. Corey Webster is our ninth circuit correspondent. Corey is an appellate attorney. He formerly worked as a Ninth Circuit clerk for Judge Consuelo Callahan as a clerk in the US District Court for the Central District of California. And he's also he was in January 2023, appointed to the Ninth Circuit Advisory Committee. And we're here to talk to Corey, he's joining us to talk about some recent news out of the Ninth Circuit. And I think we're going to start Corey with the big news that the Ninth Circuit is is poised to revisit its rule that that anti slap orders are appealable as collateral orders. That's the Martinez vs. Zoom info technologies case where an anti slap motion was denied. And the ninth circuit panel agreed to review it because it has to under precedent of the circuit. But there were two concurring opinions, including by the author of the majority opinion, Judge McCune who said we don't think that the rule of the art the precedent, the circuit holds up. We don't think that these anti slap orders under state anti slap laws are appealable as collateral orders, we urge the ninth circuit to take it up and and the Circuit held a non bond vote to take it up. So Cory, what's what's going on? What's your prognosis here?

Cory Webster  2:30 
Nice. Yes, this is a really interesting case. And I'm excited to talk about it. First of all, let me say thank you for having me back. Tim. And, Jeff, it is great to be back on the show. And these are always fun discussions. So in this this case, this case, it's going to be argued on bonk. I know the two of you talked about it on your last episode. And I don't want to rehash you know, some of the same ground. But one thing that I think is worth considering here in this case, Tim, you teed it up perfectly. What is the issue? It's whether these motions, denials of these motions are appealable as collateral order, but there's really more going on in the background for sure, than just the collateral order doctrine under Ninth Circuit. Case law. What what's I think, at play here is not just that question of appealability. But what do we do with anti slap in federal court? Anti slap, that's California state law. It's in the Code of Civil Procedure. I know that there are there are judges who probably have strong view that these don't even belong, not just this is this appealable not just on the question of appealability. But anti slap is it something that should be even federal court? I think there's some judges who say no, and I know Jeff said on the last episode about how the this this law is not a simple procedural law. There's a whole lot of pieces to it use. I think he uses the term bundle, there's there's a bundle of procedural rights. That kind of all added up. Sorry to put words in your mouth, Jeff. So correct me if I've got wrong, kind of all add up to what amounts to be a substantive right here. And this is something that should be given the same credence that any substantive law does from state court when it's being applied and in federal court.

Tim Kowal  4:28  
Yeah. And just to just to go over the the rights involved in the anti slap statute, you have a right to early disposition of the case if you're the defendant, do you want to get this what you perceived to be a nuisance or harassment suit disposed of early without having to to go all in with attorneys fees and and spending your life you know, over multiple years litigating the suit so you have right to early disposition right to attorneys fees, there may even be I actually be curious to know just take on this. There's litigation privilege that that often applies in anti slap motions. But it also the anti slap also seems to have an additional additional right to do have cases that involve a public issue disposed of early on, which is almost like a like a separate defense. I've never been quite satisfied that if you if you have potentially a good slap but to decide for whatever reason not to file an anti slap motion I don't know who's doing that. But But if there if there conceivably was a right to file an anti slap and then you don't Can you later raise the same grounds under for 25 points 16 as a defense at trial. I don't know if you can or if you waive that issue, and if if so if that's an additional substantive write in the statute, so there's at least those three, at least two of them possible three substantive rights and that statute?

Jeff Lewis  5:44 
Yeah, you know, it's interesting in, in DC in Virginia, when an actor sued his ex girlfriend over defamation, it was in the news for a while, there was a question about using the Virginia anti slap law as jury instructions striking the jury on anti slap, which I thought was kind of funny. At the end of the case after millions of dollars are spent on attorneys fees. It's kind of like closing the barn after the horse has gone out. You just don't understand the point. I had never seen California's law use that way past the attacking the pleading stage as a substantive defense at trial.

Cory Webster  6:18 
Okay. Yeah. Well, and I think that that the other right that we did as part of the bundle here, that feels very, it can feel very procedural. But when you consider with everything else, you start to get a flavor of this. There's something substantive going on here. And that is that under the California statute, if your California state court, you don't go to the collateral order doctrine for appealability. It's in the statute itself. And why is it automatic? Why is it immediately appealable?

Jeff Lewis  6:46 
There's a policy decision that those kinds of folks who've been sued for those kinds of cases should be able to cut the line not only at the trial court level, you get at the head of the docket, but cut the line in the Court of Appeal.

Tim Kowal  6:56  
And it also underscores that that first substantive right of early disposition of the suit, which is Jeff, why I asked you, isn't this isn't there something to that argument that it is kind of like a qualified immunity? It's one of those immunity defenses, you have your you have the right to be immune from this kind of suit? Well,

Cory Webster  7:14  
this is this is exactly where I was going to go with this and not not necessarily that it's a one to one there. But it has that same kind of flavor. I that's what I get from it, too, that it's meant to be a write that you can use at the beginning of the lawsuit. And if I mean, how it goes it for like a qualified immunity case, you bring even if say it's on summary judgment, it could be at the motion to dismiss it, but you bring your motion for qualified immunity. And if your summary judgments denied on those grounds, well, that denial of summary judgment is not appealable. But qualified immunity, we make an exception. And the reason is, is it's viewed as it was essentially immunity from suit. And you don't use that right is not vindicated if you have to wait till the end of the trial. I don't know if if that's the exact reason that the CCP was set up to include this immediately. appealable right. But it feels very much like that, which to me, then kind of getting back to what what's going to be decided in this aanbod case. It's just this question of appealability. But I think there are ramifications beyond just the question of appealability. Here, I think there's likely going to be some judges on the panel who will probably have some sort of hostility to even anti slap being used in federal court at all. I think there may be even some ramifications for it being used at all, depending on how this opinion ultimately gets written.

