For your consideration, here are two great articles about what is destined to be known as the “George Court.”  First is this article by Clark Kelso in the California Bar Journal, which surveys the impact of the Court’s decisions under the leadership of the outgoing and esteemed Chief Justice.  Kelso argues the Court’s decisions under Chief Justice George have been marked by the themes of centrism and deference to the voters.  (The “deference to voters” theme is particularly notable given Chief Justice George’s public criticism of the initiative process.)  Second is this article by Gerald Uelman in California Lawyer, which surveys the Court’s last term.  Interestingly, both articles sound a note of alarm about the Court’s crushing burden of capital cases.

A California Bar Journal article notes that the State Bar will be honoring Beth Jay, principal attorney to retiring Chief Justice Ronald M. George.  On September 25, the Bar will present Jay with the Witkin Medal, conferred on those who, “‘through a career of extraordinary service, have made significant contributions to the quality of justice and legal scholarship in our state.’” (Prior recipients include such notables as former Supreme Court Justice Cruz Reynoso, current Court of Appeal Justice Norman Epstein, and Ninth Circuit Chief Judge Alex Kozinski.)  As the Chief Justice’s principal attorney since 1996, Jay has filled numerous roles.  Horvitz & Levy partner David Axelrad (who served as a staff attorney with Jay at the Ninth Circuit) observes that Jay is an excellent lawyer and the state is lucky that she devoted herself to public service at the court.

In one of our early posts, we pointed out that Justice Cantil-Sakauye appears to have had limited political experience consisting of two years on the staff of Governor George Deukmejian in the late 1980’s, plus the two years she has recently served on the Judicial Council of California.  This could affect how she might carry out lobbying in Sacramento for the substantial funding necessary to operate California’s extensive court system.

This issue recently came up during Justice Cantil-Sakauye’s August 25 confirmation hearing before the Commission on Judicial Appointments.  After the nominee delivered her remarks, Chief Justice Ronald M. George noted that the Chief Justice as the “head of a branch” of government has responsibilities beyond those of a jurist.  Among those, he observed, are negotiating with the Governor and Legislature in Sacramento, which requires political and diplomatic skills.  In response, the nominee said that her work in the Governor’s office had given her the opportunity to see “the executive vision” and how that differs from the more collaborative “legislative vision.”  With regard to administering the courts, Cantil-Sakauye said she has always worked from the “bottom up” and that her experience as a Superior Court judge and on the Judicial Council will serve her well as she learns the role of Chief Justice.  In an especially candid moment, Cantil-Sakauye finished her response to Chief Justice George by observing, “There have been many descriptions of this job but none of them said ‘Easy.’”

To view the entire confirmation hearing, click here.  

A new Supreme Court decision joins the case law recognizing that appellate lawyers are different from other litigators.  In In re Morgan, the Court yesterday fashioned a procedure for deferring its rulings on certain state habeas corpus petitions to preserve the rights of death-penalty inmates to seek federal habeas corpus relief.  The procedure addresses a threat to those rights caused by a combination of federal habeas timelines for the exhaustion of state remedies and too few attorneys available to handle state habeas corpus petitions.

The Court explained that the lack of legal representation for habeas petitions was a matter of both increased demand (a more than tripling of the number of death row inmates between 1987 and 2007) and a scarcity of supply.  On the supply side, the Court noted the “serious shortage of qualified counsel willing to accept an appointment as habeas corpus counsel in a death penalty case.”  One of the reasons for the shortage, the Court said, is that “work on a capital habeas petition demands a unique combination of skills.  The tasks of investigating potential claims and interviewing potential witnesses require the skills of a trial attorney, but the task of writing the petition, supported by points and authorities, requires the skills of an appellate attorney.  Many criminal law practitioners possess one of these skills, but few have both.”

We find this dichotomy of skills true for civil litigation, too.  Many trial lawyers get the hives if they’re stuck in the law library for more than a half hour at a time.  On the other hand, we can write a mean brief, but don’t ask us to depose an expert witness or pick a jury.

As we mentioned in our inaugural post, the California Supreme Court is worthy of special attention—not to mention a practice blog devoted to it—because it is a particularly important court in so many respects.  One concrete measure of the Court’s importance is how often its decisions are followed by the highest courts of other states. 

