December 12, 2017

“Chief justice bemoans state Supreme Court vacancy” [Updated]

Chief Justice Tani Cantil-Sakauye spoke to the media yesterday about more than just her #MeToo moments.  Today’s Daily Journal [subscription] reports that she also said she’s anxious for Governor Jerry Brown to fill the Supreme Court’s “lengthy vacancy” (see here and here), which she claims has hampered the court.  Confirming something we’ve speculated about, the article quotes the Chief Justice, “‘It’s difficult to operate without a seventh justice,’ said Cantil-Sakauye, who said some cases are stuck due to 3-3 ties.”

Additionally, the Chief Justice commented again about federal immigration agents making arrests in state courts, an issue for which she has gained national attention since she wrote a letter to the administration accusing agents of “stalking undocumented immigrants in our courthouses.”  (See also here and here.)  She said she is “still hearing about ICE enforcement in courthouses.”

[Updates:

From Bob Egelko’s story in the San Francisco Chronicle about the Chief Justice’s meeting with the press:  “‘It’s difficult to operate without a seventh justice,’ the chief justice said.  She said the court has had to divide [retired Justice Kathryn] Werdegar’s former workload among its remaining justices, has found itself deadlocked on some cases, and has had to call on a succession of appellate court justices, chosen at random, to occupy the seventh seat at hearings for the past four months.”

California Chief Justice Expects More Death Penalty Lawsuits” on Capitol Public Radio, including brief audio of the Chief Justice during the meeting, in which the Chief Justice suggests that there will be more litigation before the Supreme Court about Proposition 66.

Related — Justice Werdegar’s retirement; method for selecting Court of Appeal justices; Proposition 66.]

December 11, 2017

“California’s chief justice has had her own #MeToo moments”

The Los Angeles Times’ Maura Dolan reports about Chief Justice Tani Cantil-Sakauye’s meeting today with reporters.  “Cantil-Sakauye, a former prosecutor, trial court judge and state appellate justice, suggested she may have suffered more serious gender discrimination than being called ‘honey’ and ‘sugar’ but declined to discuss it.  ‘I’ve had a few “me-toos” in the past, but I’m not telling them, at least not on the record,’ said Cantil-Sakauye.”

The article also states that the Chief Justice “confirmed that a state appellate justice who resigned Oct. 31 [Sixth District Court of Appeal Presiding Justice Conrad Rushing] had been under investigation for improprieties.”  (See last week’s San Jose Mercury News report about Rushing here.)

December 11, 2017

Supreme Court affirms death penalty for execution-style murder following liquor store robbery

The defendant in People v. Rices pleaded guilty to murdering an El Cajon liquor store owner and employee after robbing the store.  He also admitted to special circumstances that made him eligible for a death sentence, which a jury recommended and the Supreme Court today unanimously affirms.  The court’s opinion by Justice Ming Chin recounts some unusual counsel issues — defendant’s appointed lead counsel apparently misrepresented his qualifications to handle death penalty cases and another lawyer, appointed to be an advisory counsel concerning the defendant’s desire to keep the lead counsel, had spoken with a potential witness against the defendant — but finds no prejudicial error.  As with other direct automatic appeals in which the court has no choice but to address all arguments a defendant makes, the court finds against the defendant on numerous additional issues as well, including finding to be harmless error an ex parte communication between the trial judge and the jury during deliberations.

December 11, 2017

Incompetent criminal defendant can be rearrested and recommitted

In Jackson v. Superior Court, the Supreme Court today gives district attorneys some additional flexibility — but not a lot — in dealing with a criminal defendant who is incompetent to stand trial and who has been involuntarily committed to determine whether he or she is likely to regain competence.  The court’s unanimous opinion by Justice Goodwin Liu holds that, after release from commitment, the defendant can be arrested under refiled charges and recommitted.  However, “the court is not permitted to ignore the fact that the defendant has already been committed” — the first and second commitments combined cannot exceed three years, which is the maximum commitment period allowed by statute.  When that time is up, the defendant must be placed under a conservatorship or released.  So, if a defendant’s first commitment already maxed out the commitment time, “the trial court’s options would be limited to initiating . . . conservatorship proceedings or again ordering the defendant released.”

The court affirms the Fourth District, Division Two, Court of Appeal.

December 9, 2017

Solicitor General recommends against SCOTUS review of California Supreme Court gold mining opinion

Over 15 months ago, the California Supreme Court — in People v. Rinehartheld that California’s temporary ban on a particular method of gold mining pending adoption of suitable regulations is not preempted by federal law, including the Mining Law of 1872.  When the defendant petitioned the US Supreme Court for certiorari, that court invited the Acting Solicitor General to let the justices know the United States’ views about the case.  Earlier this week, and seven months after the invitation, the Solicitor General said the Court should deny certiorari.

The California Supreme Court said in Rinehart that it was “part[ing] company” with a 1998 Eighth Circuit decision.  But the Solicitor General says the two opinions do not conflict, even though he admits “the California Supreme Court rejected aspects of the Eighth Circuit’s reasoning.”

December 8, 2017

No conference held the week of December 4, 2017

The Court held no conference this week because it heard oral argument in Los Angeles. Accordingly, no action was taken on petitions for review and no opinions were ordered published or depublished.

December 8, 2017

Supreme Court announces January calendar — fifth consecutive with a vacancy

Yesterday, the 274th day since Justice Kathryn Werdegar announced her retirement, the Supreme Court released its January calendar.  There will be eight more pro tem justices, necessitated by Governor Jerry Brown not having appointed Werdegar’s replacement yet.  (Using a mostly alphabetical selection system, only half of the January pro tem justices have been assigned at this point.)

It will be the fifth month in a row that the court has had to call on Court of Appeal justices to fill in.  By comparison, there were seven calendars with pro tems before Governor Brown named Justice Leondra Kruger in 2014 to fill retiring Justice Joyce Kennard’s seat, although Justice Kennard gave shorter notice of her retirement than did Justice Werdegar.

On January 3 and 4, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Regents of the University of California v. Superior Court:  Do California public institutions of higher education and their employees have a duty of care to their students while in the classroom to warn them of and protect them from foreseeable acts of violence by fellow students?  The court granted review in January 2016.  (The pro tem justice has not yet been assigned for this case.)

Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism:  (1) May a motion to strike under the anti-SLAPP statute be brought against any claim in an amended complaint, including claims that were asserted in prior complaints?  (2) Can inconsistent claims survive an anti-SLAPP motion if evidence is presented to negate one of the claims?  The court granted review just eight months ago.  (Third District Court of Appeal Presiding Justice Vance Raye is the pro tem.  He was originally assigned as a pro tem on a December calendar case, but a colleague replaced him.)

People v. Buza:  Does the compulsory collection of a biological sample from all adult felony arrestees for purposes of DNA testing (Pen. Code, §§ 296, subd. (a)(2)(C); 296.1, subd. (a)(1)(A)) violate the Fourth Amendment to the United States Constitution or article I, section 13, of the California Constitution?  (Second District, Division Seven, Court of Appeal Presiding Justice Dennis Perluss is the pro tem.)
The court granted review nearly three years ago.  Actually, the court initially granted review in the case more than six years ago.  There is a complicated procedural story behind Buza and a related case, People v. Lowe, in which the court granted review more than three-and-a-half years ago and which has been fully briefed without argument since March 2015.
Additionally of interest, there are numerous amicus curiae briefs in Buza, including one by former Justice Joseph Grodin.

People v. DeHoyos:  Does the Safe Neighborhood and Schools Act [Proposition 47] (Gen. Elec. (Nov. 4, 2014)), which made specified crimes misdemeanors rather than felonies, apply retroactively to a defendant who was sentenced before the Act’s effective date but whose judgment was not final until after that date?  What is the significance, if any, of the decision in People v. Conley (2016) 63 Cal.4th 646 on the issues in this case?  The court granted review in September 2015, and added the question about Conley in January of this year.  (First District, Division Five, Court of Appeal Justice Henry Needham, Jr., is the pro tem.)

