New case law - Because cannabis is illegal under Federal law, County had no right to give Conditional Use Permit to grower (Crandall v. Santa Barbara)

In JCC Crandall LLC v. County of Santa Barbara (October 29, 2024) B333201, the Second District, Division Six, has declared that no matter what one may think, possession of cannabis remains illegal under Federal law and therefore cannot be "legal" under the laws of California or any other state:

Many Californians have high expectations that cannabis is legal in California. This is a reasonable assumption because Civil Code section 1550.5 says it is. We regret to inform that cannabis is illegal in California because federal law says so. (Id., p. 1.)

The specific context in which this statement was made involved a dispute over an existing half-mile-long easement previously used to transport legal agricultural products; however, the easement was now to be used by a cannabis grower, a different use of the easement to which the servient landowner objected.  Santa Barbara County nonetheless granted a CUP, or 

Conditional Use Permit, to the cannabis facility, even though this CUP required use of the disputed easement:

The county grants a conditional use permit (CUP) for the cultivation of cannabis. To issue a CUP, the county’s land use code requires a finding that the streets and highways are adequate for the proposed use. A private easement over a neighbor’s land is the only access to the land subject to the CUP. The owner of the servient tenement objects to the use of his land to transport cannabis. The servient owner petitions for a writ of administrative mandate challenging the county’s grant of the CUP. The trial court denies the petition. We reverse because under federal law cannabis is illegal in California and everywhere else in the United States. The servient tenant’s objection on this ground is sufficient to defeat the CUP. That the possession and cultivation of cannabis has the imprimatur of legality in California is beside the point. (Id., pp. 2-3; emphasis added but footnote omitted)

Crandall first discussed the objection by the landowner and its claim it must consent to the use of the easement for cannabis transport.  The Second District found that Business & Professions Code section 26051.5(a)(2), providing that a cannabis owner must show "consent" to use the property where the growing will take place, required such consent from the "landowner" of the easement used to transportation.  This section therefore was not limited to situations where the "landowner," the word used in the statute, is a landlord whose tenant is using the property for cannabis, the restrictive reading urged by the County.

The Second District also found that even if section 26051 did not require the "landowner" to give consent, the transportation of cannabis exceeded the scope of the easementm, granted for agricultural purposes, because it involved the transportation of an "illegal" substance.

Specifically, under the Supremacy Clause of the United States Constitution, Federal law makes cannabis illegal in every state.  Therefore, in perhaps the most important portion of the opinion, the court explained there was no doubt the "product" to be transported via the easement was illegal:

It is often said that cannabis is legal in California. The statement is not true. Under federal law cannabis is illegal in every state and territory of the United States. (See Controlled Substances Act, 21 U.S.C. § 801 et seq.; 21 U.S.C. § 812 (c)(10); City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 377.) Article VI, Paragraph 2 of the United States Constitution, known as the Supremacy Clause, provides in part, “The Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (Id., p. 5.)

Noting there is a difference between permission to transport a legal and  an illegal product, the appellate court stated the easement did not contemplate the transport of the product of illegal cannabis growing.  Consequently, it was a "taking" of the petitioner's land to require that it involuntarily provide an easement:

The scope of the easement does not include the illegal transport of cannabis. Civil Code section 1550.5, subdivision (b) cannot expand the scope of the easement to allow such use. A statute that authorizes the permanent physical invasion of the land of another is void as violating the Takings Clause of the Fifth Amendment to the United States Constitution. (Loretto v. Teleprompter Manhattan Catv Corp. (1982) 458 U.S. 419, 426) (Id., p. 7.)

The judgment of the Hon. Jed Beebe, Judge Presiding, finding the CUP and the easement required to issue the CUP was properly granted, was therefore reversed.

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Legal Profession and Wages - is the value provided by lawyers properly compensated?

Lawyer Compensation

To many it may seem odd to ask if lawyers are sufficiently valued for the value they add or, put more simply, are fully compensated for their skill and hard work, especially in light of the length of time and expense it takes to become a lawyer.  Compared to service-industry workers, who are notoriously undervalued, it may seem odd to ask if someone who makes close to or even more than six figures is "valued."

The assumption underlying this question includes the costs, out-of-pocket and missed opportunities, occasioned by the route it takes to become licensed.  An ever more important assumption is the number of hours worked by lawyers -- often at the relentless insistence of their partners and corporate masters -- which results in an hourly wage far less than what people might assume lawyers earn.

Two recent articles brought this question to mind.  The first article notes that all workers are, on average, grossly underpaid in terms of salaries versus productivity.  While productivity has increased 170% since 1980, wages have only increased 40%.  (https://www.epi.org/productivity-pay-gap/)  As this article notes, before 1980 pay rose with productivity.  One obvious explanation is the unpopular and mich-vilified observation that there has been an excess of labor vis-a-vis demand for labor since the 1980s, tipping wage negotiations in favor of capital and against labor.