In December 2007, Jake Dear, the Court’s Chief Supervising Attorney, and Edward W. Jessen, the Reporter of Decisions of California, documented just how often the California Supreme Court is followed by other states’ high courts in their article “Followed Rates” and Leading State Cases, 1940-2005, 41 U.C. Davis L. Rev. 683.  As their analysis, undertaken with the assistance of Lexis-Nexis, reveals, “the California Supreme Court has long been, and continues to be, the most ‘followed’ state supreme court.”  Specifically, their research revealed, among other things, that between 1940 and 2005, 1,260 of the California Supreme Court’s decisions have been followed at least once by another state’s supreme court.  The Washington Supreme Court was next, with 942 followed decisions.  The median for all fifty state high courts was 453.      

But what is particularly interesting is how often the decisions of the California Supreme Court are followed multiple times by other states’ supreme courts.  Between 1940 and 2005, 160 of the Court’s decisions were followed three or more times by other states’ high courts.  Washington was again second, but with just 72 decisions cited three or more times.  When focusing on the most recent two decades (1986 to 2005), the ratios changed somewhat, but California remained in the lead.  In that period, other states’ high courts cited 61 of the Court’s decisions three or more times.  Washington was again second with 50 such decisions and Massachusetts was in third place with 37 decisions followed three or more times.     

What does all this mean, and why is the California Supreme Court consistently cited more than other states’ supreme courts?  It’s unclear, say Dear and Jessen.  They note that a jurisdiction’s population, “and the available pool of diverse and cutting edge litigation” is an important factor, but they say “the data suggest it is far from determinative.”  Ultimately Dear and Jessen suggest it may be the quality of the jurisprudence that matters most:  “We continue to believe that a very important factor in this regard is the ‘culture’ of the court and its resulting written decisions.  Are the opinions short and summary with little probing analysis?  If so, they are less likely to be influential, or to be followed.  Are the decisions analytical and cogent, surveying the field?  If so they are more likely to be perceived by other courts as both carefully considered and well reasoned —and hence more likely to be followed.”

Maura Dolan’s profile of California Supreme Court Clerk Fritz Ohlrich in the Los Angeles Times today is worth a read for anyone litigating a case before the high court.   Fleshing out our own nod to the clerk in a recent post, the profile aptly illustrates Ohlrich’s caring and earnest approach to his job.  Unlike some court functionaries we’ve known, Ohlrich’s attitude (which seems to be shared by those he supervises in the clerk’s office) reflects the refreshing viewpoint that the court and its staff are there to serve litigants, and not the other way around. 

So, next time you have a reasonable question about Supreme Court procedure that the rules of court just don’t seem to cover, try calling the clerk’s office.  You may get an answer that helps you—and the court—avoid the headache of trying to fix some misstep after the fact.

Law.com’s legalpad has an account of a fitting proposal to honor our retiring Chief Justice by renaming the historic San Francisco civic center complex that houses the California Supreme Court; it would henceforth be called the Ronald M. George Justice Center. 

At last week’s Judicial Council meeting where this effort was announced, the Chief was also presented with another honor:  his very own visage on a bobblehead doll.  He thus joins the ranks of other judicial luminaries depicted on bobbleheads, including William Rehnquist and John Paul Stevens.  I’m guessing that many people who find their way to this blog will, as I do, think that’s genuinely cool.

UPDATE:  It looks like the proposal noted above, regarding a plan to rename the state court complex in San Francisco in honor of Chief Justice Ronald George, has been derailed, as reported by The Recorder.  However, the same piece observes, “Although SCR 126 is officially dead, the Senate resolution asking for the same honors for George remains in place as an advisory measure to the state, which owns both buildings. Gov. Arnold Schwarzenegger could decide on his own to proceed with the naming.”

A few weeks ago, on August 11, 2010, the California Supreme Court granted review 7-0 in a case involving a rather obscure issue of appellate procedure.  The court granted review in Rossa v. D. L. Falk Co. (No. S183523) to decide:  ““Does California Rules of Court, rule 8.278(d)(1)(F), which permits a successful appellant to recover ‘the cost to obtain a letter of credit as collateral,’ allow the recovery of interest paid on sums borrowed to fund a letter of credit used to secure a surety bond?”

