Jeffrey Lewis
 Welcome everyone. I am Jeff Lewis.

Tim Kowal
 And I'm Tim Kowal. Jeff and I are certified appellate specialists, and as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. If you find this podcast useful, please recommend it to a colleague.

Jeffrey Lewis
 Bye. Yeah, if it's not useful, run it through Google Notebook and try listening to it again.

Tim Kowal
 Okay, Jeff, we have two interesting Ninth Circuit decisions that are the talk of the town this past week. I listened to a discussion on another legal podcast, but I say, Jeff, that they're encroaching on our turf. Ninth Circuit is our turf, being the California Appellate Law Podcast. So ⁓ undaunted, we're going to cover them anyway. The two cases we're going to cover are the Olympus Spa case out of Washington and the B.B versus Capistrano Unified School District case out of my backyard here in Orange County. These are both night circuit cases, as I said, and then after we conclude with those, Jeff has another interesting, hallucinated case involving something to watch out for in Westlaw. So Jeff will share what ⁓ he found when trawling through Westlaw looking for authority for sanctions on Opponents who use hallucinated cases, and you'll get a message on some of these cases on Westlaw themselves. But let's start with Olympus spa versus Armstrong. This is the one that you've if you've been reading about people having very different points of view on Judge VanDyke's most recent dissenting from denial of rehearing en banc. The Olympus spa case is the one that you're hearing about. I'm going to give a parental guidance warning when we get down to talking about Judge VanDyke's dissent a little bit later on. But first, I'm going to lay out the basic facts of the case. This decision came out on March 12, 2026. Olympus Spa is a traditional Korean women-only nude spa. The Korean practice is called,

Tim Kowal
 jjimjilbang It's a Korean custom, and it's operated in Washington state, owned by a Korean immigrant family of conservative Christians. Patrons must be fully nude in communal areas such as steam rooms, soaking pools, and full body scrubs performed in the open. The spa admits biological women and post-operative transgender women. In other words, anyone without male genitalia. And in 2020,

Tim Kowal
 A pre-operative transgender woman named Haven Wilvich, biologically male, sexually attracted to women, and in fact, twice married to women, filed a complaint with the Washington State Human Rights Commission. The spa has no record of Wilvich ever visiting the Korean spa. Wilvich later told reporters it was just a phone call ahead of a friend's visit. The Human Relations Commission threatened prosecution, and the spa settled under duress but reserved the right to bring a constitutional challenge. The spa filed suit in 2022 on First Amendment grounds, and the district court dismissed under Rule 12 B 6 and the 12 the three judge panel of McKeown, Gould, and Lee affirmed two to one, with Lee dissenting, and an en banc hearing was denied. So there's your basic setup and procedural posture, Jeff. I wanted to get, do you have an interjection before we, before I proceed?

Jeffrey Lewis
 I have an important interjection, both you and the court woefully failed to adequately convey the depth to which these scrubbers in these spas invade every crevice of your being. I've never done such a spa, but I have a family member who's done and described it to me. The rough scrubbing. prolonged and in crevices. First of all, it should be outlawed by the Geneva Convention. But second of all, it really goes towards some of the legal issues you're going to be talking about in a bit, in terms of this is not just like going on a massage table and lying down and getting a massage. is exfoliation to the degree that it should be a war crime. Back to you, yes. Yes.

Tim Kowal
 Exfoliation with extreme prejudice. Okay, ⁓ I wanted to tell the story of this case through a few different lenses. And the lenses are provided by the different judges who provided various dissents. Judge Lee provided a dissent. He was one of the panel judges, and he dissented from the panel decision. And then a couple of the dissentals from the order denying Review, and then culminating in the Judge VanDyke dissent. And I thought maybe that would give us some context for what Judge VanDyke was attempting to do in his dissent. So here's the first lens. And you'll notice, just in case you're wondering, that they're going to go from more boring to less boring to vivid and exciting. OK, so the... So the first lens here is just, is an entirely unexceptionable law. This is the majority opinion written by Judge McKeown ⁓ joined by Judge Gould, which tells this story as an unremarkable one. The Washington law prohibits discrimination based on sexual orientation, which is defined by the legislature to include gender expression or identity. That definition is unambiguous. The spa's interest entrance policy falls within it.

