January 24, 2015

Supreme Court expands judges’ discriminatory organization membership ban

We’ve noted that the Supreme Court has many non-case-related responsibilities.  One of those is the constitutionally required job of adopting a Code of Judicial Ethics.  (See article VI, section 18(m).)  The Code provides “rules for the conduct of judges, both on and off the bench, and for judicial candidates in the conduct of their campaigns.”

Yesterday, the court unanimously voted to broaden a rule in the Code that prohibits judges from belonging to any organization that “practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.”  The court eliminated an exception to the rule that allowed judges to belong to discriminatory non-profit youth organizations, like the Boy Scouts.  The change to the Code is not effective until next year.

 

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January 23, 2015

Summary of January 21, 2015 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 Wednesday, January 21, 2015. 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. This week, we also include a discussion of a grant-and-transfer in a criminal case because the case raises important First Amendment questions.

Review Granted

Gottschall v. Crane Co., S222887—Review Granted and Held—January 21, 2015

The court ordered briefing deferred pending its decision in Webb v. Special Electric Co., Inc., S209927, which includes the following issue: Should a defendant that supplied raw asbestos to a manufacturer of products be found liable to the plaintiffs on a failure to warn theory, or is there a “sophisticated intermediary” defense in such cases?

In Gottschall, a worker, exposed to an “asbestos-related disease” while working at shipyards and similar facilities, filed two actions making the same claims, one in California state court and the other in Pennsylvania federal court. The Court of Appeal, First District, Division Two, held in a published decision, Gottschall v. Crane Co. (2014) 230 Cal.App.4th 1115, that the Pennsylvania federal court was wrong in ruling the appellant was a “sophisticated user.” Under the “sophisticated user” doctrine, a manufacturer of a potentially dangerous product cannot be liable for allegedly failing to warn the end user when the end user was sophisticated and therefore presumably aware of the product’s risks.   The Court of Appeal held the federal court’s resolution of the “sophisticated user” issue was wrong under California law. The court further held that, as a result, collateral estoppel did not apply in the California state court action and the trial court erred in granting summary judgment to the defendant on that basis.

[Disclosure: Horvitz & Levy LLP represents the defendant in Webb.]

People v. Raef, S222744— Review Granted and Transferred— January 21, 2015

The question presented is whether California’s new anti-paparazzi driving statute, Vehicle Code section 40008, on its face violates the free speech clauses of the United States and California constitutions by identifying certain reckless driving offenses and providing that if an individual commits those offenses with the intent to photograph or record the news, that individual is subject to significantly enhanced misdemeanor criminal penalties, including up to six months’ imprisonment.

Defendant, a photographer, is the first individual to be criminally prosecuted under section 40008. He demurred to the information charging him with violating section 40008, claiming the statute on its face violates the free speech guarantees of the federal and state constitutions. The trial court agreed that the statute is unconstitutional, ruling it targets protected First Amendment activity and fails to pass intermediate scrutiny because it is not narrowly tailored and applies broadly to political newsgatherers, amateur reporters, and even others such as wedding photographers rushing to a ceremony. The Appellate Division of the Superior Court reversed.

The defendant challenged the Appellate Division’s ruling by a petition for writ of mandate. The Court of Appeal, Second District, Division Four, summarily denied the writ petition “for failure to demonstrate entitlement to extraordinary relief.” The Court of Appeal also denied the defendant’s petition to transfer the case to the Court of Appeal “for failure to demonstrate that transfer is necessary to secure uniformity of opinion or to settle an important question of law.”

The Supreme Court stayed proceedings in the trial court, then granted review and transferred the matter back to the Court of Appeal “with directions to vacate its order denying mandate and to issue an order to show cause to be heard before that court when the proceeding is ordered on calendar. The stay previously issued by this court remains in effect pending further order of the Court of Appeal.”

[Disclosure: Horvitz & Levy LLP represents the defendant in Raef.]

Review Denied (with dissenting justices)

None.

Depublished

None.

 

January 22, 2015

Who hears a rehearing petition?