Last week I wrote a Daily Journal article examining the case.  In the article, entitled “Interest for Thee but Not for Me?”, I went out on a limb and predicted that the court will reverse the First District Court of Appeal’s decision, which held that the interest on money borrowed to obtain a letter of credit as collateral for an appeal bond is not a recoverable cost on appeal.  Because prevailing plaintiffs are permitted to recover a far-higher-than-market rate of ten percent per annum on judgments that are affirmed on appeal (see Code Civ. Proc., § 685.010(a)), it seems unfair not to reimburse defendants for analogous interest expenses incurred to bond judgments that are reversed on appeal.

So what’s the Supreme Court “practice” angle here?  The article also addresses why the Supreme Court would be interested in the case, borrowing points we made in an amicus curiae letter urging the court to grant review in Rossa.  The letter, filed on behalf of International Sureties, Ltd. (one of the country’s largest brokers specializing in appeal and supersedeas bonds), provided an overview of the appellate bonding process and explained the burden the Rossa decision was likely to place on superior courts.  The amicus letter illustrates how an interested nonparty can provide the court with the “big picture” and explain how a particular decision is likely to extend beyond the particular parties in the case and have a statewide impact on a particular industry.

Thanks to Nate Scott at Southern California Appellate News and Kim Kralowec at the UCL Practitioner for mentioning us recently on their blogs.  Nate and Kim are two of the top bloggers on California appellate matters, and we highly recommend their blogs to anyone who hasn’t read them yet.  We’re especially flattered that Kim compared us to SCOTUSblog, but we’re not really aspiring to that level.   We have no plans to hire any full-time journalists; we’re just hoping the blog will become a useful resource for those appearing before the Court.

The Supreme Court’s weekly case conference for this week was canceled and rescheduled for September 1, 2010.  Accordingly, no action was taken this week on petitions for review and no opinions were ordered published or depublished.

As reported here and here, the three-member Commission on Judicial Appointments today unanimously confirmed Third District Court of Appeal Justice Tani Cantil-Sakauye as the new Chief Justice of California.  If approved by the voters this November, the 50-year-old Filipina-American from Sacramento will be the first Asian-American and the second woman to occupy the post.

The Los Angeles Times, the Daily Journal, The Recorder and The Metropolitan News-Enterprise all report today that the State Bar’s Commission on Judicial Nominees Evaluation (the “JNE Commission”) has issued a report on California Supreme Court Chief Justice nominee Tani Cantil-Sakauye that rates her “exceptionally well qualified” to serve as Chief Justice. The rating is the JNE Commission’s highest.  According to the Daily Journal, the Commission cited as a basis for the rating Justice Cantil-Sakauye’s “brilliant legal mind that can quickly grasp and resolve complex issues and problems” and the fact that she is  “‘intelligent, diligent and conscientious.’”  The Commission noted that the nominee “‘takes her duties very seriously, but also brings a sense of joyful enthusiasm to the performance of them.’”  The rating updates the “qualified” rating Justice Cantil-Sakauye earned from the JNE Commission when first appointed to the Third District Court of Appeal in 2005. 

The JNE Commission’s report, issued Monday, comes in advance of Justice Cantil-Sakauye’s confirmation hearing before the Commission on Judicial Appointments, which consists of current Chief Justice Ronald M. George, Attorney General Jerry Brown and Second District Court of Appeal Justice Joan Dempsey Klein.  As mentioned in an earlier post, you can watch the hearing live tomorrow at 11 a.m. on the California Channel.

An occasional tactic by an appellant’s attorney is to reserve all his or her time for the rebuttal argument, making no opening argument at all.  The supposed intent is to prevent the respondent’s counsel from knowing exactly what to focus on, and then having all one’s time to get in the last word. A savvy response by the respondent’s attorney is to stand up and say, “Because my opponent has given me nothing to respond to, I’ll submit on the briefs.”  That approach should foreclose any rebuttal argument, depriving the appellant, who bears the burden of showing why reversal is required, of any argument time at all.