Tim Kowal  8:40 
Is there any limit to the scope of of the issues on on the on on bonk review? Because from the concurring opinions here, it makes it sound like it's just going to be reviewed, or at least the judges on the panel took issue with the collateral order doctrine. But But now Korea, you're mentioning that maybe it's not a substantive right at all. And there's not even a right to review to review an anti slap decision after or there's not not a right to bring an anti slap motion in the district court in the first place.

Cory Webster  9:10  
Yeah, well, they're clearly they're not going to decide that, because that's not before them, you know, that broader question, whether it can be decided or it can be brought in, even in the first place. But I'm just wondering whether answering the question that's before them just is this appealable this type of decision? appealable? I think that there's potential ramifications here on that ladder, broader question. And, and I, you know, that almost panel is not going to go out of their way to then speak to that broader issue. But I just wonder to what extent will a decision on the question of appealability have some implications on what is the viability going forward? Is it sort of the next step in in addressing how anti slap state anti slap interacts with federal court?

Tim Kowal  9:56  
No other circuit court of appeals have have disagreed with the ninth circuit that that the anti slap orders are appealable. But they nonetheless will entertain the anti slap challenge is that is that not true? But there is there is a middle ground there you can have anti slap motions in federal court, even if they if the orders on them are not immediately appealable. Yeah,

Cory Webster  10:18 
and I'm not saying that you can't have one without the other. But But I do wonder whether there's going to be some ramifications depending on what is put forward as the reason for getting rid of the collateral order doctrine, or at least saying that this is doesn't make this kind of a decision appealable under the collateral order doctrine, I think that there are judges who would, if presented with the opportunity would mix it all together. So it makes you wonder, what's, what's the what analysis is going to be undertaken here on just the question of appealability of this type ruling? And what will it mean, going forward? I think there's potential ramifications depending on exactly how they resolve this. Yeah.

Jeff Lewis  11:00  
Interesting. By the way, I was taking a look before a show at the proposed federal anti slap law proposed by Representative Raskin and has some interesting similarities and some interesting differences from California law and especially involving appeals. You know, one issue in the federal bill that ever passed as it's only been introduced, it hasn't gone to a vote yet. I don't even think it's been studied in committee yet. But if it ever passed, and it's made into law, it requires a five day Safe Harbor. warning bell to the plaintiff, you gotta give written notice five days in advance of filing your slap and California's anti slap law stays discovery, this federal law if it goes into effect with state all proceedings, not just discovery, California law is kind of silent on time limits for the judge to rule on the anti slap the federal version would give the court 90 days and then an interesting take on attorneys fees in California attorneys fees are mandatory for the defendant who successfully moves and then only mandatory for the plaintiff. If motion was filed in bad faith, federal law, which is create a presumption that the defendant is entitled to fees, it's rebuttable. If the defendant can prove excuse me if the plaintiff can prove it would be unjust to award attorneys fees in that circumstance. So then, here's the here's the interesting piece of the puzzle. The federal law does not have any Express provision for immediate appeal or appeal in any fashion. It looks like the way it's built. Now, it's going to rely on the Federal Rules of appellate procedure and case law to determine if ordered doctrine. Exactly. I thought that was interesting. Yeah,

Cory Webster  12:39  
that is interesting. I mean, it probably not worth anyone's time to, to drill down to the details there. Because if at the preliminary stage that it's at, I'm sure it'll go through I mean, the 90 day thing, I can't imagine that that survives a statute that would pass with various interests would be like, have presents some sort of concerns about putting a set date on it. But you know, whether it even pass at all to I think, is something I wouldn't hold my breath on. But it's, it's nonetheless, it's interesting that these things are being proposed, because there's a recognition here of you know, I'm with Jeff, and being pro anti slap in a sense of like having a law, like this is a good thing. And I think it wouldn't be concerning if, for example, you don't have a federal statute. But I mean, that's how we are right now. There's no federal anti slap law. And if you're in federal court, and some due to some precedent that maybe calls into question whether anti slap is even a thing in federal court. That's, that's a an industry. Interesting thing, especially because you can have the very type of claim that anti slap was meant to address filed in federal court. I mean, there's nothing stopping that from happening.

Jeff Lewis  13:59 
Yeah, you can see a shift of an entire body of defamation and malicious prosecution cases, shifting from state courts, to federal courts, for people looking for any way to slip into federal court. To

Tim Kowal  14:10  
Do either of you know, I'm trying to do some quick Google research here. Do we know if other than representative raskins recent proposal for a federal anti slap law, have there been proposals before in Congress or federal anti slap statute? I

Jeff Lewis  14:28  
don't think it's ever gotten to the point of a bill introduced. I know there's been talk, but I don't know if it's, if a bill has ever been introduced before September of 2022 when Raskin introduced this, this bill, and one other interesting issue, if they did pass a 90 day rule, you have to rule within 90 days, and federal judges are appointed for life. How do you enforce that 90 day rule?

Tim Kowal  14:48 
Yeah, that's true. And that's true could be it could be deemed denied. With motions for new trial under California Civil Procedure

Jeff Lewis  14:57 
were deemed granted That'd be better. Hey,

Tim Kowal  15:00 
that'd be better for Jeff. Here, here's some here, here's a result from chat GPT. So take this with a grain of salt independent research. But yet GPT says over over the years, several anti slap bills have been proposed in the Congress, such as the Speak free act of 2015. And then the citizen participation act by Representative Steve Cohen and 2020. So, the do independent research, make sure those are not hallucinations and check GPT. But maybe this is not the first I'd be curious to know why they have failed in the past. And, and a specific question for you, Jeff, where Cory, what do you what do you think just as a substantive matter about this five day Safe Harbor before filing an anti slap motion,

Jeff Lewis  15:47 
you know, there's been efforts in California to water down the anti slap law to require a you know, how there's a meet confer requirement for dimmers and motions to strike. You can't find one without a declaration saying you've done a meet confer. There have been efforts to make anti slap subject to that same requirement. I think it's 30 days, and I'm against it, because oftentimes, these anti slap situations involve unequal disparate resources and legal teams. And if you telegraphed to the other side, that you're gonna be filing an anti slap motion, there are things that a crafty plaintiff's lawyer can do to minimize the risk of dismissal or an anti slap.