The SPA didn't challenge the statutory definition. So therefore, the court's job is not to rewrite the statute, and the claims fail. So that is the, you know, it's just a basic statutory interpretation type of lens. And that is why the SPA lost in front of the panel. But now let's go to the next, next little bit more vigorous

Tim Kowal
 lens where we're starting to raise the temperature a little bit. ⁓ And this is, we're still talking about legal architecture. So this is the dissent that's written by Judge Tung and joined by Collins and VanDyke, and it starts with a statutory interpretation problem that gender expression or identity appears only inside the definition of sexual orientation. And it guards against discrimination where gender identity serves as a proxy for sexual orientation. The legislature could have added gender identity as an independent category, but chose not to. And the SPA doesn't discriminate based on sexual orientation anyway.

Tim Kowal
 It does, in fact, admit lesbians and bisexuals freely, and even assuming that gender identity is a standalone class, the spa doesn't discriminate because of gender identity. It just discriminates based on whether you have male genitalia or not. A transgender person born female is admitted as a post-op transgender woman. The only factor is genitalia, so that makes it more

Tim Kowal
 more of a limited definition of discrimination because it's not based on sexual orientation. It's based on genitalia. It's not gender, it's genitalia. So that's the next lens. And now we start turning up the temperature a little bit more, and we get to the ⁓ spa owner's story. And this is painted pretty vividly in Judge Lee's dissent.

Tim Kowal
 from the panel decision. And in Judge Lee's dissent, he gives the case more emotional weight. says, Korean spas have a centuries-old tradition going back to the Choson dynasty, back in the late 14th century, extending through the early 20th century. Full nudity is mandatory. The spa is the only... In a traditional Korean spa in Washington state, the family came to America for a better life and greater religious freedom as Christians. They hoped to share Korean tradition with the larger community. So we're painting a cultural story, a coming to America story, and the spa's entrance policy says that anyone without male genitalia is welcome regardless of sexual orientation, race, or religion. They admit post-operative transgender women, i.e., anyone without male genitalia. So it's about genitalia, not identity. The Human Relations Commission takes a position that a settlement be demanded within 10 days or referral to the Attorney General for prosecution. So there is an actual prosecution threatened. There was no interest shown by the Human Relations Commission in verifying whether the complainant ever even visited the spa. When the spa tried to ask questions, the investigator shut it down, saying the time to ensure that the complainant does not feel discriminated against has passed. Then the state flip-flopped after threatening prosecution and argued to the district court that the spa lacked standing because there was no credible threat of future enforcement since the only person who had ever complained in 20 years. And so the consequences, women and girls as young as 13 must now be nude alongside individuals with exposed male genitalia. Female employees must provide a full-body deep tissue massage to naked persons with intact male sexual organs or lose their livelihood. The spa says its employees and customers will leave if forced to do so and it fears closure. So Lee's framing of ⁓ the case starts to, as you can see, it starts to get more vivid. talking about

Tim Kowal
 The women and young girls who frequent these spas are now going to be exposed to the risk of being around people with male genitalia, often known as men. But, you know, depending on what you identify as, that's what the law is talking about here. There's also an interesting employment accommodation paradox here. And this is something that ⁓ that David French pointed out on the advisory opinions podcast, talking about this case, but this case is Ninth Circuit, Jeff, it's our turf. So we're gonna talk about it anyway and steal his ideas. But he mentioned that if there were, so the upshot of this case is that the spa is obliged to admit people with male genitalia into their spa.

Tim Kowal
 frequented by women who are also going to be nude in that area, women and girls in this area. But imagine a female employee who works at the spa requests an employment accommodation and claims to feel threatened and harassed if she is around nude males. Now the law also requires the employer to provide an accommodation to that female employee. So the law both requires

Tim Kowal
 female employees to be around nude males and requires the employers to prevent female employees from being around nude male genitalia. So this is a little bit of an Orwellian, you know, get you coming and going situation. And I'm not sure that the ⁓ panel, you know, fully synthesizes that problem.