In re Figueroa:  In this capital habeas corpus case, the court issued an order to show cause why petitioner is not entitled to relief because (1) material false evidence was admitted at the guilt phase of his trial, and (2) trial counsel rendered ineffective assistance.  The order to show cause was issued in September 2014, but briefing wasn’t completed until March of this year.  (The pro tem justice has not yet been assigned for this case.)
As with Buza, there’s interesting history on this case.  The original habeas corpus petition was filed over 15 years ago.  Four years later, however, the court granted leave to file an amended petition “as necessary as a result of the allegedly fraudulent work product of Habeas Corpus Resource Center (HCRC) Investigator Kathleen Culhane.”  Culhane was sentenced in 2007 to five years in prison for forgery, perjury, and filing false documents in multiple death penalty habeas cases, and, according to the Los Angeles Times, was unrepentant, saying that capital punishment is “a brutal legacy of lynching” and that “I cannot have remorse for a government that kills at midnight and invests millions of dollars in the process.”

People v. Daveggio and Michaud:  This is an automatic direct appeal from a September 2002 judgment of death.  The court’s website does not list issues for such appeals.  (First District, Division Three, Court of Appeal Justice Stuart Pollak is the pro tem.)

People v. Martinez:  Could defendant use a petition for recall of sentence under Penal Code section 1170.18 to request the trial court to reduce his prior felony conviction for transportation of a controlled substance to a misdemeanor in light of the amendment to Health and Safety Code section 11379 effected by Proposition 47?  The court granted review in March 2016.  (The pro tem justice has not yet been assigned for this case.)

In re Butler:  Should the Board of Parole Hearings be relieved of its obligations arising from a 2013 settlement to continue calculating base terms for life prisoners and to promulgate regulations for doing so in light of the 2016 statutory reforms to the parole suitability and release date scheme for life prisoners, which now mandate release on parole upon a finding of parole suitability?  The court granted review 13 months ago.  (The pro tem justice has not yet been assigned for this case.)

December 8, 2017

Death penalty, criminal competency opinions filing Monday

On Monday morning, the Supreme Court will file opinions in Jackson v. Superior Court and People v. Rices.  (Briefs here; oral argument videos here and here.)  These are the first opinions for cases argued on the October calendar.

Jackson involves the issue whether, after an incompetent defendant has reached the maximum three-year commitment provided for by law, the prosecution can initiate a new competency proceeding by obtaining dismissal of the original complaint and proceeding on a new charging document.  (First District, Division Three, Court of Appeal Presiding Justice William McGuiness is the pro tem.)

Rices is an automatic direct appeal from an August 2009 judgment of death.  (Fourth District, Division One, Justice Gilbert Nares is the pro tem.)

The two opinions can be viewed Monday starting at 10:00 a.m.

December 7, 2017

Supreme Court affirms death sentence of killer of young daughter and pregnant wife

The Supreme Court today affirms the death penalty in People v. Henriquez for a man who murdered his pregnant wife and 2-year-old daughter.  Among many other things, the court’s unanimous opinion by Justice Leondra Kruger rejects the defendant’s argument that the jury that convicted him was drawn from a jury pool in which African-Americans were unconstitutionally underrepresented.

December 6, 2017

Ninth Circuit denies habeas relief to California death row prisoner

In Rowland v. Chappell, the Ninth Circuit today refuses to grant habeas corpus relief to a prisoner whose 1988 death sentence the California Supreme Court affirmed 25 years ago.  The Supreme Court also denied habeas corpus petitions in 1994 and 1997.

The Ninth Circuit reviewed the Supreme Court’s work under a standard that it describes as “ ‘highly deferential’ ” to state courts and “ ‘difficult [for prisoners] to meet.’ ”  (See here.)  Even under that standard, however, the Supreme Court doesn’t always survive the Ninth Circuit’s scrutiny.

December 6, 2017

Death penalty opinion filing tomorrow

Finishing up its cases from the September calendar, the Supreme Court tomorrow morning will file its opinion in People v. Henriquez.  (Briefs here; oral argument video here.)

Henriquez is an automatic direct appeal from a June 2000 judgment of death.  (Fifth District Court of Appeal Justice Herbert Levy is the pro tem.)

The opinion can be viewed tomorrow starting at 10:00 a.m.

December 4, 2017

After denying review under its old non-grant-and-hold policy, Supreme Court grants habeas corpus relief

Used to be that, instead of granting review and deferring action in a case raising a criminal law issue that was already before it in another matter, the Supreme Court would deny review, forcing the defendant to file a separate habeas corpus petition to take advantage of any favorable decision in the pending case.  The court changed its policy two years ago and now regularly issues grant-and-hold orders in criminal cases as in civil cases.  Today’s decision in In re Martinez is a remnant of the old policy.

The court’s opinion — by Justice Goodwin Liu, for himself and five other justices — grants habeas corpus relief to vacate a first degree murder conviction that was based on the defendant’s aiding and abetting a homicide committed by someone else.  The reversal is required because the jury was improperly instructed it could convict if it found merely that the murder was a “natural and probable consequence” of the defendant’s conduct and because the court cannot conclude beyond a reasonable doubt that the jury relied on a different, legally valid theory.

The defendant raised the instructional error issue on his direct appeal, but he lost.  When he petitioned the Supreme Court for review, the “natural and probable consequence” issue was before the court in another case, but that was before the grant-and-hold policy change, so the court denied review, albeit “without prejudice to any relief to which defendant . . . might be entitled after this court decides” the other case.  Later, the court held in the other case — People v. Chiu (2014) 59 Cal.4th 155 — that a natural and probable consequences theory cannot be a basis for first degree murder.

Justice Leondra Kruger writes a separate concurring opinion to advocate for overruling 1942 and 1966 Supreme Court opinions regarding the standard of review in habeas corpus cases.

The court reverses the Fourth District, Division One, Court of Appeal.

December 4, 2017

Triple water rates might need to be approved by voters

In City of San Buenaventura v. United Water Conservation, the Supreme Court today holds a water conservation district’s groundwater pumping charge, which, as required by statute, is three times higher for non-agricultural use as it is for agricultural use, might trigger a state constitutional provision that would require voter approval of the charge.  [Disclosure:  Horvitz & Levy filed an amicus brief in this case.]

The court’s opinion — by Justice Leondra Kruger, for herself and five other justices — concludes that the charge doesn’t fall under a constitutional provision prohibiting a charge for a “property related service” from exceeding “the proportional cost” of the service that is “attributable to the parcel” on which the charge is imposed.  The court does, however, find applicable another provision, which, like the first, was adopted by initiative.  That one requires voter approval for local government charges, except those charges that are limited to reasonable costs of providing a special benefit or service and that bear a “fair or reasonable” relationship to the benefit to the payor of, or the payor’s burden on, the government activity.  The court remands the case to the Court of Appeal to determine the fair-or-reasonable-relationship issue regarding this particular charge.

Justice Goodwin Liu writes a brief concurring opinion.  He says that the court should directly address whether the statutorily required triple rate for non-agricultural use survives the adoption of the constitutional provisions at issue.  Justice Liu concludes it does not.

The court affirms in part and reverses in part the Second District, Division Six, Court of Appeal.  It disapproves 2007 and 2013 decisions by the Sixth District.