Tim Kowal  16:29 
Well, here's the here's the other, the other. The devil's advocate to you, Jeff, in some, in some complaints, there are certain there may be some stray allegations that that border on or step over the line into alleging protected conduct, and they may not be the gravamen of the lawsuit, or the plaintiff doesn't intend them to be the gravamen of the lawsuit. But all of a sudden, because of these maybe indiscreet allegations, suddenly, they're an anti slap. Hell, and a five day Safe Harbor would give them a quick out to be able to say no, no, that's not what I meant. Let me just more artfully make a draft these allegations, resubmit it, and then see if it's truly subject to an anti slap. Well, if you think that like

Jeff Lewis  17:13 
meat confers amendment of claims, more meaning confers rounds of law motion or the evil to be addressed by anti slap, then you're inviting those evils with meet confer maybe to a lesser extent, but it's still evil in terms of a lot of attorneys fees, and a lot of delay. Yeah. I dare you to disagree with me. Yeah, I

Cory Webster  17:35 
think I have a soft disagreement there just in the sense of like, I think some of the same things could be said, could have been said before. The mean, current mean, if a requirement was opposed for diverse, you could say the same kind of things were one thing I do more does, as we know, is when you make a decision to file a demurrer. In California, you're contemplating that you're improving the complaint, right? And kind of has the same sort of, I get the same sort of flavor from your comment there. Someone can Well, let me let me just let me move the ball here a little bit in light of this dimmer that was either filed or coming my way. Let me re work my allegations. Well, that's kind of part of that, does it a lot of cases that does fast forward, it does get passed, what's going to be happening, at least on in the divert context, where you're gonna have a chance to, to amend and fix that anyway. I'm sure you can. There's distinctions that could be made there because it's not the same with anti slap where you're gonna get a chance to keep having a shot.

Tim Kowal  18:36  
Right. Right. And before we leave the topic of anti slabs, we can't can't end that discussion without at least a mention of the Michael Mann versus Mark Stein litigation that started trial last week. This is a 12 year old case, somehow it survived an anti slap motion at the beginning. This is a lawsuit by climate scientist Michael Mann, he is the he is his research is behind the hockey, the famous hockey stick graph, if you recall, Al Gore's documentary, An Inconvenient Truth, where he showed a graph of global average temperatures throughout, you know, several 100 years or a couple 1000 years. And then at the end, he had to get onto a cherry picker to show how far up it had spiked over the last 200 years since the since the 19th century or 18th century. Mark Stein made a wrote a I think, a 200 word blog post saying that he thought that the data that's that allegedly supported that hockey stick graph was fraudulent, quote unquote, fraudulent and he was sued for Michael Mann sued him for calling him a fraud and for comparing the investigation of his of his science to he was at at Penn State, the same university where Jerry Sandusky had been investigated and cleared of charges of pedophilia, which turned out to be a whitewash because he's now serving time for pedophilia. And so he was compared on favorite Mark Stein compared Michael Mann on favorably to, to Jerry Sandusky for being subjected to the same kind of whitewash investigation. So that was most of the kinds of allegations seems like clearly protected speech on a public issue. And yet, the anti slap motions were not successful in the District Court of Columbia, in the DC District of Columbia. And that, I wonder if I disagree with you have heard of that case and trial.

Jeff Lewis  20:35 
I disagreed, Tim, you say it was unsuccessful, anti slap motion was successful, in this sense, anti slap guarantees that you get to cut the line and given early testing of the case, evidence is presented. And if a judge says there's enough there, then it proceeds success on an anti slap motion. It's just having the judge take a look early at the evidence.

Tim Kowal  20:56 
Okay. And there are also some interesting maneuverings in that case, I think it was a national review where the witch had posted where the blog post was posted, was sued, and they vigorously wanted the anti slap protections. Mark Stein, I believe, wanted to have the trial on the merits, his defenses the truth that the Michael Mann is a fraud. So that's what the trial is going on about now. It's in its second week. And if you haven't, you're interested. This is a really interesting podcast. I've never seen anything like it. It's called climate change on trial. So just Google climate change on trial podcast, what they're what the makers of this are doing, they've their documentary filmmakers, the the makers of this podcast, they they're taking the trial transcripts that are coming out each day and giving them to actors are paying actors to perform the salient pieces of the trial for this podcast. Really fun to listen to. You kind of have not heard of that. Yeah, yeah, it's worth it worth checking out. It's a new way of absorbing up to the minute, or at least up to the day trial. Progress. Okay. Okay. Well, let's move on. Cory, you brought brought to our attention this this case Tico vs. Vega, were involved to failed on BOC boats. Tell us about this case. Yeah.

Cory Webster  22:14 
So this was an interesting case that if you didn't name sounds familiar, and you follow Supreme Court decisions. That may be why because this is a case that has taken a trip to the Supreme Court. So let's let's back up before that point, though. Terrance Tico, worked at a medical center and was prosecuted for sexually assaulting a patient Chico's written statement apologizing for inappropriately touching the patient was offered at trial. But the statement was elicited by law enforcement who did not inform Tico of his Miranda rights. So this relates to Miranda. And as you may recall, Miranda and the rights that you that flow from it, and what you're entitled to be informed of when you are taken into custody is something that works as a prophylactic in that it's meant to, if it's been violated, the rights under there have been violated and you've not been informed of those rights, then how it's intended to work is in a prosecution. Any statement that you make to the police cannot be used against you because you haven't been given your Miranda warnings? Well, that's not exactly what was implicated here, because what Tico did is he, like I said he was prosecuted, but he was not convicted. And after he was acquitted, he brought a civil rights lawsuit. Because those statements were admitted in his for the admission of those statements in his prosecution.