Tim Kowal
 But now we get to, still, we're talking mostly in abstractions. We've brought the situation more to the fore, but now we get to the parental guidance warning, because we're going to be talking about Judge VanDyke's dissent. And he starts off his dissent saying, " This is a case about swinging dicks. And he goes on to say, " May think that swinging dicks shouldn't appear in a judicial opinion, and you're not wrong. But I hope we can all agree that it's far more jarring for the unsuspecting and exposed women at Olympus Spa, some as young as 13, to be visually assaulted by the real thing. So that's his main point. He goes on to make a point about hypocrisy.

Tim Kowal
 suggesting that anyone who is complaining about the incivility of the words chosen for his opinion ⁓ is ⁓ suffering from some form of hypocrisy and might be unwittingly making his point. So here's his point on the civility accusation. He says, " My distressed colleagues appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words, in my opinion.

Tim Kowal
 Yet exhibit the scruples of our dearly departed colleague Judge Reinhardt when it comes to the government trampling on religious liberties and exposing women and girls to male genitalia. And he goes on, starting from the crude and then working his way to Shakespeare, he says, in law, what plea so tainted and corrupt, but being seasoned with a gracious voice, obscures the show of evil.

Tim Kowal
 Judge McKeown's dissent, in rebuke joined by 28 other judges on the Ninth Circuit, calls the language chosen by Judge VanDyke vulgar barroom talk that undermines public trust in the courts. And Judge Owens and Judge Forrest write separately. And Judge Forrest is a Trump appointee, saying, " We are better than this. OK, what I attempted to do, Jeff, was to bring this from, this is just kind of a boring case of a statutory interpretation of an accommodation law, and then starting to bring it up into accommodation versus First Amendment concerns. And then we start to talk about what the spa owners are trying to do. They're trying to do a nice thing and bring a little bit of their own culture to the people of Washington.

Tim Kowal
 And now they are being forced to make their nude, their female nude spa open to people with male genitalia and being threatened with prosecution for not doing it. And Judge VanDyke, looking at all of the various opinions, talking about it in somewhat muted and traditional judicial tones, comes out and says, you know, this is a case about swinging dicks and trying to make the...

Tim Kowal
 The issue is more vivid and more sensational, I suppose. This is, I guess I take this as putting this case through the bullhorn to get public attention to it. I think Judge VanDyke's opinion is when we try to talk about these issues through legal doctrine, it's just going to have the same appeal to the public as any other case involving. dry legal doctrine. It's just going to be as boring as watching grass grow. But this is important. This is a culture war issue, and we've been talking about these kinds of issues in the abstract and what might happen. And here's something that actually is happening. Here is a business being shut down unless they make their facility used by women and young girls open to people with male genitalia. And now the court is sanctioning it.

Tim Kowal
 The majority has cited law and precedent, and the dissents and dissentals have cited law and precedent that go the complete opposite way. And it reminded me of years ago, we talked about this Law Review article that I've always been fond of by John Hasnas called The Myth of the Rule of Law. The premise being that you can look in the law and you can always find some good authority that will support a...

Tim Kowal
 And then you can continue looking for authority and you can find on point presidential authority that supports not a. And the question is not what the law says. It's what is the constant? Who is your judge or what's the constitution of your panel? And I think Judge VanDyke made that same point a couple of years ago in that Second Amendment case that we talked about where he happened to have the majority of the panel and he wrote the panel decision vindicating a Second Amendment right.

Tim Kowal
 But he knew that it would probably be taken up en banc by his colleagues. And so he took the initiative to a concurrence drafting the en banc decision reversing himself. So indicating exactly the problem identified by Hasnes and the myth of the rule of law that the law can support any old thing. It just depends on whose perspective you're taking or what is the legal culture. of the judge or of the judiciary as a whole. And I think you could take the broader point that how the Ninth Circuit is going to come out on this depends on who's on your panel ⁓ or how it comes out in the en banc review, depending on what is the makeup of the entire court. Because you've got good law that supports keeping women and young girls away from naked male genitalia. And you've got good law.

Tim Kowal
 Now that says that women and young girls have to be exposed to people with male genitalia. And so what is the outcome in any particular case? It just depends on the makeup of your panel. And Judge VanDyke is broadcasting this to the public that if you have an opinion about how this case needs to come out, then talk to your local representative or talk to a senator.