During my first argument in the California Supreme Court, my opponent—who was representing the petitioner—tried a variation of this same tactic.  After settling himself at the lectern, he announced, “I’d like to reserve all but five minutes of my time for rebuttal.”  Chief Justice George’s eyebrows shot up, but he responded with something neutral like, “Very well, Mr. X.”  Five minutes into his argument, when my opponent was being bombarded with questions from the justices, Chief Justice George interrupted and said, “Mr. X, your five minutes are up.  We’d be pleased to have you continue answering our questions, but if you would still like to reserve the remainder of your time for rebuttal, you may sit down now.”  Somewhat sheepishly, my opponent said, “I think I’ll continue my argument, your Honor.”  Luckily, I wasn’t forced to decide whether to submit on my briefs, and ended up winning the case with a 7-0 decision.

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, August 18, 2010. The summary includes those civil cases in which (1) review has been granted (not including grant-and-transfers), (2) review has been denied but one or more justices has voted for review, (3) the Court has ordered depublished an opinion of the Court of Appeal, or (4) the Court has denied a Court of Appeal’s publication request.

Review Granted

Greb v. Diamond International, S183365—Review Granted—August 18, 2010

The issue presented is whether California Corporations Code section 2010, which permits lawsuits to be filed against a dissolved corporation irrespective of the date of dissolution, applies to a dissolved Delaware corporation.

The Court of Appeal, First District, Division One, held that: (1) a dissolved Delaware corporation was amenable to suit for only three years under Delaware law, and (2) the California statute providing that dissolved corporations may be sued irrespective of the date of dissolution does not apply to out-of-state corporations.

Serrano v. Stefan Merli Plastering, S183372—Review Granted—August 18, 2010

The issue is whether the plaintiffs enforced an important right affecting the public interest so as to be entitled to an award of attorneys’ fees under the private attorney general statute, Code of Civil Procedure section 1021.5.  The plaintiffs successfully challenged as unreasonable the fee a court reporter charged the non-noticing party for an expedited deposition transcript and seek their attorneys’ fees.

The Court of Appeal, Second District, Division Three, held that the plaintiffs did not enforce an important right affecting the public interest and were not entitled to attorneys’ fees under the private attorney general doctrine.  Justice H. Walter Croskey dissented.   

Professional Engineers in California Government v. Schwarzenegger, S185404—Review Granted & Held—August 18, 2010

The issue is whether the Governor has the authority to direct the unpaid furlough of state employees, the same issue that is before the court in Professional Engineers in California Government et al. v. Arnold Schwarzenegger et. al., S183411, which is scheduled for oral argument on Wednesday, September 8, 2010.

Retired Employees Assoc. v. County of Orange, S184059—Certified Question of State Law; Request Granted—August 18, 2010

The Ninth Circuit certified the following question to the Court: Whether, as a matter of California law, a California county and its employees can form an implied contract that confers vested rights to health benefits on retired county employees.

In the Ninth Circuit proceeding, 610 F.3d 1099, an association of retired county employees sued a county, seeking an injunction prohibiting the county from splitting a pool of active and retired employees, which action resulted in significantly increased premiums for retirees’ health care benefits.  The plaintiffs claim constitutional violations by impairment of contract, and that a prior consistent practice of pooling created an implied contract to continue pooling through the retirees’ lifetimes. The federal district court granted the county summary judgment on the ground that the county cannot be liable for any obligation it did not enter through an explicit Board resolution.

Review Denied (with dissenting justice)

None.

Depublished

None.

Court of Appeal Publication Request Denied

None.

If you spend a fair amount of time reviewing the Supreme Court’s on-line dockets, chances are you’ve seen an entry like this:  “Received Court of Appeal record – #B211932 – one doghouse.”  But what’s a doghouse?  We know the courts are not in the business of transporting canine domiciles.  Well, it turns out a “doghouse” is nothing more than a file folder, which the Court of Appeal sometimes uses to transport its file to the Supreme Court when a petition for review is filed.  They look like this:

Our weekly conference reports help attorneys stay right on top of the issues pending before the California Supreme Court.  This isn’t a subject of interest just to folks handling Supreme Court cases.  At numerous points in the life of litigation, an attorney may be interested to know what issues are in play.  When drafting a complaint or answer, an attorney may want to include language that accounts for a possible claim or defense that could be recognized or refined in a future Supreme Court opinion.  The same is true when working up pretrial documents—especially proposed special jury instructions.  And, of course, when one is preparing briefs on appeal, it’s good to know what issues are before the high court, so one can make sure that the briefing frames the case in the best possible light for review should the decision go badly (or, conversely, helps the Court of Appeal to craft alternative bases for ruling favorably so that the chances of the other side successfully seeking review are minimized).

