Guerrero confirmation hearing scheduled for August 26; no hearing set yet for Evans

On August 26, the three-member Commission on Judicial Appointments will consider Governor Gavin Newsom’s nomination — announced yesterday — of Supreme Court Associate Justice Patricia Guerrero to be California’s next chief justice. (The California Courts news release is here.)

The 10:00 a.m. hearing in San Francisco will be webcast live on the California Courts Newsroom.

As when Justice Guerrero’s appointment as an associate justice was confirmed in March, current Chief Justice Tani Cantil-Sakauye will chair the Commission and the other members will be California Attorney General Rob Bonta and the senior Court of Appeal Presiding Justice, who is Fourth District, Division Two, Presiding Justice Manuel Ramirez.

If, as is probable, the Commission confirms her nomination, Guerrero will be on the November ballot when voters will choose “yes” or “no” whether to elect her as chief justice.

No confirmation hearing date has yet been set for Judge Kelli Evans, who the Governor said he intends to appoint to take Guerrero’s spot as an associate justice. As we wrote yesterday, it seems that to comply with the state constitution, instead of appointing Evans, Newsom needs to nominate her and to do so by September 15. That would lead to a hearing sooner rather than later and, if confirmed, Evans would face the voters this November rather than four years from now.

Justice Patricia Guerrero nominated to be next Chief Justice and Judge Kelli Evans named (to be appointed? to be nominated?) associate justice [Updated]

Governor Gavin Newsom today nominated Supreme Court Associate Justice Patricia Guerrero to be California’s next Chief Justice and chose Alameda Superior Court Judge Kelli Evans to take Guerrero’s place as an associate justice. (Here.) If confirmed, they should take their new positions on January 2.

Guerrero’s nomination will be most likely be the subject of a Commission on Judicial Appointments hearing in about a month and, if successful there (as is probable), she will then face the voters in November for confirmation.

The process is not as clear for Evans. Although Newsom is nominating Guerrero, he “announced his intention to appoint . . . Evans . . . to fill the vacancy created by Justice Guerrero’s elevation to Chief Justice.” (There’s a difference between a nomination and an appointment. (See here.)) That vacancy won’t occur until January 2 (assuming the Commission and the voters confirm Guerrero). The governor can probably make an appointment to fill an impending vacancy. (See here.) But an appointment rather than a nomination could mean that Evans won’t be on the ballot until 2026.

On the other hand, if, because of her nomination to be Chief Justice, Guerrero has not filed her declaration of candidacy for her current associate justice position or is withdrawing an already filed declaration, then the state constitution provides Newsom “shall nominate” a candidate for Guerrero’s associate justice spot by September 16 and, if the Commission confirms the nomination, that candidate — presumably Evans — will face the voters along with Guerrero this November.

I don’t see how the Governor can avoid nominating Evans instead of appointing her. The only way seems to be if Guerrero is a candidate for both Chief Justice (as a nominee) and for her current associate justice position (via a declaration of candidacy). But she can’t be on the ballot for two different judicial offices at the same election, can she? This is all technical stuff, but it makes a difference regarding what the November ballot will look like.

In any event, the governor’s choices come just two weeks after incumbent Chief Justice Tani Cantil-Sakauye announced she would not run for reelection. That’s fast, but not surprising, given the tight constitutional and election-related deadlines the Governor was facing. (See here.)

Neither Guerrero nor Evans have been in their current offices for long. Justice Guerrero joined the Supreme Court less than five months ago. She has yet to author a Supreme Court opinion, which is not unusual for new justices. (See here.) Judge Evans was appointed to the superior court in July 2021. Guerrero is 50; Evans is 53.

If, as is likely, they are confirmed, Guerrero will be the first Latina or Latino Chief Justice and Evans will be the third Black justice and the second openly gay justice on the current court. The Governor’s news release includes more extensive bios of the two judges.

Guerrero will be taking on a daunting job. As Chief Justice, she is the leader not only of the Supreme Court but of the entire California judiciary, which, I believe, is the largest in the world, including having more judges than the federal system that Chief Justice John Roberts oversees. She has good administrative experience for the position, having served at all three levels of the state court system, as a presiding judge (of the family courts) in the San Diego Superior Court, and as a partner in a big law firm.

Related:

Cheryl Miller in The Recorder.

Bob Egelko in the San Francisco Chronicle.

Kevin Rector in the Los Angeles Times.

Adam Beam for the Associated Press. (I’m quoted in the article.)

[August 11 update: Malcolm Maclachlan in the Daily Journal. (I’m quoted in the article.)]

Taxation, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its opinions in Zolly v. City of Oakland and People v. Morelos. (Briefs here; oral argument videos here and here.)

These will be the third and fourth of seven opinions for cases argued on the late-May calendar. Two of the other opinions will likely file by August 22 and one, in a death penalty appeal with post-argument briefing, should file by September 12. Additionally, there are eight opinions for June calendar cases that are due to file by September 1.

The issue in Zolly is whether city franchise fees that are subject to California Constitution, article XIII C, must be reasonably related to the value of the franchise. The court granted review in August 2020. In March, the court directed supplemental briefing on these questions: “(1) Does Cal. Const., art. XIII C, § 1, subdivision (e)(4) apply to the fees paid under the waste management contracts at issue in this case, and if so, why? (2) Are any other exemptions within article XIII C applicable to these fees?” Horvitz & Levy filed an amicus curiae brief in the case.

Morelos is an automatic direct appeal from a February 1996 judgment of death. Unlike for other types of cases, the court’s website does not list issues for death penalty appeals. Counsel was appointed in November 2001. Initial briefing was completed in September 2015.