Jeffrey Lewis
 No. Yeah, so yeah, mark your calendar, write this down. I think this is a day where I, in many respects, agree with you, Tim Kowal that the only reason we're talking about this case on a podcast the only reason you heard this a case on a podcast is the use of that phrase. I am NOT offended by the use of the phrase. I think in this particular context, it vividly shows the argument that was trying to be made. For me, Judge Lee's dissent talking about the employment issue is what really caught my eye in terms of the employer's obligation to protect employees from doing something they didn't sign up for. yeah. And by the way, I fully support the judges who responded to the swing dicks comment by then writing their own dissent, or maybe it's a concurrence, saying that they don't think that kind of talk has any business in an opinion, because their names are associated with this opinion. For all time, if you Google swing dicks and the name of these judges, they're going to be associated together. So yeah, I'm just going to add one other thing. You say the outcome of any given case might just depend on the panel composition.... Let me just also say, if you read the majority opinion, a lot of it had to do with the lawyering and legal theory in what attacks them out in terms of attacking the statute and the language. And lawyering, maybe I'm biased because I'm a lawyer, but lawyering can make a difference in how you choose to present these issues.

Tim Kowal
 Yeah, there could be a lot of things that go into how a case comes out, certainly. And certainly, I don't know what is in Judge VanDyke's mind or what he hopes the impact of his dissental to be. Certainly, this is of a piece with his creative opinion authoring. this isn't the first time he's done something creative and brash in writing an opinion. We talked about the previous. ⁓ his majority opinion plus his panel decision bookended by ⁓ his own concurrence to his own majority opinion and his video dissent in the other Second Amendment case in which he brought several of his own firearms to the court to do a YouTube video.

Jeffrey Lewis
 Yeah, you know, a cynical audience member might think that VanDyke is auditioning to somebody who likes the drama in terms of appointments to the Supreme Court.

Tim Kowal
 Yeah,

Jeffrey Lewis
 gets the headlines.

Tim Kowal
 Suspicion has been lodged by many. One other point of view I'll share, think this was Adrian Vermeule, this was also discussed in the Advisory Opinions podcast, mentioned that the real problem with Judge VanDyke's dissent is not that it was ⁓ crude or offensive, it's that it was self-defeating. He says that the controversy that this language provoked itself has become the topic and skillful rhetoric should draw attention to the subject not to the speaker and his argument is that this is just drawing attention to Judge VanDyke not necessarily to the case and so anyone who might feel sympathy for the spa and the spa owners and the women and girls who patronize that establishment that sympathy might be diluted because now people are paying attention to Judge Van Dyken, what he said, and should he have said what he said.

Jeffrey Lewis
 I don't know, in four weeks, I think people will remember the turn-up phrase and the spa, and may forget the judge's name. I mean, other than appellate nerds like you and me. I don't know that I agree with that criticism.

Tim Kowal
 Yeah, wasn't... I'm of two minds about it. Maybe it... Does it go too far? It is certainly jarring. And Judge Lee ⁓ did a very workman-like job in his dissent, his panel dissent. Did it need more in the form of that very jarring dissent? I'm not sure, but...

Tim Kowal
 Judge VanDyke is independent-minded, and he's got a different view of what can be done through the use of the pen on the Ninth Circuit. Okay, let's turn to B.B versus Capistrano Unified School District, another panel decision out of the Ninth Circuit in March, 2026. This case involves

Tim Kowal
 a first grader's First Amendment rights. And the plaintiff in this case, the first grader and his or her parents, were represented by the Pacific Legal Foundation. So what happened back in 2021? B.B., a first-grade student, and it's sad to say that we have to identify B.B's race. B.B happens to be white. B.B identified as and where it's a child, so we're referring to the child by initials only. B.B was at Viejo Elementary School in the Capistrano School District. B.B. drew a picture inspired by a class lesson on Martin Luther King Jr. Isn't that nice? And the drawing included the words, Black Lives Matter, actually Matter, because spelling, first grade, know, and then followed by the words, Any Life. Again, first-grade messages are not always intelligible or logical. B.B. gave the picture to M.C., a classmate who, again, sad to say, we have to mention the races here of children, happens to be African American. So when M.C.'s mother then raised concerns about why my child is being sent home with ⁓

Jeffrey Lewis
 The VP gave a picture to M.C, a classmate who, again, South State, to mention, raised his hair, but children have to be... Steve Mother raised concerns about our lives, which will be set at home with images.