We’ve discussed how a change in the Supreme Court’s membership can sometimes lead to a rehearing in, and a change in the result of, a case that is first decided prior to new justices joining the court.  In response to yesterday’s post about the possibility of such a rehearing in People v. Grimes, Judge Helen Williams of the Santa Clara County Superior Court left a comment with a good question:  “why wouldn’t the same court decide that issue [i.e., whether to rehear a case] as decided the case in the first instance instead of the court as newly constituted?”

The short answer appears to be, because that’s the way the Supreme Court does things.  The state constitution, statutes, and court rules do not seem to cover the issue.  Rather, the answer lies in case law and the Supreme Court’s Internal Operating Practices and Procedures.

The case law goes back over 70 years, to Metropolitan Water Dist. v. Adams (1942) 19 Cal.2d 463.  There, a Court of Appeal justice — sitting by assignment in place of an absent Supreme Court justice — joined a 4-3 majority.  When a rehearing petition was filed, the previously absent Supreme Court justice voted with the 3-justice minority to grant rehearing.  The party who had prevailed in the opinion was not happy and moved to set aside the rehearing order.  The court denied the motion, concluding, “The assignment, always temporary, of a justice of the District Court of Appeal to the Supreme Court, does not and can not deprive a regularly constituted member of the Supreme Court of his constitutional functions, when he is able, ready and willing to act and no disqualification exists.”  (Id. at p. 470.)  The court also said, “The parties, of course, have the constitutional right to a judgment herein by a duly constituted court, but they have no right, constitutional or otherwise, to a decision by any particular judge or group of judges.”  (Id. at p. 474.)

The court’s Internal Operating Practices and Procedures are very clear about the rehearing process for a court in transition.  Section XIII. C. says, “If an assigned justice has participated in the decision of a case before this court, that justice will also participate in any further proceedings — including requests for modification, petitions for rehearing, and rehearings — until such time as the decision has become final.  This procedure is to be followed unless the original assignment was necessitated by the absence of a regular justice of this court, in which event a regular justice, if able to do so, will participate in lieu of the assigned justice in the consideration of any petition for rehearing and, if rehearing is granted, in any subsequent proceeding.”  Section D. directly covers the situation presented by the Grimes rehearing petition, “If a justice retires before a case in which he or she has heard oral argument is final, he or she may be assigned to continue to participate in the case.  When a permanent replacement justice appointed to fill the vacancy created by the retirement of that justice has taken the oath of office, and the opinion has been filed, any petition for rehearing will be acted on by the permanent replacement justice.”

Apparently, not all courts do things California’s way.  (See Lowe v. City of Eugene (1969) 254 Or. 518, 537-538 [459 P.2d 222, 223] [discussing two lines of precedent].))  But other courts’ contrary procedures made no difference to the Metropolitan Water Dist. court.  The United States Supreme Court’s rule was dismissed as “one of judicial policy [that] works no compulsion on courts of other jurisdictions to adopt it, and involves no fundamental rights,” and other states’ procedures “likewise reflect policies in state practice with which we are not here concerned, at least to the extent that they should be adopted in preference to a practice in this state under which the courts and litigants have proceeded with apparent general satisfaction.”  (Metropolitan Water Dist.supra, 19 Cal.2d at p. 475.)

January 21, 2015

“New Look Of High Court”

Maura Dolan reports in today’s Los Angeles Times about Governor Brown’s appointees to the Supreme Court and how they could change the results in various areas of the law, and in specific cases, like People v. Grimes, a 4-3 death penalty affirmance issued hours before Justices Mariano-Florentino Cuéllar and Leondra Kruger joined the court.  (The headline for the online version of the article is “Brown appointees to Supreme Court renew hopes in death penalty cases.”)  We explained why the new justices could lead to a very rare rehearing and then a reversal of the death sentence in Grimes.

Professor Gerald Uelmen is quoted as saying that he “would not be surprised if they decide to reconsider” the Grimes decision and that he “base[s] that on the precedent.  It has happened before.”  We noted two rehearings in civil cases caused by court turnover.  Additionally, in a comment to that blog post, Uelmen identifies a case in which a newly constituted court granted rehearing of a decision that had reversed a judgment of death and then affirmed the sentence.  (People v. Wade (1987) 233 Cal.Rptr. 48; People v. Wade (1988) 44 Cal.3d 975.)