December 2, 2017

Summary of November 29, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on November 29, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Montrose Chemical Corporation of California v. Superior Court, S244737 – Review Granted – November 29, 2017

In a published decision, Montrose Chemical Corporation of California v. Superior Court (2017) 14 Cal.App.5th 1306, the Court of Appeal, Second District, Division Three, granted in part and denied in part a petition for peremptory writ of mandate.  The trial court had granted a declaratory judgment that an insured corporation could not “electively stack” excess insurance policies—in other words, access any excess policy issued in any policy year as long as the lower-lying policies for the same policy year had been exhausted—but it could “horizontally stack” the policies—thus accessing higher-level excess policies only when lower-level policies had been exhausted for all policy years.  While the Court of Appeal agreed that elective stacking was inconsistent with the policies of at least some of the excess policies at issue and not compelled by California Supreme Court authority, it decided that the insured corporation need not horizontally exhaust the lower-lying policies at each coverage level and for each year before higher-level policies could be accessed.  Rather, the court determined that the sequence in which the policies could be accessed must be decided on a policy-by-policy basis, taking into account the relevant provisions of each policy.

This case presents the following issue: When continuous property damage occurs during several periods for which an insured purchased multiple layers of excess insurance, does the rule of “horizontal exhaustion” require the insured to exhaust excess insurance at lower levels for all periods before obtaining coverage from higher level excess insurance in any period?

OTO, L.L.C. v. Kho, S244630 – Review Granted – November 29, 2017

In a published decision, OTO, L.L.C. v. Kho (017) 14 Cal.App.5th 691, the Court of Appeal, First District, Division One, reversed the trial court’s denial of an employer’s petition to compel arbitration of an employee’s claim for unpaid wages, concluding that the arbitration proceeding outlined by the arbitration agreement satisfied the requirements of affordability and accessibility under Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109 (Sonic II) because the employer would pay the costs of arbitration and the proceeding would resemble civil litigation. Thus, although the employer’s arbitration agreement waived the various advantageous provisions of the Labor Code governing the litigation of a wage claim—specifically, a Berman hearing pursuant to Labor Code section 98— the agreement was not substantively unconscionable and was enforceable.

The questions presented are: (1) Was the arbitration remedy at issue in this case sufficiently “affordable and accessible” within the meaning of Sonic II to require the company’s employees to forego the right to an administrative Berman hearing on wage claims? (2) Did the employer waive its right to bypass the Berman hearing by waiting until the morning of that hearing, serving a demand for arbitration, and refusing to participate in the hearing?

Stoetzl v. State of California, S244751 – Review Granted – November 29, 2017

In a published decision, Stoetzl v. State (2017) 14 Cal.App.5th 1256, the Court of Appeal, First District, Division Four, affirmed in part a judgment that the federal standard for determining what constituted compensable “hours worked” governed a coordinated class action by current and former employees.  The Court of Appeal affirmed the judgment as to the subclass of represented employees because the parties had agreed to a memorandum of understanding (MOU) unambiguously providing that employees were working under the federal Fair Labor Standards Act (FLSA) and the Legislature approved and enacted the MOU into law.  However, the court reversed with regard to the subclass of unrepresented employees, holding that California law applied because the employees’ pay scale manual, which contained language from the FLSA, was not a legislative enactment and was superseded by the California Industrial Wage Commission’s Wage Order No. 4.

This case includes the following issue: Does the definition of “hours worked” found in the Industrial Wage Commission’s Wage Order No. 4, as opposed to the definition of that term found in the federal FLSA, constitute the controlling legal standard for determining the compensability of time that correctional employees spend after signing in for duty and before signing out, but before they arrive at and after they leave their actual work posts within a correctional facility?

Review Denied (with dissenting justices)

None.

Depublished

None.

December 2, 2017

Water rate, aider-and-abettor opinions filing Monday

On Monday morning, the Supreme Court will file opinions in City of San Buenaventura v. United Water Conservation and In re Martinez.  (Briefs here; oral argument videos here and here.)  After Monday, there will be just one case without an opinion from the September calendar, and Monday is the last regular filing day within the 90-day period for City of San Buenaventura and Martinez.

In City of San Buenaventura, the court will answer these questions:  (1) Do the District’s ground water pumping charges violate Proposition 218 or Proposition 26?  (2) Does the rate ratio mandated by Water Code section 75594 violate Proposition 218 or Proposition 26?  (Fourth District, Division One, Court of Appeal Justice Joan Irion is the pro tem.)  [Disclosure:  Horvitz & Levy filed an amicus brief in this case.]

Martinez will decide whether petitioner is entitled to relief under People v. Chiu (2014) 59 Cal.4th 155.  (Second District, Division One, Court of Appeal Justice Jeffrey Johnson is the pro tem.)

The issue involved in Martinez has divided the court before.  Chiu concerned “aider and abettor” culpability under the “natural and probable consequences” doctrine.  The court split 4-3 in that case.  Also, one of Justice Goodwin Liu’s separate statements dissenting from the denial of review was in a case involving the “natural and probable consequences” doctrine.  (The separate statement drew the attention of the Legislature.)  However, it’s possible that the Martinez opinion will avoid the fault lines between the justices.

The two opinions can be viewed Monday starting at 10:00 a.m.

November 30, 2017

Gas tax initiative case to the Supreme Court

The proponent of an initiative to repeal or amend various portions of the law that recently increased California gasoline taxes asked the Supreme Court for help this week.  The proponent — Assemblyman Travis Allen — didn’t like the circulating title and summary that the State’s Attorney General, Xavier Becerra, prepared for the initiative.  He prevailed on a challenge in the superior court, but the Court of Appeal reversed two weeks ago.  Now, he wants the Supreme Court to review the Court of Appeal decision — Becerra v. Superior Court.  Meanwhile, other similar initiatives are in progress.

The Supreme Court regularly interprets initiatives, like it did today, and adjudicates the validity of initiatives, both before and after voters pass them.  Other times, as in Becerra, the court is asked to decide issues regarding the mechanics of putting an initiative on the ballot.

November 30, 2017

Taking a clunker without the owner’s permission might be just a misdemeanor

If you steal a cheap car — one worth $950 or less — it’s a misdemeanor under Proposition 47, the 2014 initiative passed to reduce punishment for certain theft- and drug-related crimes.  And, if you were serving a felony sentence for stealing a cheap car when Proposition 47 took effect, you could be eligible for a sentence reduction.  The Supreme Court today in People v. Page concludes that those principles apply not just to grand theft but also to the crime of taking or driving a vehicle without the owner’s consent if done with the intent to permanently deprive the owner of possession and if not only driving after the theft.  The court’s unanimous opinion by Justice Leondra Kruger holds that the crime is theft of property worth $950 or less, a criteria for possible resentencing under the initiative.

The court says it’s modifying the judgment of the Fourth District, Division Two, Court of Appeal, but the opinion really counts as a reversal.  The Court of Appeal — as did the superior court — found the defendant’s crime could not qualify for resentencing.  The Supreme Court concludes the categorical exclusion of the crime from Proposition 47 was wrong and gives the defendant a chance to establish the stolen car’s value.

The same Court of Appeal is also a winner today, however.  The Supreme Court’s opinion favorably cites and quotes a decision by a different panel of justices of the Fourth District, Division Two, that had later reached the opposite conclusion of the Page Court of Appeal opinion.  (The author of the effectively reversed Page opinion dissented from the opinion that is given props today.)  The later opinion is a grant-and-hold case, on hold for Page itself.  And, yes, that opinion is citeable despite review having been granted.

The court disapproves two other grant-and-hold cases — 2016 opinions from the Third and Fifth Districts.

November 28, 2017

The Supreme Court’s execution protocol might soon be relevant again

Now that Proposition 66 — the initiative to speed up executions in California — has taken effect, albeit with one major exception, there is speculation when the next death sentence will be enforced.  Bob Egelko in the San Francisco Chronicle (“Death penalty foe expects ‘wave’ of California executions“) and Maura Dolan in the Los Angeles Times (“Pace of executions in California may be up to Gov. Jerry Brown“) have recently examined how soon the state might kill a murderer for the first time since 2006.  Because it might not be long, it’s worth looking at the Supreme Court’s unique place in the execution process.

