By JK
Got to hand it to the Ninth Circuit. I have been here about 3½ months and I have now seen something that I never seen before in over 15 years of practice. Essentially, the court issued an opinion without a majority opinion. That is really a fair assessment – I simply do not know how else to describe what happened.
The Ninth Circuit affirmed the denial of a habeas petition in a non-capital case out of California in a case called Loftis v. Almager. The issue in the case was whether a factual basis was constitutional required for the no-contest guilty plea in the case. It boiled down to two things: if the no-contest guilty plea was actually an Alford plea (or California’s analogue (People v. West)), then the factual basis was necessary. If it was, then was such a factual basis present?
Seems pretty straightforward, right? But it did not end up that way.
Before I get into it, I should probably briefly say what the difference is between a “no contest” plea and an Alford plea. A no-contest plea is an alternative to pleading guilty, but in reality has the same effect as a guilty plea. The defendant essentially says, "I do not contest the charges." He is taking no position as to whether he committed the crime, so there is no reason for the court to examine that question.
In contrast, an Alford plea does have some relation to the question of innocence/guilt. In this type of plea, a defendant is pleading guilty, but not admitting that he is guilty. Rather, the defendant (essentially) maintains innocence, but acknowledges that the prosecution has sufficient evidence to convict him. Because questions of innocence hang over the head of this type of plea, courts have concluded that a factual basis for the plea is constitutionally required.
Now that that's out of the way, let's go back to the decision in Loftis. The "majority opinion," written by Judge Adelman (DJ from Wash, sitting by designation) concludes that the guilty plea was simply a no contest plea, not an Alford plea, so no factual basis was necessary. As such, this omission did not rise to a constitutional violation.
I put "majority opinion" in quotes because I am not sure how it really was the majority opinion. Amother member of the panel, Judge Silverman, only concurred in the judgment, while the third member dissented. But Judge Silverman's concurrence means that he did not join the reasoning of the majority opinion. So at a basic level, I am not sure why Adelman's opinion actually is the majority opinion as opposed to Silverman's concurring opinion. They seem equivalent. Why is one ranked higher than the other?
But I have not even reached the wacky part of the decision, if you can believe that. Judge Silverman concludes that this actually was an Alford plea, but that the error was harmless. That's not wacky. But what is wacky is that he agrees with the dissenting judge on this point. The dissenting judge, Tashima, believes that the factual basis was necessary and it did not exist in the case. But Tashima's reasoning means that, on the issue on which the "majority opinion" rested its conclusion, there were actually two judges who came to a different conclusion. Wacky!* Inconceivable!**
*Always had an affection for the word wacky.
**On the other hand, that word's a little played out (at least among my generation).
Because this is true, is there any way that Adelman's opinion can be cited for any precedential value when he was the only judge out of the three who came to the conclusion on the issue on which the opinion rested? I guess it becomes less problematic (but more intellectually tangled) if the 2-1 split against Adelman was based on what can arguably be classified as a factual, as opposed to a legal, issue.
But even so, why is Adelman's opinion the "majority opinion," not Silverman's? Is it because he consistently uses the word "we"? Because it's longer and more formal? Seriously, what makes it a majority opinion? No other judge joined the reasoning in the opinion.
Or am I wrong for even calling it the "majority opinion" at all? Although it is published that way, isn't it really just two concurring opinions joining in a shared result?
But let's just say that I am missing here and there is some official reason why Adelman's opinion must be considered the "majority opinion"? Accepting that as true, how in the hell does someone cite it? Doesn't there need to be a parenthetical saying that it's just like nohing more than a plurality opinion? And what is the worth of a circuit court plurality opinion?
I am sure something like this has happened before. Oh wait, Judge Silverman talks about that:
Chief Judge Kozinski recently designated a separate opinion of his, not as a dissent or a partial concurrence, but as a “disagree[ment] with everyone.” Garfias-Rodriguez v. Holder, — F.3d —, 2012 WL 5077137 (9th Cir. October 19, 2012). I chuckled at the time, but not any more. I now find myself in the position of agreeing with the result reached by Judge Adelman affirming the denial of a writ of habeas corpus, but only with the result; agreeing with the portion of Judge Tashima’s dissent demonstrating the constitutional requirement of a factual basis to support a People v. West type no contest plea; but ultimately disagreeing with Judge Tashima about whether there was, indeed, a factual basis in this case for second degree murder under California law.
I enjoyed reading that paragraph. But it's not enlightening as to what to do with this type of opinion.
So, what is the real opinion here? At bottom, I guess it can be summed up in two words: habeas denied.
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