Tim Kowal  23:42 
And he brought the he brought this suit against the the law enforcement officers

Cory Webster  23:47 
against the law enforcement officer and others. Ultimately, it went to trial on just to as as to just against it the officer.

Tim Kowal  23:56 
Is there not a litigate litigation privilege and in federal court?

Cory Webster  24:01 
I have all sorts of questions, Tim.

Jeff Lewis  24:05  
They look, the way the litigation privilege works is immunizes. You from all torts except malicious prosecution and abuse of process. It sounds like this kind of case. Kind of smells like a little bit of abuse of process. But who knows?

Cory Webster  24:18  
Yeah. So So what went, you know, went to trial? Well, no, sorry. In the trial court, the first time around, the district court ruled that there is no such claim here, meaning there's no 1983 claim that can be based on a Miranda violation. And so that goes up on appeal. And a three judge Powell says Actually, yes, you can have such a claim. That answer to that question is that you can have a civil rights claim for a violation and Miranda, that question spurred at least a boat further A case to go on bonk, that vote failed. Judge Booma Tay wrote a decentral that was joined by six other judges. And then the Supreme Court granted cert and held that there is no civil rights cause of action for violation of the Miranda rules. So then it comes back down that question now taken off the table. on remand, the same three judge panel again reversed the District Court. This time, though the majority held that the trial judge abused his discretion in excluding expert testimony on coerced confessions. There had been an expert proffered proffer to get into this subject of the line of questioning that was made by the officer is, is something that implicates this idea of the confession having been coerced, even though the factual circumstances otherwise didn't. Maybe didn't, it wouldn't have been obvious that they spoke to that or something. I mean, I guess that's the theory for why you have an expert come in and say, even though this may not sound on its face, like there was some intimidation or coercion happening going on, here's why it was in fact coercive. That was essentially the the idea behind this ex proposed experts testimony, that trial judge had excluded that. And so what the majority held here is that trial judge abused his discretion and excluding that, and you had one dissent from Judge Miller the first time around. The panel was unanimous, but on this one, Judge Miller dissented on this he he said he would have found that there was no an abuse of discretion in disallowing this testimony, another judge called burn on longbow. And when the vote failed, Judge Collins this time wrote a decentral, which was joined by nine other judges. So even more than last time, and Judge Ward Law, who is the author of the majority opinion, she also wrote a concurrence in the denial of rehearing on bonk. Sometimes, we say decentral, sometimes we say can curl here, this was a concurrence by by Judge Ward Law. And that was joined by the other members, member of the panel majority. And one other off panel judge. Question. I think that this kind of presents us. Do we, is there another trip to the Supreme Court in the works here? My guess is no. And my reason for that is that you made a discretionary evidentiary ruling, not really the kind of thing that gets the Supreme Court's attention. But the one thing I will say is dissents, from dinov, really around Bach, when there's 10 judges signing off on that, it at least gets that usually at least catches the eye of the Supreme Court where it will get, you know, it may get a look at but for the

Tim Kowal  27:43 
same reason, Cory, are you surprised that it got so many votes for rehearing on bonk? Again, this is not a sexy issue, just a discretionary ruling on evidence.

Cory Webster  27:51 
I mean, I what I was going to even go there too, is that this is not even for the same reason that it's not the kind of thing that usually they will often get Supreme Court attention. It's also not really the kind of thing that often gets on bunk attention. And what I'd say on that point is what seems to be really getting judge Collins animated here. Is that what the majority opinion reads like to judge Collins? And I think this is also reflected in the sets decision to judge Miller on the panel? That, is there some sort of right, automatic right being created here, where you have, if you're saying is abuse of discretion to not allow this expert testimony, is there a right in a confession, and whenever a confession is offered, there's a right to expert testimony that the confession was coerced. Just call it seems to read into the majority as a pain as if that may well be happening here, by virtue of calling this an abuse of discretion and not allow it. Both judge Miller and judge Collins catalogued the analysis given by the district judge and why this this testimony was excluded? And you know, they essentially say, if that is an abuse of discretion, it does sort of create what might look like an automatic right to having expert testimony on this subject. And I think that's maybe where you can see sort of a concern that rises above just the standard. We're just looking at an evidentiary ruling and not really the kind of thing that why is this on bunk worthy? Oh, well, maybe if it if it does have that sort of an implication with it? Yeah.

Tim Kowal  29:30 
I want to go back to the to the to the first and maybe the only trip to the Supreme Court in the Tico case, we're back to this 1983 question is a Miranda violation grounds for a 42 USC 1983 claim for violation of a federal a federal statutory right or constitutional right. And so the first thing that comes to mind is well, hey, Miranda is is a constitutional right as as explained by the supreme In court, and so I wondered what was the justification for finding that it is not grounds for a 1983 claim. I'm just looking at the syllabus. Here in the US Supreme Court decision in the Tico versus Vega case and the in the explanation is kind of what you're what the mind next goes to is that well, even though Miranda is a constitutional right, it's a prophylactic. Right. And so in the syllabus, it says a judicially crafted in scare quotes that you just judicially crafted prophylactic rule should apply only where its benefits outweigh its costs. And here are the benefits of permitting the assertion of Miranda claims under a 1983. claim would be slight, but the costs would be substantial. I think it's interesting here that the Supreme Court has, you know, it's the Miranda decision. I don't think there's any. There's not a drunk drumbeat to overturn it. But but its detractors have said, well, it's it's made up. It's prophylactic. It's not in the Constitution. It's just a prophylactic. And here, it seems that the Supreme Court has kind of indulged that fact that yeah, it is prophylactic. So we're going to allow it to be enforced as a as the ground for a 1983 claim only where we say it. It meets a balance balancing test. Yeah,

Cory Webster  31:11  
that was essentially it was a six three decision on breaking down how you would probably predict and this is the only case where that sort of concern was implicated. Where is this a constitutional right? Well, Miranda wasn't technically a constitutional right, it was a judicially created rule that was meant to help protect what was it is a constitutional right.