The court’s role in reviewing a death penalty judgment is fairly well known.  It automatically and directly hears appeals from any death sentence.  It also considers post-appeal habeas corpus petitions from death row prisoners, although Proposition 66 now requires those petitions to first be determined by the superior court.  Less familiar is the court’s involvement when an execution is imminent.

Dolan’s article notes that if Governor Brown wants to commute a condemned prisoner’s death sentence, he might need the consent of four Supreme Court justices.  As we’ve noted, that consent is required by the state constitution if the Governor wants to “grant a pardon or commutation to a person twice convicted of a felony.”  (See, recently, here.)

The court’s justices are also on call the day (or night) of a scheduled execution.  In his memoir, former Chief Justice George described the “customary practice” the court followed in the hours before a 1992 execution, when he was a new associate justice:

[T]he seven justices of our court, in accordance with the court’s long-established policy, assembled in the Chief Justice’s chambers, along with a few staff attorneys—usually persons who were tracking the particular case.  We gathered, always, in order to remain immediately accessible in the event our court would be called to rule upon any last-minute stay application filed in the California Supreme Court.  To facilitate this eventuality, in case there was a filing, the execution chamber in San Quentin Prison . . . was equipped with three telephone lines—one to the governor in the event he chose to act on a last-minute application for a reprieve, a second line to our court, and a third line available for communication with the federal courts or other persons.

. . . . . . . . . . . . . . . . .

At 6:07 a.m. our court, through the open phone line that had been hooked up between the execution chamber and the Chief Justice’s chambers, received the inquiry from the associate warden over the hotline that was customary during the course of such a night’s events.  This was always the language that the associate warden would direct to our court as we were seated around the Chief Justice’s conference table.  “Is there any matter now pending before the California Supreme Court that would prevent the execution from going forward?”  Then, again following our customary routine, the clerk of our court glanced at the Chief Justice and then at the other assembled justices, and upon receiving a negative nod of the head from each of us, responded to the associate warden with the word “no.”  The associate warden soon came on the line again and proceeded to give us all—for some reason or other, and I don’t quite know why—a running account over the phone line of each event in the execution protocol as it took place. . . .  Then, after what seemed like a very lengthy period but I believe in Harris’ case was only 14 minutes—during which not a single word was uttered by anyone in the Chief Justice’s chambers—the silence was perforated by the associate warden’s words, “Flat line,” which indicated the medical personnel had verified that the EKG showed no more heartbeat and that the execution of Robert Alton Harris had been carried out at 6:21 a.m.  When that was done, we all got up, went our separate ways, and quietly left to go home and get a bit of sleep as it was getting light outside after a very long night.

. . . . . . . . . . . . . . . . .

Each justice had been furnished with a notebook prepared by the clerk containing contact information for each of the justices and tracking attorneys and clerks in case of unexpected absences or early departures, and also for various federal courts and prosecutorial and defense offices.  There were persons in the clerk’s office who specialized in handling capital cases, including Mary Jameson, a very able person in charge of the unit involved in receiving transcripts, communicating with the attorney general and defense counsel during the course of automatic appeals and writ proceedings, and then setting up the liaison that was involved on execution nights.

. . . . . . . . . . . . . . . . .

Of course, when I became Chief Justice I had to realize that, although there wasn’t that much added responsibility in terms of presiding over this type of late-night conference, it still added a bit more solemnity to it for me, knowing this was a function that I was presiding over, that I had a responsibility for, and that I had to, with a nod of my head, communicate the go-ahead to the clerk, who in turn verbalized it to the associate warden at the other end of the line in the execution chamber.

The protocol might not be exactly the same for the next execution, whenever it might come, but the court will likely soon need to prepare for a ritual it hasn’t engaged in for almost 12 years.

November 27, 2017

Summary of November 21, 2017 conference report for civil cases

In its conference on Tuesday, November 21, 2017, the Court granted no petitions for review in civil cases, no civil petitions were denied with dissenting justices, and no civil opinions were ordered depublished.

November 27, 2017

Farm workers win in two Supreme Court cases

The Supreme Court today hands farm workers and the United Farm Workers of America victories in two unanimous related opinions — Gerawan Farming, Inc. v. Agricultural Labor Relations Board and Tri-Fanucchi Farms v. Agricultural Labor Relations Board.  Both opinions are written by Justice Goodwin Liu.  (Here and here.)

In Gerawan Farming, the court upholds against constitutional attacks a mandatory mediation and conciliation process that the Legislature added in 2002 to the Agricultural Labor Relations Act.  Under the process, if the grower employer and the union reach an impasse, a neutral mediator may resolve disputed terms and submit a proposed contract to the Agricultural Labor Relations Board, which can then impose the contract on the parties.  The Gerawan Farming opinion also rejects the grower’s assertion of a defense that the union had abandoned its employees and had thus forfeited its representative status.  The court concludes, “the Legislature intended to reserve the power to decertify labor organization representatives to employees and labor organizations alone.”

The Tri-Fanucchi Farms opinion relies on Gerawan Farming to reject the grower’s abandonment defense.  It also upholds an ALRB order requiring the grower to pay its employees make-whole relief because of its refusal to bargain with the UFW.

In Gerawan Farming, the court reverses the Fifth District Court of Appeal.  In Tri-Fanucchi Farms, the court affirms the same court’s rejection of the grower’s abandonment defense, but reverses the appellate court’s rejection of the ALRB’s make-whole relief.

November 27, 2017

Failure to issue requested statement of decision can be harmless error

“Harmless error” is the place where many an appeal — both civil and criminal — goes to die, even when “serious constitutional error” is established.  The Supreme Court today ensures that the gates to that precarious site are kept wide open.

Leaning on constitutional and statutory provisions requiring an error to be prejudicial before a new trial can be ordered, the court in F.P. v. Monier holds that a superior court’s failure to issue a requested statement of decision is not reversible per se.  The court’s unanimous opinion by Justice Ming Chin reviews the history of the statement-of-decision statute and concludes that the failure “is subject to harmless error review.”  The court states that some of its prior decisions, which suggest the error is reversible per se, but “which fail to mention, let alone discuss, the constitutional harmless error provision, do not offer a sound basis for a rule of automatic reversal.”

The court affirms the Third District Court of Appeal.

November 22, 2017

Agricultural labor, statement of decision opinions filing Monday

Taking a bite out of the backlog of seven pending September calendar cases, the Supreme Court on Monday morning will file opinions in Gerawan Farming, Inc. v. Agricultural Labor Relations Board, Tri-Fanucchi Farms v. Agricultural Labor Relations Board, and F.P. v. Monier.  (Briefs here; oral argument videos here, here, and here.)

Gerawan Farming raises these issues:  (1) Does the statutory “Mandatory Mediation and Conciliation” process (Lab. Code, §§ 1164-1164.13) violate the equal protection clauses of the state and federal Constitutions? (2) Do the “Mandatory Mediation and Conciliation” statutes effect an unconstitutional delegation of legislative power? (3) May an employer oppose a certified union’s request for referral to the “Mandatory Mediation and Conciliation” process by asserting that the union has “abandoned” the bargaining unit?  (First District, Division Two, Court of Appeal Presiding Justice Anthony Kline is the pro tem.)

In Tri-Fanucchi Farms, the court will address:  (1) May an employer assert as a defense to a request for collective bargaining under the Agricultural Labor Relations Act (Lab. Code, § 1140, et seq.) that the certified union has “abandoned” the bargaining unit? (2) Did the Board err in granting “make whole” relief (Lab. Code, § 1160.3) as a remedy for the employer’s refusal to bargain with the union?  (Presiding Justice Kline is the pro tem on this case, too.)