Tim Kowal
 with images that appear to have some sort of political content in them. She raised concerns with the school principal. Jesus Becerra spoke to B.B and allegedly told B.B that the picture was inappropriate and racist and that she was not allowed to give her drawings to classmates. what? Obviously, I guess, children are not allowed to give images to each other. Maybe if we're concerned about the content of the images, we ought to look at the curriculum....

Jeffrey Lewis
 Sarah spoke to B.B and allegedly told B.B that the picture was inappropriate and racist and that she was not allowed to get her own. Yes.

Tim Kowal
 Because apparently this ⁓ this image was was drawn after being shown some kind of video or given a class lesson relating to race relations according to the complaint B.B was forced to apologize banned from giving drawings to classmates and excluded from recess for two weeks a Factual dispute exists about the extent of the punishment, but Sarah denies telling B.B that the drawing was inappropriate or racist and denies that she was prohibited from recess, although Becerra does not deny speaking with B.B. B.B testified, just sad that, I guess now she's not a first grader. She would be probably around fifth grade, sixth grade now, maybe by the time she was testifying in a case, making a fifth grader testify, maybe is not the best social commentary

on the state of our schools. B.B. testified that after Becerra talked to her, her teachers told her she wasn't allowed to have recess. B.B.'s mother learned about the incident from other parents nearly a year later and filed a complaint with the school district before bringing legal action in February of 23. District Court Judge David O. Carter granted summary judgment for the school district, concluding that the drawing was not First Amendment-protected and gave weight to the student's age. Judge Carter acknowledged that B.B.'s intentions were undoubtedly innocent, but reasoned that Tinker examines effects on the learning environment, not the speaker's intent. Up at the Ninth Circuit, the panel vacated the summary judgment and remanded, holding three rulings. First, elementary school students do have First Amendment rights under Tinker. The court noted that while Tinker itself involved high schoolers, sister circuits had already applied Tinker to elementary school students. So the Ninth Circuit is now among those circuits. The second holding is that age is relevant but not dispositive. A student's young age gives schools broader discretion in the Tinker balancing test, but it does not eliminate the school's burden.

Tim Kowal
 of justifying the restriction on speech. And here the district court gave age too much weight by treating it as effectively eliminating First Amendment protection and the third holding by the panel. There were genuine disputes of material fact that precluded summary judgment. There was conflicting evidence about whether the principal could reasonably conclude that the drawing interfered with the emcee's rights and whether the actions taken were reasonably necessary.

Tim Kowal
 So that's the outcome of the case. We have a few other maybe discussion topics we can talk about. Do you have any ⁓ reactions to it so far, Jeff?

Jeffrey Lewis
 You know, I'm kind of surprised by the outcome here at the district court level that Judge Carter would have granted summary judgment here. And that age would have been such a dispositive factor. But other than that, not to me, it's not a very remarkable decision. Ninth circuits are joining other circuits that have ruled that elementary age kids are subject to the Tinker analysis. So now I don't have a lot to say about this case other than. I'm just surprised that Judge Carter would have granted summary judgment here.

Tim Kowal
 Yeah, as you could probably tell, was not very disciplined. I interjected a couple of commentary while I was reciting some of the case facts. That's what bothered me about  if we're going to be giving curriculum to children that has a racial component to it. And we are in very tense racial times. And then when children innocently react to some of these racial tensions in ways that maybe offend adult pieties when it comes to race. So for example, know, any life anywhere in the neighborhood of a Black Lives Matter becomes toxic to humans who have been baptized into this, ⁓ into our racial tension era where we are taught to be offended and aggrieved at any suggestion that, you know, that we are rubbing against the grain of orthodoxies when it comes to what is the right thing to say when we talk about racial topics. But when children do it, as I think as Judge Carter even mentioned, it was innocent. So why was there even any need for punishment? Unless there would there doesn't appear to be any reference to a policy that was violated. And so if there if if the the child is innocent, what was

Tim Kowal
 I'm not even sure if it's a First Amendment problem or just a violation of the school policy against disciplining. It's like arbitrary and capricious discipline more than anything.