A rehearing petition was filed in Grimes last week.  Grimes’s attorney — veteran appellate lawyer Cliff Gardner — says in the Times article, “I am never optimistic,” but, “[o]n the other hand, it was a 4-3 decision, and the court is changing.”

The day after Gardner filed the rehearing petition, the court extended its time to rule on the petition until April 3.  The extension was routine.  The ruling on the petition might be anything but.

January 19, 2015

“Chief Justice Cantil-Sakauye Discusses State of Courts”

Chief Justice Tani Cantil-Sakauye was interviewed this weekend on NBC4’s “News Conference.”  Much of the interview concerned such topics as judicial branch administration, civics education, whether she would accept an appointment to the United States Supreme Court (she wouldn’t), and the things she learned about people as a blackjack dealer during law school.  But Cantil-Sakauye did talk about the Supreme Court, too.

The Chief Justice said that, if the death penalty were repealed, “it would eliminate or redirect 25 percent of our caseload.”  She was asked about the court’s current diverse membership and was pressed about Governor Brown’s appointment of three justices who had no prior judicial or trial court experience.  The Chief Justice praised Justice Goodwin Liu as a “fantastic colleague” and said of the court, “what we are now is we’re a pretty interesting mix” of people, some coming from “boots on the ground” backgrounds and others more from “theory.”  She put herself in the former category:  “I’m a boots-on-the-ground girl,” she said.

January 17, 2015

Justice Cuéllar dissents at his first conference

We were just talking about record votes at Supreme Court Wednesday conferences.  Those occur when the court denies a petition for review and a justice has not only voted to grant the petition but also has requested that his or her vote be recorded in the court’s minutes.  Such votes are relatively rare and, in our conference report posts, we note the record votes in civil cases.  They can be important — retired Justice Marvin Baxter reported that he used his record votes to signal the appellate bar about his interest in issues that might be raised again in future petitions for review.

Well, at his very first Wednesday conference, nine days into his term on the court, Justice Mariano-Florentino Cuéllar cast a record vote.  In Esper v. Superior Court, a case we understand involves the Sexually Violent Predator Act, Justice Cuéllar joined Justice Goodwin Liu to publicly note votes to grant the petition for review.

January 16, 2015

Summary of January 14, 2015 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 Wednesday, January 14, 2015.  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

Solus Industrial Innovations v. Superior Court, S222314—Review Granted—January 14, 2015

The question presented is whether federal law preempts a district attorney’s attempt to recover civil penalties under California’s Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.) based on an employer’s violation of workplace safety standards that resulted in the deaths of two employees. The district attorney brought an action seeking civil penalties for the UCL violations. The defendant demurred, arguing an award of UCL penalties to a prosecutor is not part of California’s federally-approved workplace safety plan. The trial court overruled the demurrer.

The Court of Appeal initially denied the defendant’s petition for writ of mandate but the Supreme Court granted review and transferred the case back to the Court of Appeal. The Court of Appeal, Fourth Circuit, Division Three, then held in a published opinion, Solus Industrial Innovations, LLC v. Superior Court (2014) 224 Cal.App.4th 17, that (1) state regulation of workplace safety standards is explicitly preempted by federal law under the Occupational Safety & Health Act and (2) California is entitled to exercise its regulatory power only in accordance with the terms of its federally approved workplace safety plan.

926 North Ardmore Avenue v. County of Los Angeles, S222329—Review Granted—January 14, 2015

The question presented is whether Revenue and Taxation Code section 11911 authorizes a county to impose a documentary transfer tax based on a change in ownership or control of a legal entity that directly or indirectly holds title to real property.

BA Realty LLP owned 926 North Ardmore Avenue LLC (Ardmore), a single member entity made to hold and manage an apartment building. BA Realty sold 90 percent of its partnership interests to two trusts. The County of Los Angeles asserted that the sale constituted a “change of ownership” within the meaning of Revenue and Taxation Code section 64, subdivision (c) or (d), thereby triggering a documentary transfer tax. After a bench trial, the trial court entered judgment in favor of the County, holding that a documentary transfer tax could be collected even though the apartment building was owned by the lower tier entity, Ardmore, and not BA Realty.