F.P. will answer whether a trial court’s error in failing to issue a statement of decision upon a timely request is reversible per se.  (First District, Division One, Presiding Justice Jim Humes is the pro tem.)

The three opinions can be viewed Monday starting at 10:00 a.m.

November 21, 2017

Expecting at least six opinions in the next 13 days

The Supreme Court has yet to file opinions in seven of the nine cases argued on the September calendar, and there are only three regular filing days within the 90-day period for six of them.  (One case — People v. Henriquez — didn’t have the 90-day clock start running until two weeks after argument when supplemental briefing ended.)  So, unless the court makes some last-minute supplemental briefing/vacating submission orders, expect to see two or three multiple filings within the next 13 days.

There was a similar rush with the March calendar cases.  Of course, these are nothing compared to the fire-hose-style opinion filings just before Justice Carlos Moreno’s retirement in 2011.

November 20, 2017

Lead Court of Appeal pension case now set for argument

Two weeks ago, we updated the status of a Supreme Court grant-and-hold case (Marin Association of Public Employees v. Marin County Employees’ Retirement Association, a high-profile public-pension matter) that is uncommonly waiting for a Court of Appeal decision in another pension matter (Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Association.)  We noted that the lead Court of Appeal case — Alameda County — had been fully briefed for over 21 months with no oral argument scheduled yet and speculated that the Supreme Court might lose patience waiting for the Court of Appeal.

Today, the Court of Appeal scheduled oral argument in Alameda County.  The argument will be in three weeks.

Even with argument now scheduled, it will still likely be a while until there is a final decision in Alameda County and/or in Marin Association.  Under the same rule that applies to the Supreme Court, the Court of Appeal will have 90 days after the Alameda County argument to file its opinion.  Then, it could take another four months for the Supreme Court to decide whether it wants to hear the Alameda County case.  (Spoiler alert:  the Supreme Court probably will grant review, regardless of how the Court of Appeal decides the case.)  If it does grant review, the Supreme Court will then order briefing in Alameda County, Marin Association, or both.  It can be a long time — likely at least one year (see here and here) — from the grant of review to decision in the Supreme Court.  So, it might not be until 2019 or 2020 before the pension issues in the Alameda County and Marin Association cases are resolved.

November 17, 2017

Summary of November 15, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on November 15, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

FilmOn.com v. DoubleVerify, S244157–Review Granted– November 15, 2017

An Internet-based entertainment media provider brought suit against an authentication company for falsely classifying the provider’s websites as “Copyright Infringement-File Sharing” and “Adult Content” in reports to online advertisers who later cancelled their advertising agreements with the media provider. In a published opinion, FilmOn.com v. DoubleVerify, Inc. (2017) 13 Cal.App.5th 707, the Court of Appeal, Second District, Division Three, held: (1)  the media provider’s lawsuit was based on the authentication company’s conduct in furtherance of its right of free speech, and (2) the authentication company’s reports concerned an issue of public interest. Thus, the media provider’s action was subject to an anti-SLAPP motion to strike.

The question presented is: In determining whether challenged activity furthers the exercise of constitutional free speech rights on a matter of public interest within the meaning of Code of Civil Procedure section 425.16, should a court take into consideration the commercial nature of that speech, including the identity of the speaker, the identity of the audience, and the intended purpose of the speech?

Review Denied (with dissenting justices)

None.

Depublished

None.

November 13, 2017

No duty arises from church’s location of across-the-street overflow parking area

In Vasilenko v. Grace Family Church, the Supreme Court today holds that a church owed no duty of care to help a plaintiff cross a street between a church and the church’s overflow parking lot across the street.  [Disclosure:  Horvitz & Levy filed an amicus brief in this case.]  The court’s unanimous opinion by Justice Goodwin Liu comes with some caveats:  “a landowner does not have a duty to assist invitees in crossing a public street when the landowner does no more than site and maintain a parking lot that requires invitees to cross the street to access the landowner’s premises, so long as the street’s dangers are not obscured or magnified by some condition of the landowner’s premises or by some action taken by the landowner.”

The court finds no duty even though it acknowledges “the landowner has  increased its invitees’ exposure to the specific dangers of that particular street crossing and has thereby increased the likelihood that the invitee will encounter harm at that crossing.”

The court reverses the Third District Court of Appeal.

November 13, 2017

Supreme Court affirms death sentence following guilty pleas

The Supreme Court today affirms the death penalty in People v. Wall, a verdict the jury returned after the defendant had pleaded guilty to first degree murder and four special circumstances.  The court’s unanimous opinion by Justice Goodwin Liu does find the superior court violated defendant’s statutory — but not his constitutional — right to be present during portions of jury voir dire, but it concludes the violation was harmless.  It also remands the case for reconsideration of a restitution fine.

The only issue at oral argument was whether the superior court erred in dismissing for cause a prospective juror who, the Supreme Court said, “repeatedly expressed uncertainty not as to her own views on the death penalty or the appropriateness of the death penalty in any particular case, but as to her ability to impose a death sentence.”  The court holds there was no constitutional error.

November 11, 2017

Recognizing Justice Chin’s service on Veteran’s Day

According to the bios on the Supreme Court’s website, Justice Ming Chin is the only member of the court who has served in the military:  “After he graduated from law school, Justice Chin served two years as a Captain in the United States Army, including a year in Vietnam, where he was awarded the Army Commendation Medal and the Bronze Star.”  He was also a captain in the Army Reserves for two additional years.

All the justices have long histories of public service, but it’s appropriate on this day to acknowledge the veteran on the court.

November 9, 2017

Drought’s over: property liability, death penalty opinions filing Monday

On Monday morning, the Supreme Court will file its opinions in Vasilenko v. Grace Family Church and People v. Wall, which were both argued on the September calendar.  (Briefs here; oral argument videos here and here.)

The court hasn’t filed an opinion since August 31.  (Here and here.)  The 10-week gap is normal for this time of year.

In Vasilenko, the court will decide whether one who owns, possesses, or controls premises abutting a public street has a duty to an invitee to provide safe passage across that public street if that entity directs its invitees to park in its overflow parking lot across the street?  (First District, Division Five, Court of Appeal Presiding Justice Barbara Jones is the pro tem.)  [Disclosure:  Horvitz & Levy filed an amicus brief in this case.]

Wall is an automatic direct appeal from a January 1995 judgment of death.  (Second District, Division Three, Court of Appeal Justice Luis Lavin is the pro tem.)

The opinions can be viewed Monday starting at 10:00 a.m.

November 9, 2017

No conference held the week of November 6, 2017

The Court held no conference this week because it heard oral argument in Sacramento. Accordingly, no action will be taken on petitions for review and no opinions will be ordered published or depublished.

November 8, 2017

Updating the status of an unusual grant-and-hold case

The looming pension crisis,” an article in today’s Daily Journal [subscription] by Dan Grunfeld of Pardee RAND Graduate School, serves as a tickler to check the status of a case that was the subject of a very unusual Supreme Court order.

When it granted review in Marin Association of Public Employees v. Marin County Employees’ Retirement Association, a high-profile public-pension matter, the court made it a grant-and-hold case.  Grant-and-hold orders are common.  But what made the Marin Association order different was what the court is “holding” the case for.  Almost always, the court will “hold” a case until the Supreme Court itself decides some other pending case that raises a similar issue.  In Marin Association, however, the case is on hold until a Court of Appeal decides a different pension case — Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Association.

So, what’s the status?  Nothing much has happened since the Marin Association grant-and-hold order, and that was almost a year ago.  The hold-up seems to be in the Court of Appeal — First District, Division Four — where the Alameda County case has been fully briefed for over 21 months with no oral argument scheduled yet.

Grunfeld’s article says the Marin Association case will address a “critical issue” dealing with a “massive [pension] funding shortfall.”  And, he says, “As dire as the problem is now, it could nearly double in the next 12 years.”  “Tick, tick, tick . . .,” he concludes.