Jeffrey Lewis
 Yeah, by the way, I could imagine a situation where perhaps an older elementary school student may not have innocent motives, or there's a dispute about the innocent motives. But on this record, it looks like nobody really disputed that the student had innocent motives. There's no, know, oftentimes in the student free expression cases, there's disruption in the school, and that wasn't present here, or creation of a danger, and that kind of thing. So, yeah, I think the facts of this case are so unusual that even though this establishes a new rule regarding Tinker's application to elementary school kids, you're not gonna see this case applied much in the future in terms of the facts of this case.

Tim Kowal
 Yeah, I will mention that I have long been, look, before we started recording, Jeff, you mentioned, ⁓ well, Tim, obviously, you're very concerned about the First Amendment. Look at these cases you want to talk about. You're very concerned. You're a great First Amendment advocate. I've actually always been a little bit skeptical about the application of the First Amendment in schools, and thinking that our Constitution was never meant as a school charter.

Jeffrey Lewis
 I'm rubbing off on you.

Tim Kowal
 and administrator. Then again, I don't know. I don't have any any well thought out opinions on it other than to say that I'm not gonna i'm probably not the first candidate for a first amendment crusader when it comes to student speech because I just I find application of some uh constitutional principles to to administration of a school to be a little a little bit out of place, um, but okay, a couple other questions, Jeff. Do first graders really represent? Should they have a place in the marketplace of ideas? When we talk about the marketplace of ideas and the importance of free and robust exchange of ideas, are we really talking about first graders here? Does First Amendment protection need to extend to them?

Jeffrey Lewis
 as first graders. Well, let me answer that question with another question. It's what I do to my kids. Don't you think first graders can be chilled by government action in terms of losing recess, as was alleged here, et cetera? And if a young student can be chilled in terms of what they are willing to say, et cetera, then the marketplace is there. Ideas are competing. if. It's not a free and fair marketplace. And there's a finger on the scale because the principal says those people who say blah, blah, blah, are not going to get recess. Then yeah, the marketplace is, there.

Tim Kowal
 Yeah. Yeah. Well, maybe I think that it's a, the idea of the marketplace of ideas seems odd for first graders, but I like the way you put it, that they could be chilled. And that's, that's maybe the other side of the coin from the marketplace of ideas. Can you, can you chill or condition these children into thinking a certain way by chilling them or punishing them, disciplining them for expressing certain ideas or taking other

Tim Kowal
 you know, other communicative activities. Yes, absolutely. So I think that's, I think I probably do agree with the panel when they rejected the idea that first graders don't have a place in the marketplace of ideas. Another point that I actually first learned of this case through Professor Sean Martin's blog. And his point of view on it was that it's very sad that the, that this first grader,

Tim Kowal
 Older now, but still an elementary school student, has been dragged through litigation, including deposition. Having to sit for a deposition, and who is benefiting from this? Is it the child, really? Vindicating his or her rights or apparently female is referred to as her in the opinion. Is B.B.'s rights really at stake here, or is this more the parents exercising their prerogative in bringing this suit?...

Jeffrey Lewis
 Thank you. Yeah, I too read that Sean Martin write-up, and thank you for providing it to me because I thought his point was great in terms of, look, if this just ended with the kids of one kid handing another kid a drawing, that's where it should have ended, and we wouldn't be here with this crazy, ridiculous lawsuit. But instead, adults got in the way.

Tim Kowal
 Yeah, yeah, I think the, yeah, I, I agree with that. Although, to be fair to what the M.C's parents were, I think the story behind that is not so much that they were necessarily offended by the message. I think they were maybe just perturbed that there was this, this content being sent home, and they don't know what produced, you know, what, what, what drove B.B to create this content, and what drove

Tim Kowal
 B.B to give that image only to M.C. because other children weren't given that image, and is there some sort of what's going on in this class when it comes to? Racial or race-based curriculum or racially sensitive curriculum, and even if everyone's motives were fine and

Tim Kowal
 and had the best motives. We still don't want any part of it, thank you. We're not buying what you're selling. Please keep your images to yourself. And I don't know that M.C's parents wanted B.B. to be disciplined.