Tim Kowal  31:38 
Yeah. Yeah. That's so that's, it. Just it's interesting to me that were the were the court, you know, to use the cynical term makes up a right. It is it is not vested with all of the all the same adornments and privileges of a, what we might call a real constitutional right, where you can assert that as a as a basis for a 1983 claim. If it's a it's a, quote, unquote, made up right or a judicially discerned write, then, then then it may not, you may not get full mileage out of it.

Cory Webster  32:14 
I think that about sums it up. That's exactly right. Is I think at this this Supreme Court, there's certainly an era of decisions that were in the in the criminal rights, criminal procedural rights, sort of category of where I think one could defend the claim that there are some things being made up. And, and I think that, those sorts of things. You're right on, Tim, that you may not get as much mileage out of those, as you do out of similar criminal procedural rights that are actually right there in the Constitution. Yeah.

Tim Kowal  32:52 
All right. Well, let's talk a little bit Cory, about this Munoz case, where the panel in the Ninth Circuit rejected prior panel precedent by saying it was overruled, even though quite possibly it really wasn't. So we know based on we just talked about Martinez vs. Zoom info, but the the Ninth Circuit on bonk decision to take up take up the the rule of appealability of anti slap orders. The panel was bound by the prior precedent. So it could only be reviewed on bonk. But in Munoz versus Superior Court of Los Angeles County. plaintiffs have sought to enjoin state court judges who are setting the bail too high. The panel didn't think too much of those arguments thought it was barred by sovereign immunity. But there was this Outlier panel decision on the books in the Ninth Circuit in wolf versus strength in 2004. Case, Wolf had held that an ex parte young exception applied to allow injunctions against judges acting in their judicial capacity, even despite the assertion of judicial immunity and 11th amendment immunity in that case, and so the the appellant in in the Munoz case was banking heavily on the wolf precedent to get an exception to the judicial immunity and 11th amendment immunity defenses. But the but the panel declined to follow Wolf and judge Nelson have conceded that it's true that wolf can be read to hold that ex parte young exception allows injunctions against judges acting in their judicial capacity. And since Wolf is circuit precedent, the court the panel is bound to follow it but the prior decision is clearly irreconcilable with the Supreme Court's decision and Whole Woman's Health versus Jackson, the decision from 2021 and thus, the wolf decision is overruled, the panel is thus not bound by it. And so the appeal failed. And Professor Shawn Martin and noted that that, well, it would be true if Jackson had had overruled it or if it held something That was clearly irreconcilable with a prior panel decision that wouldn't be overruled. But Professor Martin says Jackson didn't didn't make that rule didn't make any law at all. It just it did something else. But it did not say that did not do anything to this Ninth Circuit precedent that that made an exception for suing state judges wonder if you had a chance to take a look at this court. And if you have any insight into this clearly irreconcilable. You know, to what extent can a panel just look at a prior precedent that hasn't been explicitly overruled, but just say well, because of the penumbra and emanations of a Supreme Court case or, or some such logic, that it's clearly irreconcilable under the under the test of the the Ninth Circuit? And that's we don't follow it.

Cory Webster  35:44  
Yeah. So what the appellant who made that argument in this case was introduced to was the rule from Miller versus gammie. Miller versus gammie, was an onboard decision in the ninth circuit that is about as close to super precedent as you can get from a circuit in that, you know, it's one of these things where I would be blown away if it is ever revisited on bonk, because I even on bunk panels just cite that same decision as reflecting this sort of unquestioned standard about when you are must follow and when you're free to not follow prior precedent from the circuit. Now that obviously, the easy case is when you have a Supreme Court decision that says, here's the new rule, here's a bunch of cases that we are now overruling in our adoption of this new rule. And it lists all the cases from all the circuits that adopted a contrary rule. Okay, that's the easy case, you're not going to have some published decision that's going to have some lengthy discussion, analyzing that. But what Miller V verse gammie provides is that it will recognize is this that you're going to have the not the not easy cases where you have Supreme Court precedent that is at odds with a prior holding, you know, it's precedent from the Ninth Circuit. And the question becomes, at what point? And do we need to stick to what the night when we sat in a prior decision? Versus Are we now kind of running afoul of of a something that's not directly saying that was overturned? But that isn't consistent with it? And that's where you get this standard of if it's if this the later the subsequent Supreme Court decision is clearly irreconcilable with the prior decision, then you view it as having been in effect overruled. And I think the issue I would take with Professor Martin's comments is that there are there's there's a lot of move, movement in the joints here in this standard, clearly irreconcilable. There's discretion involved there. I'm not I don't think that that means it's a bad standard, by any means. But you have the panel's duty becomes as a matter of okay, what controls here, I got to answer the question, Am I controlled by this wolf decision or not the panel, ask them themselves that analyzed it. And as I think you pointed this out in your blog, Tim, that there's even a panel member. In this Munoz case, there was a panel member of the wolf case from 20 years ago, Judge Fletcher. To me, I see that as making even maybe a plus factor and in supporting the current panel's decision, that you have someone who was on the prior panel, recognize and undertaking this analysis, it's their, it's their more recent decision here. And I don't think it's the case that the more recent decision needs to have on its face sounded like it's breaking new ground for it to bring into play this standard. And this this assessment that needs to be taken by by the panel was presented with this issue. Is this more recent Supreme Court decision? Clearly irreconcilable with our precedent? If they think the answer to that is yes, then then they should not follow the prior precedent. Do

