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JUSTICE GETS HIS POINT ACROSS, CAREFULLY EDITED Third District Court of Appeal Justice Richard Sims III of Sacramento might have felt a double-barreled prosecution of a sex offender was chicken shit, but he figuratively bit his tongue rather than come right out and say it. Justices Arthur Scotland and Fred Morrison had vexed Sims by ruling on March 18 that registered sex offender Michael Britt — who had relocated from Sacramento County to El Dorado County — could be prosecuted in both counties for failing to notify authorities about the move within five working days, as required by law. The court said Sacramento could prosecute for failure to notify about his departure, while El Dorado could prosecute for failure to register upon arrival. That infuriated Sims, who argued in a dissent that Penal Code � 654 prohibits letting a criminal defendant be punished more than once for a single act or course of criminal conduct. “I think that multiple prosecution and multiple punishment for these two registration offenses is chicken,” Sims wrote. “In ordinary parlance, I would use a slightly different word than ‘chicken,’ but, after all, this is an opinion.” Sims needn’t worry. He got his message across anyway. The case is People v. Britt, 03 C.D.O.S. 2423. — Mike McKee GO-TO GUY SACRAMENTO — McGeorge School of Law professor J. Clark Kelso is getting a knack for pinch-hitting for the state. Last week, Gov. Gray Davis picked Kelso to be interim head of the Department of General Services, the state procurement agency that has lacked permanent leadership since the Oracle flap. It’s the second time Davis has called on Kelso after a political crisis. From July to September 2000, Kelso served as acting insurance commissioner after Chuck Quackenbush resigned. DGS director Barry Keene quit last year after investigators questioned a $95 million deal between the state and Oracle Corp., which had contributed thousands of dollars to Davis’ re-election campaign. Since then, DGS has been headed by Clothilde Hewlett, former undersecretary of the State and Consumer Services Agency. Hewlett got a job with Preston, Gates & Ellis in San Francisco. Kelso said he does not plan to become permanent head of DGS. The appointment came on the heels of Kelso’s bid to become president of California State University, Sacramento. Earlier this month, the CSU board of trustees announced it had picked CSU San Marcos President Alexander Gonzalez over Kelso. Kelso will continue to serve as the state’s chief information officer, a job Davis appointed him to in the fall. He is also director of the Capital Center for Government Law and Policy at McGeorge. Kelso, who earned his degree at Columbia Law School, has also served as chair of the California Earthquake Authority and is a special adviser to the Judicial Council. He also occasionally advises Attorney General Bill Lockyer. Kelso will not get a salary as DGS head. Rather, he will continue to receive the pay he gets as information officer, $71,424 a year. — Jeff Chorney STREAMLINING INS Marc Van Der Hout wanted them to reach the question, but they didn’t — and consequently, one of the more anticipated opinions in immigration law fizzled. Last week, three judges on the Ninth Circuit U.S. Court of Appeals decided in Cedano-Viera v. Ashcroft, 03 C.D.O.S. 2628, that it could not pass judgment on the Immigration and Naturalization Service’s streamlined appellate procedures, which have been the subject of much criticism. Under those procedures, one appellate judge can review the determination of a lower judge and approve it, without comment. The procedures have been implemented under Attorney General John Ashcroft to help clear the Board of Immigration Appeals’ crushing backlog, and some federal appellate judges are grumbling that the Justice Department is transferring its caseload to them. Van Der Hout represented Juan Encarnacion Cedano-Viera, a Mexican immigrant who argued that his due process rights were violated by the BIA streamlining procedures. Cedano-Viera was convicted of lewd conduct with a minor, a felony that is cause for ejection from the U.S. under INS rules. But since it determined that Cedano-Viera is removable, the court did not reach the constitutional due process question. Appellate courts only have jurisdiction to determine whether they have jurisdiction — that is, to make sure as a matter of law that an alien’s conviction qualifies as an aggravated felony and therefore they cannot reach the constitutional question, a unanimous panel held. “We have jurisdiction to decide whether the alien is removable as an aggravated felon in order to resolve this question. If we conclude that the alien was convicted of an offense that qualifies as an aggravated felony under [federal law], then the court of appeals has no jurisdiction to review constitutional claims,” Judge Pamela Rymer wrote. Van Der Hout said the court may address the issue in May, when another case raising the same issue is scheduled for oral argument. — Jason Hoppin

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