September 5, 2008
Amendment to California Bar Act Retroactive
This is an interesting retroactivity case. Although disbarred lawyers had long been responsible for paying the costs of disbarment, a 2003 amendment to the state bar act created a specific enforcement mechanism, rather than leaving it the disbarred lawyer to voluntarily pay. A lawyer was disbarred and at that time there was no enforcement mechanism in place, but six months later the statute was amended to create it. The bar sought to use the mechanism, and the disbarred lawyer argued the enforcement mechanism could not be used against him, as it was not intended to operate retroactively and its retroactive application would violate the law. Gadda v. St. B. of Cal., 511 F.3d 933 (9th Cir. 2007). It's an interesting read, particularly because the text did not indicate retroactivity but the court immediately went to the legislative history, which clearly stated that it was intended to apply to pending cases. It then quickly rejected the ex post facto and due process challenges.
September 4, 2008
Interesting split on sentencing guidelines as ex post facto laws in U.S. v. Andrews, __ F.3d __ (D.C. Cir. 2008), with one judge concurring.
[I]n... United States v. Booker, the Supreme Court held that the Sentencing Guidelines must now be regarded as advisory rather than mandatory. This circuit has not yet determined whether, after Booker, application of a later (than the date-of-offense) Guidelines Manual that yields a higher sentence continues to raise an ex post facto problem. Nor has the Supreme Court. The Seventh Circuit has concluded that use of a later Manual no longer presents such a problem, holding that "the ex post facto clause should apply only to laws and regulations that bind rather than advise." United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006). Some other courts have indicated their agreement. See United States v. Mathis, 239 Fed.Appx. 513, 517 n. 2 (11th Cir.2007); United States v. Barton, 455 F.3d 649, 655 n. 4 (6th Cir.2006); see also United States v. Rodarte-Vasquez, 488 F.3d 316, 325 (5th Cir.2007) (Jones, C.J., concurring). The Eighth Circuit, however, disagrees. See United States v. Carter, 490 F.3d 641, 643 (8th Cir.2007). And several other circuits also appear to regard the ex post facto analysis as unchanged, continuing to apply Guidelines § 1B1.11(b)(1) in the same way they did before Booker. See United States v. Gilman, 478 F.3d 440, 449 (1st Cir.2007); United States v. Wood, 486 F.3d 781, 791 (3d Cir.2007); United States v. Austin, 479 F.3d 363, 367 (5th Cir.2007); United States v. Stevens, 462 F.3d 1169, 1170 (9th Cir.2006).
We do not need to decide which side of that circuit split we would join in order to resolve this case. “Even assuming the district court erred, ... absent an opinion by this circuit or the Supreme Court on the issue in dispute, there is no plain error unless [the] district court failed to follow [an] ‘absolutely clear’ legal norm....” United States v. Vizcaino, 202 F.3d 345, 348 (D.C.Cir.2000) (quoting United States v. Merlos, 8 F.3d 48, 51 (D.C.Cir.1993)). And there is no such absolutely clear norm here.
One judge concurred, essentially stating that the ex post facto need not have been reached because of other grounds.