It looks like there will be a lot more ticks on the Marin Association clock unless the Supreme Court loses patience waiting for the Court of Appeal to decide Alameda County.  If it chooses, the high court can un-hold and proceed to decide Marin Association, and/or it could take the Alameda County case off the Court of Appeal’s hands now by transferring the matter to itself under article VI, section 12, of the state constitution.

November 7, 2017

Summary of November 1, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on November 1, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Ramirez v. City of Gardena, S244549– Review Granted– November 1, 2017

The Court of Appeal, Second District, Division One, held in a published opinion, Ramirez v. City of Gardena (2017) 14 Cal.App.5th 811, that: (1) Vehicle Code section 17004.7(b)(2), which provides governmental immunity from personal injury or wrongful death claims resulting from law enforcement vehicular pursuit when the governmental entity has adopted and implemented an appropriate vehicle pursuit policy, does not require, as a prerequisite to immunity, proof of compliance or written certification of compliance by every single officer and (2)  the city’s vehicular pursuit policy was sufficient to trigger immunity under Vehicle Code section 17004.7(b)(2).

The Supreme Court limited review to the following issue:  Is the immunity provided by Vehicle Code section 17004.7 available to a public agency only if all peace officers of the agency certify in writing that they have received, read, and understand the agency’s vehicle pursuit policy?

Bonni v. St. Joseph Health System, S244148– Review Granted and Held– November 1, 2017

The Court of Appeal, Fourth District, Division Three, held in a published opinion, Bonni v. St. Joseph Health System (2017) 13 Cal.App.5th 851, that a surgeon’s retaliation claim against a hospital did not arise from statements made during peer review proceedings, but rather was based on an alleged retaliatory motive for undertaking  peer review, and thus did not arise from protected activity under the anti-SLAPP statute.

The Supreme Court granted review and deferred further action pending its decision of a related issue in Wilson v. Cable News Network, Inc., S239686, namely:  In deciding whether an employee’s claims for discrimination, retaliation, wrongful termination, and defamation arise from protected activity for purposes of a special motion to strike (Code Civ. Proc., § 425.16), what is the relevance of an allegation that the employer acted with a discriminatory or retaliatory motive?

Esquith v. Los Angeles Unified School District, S244026 – Review Granted and Held –  November 1, 2017

In an unpublished decision, Esquith v. Los Angeles Unified School District (Cal.Ct.App., July 20, 2017, No. B276432) 2017 WL 3083474, the Court of Appeal, Second District, Division Four, held a teacher’s retaliation claim against a school district did not arise from a protected employment investigation, but rather that the investigation itself was retaliatory and discriminatory, and thus the investigation was not protected activity under the anti-SLAPP statute.

As in Bonni, above, the Supreme Court granted review and deferred further action pending its decision in Wilson v. Cable News Network, Inc., S239686, which presents the following question:  In deciding whether an employee’s claims for discrimination, retaliation, wrongful termination, and defamation arise from protected activity for purposes of a special motion to strike (Code Civ. Proc., § 425.16), what is the relevance of an allegation that the employer acted with a discriminatory or retaliatory motive?

Review Denied (with dissenting justices)

In re A.W., S244430– Review Denied [Cuėllar, J., voted to grant review]– November 1, 2017

In an unpublished decision, In re A.W. (Cal.Ct.App., Aug. 11, 2017, No. E067059) 2017 WL 3446591, the Court of Appeal, Fourth District, Division Two, affirmed the juvenile court’s ruling: (a) that the Indian Child Welfare Act (25 U.S.C.  §  1901 et seq.) does not apply; and (b) upholding the termination of parental rights.  The Court of Appeal held that: (1) the father was not an enrolled member of a Native American Tribe on the date of the hearing; (2) the Indian Child Welfare Act does not require a child welfare agency to facilitate a tribe’s internal membership proceedings; and (3) the parents did not carry their burden to establish the juvenile court erred when it found their child was not an Indian Child and then terminated their parental rights.

Depublished

None.

November 7, 2017

Light December calendar announced [Updated x2]

The Supreme Court announced today that it will hear four cases in December.  The last two years’ December calendars had nine and seven cases.  The smaller number of cases this year could be attributable to the continuing vacancy on the court, which might continue for a while longer.  This will be the fourth consecutive calendar with Court of Appeal justices sitting temporarily.  (The court is up to the P’s in its mostly alphabetical assignment of pro tem justices.)

On December 6 and 7, in Los Angeles, the court will hear the following cases (with the issue presented as stated on the court’s website):

People v. Superior Court (Lara):  Are the provisions of Proposition 57 that eliminated the direct filing of certain juvenile cases in adult court applicable to cases already filed?  (See also People v. Cervantes, S241323.)  In August, the court asked for supplemental briefing on whether Proposition 57 applies retroactively under the rationale of In re Estrada (1965) 63 Cal.2d 740.  The court granted review less than six months ago.  (The pro tem justice has not yet been assigned for this case.)

People v. Garton:  This is an automatic direct appeal from an April 2001 judgment of death.  The court’s website does not list issues for such appeals.  (Fifth District Court of Appeal Justice Charles Poochigian is the pro tem.)

Heller Ehrman LLP v. Davis Wright Tremaine LLP:  Under California law, what interest, if any, does a dissolved law firm have in legal matters that are in progress but not completed at the time the law firm is dissolved, when the dissolved law firm had been retained to handle the matters on an hourly basis?  The issue is being decided at the Ninth Circuit’s request; the Supreme Court agreed to address the issue 14 months ago.  (Second District, Division Four, Court of Appeal Justice Nora Manella is the pro tem.)

Alvarado v. Dart Container Corporation of California:  What is the proper method for calculating the rate of overtime pay when an employee receives both an hourly wage and a flat sum bonus?  The court granted review 18 months ago.  (Second District, Division Six, Court of Appeal Justice Steven Perren is the pro tem.)

[November 14 update:  Third District Court of Appeal Presiding Justice Vance Raye is the pro tem in the Lara case.]

[November 20 update:  Third District Court of Appeal Justice Ronald Robie has replaced Justice Raye as the pro tem in Lara.]

November 6, 2017

One year to Election Day for Justices Corrigan and Kruger, and probably for a justice to be named

One year from today is Election Day 2018 across the country.  In California, besides electing a new governor and other state-wide officers, voters will be asked to vote “yes” or “no” on keeping in office various state Supreme Court and Court of Appeal justices.  The justices serve 12-year terms, except when they’re first appointed or when they’re first elected to an unexpired term.  (See here and here.)

So, which members of the Supreme Court will be on the ballot next year?  Justices Carol Corrigan and Leondra Kruger, as long as they file their declarations of candidacy and a filing fee of about $4,500 by next August 15.  Joining them will be whoever Governor Jerry Brown appoints to fill the vacancy created by Justice Kathryn Werdegar’s retirement, assuming the appointment is made (and confirmed by the Commission on Judicial Appointments) by August 15, which is probable but not necessarily a given.

Justices almost always win their elections.  But you never know when the next 100-year flood will come.

November 3, 2017

Justice Corrigan apparently will not hear November’s arguments

(Most) counsel who will be arguing the five cases on the November calendar have signed stipulations saying they “have no objection to Associate Justice Corrigan’s participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.”  (It looks like there are still one or two attorneys in one case — Hernandez v. Restoration Hardware, Inc. — who haven’t submitted stipulations yet.)

November 2, 2017

New legislation prompts supplemental briefing requests in three juvenile LWOP cases

New legislation might clear three cases from the Supreme Court’s calendar.

In January, the Supreme Court granted review on its own motion in People v. Padilla after the Court of Appeal reversed a sentence of life without the possibility of parole for a murder committed by a 16-year-old.  U.S. Supreme Court precedent precludes automatic life-without-parole sentences for juvenile crimes.