Tim Kowal
 But you're right that the parents surely are bringing this. But on the other hand, the B.B's parents aren't bringing this case. Maybe there are other B.B's out there who are getting the same or similar treatment in other circumstances. Because again, Jeff, this is in my backyard in Orange County. We like to think that we are a few steps behind the crazy train on these kinds of culture war issues or racial grievance.

Tim Kowal
 racial sensitivity issues like this. Does this suggest that maybe this is happening more? And this just happens to be the first litigation in a published decision that we're hearing about.

Jeffrey Lewis
 Sounds to me, Tim, like you're really concerned about students' free speech being chilled in schools. That's what I hear.

Tim Kowal
 Maybe I'm more of a First Amendment crusader than I originally thought. OK, well, last thought on this is a Capistrano Unified case for trial attorneys representing families in school discipline disputes. The opinion establishes that California elementary schools cannot treat youth as a blanket justification for restricting student speech. That's actionable authority for a section 1983 claim in the education context. So, at least we give our listeners something actionable at the end of all of this rambling.

Jeffrey Lewis
 All right, you want me to get the last case here, the AI sanctions case? All right. So by the way, I recently faced an AI fake AI case situation in the wild, meaning I have an opponent who cited fake cases, and I had to brief the issue of the fake cases and I needed a recent opinion on where California courts were on this issue. And so I recently was citing.

Tim Kowal
 Yeah, let's do it.

Jeffrey Lewis
 In re domestic partnership of Campos and Munoz. I'll call that the Campos case, which came out of the 4th District Division 1 on March 5th. And the fact pattern of this is not all that surprising, although the procedure is really odd. The fact pattern is, now, a lawyer cited, or somebody cited fake cases. A lawyer perpetuated it on appeal. When called on, it was not forthcoming. And the Court of Appeal ultimately ended up sanctioning the lawyer who doubled down on the fake cases. There's no groundbreaking thing in terms of this case and how the courts are increasingly disturbed by the use of fake cases. But the thing that I found super interesting was the first time I read the Campos sanctions decision, I read the PDF that the Court of Appeal publishes on its website. More recently, I read the Westlaw version, and the Westlaw version has two big differences from... that do not appear in the PDF version. Number one, there's a header at the very top of the decision that says, Editor's Note, this decision contains discussion of citation references that are incorrect or do not actually exist. These invalid citations appeared in the original court opinion and have been preserved as written since they are part of the official record. Here's the interesting part: any links to these invalid citations have been removed. That's the editor's note.

I bring this up because you and I, in a prior podcast, had talked about the concern that when court opinions reference by name fake decisions, are they perpetuating and making something more Google-able and findable in terms of these fake cases, and making the problem worse? And so if you read this decision, it mentions these two cases, Twig and Tea Garden. But here's the interesting thing: they are hyperlinked. So when you're going around, look at your Westlaw report of this case, and you see blue text, you know you click on it. To me, that is shorthand for, that's a real case because if it's hyperlinked, it must go somewhere. In fact, if ⁓ you were to click on the marriage of Twig or the marriage of Teagarden cases mentioned in the Campos sanctions case, they're both fake. They go back to the Campos sanctions case. You don't go anywhere. It opens up a new window to the sanctions case.

But I bring this up because sometimes, if you're in a hurry and you're reading a case and you see a blue underline, you think that's a real case. And here's an example of where it is not a real case. And in some portions of this opinion, the case is put out in quotes or ⁓ right next to the words fictitious or nonexistent. So it's helpful, but you gotta be really careful these days about reading these AI hallucination cases. discussing AI hallucination cases and sorting out what is real and what is not.