Tim Kowal  39:09 
you know if there is a probably not a rule, but is there a custom when, when a panel is going to going to employ the clearly irreconcilable test to decide that it doesn't, it's no longer bound by the prior panel decision that's irreconcilable with with Supreme Court precedent is they're accustomed to to flesh that out a bit to it to explain so we don't just don't just want to use clearly or irreconcilable as a mantra, or an escape hatch to easily get away and I think that's, that's Professor Martin's point is that well, the way I read whole health versus Jackson it didn't it's not clearly irreconcilable didn't stand for this and the and the Munoz decision doesn't explain, other than than one sentence and you'd have to go back and actually read it doesn't doesn't have an that analysis. In other words of the whole health, women's versus Jackson, so do so my question is, do you think that is there? Or do you think there should be a custom to more fully elaborate on why the prior precedent is clearly irreconcilable, I

Cory Webster  40:18 
would say it's very much accustomed that in from decisions that I see when this standard is implicated, it's very much accustomed to that the panel will engage in analysis that is fit to such a such a standard that has room in the joints like that kind of begs for some sort of analysis running through it. And I think that there is very much is a custom for doing that. I, when I looked at at this decision, it may be a bit short, it's probably shorter than what I typically see in that type of analysis. But it was more I saw more than one sentence on it. When I when I looked at this, but, you know, sometimes these, it only takes looking at one key part or whatever. I mean, it had me persuaded that it's irreconcilable. And part of that, I think, is understanding of what the court was actually doing in in Jackson. That I think there is there was definitely tension there. Can you reconcile it maybe there's an argument to be made here. But these three judges were unanimous and concluding that it's clearly irreconcilable, which, by the way, I'll add, it is very also very much seen as the word clearly there does do some work here, that there's a hurdle to meet for for that to be cleared to just if there's some tension at all, that's not going to meet that alone is not going to meet the burden. And you're going to there's very much a default, the you're sticking with the prior precedent. And you got to clear the clearly part of that standard, in order for for you to be free from that prior precedent. Okay.

Tim Kowal  42:06 
All right. Well, let's let's move on to our last case that we're going to discuss this is the Coalition on Homelessness vs. City of San Francisco. To some extent, this one, I guess is it may be playing second fiddle. To the other cases that are taken up on cert, I believe, is it both the Martin versus City of Boise and Johnson versus City of Grants Pass that it gets its only grant class? It's taken up? You know,

Jeff Lewis  42:31 
I mean, the direct issue Grants Pass is, you know, more of a civil remedies as opposed to criminal, you know, the criminal penalties in Johnson. Yeah, but same issue. Yeah. So,

Cory Webster  42:42  
at minimum, Martin was not taken up. They didn't they didn't grant cert and Martin. And then Grants Pass was seen it's essentially a second chance to raise this similar issues.

Tim Kowal  42:55  
Yeah. Yeah. So Jeff, and I'll just briefly cover the facts of Coalition on Homelessness. Jeff and I talked about this on an episode recently, but San Francisco had had issued these time, place and manner restrictions on sleeping in public places. So the city was trying to be consistent with the precedent in in Martin versus City of Boise, which is where the Ninth Circuit had struck down on grounds of eighth and Eighth Amendment grounds, cruel and unusual punishment. laws or ordinances that forbade sleeping in any public place at any public time, unless there were available shelter beds, the court found that there was just not reasonable or not not, it was inconsistent with cruel and unusual standard to tell someone that they couldn't sleep on the in a public place if there was no other alternative for them. And so San Francisco had promulgated a couple of ordinances that was trying to be consistent, because it didn't forbade sleeping at all times. It was only between I believe, 7am and 7pm. During basically daytime hours, and and I think only on public sidewalks, but the court after, after a hearing decided that that no, it was still inconsistent with the with Eighth Amendment as, as interpreted in the precedent of Martin versus City of Boise and Johnson versus City of Grants Pass. City of Grants Pass is now on insert it before the US Supreme Court, and there was a interesting discussion about about waiver and whether some of the city's arguments had been waived by by changing the arguments on appeal. Cory, do you have any thoughts about about this case? So are there any aspects of it they're going to survive? And and tell us a little bit about why it was why it was published, when it didn't really do anything different from from Grants Pass and Martin, it really it's it has some interest to us as appellate nerds for this waiver issue. But otherwise, I'm not sure why it was published. Are you?

Cory Webster  44:55  
Yeah, I think that there's there's something going on there that beyond the surface of But the opinion itself that animates why this was even published. And I think you're right to cue in on that, because the majority says, in essence, this case is controlled by the Grants Pass decision, other than one piece. And the one piece is this argument that the city's making that you're alluding to Tim, but we find that that was waived. And it's really sort of interesting when when, okay, well, why? It's a good question to ask in, in all sorts of studies of the law, as a law clerk, it's good to kind of help your judge see reasons why that there's reason to publish or not publish. But I mean, judges tend to know how to make that call. And one reason that they do it is when you're adding to the body of law that's already there. Now, this is this sounds like it's exactly not that, because they're saying, Oh, this is controlled by this other thing other than this one issue. So you want to look carefully at that one issue, right? Oh, this is the reason that they're publishing. But then they go on to say, we're not going to address this because it's been waived. There's something more lurking there to explain that. And one thing I will tell you is that, unlike rendering a decision, it doesn't take two votes to have an opinion published.

Tim Kowal  46:25 
In fact, you told me recently, and I was surprised by it. Any one of the panel members can request publication?

