Impeaching a Former President Is Plainly Constitutional

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan argues that the text of the Constitution makes clear that Congress has the power to impeach and convict Donald Trump, even though he is no longer President. Buchanan describes the unambiguous textual support for this conclusion, which Buchanan (and others) argue is also amply supported by the Constitution’s purpose, structure, and other interpretive approaches.

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Marriage of Carlisle

Docket: C084891(Third Appellate District)

Opinion Date: January 28, 2021

Judge: Murray

Areas of Law: Civil Procedure, Family Law

In April 2015, during marriage dissolution proceedings, plaintiff filed a request for a domestic violence restraining order (DVRO) against defendant, her then-husband. The trial court granted a two-year DVRO. Defendant appealed. While that appeal remained pending, a little more than a month before the original DVRO was set to expire, plaintiff filed a request to renew the DVRO. After a hearing, the trial court granted plaintiff’s request, renewing the DVRO for five years. In an unpublished opinion, the Court of Appeal affirmed the issuance of the original DVRO. Defendant, an attorney appearing in propria persona, appealed the grant of the renewed DVRO, asserting that: (1) the trial court lacked jurisdiction to renew the DVRO while the appeal from the granting of the original DVRO remained pending; (2) the trial court erred in rendering its decision without reading the pleadings; (3) the trial court erred in excluding the witnesses and exhibits he offered; (4) the trial court erred in rendering its decision without considering the case law in the pleadings; (5) the trial court did not afford him sufficient time to present his defense; and, (6) in effect, substantial evidence did not support renewal of the DVRO. Finding no reversible error, the Court of Appeal affirmed the renewed DVRO.

People v. Montelongo

Docket: B294095S(Second Appellate District)

Opinion Date: January 28, 2021

Judge: Segal

Areas of Law: Criminal Law, Juvenile Law

Defendant, when he was 18 years old, stabbed and killed a 15-year-old boy while trying to take his backpack and bag containing football gear. Defendant was convicted of robbery and felony murder with a special circumstance finding under Penal Code section 190.2, subdivision (a)(17), which mandates a sentence of death or life in prison without the possibility of parole. The trial court sentenced defendant to life in prison without the possibility of parole, plus one year for using a deadly or dangerous weapon. The Court of Appeal affirmed defendant's sentence, concluding that the felony murder special circumstance statute is not unconstitutionally vague as applied to defendant. In this case, defendant had notice of the conduct proscribed by section 190.2 and does not claim discriminatory prosecution. The court also concluded that defendant's sentence is not cruel and unusual under the Eighth Amendment; defendant forfeited his right to challenge the restitution fine and assessments; and the trial court's sentencing minute order and the abstract of judgment must be corrected.

City of Duarte v. State Water Resources Control Bd.

Docket: G058539(Fourth Appellate District)

Opinion Date: January 28, 2021

Judge: Richard D. Fybel

Areas of Law: Environmental Law, Government & Administrative Law

This appeal centered on a permit issued by state and local water control boards that required 86 Southern California municipalities to reduce or prevent pollutants discharged through storm sewer systems by meeting numeric effluent limitations. The trial court found that, because the permit obligated the municipalities to meet more stringent standards than required by federal law, the water boards had to consider the factors identified in California Water Code section 13421, including but not limited to economic considerations, before issuing the permit. The trial court also found that the water boards had not sufficiently considered the section 13241 factors, and invalidated the portions of the permit that imposed the numeric effluent limitations. As to those factors, the Court of Appeal held that, under the applicable standard of review, and giving appropriate consideration to the state and local water boards’ expertise and discretion in the interpretation of the statute, the permit’s numeric effluent limitations had to be upheld. The Court published its opinion because it believed it was important to provide an example of the level of consideration of the factors that was sufficient - especially the economic considerations factor that was not defined by section 13241. The Court's analysis of the issues under consideration by the water boards lead it to conclude their consideration of the relevant factors was sufficient.

In re Brianna S.

Docket: B301802(Second Appellate District)

Opinion Date: January 28, 2021

Judge: Brian M. Hoffstadt

Areas of Law: Family Law

After a juvenile court places a child who has been declared a dependent with a relative and declares the relative to be a "de facto parent," when the social services agency later seeks to remove the child from the relative, Welfare and Institutions Code section 387 governs. Section 387 authorizes a juvenile court to "chang[e] or modif[y] a previous [placement] order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing” a different placement. Although the juvenile court followed the incorrect procedures in this case, the Court of Appeal affirmed the removal orders because the error was not prejudicial. The court explained that the juvenile court's error in evaluating the Department's request under section 385 rather than section 387 was not prejudicial for two reasons. First, the Department's initial decision to follow all of the section 387 procedures up until its last-minute change of mind means that grandmother was effectively accorded all of the process she was due under section 387. Second, the juvenile court's modification order is supported by substantial evidence.

Flores v. Liu

Docket: B301731(Second Appellate District)

Opinion Date: January 28, 2021

Judge: Brian M. Hoffstadt

Areas of Law: Medical Malpractice, Personal Injury

After a surgeon competently performed a gastric re-sleeving surgery on plaintiff, she filed suit against him for negligence in recommending gastric re-sleeve surgery as a viable course of treatment and in not obtaining her informed consent to the surgery. The Court of Appeal held that a physician may be liable for negligently recommending a course of treatment if (1) that course stems from a misdiagnosis of the patient's underlying medical condition, or (2) all reasonable physicians in the relevant medical community would agree that the probable risks of that treatment outweigh its probable benefits. The court also held that a patient's informed consent to a negligently recommended course of treatment does not negate the physician's liability for his negligence in recommending it. In this case, although the trial court erred by instructing the jury that plaintiff's informed consent negated any liability for the surgeon's recommendation, the court concluded that this error did not prejudice her case because her negligent recommendation theory should never have gone to the jury in the first place. In this case, the evidence, viewed in the light most favorable to plaintiff, does not support the conclusion that the surgeon was negligent in recommending that plaintiff undergo the gastric re-sleeve surgery where she suffered from morbid obesity. Accordingly, the court affirmed the judgment.