The Court of Appeal, Second District, Division Seven, held in a published opinion, 926 North Ardmore Avenue v. County of Los Angeles (2014) 229 Cal.App.4th 1339, that the sale constituted a “change of ownership” under Revenue and Taxation Code section 64, subdivision (d), and thus section 11911 because the subtrusts that owned BA Realty collectively sold over 50 percent of its interest in the property.

Network Capital Funding Corp v. Papke, S222638—Review Granted & Held—January 14, 2015

The question presented is whether the trial court or the arbitrator decides whether an arbitration agreement provides for class arbitration if the agreement itself is silent on the issue.

The plaintiff corporation filed a declaratory relief action asserting that the defendant was required to arbitrate his wage and hour dispute on an individual basis rather than a class basis. The parties agreed to arbitration but there was no explicit language showing that the parties agreed to class arbitration. The trial court held that it, rather than an arbitrator, must decide whether the arbitration agreement authorized class arbitration.

The Court of Appeal, Fourth District, Division Three, affirmed in a published opinion, Network Capital Funding Corp. v. Papke (2014) 230 Cal.App.4th 503, holding that both parties must agree to class arbitration. Such an agreement cannot be inferred from the existing of an arbitration agreement, as held in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (2010) 559 U.S. 662, 683. The Supreme Court granted review but ordered briefing deferred pending its decision in Sandquist v. Lebo Automotive, Inc., S220812.

Review Denied (with dissenting justices)

None.

Depublished

Baek v. Continental Casualty Company, S222622—Depublished Court of Appeal Opinion—January 14, 2015

In an underlying action, a massage therapist was accused of sexually assaulting a client during a massage. In the present action, the therapist filed suit against his employer’s general liability insurer, alleging it owed a duty to defend and indemnify him in the underlying action. He alleged that the insurer’s failure to do so constituted breach of contract, breach of the implied covenant of good faith and fair dealing, and fraud. The trial court sustained the insurer’s demurrer to all causes of action, concluding as a matter of law that the therapist was not entitled to a defense under the insurance policy.

In a published opinion, Baek v. Continental Casualty Company (2014) 230 Cal.App.4th 356, the Court of Appeal, Second District, Division Four, affirmed. The court held that, because the intentional sexual assault alleged in the underlying action could not be characterized as within the scope of employment or having occurred while performing duties related to the employer’s business, the therapist was not insured under the policy and the insurer had no duty to defend or indemnify.

The Supreme Court denied the therapist’s petition for review and directed the Reporter of Decisions not to publish the Court of Appeal’s opinion in the Official Appellate Reports. (Cal. Const., art. VI, section 14; Cal. Rules of Court, rule 8.1125(c)(1).)

January 15, 2015

A civil morning, criminal afternoon for Supreme Court’s February calendar in Sacramento [UPDATED]

The Supreme Court announced its February calendar yesterday, giving counsel just 21 days notice — one more than the minimum.  The court will hear six cases in one day, three civil cases in the morning and three criminal cases in the afternoon.

On February 4, in Sacramento, the court will hear the following cases (with the issue presented as stated on the court’s website):

California Charter Schools Association v. Los Angeles Unified School District:  Did the Court of Appeal adopt an incorrect methodology for determining what facilities a school district is required to afford to a charter school in accordance with Education Code section 47614?

Tract 19051 Homeowners Association v. Kemp:  Is a prevailing homeowner entitled to attorney fees under Civil Code section 1354 in an action by a homeowners association to enforce its governing documents as those of a common interest development when the homeowner prevailed because it was later determined that the subdivision was not such a development and its governing documents had not been properly reenacted?

Tract 19051 was continued from the court’s January calendar.

Williams v. Chino Valley Independent Fire District:  Is a prevailing defendant in an action under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) required to show that the plaintiff’s claim was frivolous, unreasonable, or groundless in order to recover ordinary litigation costs?

[UPDATE:  The day after scheduling the case for oral argument, the court directed the parties in Williams to file supplemental briefs, due after the argument, regarding “the significance, if any, of Assembly Bill No. 1915 (1977-1978 Reg. Sess.) and its legislative history.”  (Hat tip to Lisa Jaskol for noticing the order.)]