Briefing in Padilla was completed three months ago, but the Attorney General last month wrote to the court that  “a recent change in the law . . . renders the question in this case moot.”  According to the Legislative Counsel, the new legislation — Senate Bill 394 — “make[s] a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which a life sentence without the possibility of parole has been imposed eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing.”

Yesterday, the court responded by asking the parties to brief, “What bearing, if any, does SB 394 . . . have on this court’s examination of the question presented for review in the above-titled case?”  The court also yesterday made the identical request in another pending case — People v. Mendoza — that involves the same issue as Padilla.

Similarly, in a third juvenile LWOP case, People v. Contreras, an un-hold case that was argued on the October calendar, the court three weeks ago vacated submission of the case and asked for supplemental briefing regarding the effect of SB 394, another new law, and several state regulations.

Last year, in People v. Franklin, the court concluded that delaying parole eligibility for 25 years is not functionally equivalent to life without parole and is thus constitutionally permissible.

November 2, 2017

Supreme Court approves revised prosecutor disclosure rules

Six months ago, the Supreme Court approved in part and rejected in part the State Bar trustees’ proposed amendments to rules of conduct focused on prosecutors.  The court asked the trustees, among other things, to reconsider provisions regarding the disclosure of information to criminal defendants, and the justices even proposed specific alternative language.  The trustees filed revisions at the end of August, which mostly, but not completely, adopt the court’s proposals.  The court today approved the new version of the rules.

Disclosure procedures are on the court’s radar not just regarding rules of professional conduct, but also in the cases it has agreed to hear.

October 28, 2017

Replacing Justice Werdegar might take a while longer

It’s been two months since Justice Kathryn Werdegar left the Supreme Court, and almost eight months since she announced her retirement.  But Governor Jerry Brown has yet to name a replacement, although he probably could have done so any time after Justice Werdegar’s announcement.  The prolonged vacancy has likely caused at least some disruption in the court’s work, including the need to temporarily assign Court of Appeal justices to rule on cases.  Next month will be the third oral argument calendar with pro tem justices, and the court will soon announce its December calendar with more temps.  If recent history is a guide, the wait for a new justice might not end in the near future.

The last time Governor Brown filled a vacancy — in 2014 — was when he appointed Justice Leondra Kruger to take Justice Joyce Kennard’s place.  The appointment came more than nine months after Justice Kennard announced her retirement, and nearly eight months after her retirement was effective.  There were seven oral argument calendars with pro tem justices.

Three years earlier, Governor Brown had been a little faster in replacing Justice Carlos Moreno.  Justice Goodwin Liu was appointed almost seven months after Justice Moreno announced his retirement, and five months after the retirement was effective.  That delay necessitated five calendars with pro tems.

There was one other occasion when Governor Brown named a Supreme Court justice during his second stint as the state’s chief executive.  But that one is not predictive of the timing of his next pick, because the Governor was then under a constitutional deadline to act.  Unlike Justices Moreno and Kennard, Justice Marvin Baxter retired by simply allowing his term to expire without seeking reelection.  Under those circumstances, article VI, section 16(d)(1), required Brown to nominate a candidate by a date certain that was only three months after Justice Baxter announced his retirement.  Brown acted quickly, nominating Justice Mariano-Florentino Cuéllar just one month after Baxter’s announcement.  Because of the constitution, Cuéllar then had to wait more than five months before actually joining the court.  (For a bit more on the distinctions between appointments and nominations, and between confirmation and retention elections, see here.)

October 27, 2017

Summary of October 25, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on October 25, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Arnaudo Brothers v. Agricultural Labor Relations Board (United Farm Workers of America), S244322–Review Granted and Held– October 25, 2017

This is a writ proceeding addressing decisions by the Agricultural Labor Relations Board (the Board) that an agricultural employer committed unfair labor practices by refusing to bargain with, and provide information to, the United Farm Workers of America (the union).  The Fifth District Court of Appeal held in a published opinion, Arnaudo Brothers v. Agricultural Labor Relations Board (2017) 14 Cal.App.5th 22, that: (1) the union representative’s statement “We’re through with you” during a prior bargaining session with the employer did not constitute a clear and unequivocal disclaimer of interest in representing the bargaining unit; (2) that the union’s 30 years of inactivity following the ambiguous disclaimer of interest in continuing to represent the bargaining unit did not convert the ambiguous disclaimer into an effective disclaimer; (3) the employer’s position contesting its obligation to bargain with the union after 30 years of inactivity furthered the Agricultural Labor Relations Act’s policy of providing employees with freedom to choose whether to be represented by a union, and thus a grant of make whole relief was not appropriate; and (4) the Board was required to consider the effect of the union’s long absence on the employees’ right to the freedom of choice when determining whether make whole relief was appropriate.

The Supreme Court granted review and deferred further action pending its decision in Tri-Fanucchi Farms v. Agricultural Labor Relations Board, S227270, which presents the following issues: (1) Whether an employer can assert as a defense to a request for collective bargaining under the Agricultural Labor Relations Act (Lab. Code, § 1140, et seq.) that the certified union has “abandoned” the bargaining unit? (2) Did the Board err in granting “make whole” relief (Lab. Code, § 1160.3) as a remedy for the employer’s refusal to bargain with the union?

Review Denied (with dissenting justices)

None.

Depublished

None.

October 26, 2017

Prop. 66 is now in force as the Supreme Court denies rehearing

Yesterday, the Supreme Court denied rehearing in Briggs v. Brown , which upheld most of Proposition 66, the ballot measure designed to speed up executions in California.  (The court made two minor modifications in the opinion.)  The court had previously routinely extended its time to rule on the rehearing petition.

The court said in its opinion that the initiative measure’s effective date “shall be the date our opinion becomes final.”  The order denying rehearing says “the decision in this matter is now final.”

 

October 25, 2017

The normal opinion drought continues

The Supreme Court won’t issue any opinions tomorrow.  That will mark eight weeks since the last filings.  (Here and here.)  The gap between opinions is typical for this time of year.

And the gap could grow.  Even with the 90-day rule, the court doesn’t need to file another opinion until December 4.  That’s the deadline for deciding cases argued on the September calendar.

October 20, 2017

Summary of October 18, 2017 conference report for civil cases

In its conference on Wednesday, October 18, 2017, the Court granted no petitions for review in civil cases, no civil petitions were denied with dissenting justices, and no civil opinions were ordered depublished.

October 18, 2017

Supreme Court will not lower bar exam passing score, at least not now

A few months ago, it looked like the Supreme Court might make it easier to pass the California bar exam.  Today, the court said it will not do so “at this time,” even while acknowledging that California’s passing score is the second highest in the country.

The court is not closing the door to future action, however, saying it “will consider any appropriate recommendation to revisit the pass score in the next review cycle, or sooner if the court so directs.”  Additionally, the court encourages the State Bar and California law schools to examine “whether potential improvements in law school admission, education, and graduation standards and in State Bar testing for licensure, combined with effective regulatory oversight of legal education, could raise bar exam pass rates.”

October 18, 2017

The Chief Justice is a Harvard blogger

The Harvard Law Review launched a blog yesterday.  One of the inaugural posts is by Chief Justice Tani Cantil-Sakauye — “Costs of money bail to justice.”

The Chief Justice writes that “[c]hronic underfunding combined with unstable funding formulas for courts created a pay-to-play model for access to justice” and that the model “disproportionately impacts ethnically diverse communities and the poor.”

October 14, 2017

Ninth Circuit refuses habeas relief from death sentence affirmed by Supreme Court

Twenty-two years ago, the Supreme Court unanimously affirmed Ricardo Sanders’ death sentence.  (People v. Sanders (1995) 11 Cal.4th 475.)  A few months later, the court summarily denied his state habeas corpus petition.  Yesterday, the Ninth Circuit affirmed a district court’s denial of federal habeas relief, in Sanders v. Cullen.