Tim Kowal
 Yeah, yeah, I do. I'm looking at the case now and I see that they cited to ⁓ the fictional case, the marriage of Twig. And this is under the factual and procedural background of the case where the court is talking about counsel's, let's see, referring to the legal precedents that they're relying on. And they cite this marriage of the twig case with a year in parentheses, followed by a Cal third. citation that part that citation in the Westlaw version here is not hyperlinked but later on I could see what you're talking about where it goes on to mention twig and and yet there is you there is a blue here's another one here's this one does have I found another reference to immune you knows his declaration cited the fictional twig case and stated colon and then has a quote in marriage of twig 1984, 34 Cal 3rd, 926. And it's all in a blue hyperlink. And when you click on it, like you just said, waiting for it to populate, yeah, it just comes up with the same case. So it's a circular URL. But yeah, my concern, sometimes I'm reading cases, and I'll see, oh, there's the proposition that I need. Oh, and this case also included the legal authority for that proposition. Let me just copy.

Tim Kowal
 proposition and the legal authority, and I'll just go with you, whip back over to my brief and paste it in there, and there we go. Now I've got authority that I got out of Westlaw from a published decision, or out of an authentic decision.

Jeffrey Lewis
 Campos is published. Yeah.

Tim Kowal
 Okay, yeah, so this is a published decision. But yeah, it's citing a fake case. The court was not duped. That was my first question when you pointed this to me. Was the court citing these decisions because it was duped into believing that they were true? Or are they just recounting the fake citations that the attorneys provided? And it's the latter. The court was not duped. But the court is making a record of the fake citations that were provided to it.

Jeffrey Lewis
 Yeah, yeah, it's ⁓ you can twist your mind up in pretzels here. By the way, procedurally, this case is really bizarre. The fake case had been inserted into a proposed order after a family law dispute regarding custody of a pet. And the trial judge signed off on this proposed order prepared by one of the parties that had these two fake cases in it. And then, upon appeal, the appellant's appeal was dismissed for failure to file an opening brief. And then there were two motions, two successive motions to reinstate the appeal. And the respondent said, no, no, no, you shouldn't reinstate the appeal based on Twig and Tweedie or Twig and Tea Garden, non-existent cases. And that's how this whole issue of fake cases floated to the top.

Tim Kowal
 New garden.

Yeah. Well, yeah, I think this is what is keeping a lot of appellate justices up at night is that we're going to have our reporters flooded with cases with all of these caution signs at the beginning. Warning: this case contains fake citations.

Jeffrey Lewis
 bizarre. Yeah. And so there's that in terms of the reporting, and also the growing problem of trial judges who are just as overworked as lawyers being slipped proposed orders that they trust have real cases in them and not running it through AI or something to verify that it's a real case and ⁓ being duped. So the final point I'll make about this case is footnote three references

a new judicial council standard of administration that you and I think went over either at the beginning of the year or the end of last year about the need for regulating both lawyers and judges in their use of AI. So this is what footnote three says. It says, to address the emergence of AI-generated fake citations, we recommend that the judicial council or other appropriate committees consider adopting guidelines or rules for judges and attorneys on the verification of citations.

particularly those in orders drafted by the parties and submitted to the court for signature. And then it goes on. So here's the call for action saying, " Hey, trial judges, don't just sign everything that's put in front of you. We need some rules to help trial lawyers, meaning trial judges sift through what's being submitted to them.

Tim Kowal
 Yeah, yeah, I agree. And again, if I were the judge, I would kick back any proposed orders that had legal authority in them unless it was necessary for some particular reason. They're generally not.

Jeffrey Lewis
 Well, let me push back on your pushing back on an MSJ. This is a family law case, but let's say on an MSJ or a statement of decision. Those are examples of where the court's required to issue detailed orders that discuss both facts and law. So there are circumstances where a lawyer does have to feed a case. And the question is, when the judge is given this order to sign, typically it's not in a Word version for the judge to edit.

You know, that's a lot of work to put on a judge or the clerk or the research attorney to verify and fact-check every proposed order submitted by a lawyer. I don't know. Have a little sympathy for those guys in the black robes, Tim. Come on.

Tim Kowal
 Hey, that's what I'm trying to do. Yeah,

I think, okay. All right. I think that's gonna do it for this episode. If you have suggestions for future episodes, please email us at info@calpodcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Jeffrey Lewis
 See you next time.