People v. Sasser:  Can a five-year enhancement for a prior serious felony conviction (Pen. Code, § 667, subd. (a)) be added to multiple determinate terms imposed as part of a second-strike sentence (Pen. Code, § 667, subd. (e)(1))?

People v. Smith:  [This is an automatic appeal from a December 2002 judgment of death.  The court’s website does not list issues for such appeals.

People v. Kopatz:  [This is an automatic appeal from a March 2001 judgment of death.  The court’s website does not list issues for such appeals.]

January 14, 2015

“Conservative stalwart reflects on his tenure,” and talks about message votes on petitions for review

Emily Green in today’s Daily Journal [subscription] interviews recently retired Justice Marvin Baxter.  Reflecting on his 24 years on the Supreme Court, Baxter identified two cases, both decided by a divided court, that stand out — Van Horn v. Watson (2008) 45 Cal.4th 322, a decision involving liability for good Samaritans in which he wrote a concurring and dissenting opinion, and Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, in which he wrote the majority opinion holding, among other things, that, “in the absence of a present physical injury or illness, recovery of damages for fear of cancer in a negligence action should be allowed only if the plaintiff pleads and proves that the fear stems from a knowledge, corroborated by reliable medical and scientific opinion, that it is more likely than not that the feared cancer will develop in the future due to the toxic exposure.”

In the article, Baxter also gives a helpful practice tip that we’ve talked about.  Baxter relates that, to communicate to the appellate bar an interest in an issue, a justice will sometimes vote to grant a petition for review that the court is denying even when the justice doesn’t think the case is a good vehicle for review.  In that situation, because the vote is used only to send a message for future cases, Baxter says that “you’re hoping there aren’t going to be three other votes to grant review.”

Significantly, we are informed that, when a petition is denied, a justice’s vote for review is not always made public.  (See paragraph IV(I) of the court’s Internal Operating Practices and Procedures [“In any case in which the petition, application, or motion is denied, a justice may request that his or her vote be recorded in the court minutes” (emphasis added).]  So, a recorded dissent from the denial of review is something worth paying attention to.

January 13, 2015

“California Supreme Court may be bolder legacy project than Jerry Brown’s bullet train”

The Los Angeles Daily News editorializes that “Gov. Jerry Brown most likely will be remembered for big-ticket projects like the bullet train, but his less headline-grabbing judicial appointments may reach further.”  The editorial concludes that decisions made by the Governor’s three appointees to the Supreme Court “will remain as Brown’s legacy long after the governor is gone.”  In part linking to one of our blog posts (thanks), the Daily News also states that the “[m]edical malpractice damages cap and defendants’ rights will be early tests” for “[t]he young crop of judges.”

January 12, 2015

Supreme Court holds defendants forfeited challenges to criminal fees

The Supreme Court this morning filed its opinions in People v. Trujillo and People v. Aguilar.  In opinions written by Justice Kathryn Werdegar, the court unanimously holds in both cases that, by not objecting in the trial court to the imposition of various fees, the defendants forfeited their right to challenge those fees on appeal.  (In Trujillo, the fees were a presentence investigation fee and probation supervision fees; in Aguilar, they were attorney fees, a booking fee, and probation supervision fees.)

In the Trujillo opinion, the court distinguishes other rights that cannot be waived by silence — e.g., against compulsory self-incrimination, to trial by jury, to confront one’s accusers, to have counsel, and to appeal.  Stating that “[k]nowing and intelligent waivers are generally required when a criminal defendant gives up ‘any significant right,’ ” the court concludes that, “[h]ere, no comparably significant right is at stake.”

Just a week ago, the court held that the Attorney General had not waived a harmless error argument by failing to make the argument in her appellate brief.  Today, the Attorney General successfully asserts waiver against defendants who are belatedly challenging fees.  The situations are, of course, distinguishable, but the temporal juxtaposition of the Attorney General’s wins is unfortunate.