The second article notes that lawyers in certain specialized areas, such as mergers tax compliance, and private equity, are now demanding the same sort of compensation that investment bankers earn. (https://www.wsj.com/business/rock-star-law-firms-are-billing-up-to-2-500-per-hour-clients-are-indignant-61b248c2?page=1)

This begs the question as to why the"finance bros" with lesser licenses have earned so much more vis-a-vis a lawyer who defends their employer in Federal Court on an important issue.  The answer is that the perceived value provided by a Wall Street Trader is greater than that of a lawyer who works on the legal side of same the deal.

So we must ask: will this trend of increased billing rates continue and should it continue?  Or, put another way, would you advise your own children to enter the legal profession?  Your author's bias is clear, as I often tell young people to calculate the cost of the required undergraduate, graduate school, and bar-taking periods and compare that to a starting lawyer's salary, and, then, divide this salary by the number of hours worked.  

Every single young person who has done this calculation has come back to me with a look of horror on their face.

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From the Wall Street Journal - The disturbing trend of young men falling behind

An article from the Wall Street Journal entitled, "America’s Young Men Are Falling Even Further Behind"
(https://www.wsj.com/lifestyle/careers/young-american-men-lost-c1d799f7) examines the trend of young men in their 20s and 30s who have failed to launch.  Or, as the authors point out, have failed to achieve what in Spanish is called "encaminado."

Unfortunately, the article begins with an anecdotal story about parents who somehow permit their adult children to live at home and do next to nothing. These individual stories, of course, prove nothing, for the children would assuredly find something to do with their lives and a place to live on their own if their parents were, for example, suddenly kidnapped by aliens. 

But when the article leaves the example of specific children and delves into statistical and societal trends, it finds evidence of a shocking phenomenon, namely, that the percentage of men who are "NEETS" is much higher than it is for women:

Among noncaregivers who aren’t disabled, men are more likely to be neither employed, in school nor in workforce training, what economists refer to as NEET. Around 260,000 more 16- to 29-year-old men than women fell into this category as of the first half of 2024, according to think tank the Center for Economic and Policy Research, representing 8.6% of young men and 7.8% of young women. Rates are up for both groups since 2019, but down from a Covid high. 

As the article notes, a few years ago educators began warning us that fewer and fewer boys of high school age were applying for and planning to go to college.  The results from this trend are multi-faceted, but here is one result, the number of young men living at home vis a vis women:

Further, young men on average spend an additional one hour a day "alone" than do women:

The article does discuss how the "pandemic" (by which they mean the decision to close society in response to the pandemic) has played a role in delaying the maturation of young men.  Your author, however, prefers more prosaic explanations and notes the article fails to discuss the amount of time men, vis a vis women, spend online and, in particular, playing video games.

Dissenting Opinion Spotlight: Appeal should be re-briefed where jury found the actual tortfeasor had no liability

When majority upholds verdict finding School District but not employee is liable, a dissenting Justice asks the parties to submit new briefs

What happens in an appeal if the parties do not brief what may ultimately be the dispositive legal issue?  A remarkable dissent by Justice Richman in the First District's opinion in A.H. v. Tamalpais Union High School District (September 24, 2024) A165493 and A166684, posits that in such an instance should not decide the case on the issues actually briefed, but should instead ask for re-briefing on the most important legal issue raised by the case.

The complaint by A.H. alleged, inter alia, that he was molested by the employee of the defendant School District:

While still in middle school, A.H. began taking private tennis lessons from Burgos, and he joined the Tamalpais High School tennis team as a freshman. A.H. viewed Burgos as a mentor and the “most important person in [his] life” other than his parents. Burgos began sexually abusing A.H. in 2003. The abuse took place in Burgos’s office and later in the coaches’ locker room, both of which were next to the school’s boys’ locker room.m (Id., p. 2.)

The jury found for the plaintiff and the appellate court upheld the verdict, finding the defense had not raised any issue as to either jury instructions of the evidence admitted which required the verdict to be overturned:

On appeal, the District raises two claims: first, that the trial court improperly instructed the jury and, second, that the trial court erred in allowing A.H. to present inadmissible evidence of Burgos’s conduct with others. Finding no error, we affirm. (Id., p. 1.)

The dissent, however, found the parties had not briefed a crucial issue, and therefore dissented despite the fact it found no fault with the majority's analysis "as far as it goes."  According to Justice Richman, the crucial issue not briefed was not waived by the appellant but should in fact be re-briefed:

But there is where I part company with my colleagues. I would go further, and do something that to my knowledge this court has not done in my 18-and-a-half years’ experience here: raise on our own, and seek supplemental briefing on, an issue “not proposed or briefed by any party.” I would do this under the authority of Government Code section 68081, which provides in pertinent part as follows: 

“Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing.” (Dissent, p. 2.)

Specifically, the dissent argued the parties had not fully briefed the crucial issue of "whether the verdict allocating 100 percent responsibility for A.H.’s harm to the District, zero percent to Burgos, can support the judgment." (Id., pp. 1-2.)  The majority opinion noted that  the School District did not argue the apportionment of fault between itself and the employee was wrong, and therefore failed to make the distinct argument that the person committing the sexual assault cannot have zero liability while the party who is liable for this person's acts (for failing to supervise or properly hire him) has 100%.  