Sometimes the Ninth Circuit validates Supreme Court rulings (e.g., here and here), sometimes it doesn’t (e.g., here and here).

October 13, 2017

Summary of October 11, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on October 11, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Hussein v. Driver, S240506 – Review Granted and Held – April 12, 2017

In an unpublished opinion, Hussein v. Driver (Jan. 27, 2017, A144786) 2017 WL 383387, the Court of Appeal, First District, Division Four, reversed an order awarding attorney fees in a civil action on the basis that a trespass claim had been settled, resulting in the voluntary dismissal of that cause of action with each party to bear its own fees.

Review was originally granted on April 12, 2017, but was not previously reported due to an oversight. The court ordered briefing deferred pending decision in Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, S223536, which includes the following issues:  (1) Does the assertion of an agreement as an affirmative defense implicate the attorney fee provision in that agreement?  (2) Does the term “action” or “proceeding” in Civil Code section 1717 and in attorney fee provisions encompass the assertion of an affirmative defense?  As we previously noted, the Court decided Mountain Air on July 31, holding in a 4-3 decision that assertion of an agreement as an affirmative defense does not trigger the attorney fees provision in that agreement.

Association for Los Angeles Deputy Sheriffs v. Superior Court, S243855 – Review Granted and Issues Limited – October 11, 2017

In a published opinion, Association for Los Angeles Deputy Sheriffs v. Superior Court (2017) 13 Cal.App.5th 413, the Court of Appeal, Second District, Division Eight, held the Los Angeles County Sheriff’s Department could not release to prosecutors the names of individual sheriff’s deputies whose personnel files contained sustained allegations of misconduct even if they were potential witnesses in pending prosecutions, without an order obtained pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, and the Pitchess statutes.

The Court directed the parties to brief the following issue: When a law enforcement agency creates an internal Brady list (see Brady v. Maryland (1963) 373 U.S. 83; Gov. Code, § 3305.5), and a peace officer on that list is a potential witness in a pending criminal prosecution, may the agency disclose to the prosecution (a) the name and identifying number of the officer and (b) that the officer may have relevant exonerating or impeaching material in his or her confidential personnel file, or can such disclosure be made only by court order on a properly filed Pitchess motion?  We discussed this case yesterday in this post.

Supplemental Briefing Requested

Jameson v. Desta, S230899 – Supplemental Briefing Requested – October 11, 2017

In a published opinion, Jameson v. Desta (2015) 241 Cal.App.4th 491, the Court of Appeal, Fourth District, Division One, held the trial court was not required to provide a court reporter for a prisoner’s personal injury lawsuit, even though the prisoner had obtained a fee waiver, where the trial court informed the parties of the unavailability of an official court reporter 10 days before the commencement of the jury trial, and there was no evidence that the prisoner attempted to “arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter.”  Additionally, it ruled that the prisoner’s failure to provide a pro tempore court reporter after the trial court informed the parties that it would not provide an official court reporter precluded the prisoner from challenging the trial court’s grant of nonsuit on the prisoner’s personal injury claims, since the record on appeal did not contain a reporter’s transcript.

The Supreme Court granted review in January 2016.  This week, the Court directed supplemental briefing on the following issue:  What effect, if any, does the 2015 amendment to California Rules of Court, rule 3.55(7), and the accompanying Advisory Committee Comment have on the resolution of the issue presented by this case?

Order Limiting Issues to be Decided

Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, S239777 – Issues Limited – October 11, 2017

In a published opinion, Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, the Court of Appeal, Fourth District, Division Three, held that an anti-SLAPP motion filed within 60 days of service of a third amended complaint, when no previous anti-SLAPP motion had been filed, was untimely with regard to causes of action that had appeared in the prior complaints, but was timely with respect to newly asserted claims.

The Supreme Court granted review in March.  This week, the Court ordered the issue to be argued and decided limited to the following:  May a motion to strike under Code of Civil Procedure section 425.16 be brought against any claim in an amended complaint or only against claims appearing for the first time in the amended complaint?

Review Denied (with dissenting justices)

None.

Depublished

None.

October 13, 2017

Governor signs Liu-inspired juvenile Miranda bill

Governor Jerry Brown on Wednesday signed Senate Bill 395, which will generally require that minors under 16 consult with an attorney before a custodial interrogation.  The legislation was inspired, at least in part, by Justice Goodwin Liu’s dissenting statement (concurred in by Justice Mariano-Florentino Cuéllar) from the 2015 denial of review in In re Joseph H., the high-profile case of a 10-year-old who shot and killed his neo-Nazi father and who was found by the Court of Appeal to have knowingly waived his Miranda rights.  (See also here and here.)

October 12, 2017

“State high court to rule on naming deputies.” Review granted one day after reply filed.

Maya Lau of the Los Angeles Times reports on the Supreme Court’s grant of review yesterday in Association for Los Angeles Deputy Sheriffs v. Superior Court.

When it granted review, the court limited the issue to be briefed to this:  When a law enforcement agency creates an internal Brady list (see Gov. Code, § 3305.5), and a peace officer on that list is a potential witness in a pending criminal prosecution, may the agency disclose to the prosecution (a) the name and identifying number of the officer and (b) that the officer may have relevant exonerating or impeaching material in his or her confidential personnel file, or can such disclosure be made only by court order on a properly filed Pitchess motion? (See Brady v. Maryland (1963) 373 U.S. 83; People v. Superior Court (Johnson) (2015) 61 Cal.4th 696; Pitchess v. Superior Court (1974) 11 Cal.3d 531; Pen. Code, §§ 832.7-832.8; Evid. Code, §§ 1043-1045.)

The court didn’t waste any time in granting review.  It granted extension requests for the answer to the petition for review and for the reply to the answer (for the reply, the court granted 8 days instead of the requested 14), but it didn’t extend its own time to rule on the petition and granted review only one day after the reply was filed.

There might be no delay in the opinion, either.  In a case with a similar issue (and which the court cited in yesterday’s grant order) — People v. Superior Court (Johnson) — the court filed its opinion only eight months after granting review.

 

October 11, 2017

Divided Ninth Circuit overturns Supreme Court habeas waiver ruling

Sixteen years ago, the Supreme Court dismissed William Kirkpatrick’s habeas corpus petition, having seven years before that affirmed Kirkpatrick’s 1984 death sentence on automatic direct appeal.  The dismissal was based on Kirkpatrick’s request to withdraw his petition, a referee’s report on his mental competence to make the request, and on the court’s finding that he had made “a knowing, intelligent, and voluntary waiver of his right to proceed on this petition.”

Yesterday, a 2-1 Ninth Circuit panel (in Kirkpatrick v. Chappell) disagreed with the “knowing, intelligent, and voluntary” finding, concluding that Kirkpatrick’s habeas claims “were erroneously dismissed as waived by the California Supreme Court.”  The opinion is by Judge Stephen Reinhardt, with Judge Kim McLane Wardlaw concurring.  Judge Alex Kozinski dissents, saying Kirkpatrick “seems crazy like a fox” and “is playing us,” but also claiming — in a blistering critique of the state’s capital punishment system — that “none of this matters because California doesn’t have a death penalty.”  The ruling reverses the district court’s dismissal of Kirkpatrick’s federal habeas claims as unexhausted.

There might not have been any disagreement at the court in 2001 about “knowing and intelligent” waivers of rights, but there is now.

October 11, 2017

“A Year in Review at the Supreme Court of California”

Now posted on the California Courts website is a review of the Supreme Court’s term (September 1, 2016 – August 31, 2017).  Besides narratives and photos of court highlights, the review includes “key” court statistics, such as the number of opinions (87), filings (7,133 petitions for review and original proceedings), and depublished opinions (12).