January 9, 2015

Criminal fee opinions filing Monday

On Monday morning, the Supreme Court will file its opinions in People v. Trujillo and People v. Aguilar.  Both cases were argued on the November calendar and raise similar issues about whether a failure to object to an order for payment of certain fees (in Trujillo, a presentence investigation fee and probation supervision fees; in Aguilar, attorney fees, a criminal justice administration fee, and probation supervision fees) forfeits a claim that the trial court erred in failing to make a finding of the defendant’s ability to pay the amount in question.

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

January 8, 2015

No conference held the week of January 5, 2015

The Court is holding no conference this week because it is hearing oral argument in San Francisco. Accordingly, this week no action will be taken on petitions for review and no opinions will be ordered published or depublished.

January 8, 2015

Justice Kruger channels Chief Justice Roberts

Emily Green in the Daily Journal [subscription] and Marisa Kendall in The Recorder [subscription] report on yesterday’s first Supreme Court oral arguments with Justices Mariano-Florentino Cuéllar and Leondra Kruger.  Green observes that Cuéllar “has an uncommonly expressive face” with “eyebrows . . . in constant motion.”

The article also notes that, in asking a question, Kruger referred to the attorney’s opposing counsel as “your friend on the other side.”  This cordial reference is likely add-as-friendan influence from Kruger’s days as a veteran U.S. Supreme Court advocate in the U.S. Solicitor General’s office.  The Wall Street Journal reported in July (“The Supreme Court has Gotten a lot ‘Friendlier’ Under Roberts”) that, over the last several years, for some U.S. Supreme Court justices, including Chief Justice John Roberts, “friend” has become the preferred term for opposing counsel, and that Solicitor General Donald Verrilli has “never used any term but ‘friend’ to describe his opponent.”  Verrilli is quoted as saying, “I think I picked it up from ‘Rumpole of the Bailey,’ I kid you not.”

The Daily Journal piece also tells that Cuéllar has picked a staff that includes a mix of permanent attorneys and annual clerks.  He suggested two months ago that he would join Justice Goodwin Liu in not having a staff of only career attorneys.  According to the article, Kruger has not yet named her staff.

January 8, 2015

Employees win in unanimous Supreme Court opinion

The Supreme Court this morning unanimously ruled for the plaintiffs — construction site security guards — in a wage and hour case.  In Mendiola v. CPS Security Solutions, Inc., the court concluded, in an opinion authored by Justice Carol Corrigan, that the guards “are entitled to compensation for all on-call hours spent at their assigned worksites under their employer’s control” and that their employer cannot “exclude sleep time from [their] 24-hour shifts.”

January 7, 2015

On-call wage opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Mendiola v. CPS Security Solutions, Inc.  The case raises the issue whether guards who provide for construction site security are entitled to compensation for all nighttime “on call” hours, or whether sleep time can be deducted depending on the structure of the guards’ work shifts.  Mendiola was argued on the November calendar.

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

January 6, 2015

Cuéllar and Kruger sworn in

Governor Jerry Brown yesterday swore in Mariano-Florentino Cuéllar and Leondra Kruger, his two most recent Supreme Court appointees.Cuellar  (Video of the ceremony is here.)  He did so soon after having been sworn in himself by Chief Justice Tani Cantil-Sakauye for an unprecedented fourth term as governor.  Immediately after his swearing in, the governor introduced Cuéllar and Kruger to those assembled for his combined inaugural/state of the state address.

Kruger“What I’m looking for is insight and growing wisdom over time so we can create a measure of harmony in what is a very conflicted society,” Governor Brown said at Cuéllar and Kruger’s ceremony.

There were even a few practice tips at the ceremony.  Brown noted that, when he clerked at the Supreme Court for Justice Tobriner 50 years ago, he was surprised to learn that, with tentative opinions having been written before oral arguments, “the judges have often made up their minds even before you argue,” but that “a good oral advocate can turn it around.”  After being sworn in, Justice Cuéllar spoke of “the value and virtues of opinions that are short, pithy, and, wherever possible, written in plain English.”  Cuéllar’s comments about good opinions certainly apply to appellate briefs as well.  And writing a good appellate brief is a better strategy than waiting to “turn it around” at oral argument.