But our weekly conference report highlights not only cases where review was granted, but also cases where review was denied, with one or more justice(s) voting to grant review.  Why are these so interesting?  Because the dissenting justices’ votes signal that the case presents an area of interest to one or more justices.  These signals, which some refer to as “protest votes,” may be handed down in a case that presents an issue of recurring issue of statewide importance, but for one reason or another isn’t a good vehicle for taking the case up.  It may be that the factual record is not laid out usefully for resolving the issue in broadly applicable terms.  It may be that the procedural posture is not favorable (as where an issue can be more fully analyzed after a trial, but the case has come up at the pleading stage, or on denial of a writ petition).  Or, it may be that the parties’ briefing is of mediocre quality, and the justices are concerned they won’t get a thorough and balanced presentation of the case. 

The point here is that attorneys who are advising their clients whether it’s worth seeking review would benefit from checking for earlier cases in which “protest votes” were cast in favor of reviewing a decision raising similar issues.  If so, it’s often possible to obtain copies of the earlier petition(s) for review to get ideas about how (or how not) to present the issue to best effect, and to parlay the dissenting vote(s) into the four-vote ticket needed for discretionary review. 

It takes a bit of legwork to pull together information from various sources to create our weekly reports.  We hope our readers find this to be a useful feature of our blog, and we’d love to hear feedback from anyone who has perused these reports.

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, August 11, 2010. The summary includes those civil cases in which (1) review has been granted (not including grant-and-transfers), (2) review has been denied but one or more justices has voted for review, (3) the Court has ordered depublished an opinion of the Court of Appeal, or (4) the Court has denied a Court of Appeal’s publication request.

Review Granted

Rossa v. D.L. Falk Construction, S183523—Petition for Review Granted—August 11, 2010

The issue is whether California Rules of Court, rule 8.278(d)(1)(F), which permits a successful appellant to recover “the cost to obtain a letter of credit as collateral” for a surety bond, allows the recovery of interest paid on sums borrowed to fund such a letter of credit.

The Court of Appeal, First District, Division Two, held in a published opinion, Rossa v. D.L. Falk Const., Inc. (2010) 184 Cal.App.4th 438, that interest on money borrowed to obtain a letter of credit to secure an appeal bond is not recoverable as part of the cost to procure the bond.  

Review Denied (with dissenting justice)

None.

Depublished

None.

Court of Appeal Publication Request Denied

None.

The City of Dana Point’s recent efforts to discover the identities of members of marijuana cooperatives in the city by issuing legislative subpoenas has created an unusual procedural situation in the Supreme Court.  Specifically, the Court has granted review in five consolidated cases in which the Court of Appeal has issued no opinion.

As explained in this Orange County Register article, the city subpoenaed the pot dispensaries’ membership records.  The Orange County Superior Court issued orders enforcing the subpoenas.  The dispensaries appealed.  And this is where it gets interesting procedurally.  The Court of Appeal, Fourth District, Division Three, ruled the orders enforcing the subpoenas are not appealable and the appeals would be deemed petitions for extraordinary writ relief.  Before their writ petitions were due, the dispensaries petitioned the Supreme Court for review, challenging the Court of Appeal’s ruling that the orders enforcing the subpoenas are not appealable. 

The Supreme Court granted review.  According to the Court’s on-line docket, the issue before the Court is limited to the following:  “Is an order compelling compliance with a legislative subpoena issued under Government Code section 37104 appealable as a final judgment?”  Briefing was completed in late July.  The cases have not yet been set for argument.

Kudos to the dispensaries’ lawyers at Evans, Brizendine & Silver and Logan Retoske, LLP for recognizing an issue worthy of review and timely presenting it to the Court despite their cases’ unusual procedural posture.

