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ILLEGAL VOTER CATCHES BREAK — ALLOWED TO STAY IN THE U.S. Ignorance, we all know, is no excuse for breaking the law — except when it is. So ruled the Ninth Circuit U.S. Court of Appeals last week in the case of Ellen Valle McDonald, an immigrant from the Philippines who mistakenly voted in U.S. elections in Hawaii, even though she wasn’t a citizen. McDonald came to the United States in 1994. She married an American citizen, had a child, and in 1997 began the process to become a naturalized U.S. citizen. In an interview with an immigration agent, though, she admitted to casting ballots in the 1996 primary and general elections. She claimed she thought it was OK for her to vote after being asked to register when she obtained a driver’s license. After her admission — she was never convicted of illegally voting — the Department of Justice responded by trying to deport her based on a 1996 change to immigration law that made such an offense grounds for deportation. Her appeals were rejected by an immigration judge and the Board of Immigration Appeals. But now the Ninth Circuit has intervened, clearing the way for her to become a citizen. According to McDonald’s attorney, Stuart Folinsky, of counsel at Los Angeles’ Youngok S. Kim & Associates, the case is the first in the Ninth Circuit to explore the 1996 change in immigration law. Although the unanimous Ninth Circuit panel did not reach the issue of whether deportation requires an actual conviction, Folinsky said the decision is “truly a case of first impression” that creates new case law. For Judge Michael Daly Hawkins and Senior Judges Warren Ferguson and John Noonan, the matter hinged on the word “knowingly,” which appears in the Hawaii state statute that makes it illegal for aliens to vote. Immigration authorities used the statute as grounds for deportation. But the Ninth Circuit panel called the immigration judge’s analysis that McDonald knew what she was doing was wrong “critically flawed.” “The [immigration judge] did not find that McDonald was aware that she was ineligible to vote, only that she should have made herself aware. This does not a violation make,” Hawkins wrote for the majority. The case is McDonald v. Gonzales, 05 C.D.O.S. 1810. Jeff Chorney BRING IN THE EXTRA CHAIRS The Ninth Circuit may need to move en banc arguments to an auditorium, if an Idaho congressman gets his way. Rep. Mike Simpson introduced a bill Wednesday that would force the Ninth Circuit’s entire roster of active judges — 28 when the bench is full — to hear en banc appeals. The court currently has 11 judges hear a case en banc. That puts it in stark contrast to the country’s other circuits, where all active judges sit for those re-hearings. But none of the other regional appellate courts approaches the Ninth Circuit’s size. The second-biggest is the Fifth Circuit, with 17 judicial seats. Simpson, a Republican, is also a proponent of splitting the Ninth Circuit into smaller pieces. “All these different efforts we’re doing are trying to make the Ninth Circuit more like other circuits,” he said. Republicans in the House of Representatives passed a plan to split the circuit in the fall, tying it to a Senate measure that would have created 58 new judgeships around the country. That measure was blocked in the Senate Judiciary Committee by California Democratic Sen. Dianne Feinstein — she wants new judges but chastised Republicans for slipping the breakup controversy into the package. Since then, Simpson has introduced two more bills that would carve the Ninth Circuit into two or three pieces. Ironically, the en banc bill he proposed last week almost mimics a 1999 move by Feinstein to get bigger en banc panels in the Ninth Circuit. However, the bill she introduced would have required just a majority of the active judges to take part, not all of them. Simpson said his en banc bill is, in part, an attempt to highlight what he sees as one of the most persuasive arguments for splitting up the Ninth. As it stands now, “they pull � names out of the hat” and a majority of six can decide, he said. “It’s a luck-of-the-draw sort of thing.” If he still can’t persuade enough legislators to split the circuit, he added, bigger en banc panels are the next best thing. Asked if he could imagine arguing in front of 28 judges at once, he answered with a laugh, “No, I can’t.” — Pam Smith JUDGE TELLS LAWYERS TO COOL IT For a trial that boils down to a blow, the civil case against former Oakland Raiders linebacker Bill Romanowski is providing plenty of punch of its own. Several loud exchanges dotted the second day of trial, including a moment that led Romanowski’s Denver attorney, Jeffrey Springer, to tell the judge that the plaintiff’s attorney, James Brosnahan, made him “fearful.” Well, that’s what he said, anyway. Former Raiders tight end Marcus Williams is suing Romanowski for damages stemming from an Aug. 24, 2003 practice-field punch that broke his eye socket, allegedly caused brain damage and ultimately ended his career. Springer had Williams’ psychiatrist under cross-examination when he asked whether Williams’ marijuana use could have injured his brain. The good doctor said he never saw evidence that it could. Under redirect, Brosnahan walked slowly to Springer’s chair, grabbed it and leaned over his opponent. “So the statement by counsel that it was habitual has no legal merit!” he shouted. With the jury excused for the day, Springer complained to Alameda County Superior Court Judge Cecilia Castellanos. Brosnahan “came over to me and personalized the attack,” he said. “He directed his comments at me personally.” Castellanos told both attorneys not to go to each other’s table for the rest of the trial. “You need to respect each other’s physical space,” she said. She then scolded Brosnahan for telling the jury he “lived through the ’60s,” smelled but didn’t smoke marijuana and felt better when he did. Though the incident drew hearty chuckles from the jury, it was too personal, the judge said. “Everybody laughed, except for Mr. Springer,” Brosnahan said. “An attorney is not supposed to inject himself,” Castellanos said. “It was a bit over the top.” — Warren Lutz

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