January 5, 2015

When a rehearing petition is almost a certainty, and rehearing a legitimate possibility

The grant of a rehearing petition is one of the rarest of rarities at the Supreme Court.  But the conditions could be right for such an action in People v. Grimes, in which the Supreme Court today filed its opinion.

In Grimes, as discussed, the court affirmed a death penalty judgment.  Nothing unusual there.  What is unusual is that there was a bare 4-3 majority and one of the majority justices — Marvin Baxter — is retired as of today and will not rule on any rehearing petition that the defendant files.  This afternoon, there will be two new justices joining the court and, if they both vote with Justices Kathryn Werdegar and Goodwin Liu, the two permanent members of the court who dissented (a pro tem — Court of Appeal Justice Laurie Zelon — also dissented; see disagreeable pro tems), the case will be reheard.

4-3 votes and the replacement of one or more of the majority justices is historically the recipe for rehearing.  Two cases come to mind.

In American Academy of Pediatrics v. Lungren (1996) 51 Cal.Rptr.2d 201, the Supreme Court upheld the constitutionality of a law requiring unemancipated minors to obtain parental consent before undergoing an abortion.  Half of the court’s majority — Chief Justice Malcolm Lucas and retired Justice Armand Arabian (sitting by assignment) — was then replaced by Justices Ming Chin and Janice Rogers Brown, who both voted with the three dissenters to rehear the case.  On rehearing, the court struck down the law as violating the state constitutional right of privacy.  (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307.)  The court again divided 4-3, instead of 5-2, because Justice Brown concluded the law was constitutional even though she had voted for rehearing.

A second case, as mentioned before, was when the Supreme Court went from finding MICRA unconstitutional (American Bank and Trust Co. v. Community Hospital (1983) 190 Cal.Rptr. 371) to upholding the law (American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359), both by 4-3 votes, because Justice Joseph Grodin replaced a pro tem justice who voted with the majority in the first decision.

January 5, 2015

Death penalty — with harmless error issue — and civil commitment opinions issued

The Supreme Court today filed two opinions.

In People v. Grimes, the court affirmed a death penalty judgment.  However, the court divided 4-3 as to affirming the penalty and the close vote makes Grimes a candidate for rehearing, even after having already been argued twice.  (More about this in a later post.)  The main point of contention is the majority’s conclusion that the exclusion of hearsay statements, if erroneous, was harmless, even though the Attorney General did not argue harmless error in her answer brief.

The majority, in an opinion authored by Chief Justice Tani Cantil-Sakauye, says “the Attorney General’s failure to respond to defendant’s harmless error argument does not relieve this court of its responsibility to determine whether any error was harmless.”  It then finds any error harmless.

Justice Goodwin Liu, in a dissent joined by pro tem Court of Appeal Justice Laurie Zelon, believes the majority’s “approach cannot be squared with elemental notions of fair play and this court’s role as a neutral arbiter in the adversarial process.  With today’s opinion, we are saying to the Office of the Attorney General, the most experienced litigant in California’s appellate courts:  ‘Don’t worry if you fail to argue harmless error because we will give you a second bite at the apple.’ ”  Although he agrees “that the California Constitution requires us to address harmless error, the government’s omission is not, as the court suggests, without consequence to the analysis or outcome,” and he concludes that the error was prejudicial at the penalty phase of the trial.  Justice Kathryn Werdegar separately agrees with Justice Liu that the error was prejudicial at the penalty phase.

In the second opinion filed today — Hudec v. Superior Court — a unanimous court holds, in an opinion authored by Justice Werdegar, that in a proceeding to extend the civil commitment of a person found not guilty by reason of insanity, the person, like a criminal defendant, has the constitutional right to refuse to testify.

January 2, 2015

Death penalty, civil commitment opinions filing Monday

As predicted, the Supreme Court on Monday morning will file is opinion in People v. Grimes, an automatic death penalty appeal.

The court will also file on Monday its opinion in Hudec v. Superior Court, which will decide whether Penal Code section 1026.5, subdivision (b)(7), gives a person who was committed after being found not guilty of criminal charges by reason of insanity the right to refuse to testify in a proceeding to extend that civil commitment.  Hudec was argued on the November calendar.

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