When presenting an appellate argument, it is always a good idea to plan to arrive early.  If presenting argument in a strange court for the first time, it may even be worthwhile to scout the terrain a day in advance or, if you have an afternoon argument, attend the morning calendar and watch the court in action.

There are, however, special aspects of an oral argument before the California Supreme Court that require arrival well in advance of argument.  First, the security checks conducted by the Highway Patrol’s court security detail are particularly thorough.  For example, you will be asked to give up not only your cell phone but your phone charger and anything else electronic.  Since Supreme Court arguments are usually well-attended, these checks can take some considerable time. 

Second, you should arrive early because the very efficient and knowledgeable Clerk of the Court (Fritz Ohlrich) addresses counsel and the audience in advance of argument and offers practical suggestions so counsel know what to expect—e.g., unless you know the justices very well by sight, it’s better not to risk referring to them by name, because it’s all too common for someone to say “Justice Ming” when they mean “Justice Chin,” or to refer to Justice Werdegar as Justice Kennard.

Finally, you should arrive early because you must expect the unexpected.  When I presented argument to the Court a couple of years ago in San Francisco, I went to the courthouse elevator to go up to the courtroom to check in a half hour before argument.  My case was first on the calendar that afternoon.  With me were my opposing counsel, counsel for amici, several court employees and others.  As the elevator doors closed, the elevator shuddered and dropped about a foot.  The doors didn’t budge.  With ten people and their assorted baggage crammed into the tiny elevator, space was at a premium and temperatures soon soared.  We could hear court employees, and eventually the fire department, working frantically to open the doors.  After almost a half hour, the doors finally opened.  The other lawyers and I—overheated but gratefully gulping the fresh air—scrambled up several flights of stairs to the courtroom to check in.  Needless to say, the Clerk of the Court had been looking for us.  The Chief Justice graciously allotted us five minutes to splash water on our faces and arrange our ties.  Then, without further delay, the argument proceeded.

So the moral of the story is, when arguing before the California Supreme Court, you should plan to arrive early.  And yes, you should take the stairs.

Presumptive future Chief Justice of the California Supreme Court Tani Cantil-Sakauye issued an opinion Monday on one of the most important issues pending before that court.  How can she be deciding the court’s most important issues before she has even been confirmed?  Because she’s still a sitting justice on the California Court of Appeal.  In that capacity, she issued an opinion in King v. Willmett, deciding the precise issue that is pending before the Supreme Court in Howell v. Hamilton Meats.

The issue is whether a personal injury plaintiff’s recoverable medical expense damages can include not only what she and her health insurance company paid for her medical services, but also larger amounts “billed” by her healthcare providers, even if the providers agreed to accept the paid amounts as payment in full and neither plaintiff nor her insurer will ever pay any larger amounts.   In other words, if you are injured in a car accident and you receive a hospital bill for $1 million, but your health insurer pays the hospital only $100,000 as payment in full, can you recover $1 million in medical expense damages in a lawsuit against the other driver, or are you limited to a recovery of $100,000?  This is literally a billion dollar issue, affecting virtually every personal injury action in California. 

Justice Cantil-Sakauye’s opinion in King adopts the position advocated by the Consumer Attorneys of California: the plaintiff can recover more than the actual amount that the healthcare actually gets paid for its services.  Undoubtedly, the defendant will ask the Supreme Court to grant review in this case, since the same issue is already before the court in Howell.

Justice Cantil-Sakauye won’t join the Supreme Court until after it rules on the petition in King.   If King is a grant-and-hold case, as is likely, Chief Justice Cantil-Sakauye will not be able to participate in the non-controversial decision of how to dispose of that case once the court issues its opinion in Howell.  Canon 3E(5)(f) of the California Code of Judicial Ethics provides that an appellate justice is disqualified if “[t]he justice (i) served as the judge before whom the proceeding was tried or heard in the lower court.”  

FULL DISCLOSURE:  Horvitz & Levy has briefed the Howell issue in several matters.  In Howell itself we filed an amicus curiae brief supporting the defendant in the Court of Appeal proceedings, and we intend to seek leave to file an amicus brief in the Supreme Court as well.  We have also briefed this issue on behalf of the defendants in Yanez v. Soma Environmental Engineering, Inc. and our petition for review in that case is currently pending before the Supreme Court.