While the majority found the District had waived this argument, the dissent wanted the Appellate Court to utilize its power to order re-briefing so that this central flaw in the verdict could be considered.  As the dissent explained succinctly, it simply cannot be that the District is liable for the tort of its employee but the employee himself was not liable:

The jury went beyond the “extraordinary” request by counsel for A.H., and allocated 100 percent of responsibility for the harm to the District, zero to Burgos. That cannot be: if Burgos’s sexual battery did not harm A.H., then the District could not have been negligent in hiring him or failing to supervise him. Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023 (Ortega), a case cited by the District is, on this point, on point. (Dissent, p. 3; emphasis added.)

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Leading Appellate Law practitioner responds to Democrat Party attacks on the Supreme Court

 

The Supreme Court finally gets a reasoned defense to recent political attacks

As reported by Reason.com a leading Appellate Law practitioner, Kannon Shanmugam, has come to the defense of the Supreme Court in response to recent political attacks.  Rather than rebutting the reasoning of recent Supreme Court opinions, the response of a certain political party has been to bully and intimidate the Court by threatening to alter its jurisdiction and make-up.

It is therefore important that Mr. Shanmugam has the courage to point out the obvious.  Namely, that recent attacks (emanating from one political party and one side of the ideological spectrum) are politically-motived and are done in lieu of actually engaging the recent decisions of the Supreme Court on their merits. As Mr. Shanmugam said:

But today, I am breaking that habit to address the recent criticisms of the Supreme Court's legitimacy. I am doing so for a simple reason: because I revere the Supreme Court. I had the fortune of a lifetime to clerk at the Court for one of the greatest Justices of this generation or any other, Antonin Scalia. Since then, I have devoted my professional life to the Court, having spent the last 20 years arguing cases there. My wife and I even got engaged on the Court's front steps. And I firmly believe that, for all the challenges it faces, our Supreme Court is the finest high court in the world—a model for other countries to follow.

Perhaps for that reason, I have found the recent attacks on the Court to be dispiriting. At the risk of giving away the punch line to my remarks, I believe that the criticisms of the Court's legitimacy are unfounded. But more than that, I believe that attacks on the Court's legitimacy are dangerous—undermining public confidence in the Court and imperiling the rule of law. Finally, I believe that critics of the current Court would be better served engaging with the Court's work on the merits.

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The Revenge of the Dinosaurs - Amazon tells its employees to return to the office five days a week (like the early and mid 20th Century)

 

Nothing says "screw you' to your workforce than telling them their work-life balance is no more

Back in the 20th century - and especially before the computer revolution at the end of that century - employers were known for their lack of flexibility.  Using silly terms like "work culture" employers were loathe to consider part-time work or flexible hours. Cracks in the facade appeared toward the turn of the century when networking and laptops made it possible, in some instances, to work from home and still be productive.  But then, after the advent of high-speed internet and advances in wi-fi and cellular data speeds, the early 21st century saw a sharp increase in work from home, often offered as a perk to keep the best talent.

And then during the pandemic, tens of millions of workers were told they had to work from home.  They did so and many loved it and thrived personally and professionally.  

However, as has been reported, Amazon is among the companies now asking office employees to return to the office five days a week.  The cynical response is that this is a stealth layoff, as a certain percentage of workers will find another employer who is less hostile to their private lives.

Adding insult to injury, the company has said this is fair because "warehouse" workers have had to come to work in person the entire pandemic.  Such statements reveal a lack of understanding of how work was changed and that, in fact, location is not as important as it was in the analog age.  That a tech company like Amazon would not understand this is particularly ironic, given that Amazon competes against other companies in terms of talented engineeers and "the best and the brightest" always have other options.  As an Amazon shareholder, I am disappointed management is so clueless that the fact one can order something anywhere one just so happens to be and have it delivered to one's home or virtually anyone else, has changed how human beings interact.

That most US companies use foreign call centers, no matter how poor the customer service provided, also undercuts the crappy argument that everyone must be in the "same location."

And so I ask:  if management at Amzon were all under 30 years of age, would this edict have come out?

Not likely.

It has also been reported that Amazon is consolidating into "hubs," all in places that might be fun to visit but are impossible to buy a house or even a modest condominium:  New York, Seattle, San Francisco, etc.

As an attorney who has worked for a large corporation and/or private law firms, I recall being repeatedly asked to come in on Saturday even though I was given a more modest salary on the promise of "work life" balance.  And I recall being criticized, just before the pandemic, for working part of the day - and coming into the office for the rest of the day - on a huge appellate project.  Because, of course, if they were to let me work at home part of the day, they would have to do so with the other lawyers.  We can't be having that, of course. 

So I have repeatedly told young people choosing careers that they must be aware of management with an old-school mentality.  The benefit of working for a more experienced lawyer who may be able to mentor you must be balanced against the likelihood they have the stereotypical "baby boomer" workaholic mentality that "more is always better" and you must "work harder not smarter." 

It is sad, then, to say that with the Amazon announcement, it seems the dinosaurs are back in charge.  At least until the next asteroid hits.

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