Cory Webster  46:33  
That's right. And if it's the it's you can have the two in the majority, you don't think it should be published? And you can have the dissenter, who says I want the case published. And that that can be I mean, in some ways that's can be viewed as counterproductive for the dissenting judge to say, I want this thing that I disagree with to become binding precedent in the circuit. But but you know, that may very well can happen that because one judge can be the one who asked for it. Now, it's not that that's not that common that only one wishes to publish. But here it's it is this sort of odd thing, because waiver is very much the sort of thing that gets applied or considered and applied in presidential decisions all the time and and hear I I mean, I can't help but at least wonder whether judge bootay was in dissent was the one who wanted the case published. I don't know that. But I can't help but always wonder, because certainly his dissent is going to get more attention if it's in a published decision than if it's just within a meme disco. Yeah. And it wasn't a short dissent either.

Tim Kowal  47:52 
Yeah. Well, and and one of the things that Judge bootay does, I noticed, I noticed that at least one other decision in a sixth amendment issue over a right to speedy trial. This was last year, two years ago, in one of those pandemic cases where a case had not been brought to trial timely, and the panel said, No, it's It's fine. It's consistent with the with the speedy trial act, because it fulfills all the technical requirements of the state speedy trial act. And I thought, well, yeah, the speedy trial act is just enforcing the Sixth Amendment. So when the winner one of these many of you know majority in a concurring opinion is going to actually address the Sixth Amendment. And then judge Buba day, thankfully does in a in a multiple multi page analysis that goes back to the history and tradition and purpose of the Sixth Amendment, which was generally to prevent people rotting away in jail, awaiting their trial. And in this case, the defendant was was free to walk around, he was not rotting away in a jail. So the Sixth Amendment wasn't really offended here. And he does the same thing with in Grants Pass about the Eighth Amendment cruel and unusual punishment, just, you know, basically making the argument that asking a homeless person to move it along is not does not offend the prohibition against cruel and unusual punishment. But But to your point, Cory, about, you know, so, you know, play this out a little bit. Why would judge bootay writing in dissent, ask request public, have this opinion published when part of the purpose of of his stressing the waiver issue is that? Well, thank goodness, it's the majority concluded that it's that all these this stuff is waived? That means that all the legal rulings are not the law of our court, and it can be disregarded by all other judges. Could that be? I mean, so obviously, he's trying to take the air out of the majority's balloon, but couldn't he take even more out of it by just leaving it unpublished?

Cory Webster  49:47 
I mean, certainly you can make a case for that. But again, it's pure speculation that he even Yeah, is the reason that it's being published. But But I mean, you're right that what he does His takes kind of two approaches in his dissent, which is not uncommon here, what the one being, here's why this is so wrong. And he does take a lot of aim at France past itself, which is not super common in a dissent. But it is a pretty fresh decision. It was one that cert was still pending at the time when this opinion was filed. He does take aim at Grants Pass itself, but he also separately does what you just mentioned to him, and, and tries to put out there sort of limits on how the majority decision could be used, not just on remand, but by other district courts. And, and I think that I mean, there's a there's good reason to sort of pause on that for a minute, because this is an issue, and it's something that Jeff can speak to us about, probably for as long as we'll be willing to listen to him. But a lot of the amicus briefs, I think, conveyed this sort of sense that this is not an issue that's relates to Grants Pass and relates to the city of Boise it relates to it, this is an issue being addressed in all cities in the West. And I'm sure you'd say out to be on the on the Ninth Circuit too. But just speaking to the ninth circuit, this is so many cities are faced with this challenge. And this is not so it's not some sort of like a one off thing that's going to affect well, some some random city that just happens to have this same situation come up. No, everyone is living it currently on the ground. And I think that he's he's tapping into that when he's talking about as these cases continue to come up, keep in mind, you don't have to reject this argument that's being made here by the city of San Francisco, because this panel is rejecting it on waiver grounds. Yeah.

Tim Kowal  51:55 
Is that Is that common? Korea, I know, it's common that you've you've met, you've mentioned this before, that it's common in dissents for the dissenting judge to take the air out of the balloon of the majority to narrow the decision to say, well, the majority, I disagree with the majority, but it's only it's only, it only governs this narrow set of cases or holds this much, and it's very narrow. But here, as you as you just mentioned, a judge bootay is doing something different. Not only is it narrow, but because of the waiver, other judges should completely disregard it. Because it's not even a legal ruling. It's just a ruling on waiver and everything else is just dicta because it's not necessary to the case, given the waiver determination. Is that if you ever seen that before? Yeah,

Cory Webster  52:43  
well, I think this is really just an iteration of the same same point, because he's he's not trying to say that. I don't know, it's the same as calling a dicta as much as because the reason for the holding. The reason for rejecting this argument is that it's claiming that it's waived, that when you're faced with the future, courts are faced with the same argument that the majority here deemed waived. There's nothing of value this opinion offers to that, because it found the argument waived. But if you're faced with the question, court district judge in your next case, clearly, it has a way of just being presented to you. So you don't don't find any guidance here. I do think that it's gonna become moot by the practically speaking, because the Supreme Court granted cert and Grants Pass. Yeah. And so I think we're gonna have some decision that's going to look, my guess is very different from what the Ninth Circuit's decision in Grants Pass looks like. So I think that you're what's going to be the limits on this particular opinion, opinion from San Francisco. I think it's going to kind of fade into the background in terms of significance, because I think we're gonna get a decision on the Eighth Amendment issue from the Supreme Court. That's going to supplant what the Ninth Circuit has done and then lower courts will start implementing that. Yeah.

Tim Kowal  54:06 
All right. I think we're ready to get close to wrapping it up. Any final comments, Cory or Jeff?

