U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog


Court Upholds California Laws Against Prostitution

Sex sells, but that doesn't make prostitution legal.

That's a quick summary of Erotic Service Provider Legal Education and Research Project v. Gascon. The case drew a lot of attention -- because the plaintiff sued to legalize prostitution -- but the world's oldest profession was outlawed long ago.

The U.S. Ninth Circuit Court of Appeals said there's no fundamental right to engage in prostitution -- at least not in California.

Surrogate Mother Can't Regain Her Children, 9th Cir. Rules

Attorney Robert Walmsley has been on the forefront of surrogacy law since before it became the law.

That's because he represented the biological parents against a surrogate they hired in Johnson v. Calvert, the groundbreaking case that upheld a surrogacy contract in California in 1993. And so it was natural for him to cite his own case on behalf of his client in a dispute between a surrogate and a biological father.

In Cook v. Harding, the U.S. Ninth Circuit Court of Appeals rejected the surrogate's efforts to wrest triplets from a man who paid her to carry the children to term. As it turned out, her attorneys should have read the law more carefully.

Free TV still exists, and some of the new digital antennae even resemble the bunny-ears of years past. However, just like stealing cable became a thing decades ago, stealing streaming subscription TV is becoming a thing in our 21st century digital world.

If you didn't know, there are numerous websites out there, with less than scrupulous regard for U.S law, that allow anyone to stream just about anything on TV or in the theaters, for free. A new-ish device, The Dragon Box, allows individuals to essentially watch everything available online from these types of websites, right on their TVs, regardless of legality. Not surprisingly, the legitimate streaming services, and other providers, have a problem with this new device and have filed a lawsuit in the Federal District Court for Central District of California. Plaintiffs include: Netflix, Amazon, Disney, Paramount, Twentieth Century Fox, Universal, Warner Bros., and Columbia Pictures. 

After President Trump decided to end DACA, challenges were brought almost immediately as the potential harm for the "dreamers" was imminent. Judge William Alsup of the United States District Court for the Northern District of California, as one of the first federal court judges to hear a challenge, issued a preliminary injunction requiring the federal government to revive part of DACA while the lawsuit weaves its way through the court.

The injunction prohibits the government from ending the program for current dreamers, and requires it to accept renewal applications. However, the injunction does permit the government to refuse to accept new applications. Also, the injunction does not prevent the government from denying reentry into the country if a dreamer leaves.

Judge Throws Out Bundy Stand-Off Case

It was the Western shootout that never happened.

Cliven Bundy and his sons stood their ground against federal agents in an armed standoff outside his Nevada ranch. The Bundys refused -- over their dead bodies -- to pay federal grazing fees.

They were charged with multiple felonies, but they didn't stick. Like the shootout, it's like they never happened.

Court Cuts Back Idaho's 'Ag Gag' Law

Torturing cows was bad enough, but then Idaho tortured the First Amendment.

That's a short reading of Animal Legal Defense Fund v. Wasden. Animal rights activists sued to invalidate a law against surreptitious recording enacted after videos exposed mistreatment of the animals at a dairy farm.

The U.S. Ninth Circuit Court of Appeals, in a divided opinion, said the statute was "staggeringly overbroad." But that was nothing compared to the shock from the videos.

For a handful of California retailers, a Ninth Circuit decision basically invalidates the state law prohibiting merchants from charging customers an additional fee, or surcharge, for using a credit card. Unfortunately for retailers across the state, the decision only applies to the parties to the action.

Under current California law, a retailer cannot charge customers more for using a credit card. Rather curiously and somewhat hypocritically, under the law, a retailer can legally offer a discount to cash paying customers. Basically, it all boils down to how the price and discount are communicated, which turns this into a First Amendment commercial speech issue.

Ninth Cir. Decides: Are Cosmetology Students Employees?

For the Marinello Schools of Beauty, an adverse court decision would have required a complete make-over of the business plan.

Students had sued the cosmetology school, alleging they were treated like employees and were owed money for cleaning up salons and other menial tasks. The school answered that they were students fulfilling educational requirements.

In Benjamin v. B&H Education, Inc., the courts said the schools were just doing business as usual. For now, students will get the haircut when working for cosmetology licenses.

If you follow legal news at all, you've likely heard about the controversy surrounding Judge Alex Kozinski of the Ninth Circuit Court of Appeals. In response, the former chief justice, who has served on the Ninth Circuit since 1985, announced his abrupt retirement, effective immediately, on December 18, 2017.

Not two weeks after allegations of sexual misconduct surfaced, Judge Kozinski felt compelled to step down from the bench. As his official statement explains, he does not feel that he can be an effective judge while fighting these allegations. Additionally, he expressed concern over the reputation of the federal bench if he did not step down.

The Marin Alliance for Medical Marijuana (MAMM) fought the law, and even though the law didn't win, the Ninth Circuit ruled that the pot shop is not entitled to attorney fees, despite what the Equal Access to Justice Act says.

Basically, when the government acts foolishly in pursuing legal action and a private party must take legal action to stop it, those private parties can have their attorney fees paid back. In the MAMM case, the court found that the pot shop didn't necessarily win their case as much as the government just lost theirs, and that actually makes a significant difference when it comes to enforcing the attorney fee shift under the EAJA.