Cory Webster  54:12 
One final tidbit, I want to share is this sort of an update on what happened? In a case that we talked about last time we visited, there was this Idaho case where the federal government sued the state of Iowa, Idaho, sorry, on its abortion, trigger law, you know, these laws that were on the books but not in effect and less than until Roe v. Wade was overturned, lo and behold, that happens. And so it has a law that has some exceptions, but in effect, it bans abortion, and the federal government sued the district. And the argument being that it was preempted by this federal law. EMTALA it I think that's the acronym and about emergency aid that needs to be made under this federal emergency. Medical. I need you guys to know that I don't have it in my Tim is going to pull it up and say it will say what it is but on the

Tim Kowal  55:16 
emergency medical treatment and Labor Act, yeah. Thank

Cory Webster  55:19  
you, Tim. So, the federal government was arguing that law preempts this abortion law, District Court granted an injunction against the law, state appeals, a motions panel, grants a temporary stay of the injunction. And then a motion for reconsideration on bonk is filed. And the court grants the motion for reconsideration along of the state order. And that's where we were at last time when we would we spoke since then, what has happened is that stay was then denied by the unbound court. So the injunction remained in place. And the plaintiffs the state and state legislators, they filed a motion in the Supreme Court for a stay. The Supreme Court not only granted the stay, but also construed the motion as a cert petition and granted the cert petition. So that case was going to be argued on bonk this past week at this at the Ninth Circuit. But a few weeks ago, the Court, the Supreme Court took it off their docket by construing this motion as a cert petition granting it and now it's on the Supreme Court's docket, so won't be heard by that all bogged down.

Jeff Lewis  56:42 
Yeah, it's like a shadow docket on steroids pulling that up. It

Cory Webster  56:47 
kind of is. Yeah. Yeah, I'm interested. If you look back at the motion, they don't they don't say Please grant cert. No. But what was kind of interesting about it is the first what when, when the the on bonk. Vote happened to just to reconsider the stain motion on bunk. An order was granted that vacates it just by operation of the bunk being granted the the order to stay orders vacated. Some time passed, it was a few weeks, I want to say was like about 21 days that passed. And the appellants were like we still have our our motion to our emergency state motion is now pending because the prior order has been vacated. Can we get a ruling on that? And then there can we get a ruling on it motion to the the Ninth Circuit, they may make kind of a bold statement of look, we need you're in effect, they said, We need you to rule on this. We know you're not going to be the last word, it's important that you tell us whether you're gonna grant this but we all know that the Supreme Court is gonna have the last word here. So can you go ahead and stamp our ticket so we can move on to there? They made a statement that kind of sounded like that. And it was I thought it was a bit brazen. But as it turns out, I mean, I guess you know, the Supreme Court is going to have the last word. Yeah.

Tim Kowal  58:05 
Were the legislators part of the case to begin with? Or do they intervene to file that, that motion or petition in the in the Supreme Court?

Cory Webster  58:14 

They were they were? Well, I don't know if they were part of it to begin with in the very beginning of the district court case, but they were they appealed, as did the state. So there were two different appeals that were consolidated, or treated essentially as consolidated.

Jeff Lewis  58:29 
It's actually compare and contrast, you know, Supreme Court reached down and pulling this case up. It's very unusual with the Trump immunity case where Jack Smith was trying to accelerate the Supreme Court review. There was no pulling up there. It's true. Hey, we don't do politics on this podcast. But who knows? When and if we'll have you back on the podcast. I'm asking for a prediction. How fast do you predict the Predict the supreme court's going to rule on the Trump on the ballot cases that are being briefed this month? Oh,

Cory Webster  59:00 
my memory serves you can correct me as it's being heard in February.

Jeff Lewis  59:03  
Yeah, it's February 8, right around the corner.

Cory Webster  59:05 

That's right. Yeah, I will. I don't know how strong a prediction you're gonna say this is but I think before it turns to March, I think there will be a decision. Will it be a matter of less than a week? I don't know about that. But

Jeff Lewis  59:20 
I think the decision is already written.

Cory Webster  59:22  
You think it's written? Yep.

Jeff Lewis  59:24  
On this one. But that's just me. We don't do politics as podcasts. But I'm just gonna go out on a limb and

Cory Webster  59:29 
say, you're going on the record, you have to say they're arguing on the eighth and decision will be rendered on the ninth,

Jeff Lewis  59:38  
the ninth at 12 or 1am. Or shortly thereafter.

Cory Webster  59:43 
Yeah, I'd have to give a real prediction. Jeff, I'd need to refresh myself on when all the cross the states when everyone's having their, their votes because I feel like those might come into play a little bit on the time. I mean, but I do think it's going to be very well. I mean, they granted, put it on the calendar very fast, too. So

Jeff Lewis  1:00:07 
can you imagine being one of the Supreme Court lawyers, they're briefing this case haven't do this compressed briefing schedule. I think each side got like two weeks, two weeks for one side, and then two weeks to respond is really compressed. Well,

Cory Webster  1:00:19  
not just on the briefing, you're totally right. But to prepare for an argument in front of the Supreme Court, that's going to be a very lengthy No, this one is going to be a long one, right? There

Jeff Lewis  1:00:28 
may be a question. There may be

Cory Webster  1:00:31  
a question or two, that process preparing for that grueling ordeal is very different than just preparing your brief, right? You're doing all of that on a compressed time? Yeah. Crazy. Yeah, I'm happy. It's not me.

Tim Kowal  1:00:47 
All right, Cory. Well, thank you for bringing us some dispatches from the ninth circuit that's going to wrap up this episode. Again, we want to thank casetext for sponsoring the podcast. Each week we include links to the cases we discussed, we use casetext daily updated database of case law, statutes, regulations, codes, and more. listeners of the podcast will enjoy a special discount on case tech basic research when they visit That's If you

Jeff Lewis  1:01:15  
have suggestions for future episodes or predictions about how fast the Supreme Court will rule, please email us at info at Cal And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. See you next time.

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