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

“ ‘Shocking’ Tom Girardi scandal shows need for legal reforms, California chief justice says”

Los Angeles Times writers Harriet Ryan and Matt Hamilton report today on Chief Justice Tani Cantil-Sakauye’s reaction to their earlier exposé about the role of private judges — including former California Supreme Court justice Edward Panelli — in disgraced lawyer Tom Girardi’s schemes to defraud clients. (See: “Tom Girardi’s epic corruption exposes the secretive world of private judges.”)

The article says that the Chief Justice “called revelations about the conduct of the retired judges . . . ‘shocking’ [and] acknowledg[ed], ‘There are not adequate safeguards regarding the business of private judging.’ ”

Today’s article summarizes the exposé:

“For decades, Girardi paid well-regarded private judges as much as $1,500 an hour to help him administer mass tort cases involving thousands of clients. [He] traded on the names of these former jurists to deflect questions about missing money and how, in some instances, they aided his misappropriation of client funds.”

Specifically about Justice Panelli, who served on the Supreme Court for eight years until his retirement in 1994, the article says:

“The Times described Panelli’s role in a $17-million settlement Girardi secured for elderly women who alleged they got cancer from a menopause drug. When some of the women suspected in 2014 that Girardi had not paid them all they were due, his firm blamed Panelli and said the retired justice had ordered them to ‘hold back’ $1 million. The claim was false, but the jurist did not inform the clients or the trial court and fought a subpoena for months before finally being forced to testify under oath. Only then did Panelli disclose that Girardi was lying.”

According to the article, the Chief Justice “did not offer a specific course of action to protect the public but suggested that lawmakers in Sacramento should take the initiative.”

Related:

Supreme Court might open Girardi’s State Bar disciplinary files

Supreme Court orders Girardi disbarred. (See here.)

Veteran Supreme Court attorney elected to Appellate Lawyer Hall of Fame

The Committee on Appellate Courts of the California Lawyers Association has chosen Hal Cohen as its fifth inductee into the Appellate Lawyer Hall of Fame.

Called by his Hall of Fame nominator “the finest appellate lawyer you’ve never heard of,” Cohen was an attorney at the Supreme Court for over 50 years, including stints as the court’s chief supervising attorney and the head of chambers for Chief Justice Ronald George.

To get a sense of Cohen’s talents and his extraordinary influence on the court and California law, it’s worth reading the related articles below and the nomination and recommendation letters from Chief Justice Tani Cantil-Sakauye, former Chief Justice George, Court of Appeal Justice — and former Supreme Court extern and law clerk — William Dato, and appellate lawyer — and former longtime Supreme Court attorney — Greg Wolff.

When inducted, Cohen will join prior Hall of Fame members Ellis Horvitz, Jon Eisenberg, Dennis Riordan, and Wendy Lascher.

Horvitz & Levy partner Dean Bochner chairs the Committee on Appellate Courts.

Related:

Hal Cohen:  Tributes to the California Supreme Court’s Most Extraordinary and Influential Staff Attorney

“An extraordinary and influential California Supreme Court staff attorney”

Supreme Court expands murder resentencing eligibility

In People v. Strong, the Supreme Court today gives more defendants who were convicted of felony murder years ago a chance to seek lesser sentences under 2018 legislation — Senate Bill No. 1437 — that, the court explained, “significantly narrowed the scope of the felony-murder rule” and provided for some resentencing.

The legislative narrowing went only so far, however. A convicted defendant is ineligible for resentencing if they were “a major participant in the underlying felony and acted with reckless indifference to human life.” (Pen. Code, section 189(e)(3).) The jury that convicted Strong made a special circumstance finding that he was in fact a “major participant” who acted “with reckless indifference to human life,” a finding that led to his sentence of two terms of life without parole.

But the court’s unanimous opinion by Justice Leondra Kruger concludes Strong is not disqualified from relief because the jury’s finding was made before two of the court’s decisions, “which for the first time provided substantial guidance on the meaning of the two relevant statutory phrases.” He can try to make out a case for resentencing “even if the trial evidence would have been sufficient to support [the special circumstance] finding[ ] under” the law as elucidated in the two decisions. Those decisions “represent the sort of significant change that has traditionally been thought to warrant reexamination of an earlier-litigated issue,” the court finds. Defendants with special circumstance findings made after the two decisions are generally out of luck.

The court reverses an unpublished Third District Court of Appeal opinion. It also expressly disapproves two 2020 Second District, Division One, opinions. But there are tons of Strong grant-and-holds, a number of which are at odds with today’s decision.

Related:

Arguing with friends

Ninth Circuit denies habeas relief to two California death row inmates

In separate opinions on Friday, the Ninth Circuit affirmed the denial of habeas corpus petitions filed by two prisoners whose death sentences the California Supreme Court upheld almost 30 years ago. The appeals panel in one case split 2-1.

Both opinions applied the standard of review of the federal Antiterrorism and Effective Death Penalty Act, which is highly deferential to state court decisions.

The divided decision was in Fauber v. Davis, which comes after the Supreme Court affirmed the death penalty for a 1986 murder (People v. Fauber (1992) 2 Cal.4th 792) and denied three state habeas petitions (here, here, and here). The Ninth Circuit judges disagreed whether it was prejudicial error to exclude as mitigating evidence at the penalty phase of the trial that the prosecution had offered the defendant a plea deal that would have spared him a death sentence.

Although acknowledging that two prior Ninth Circuit opinions were “supportive of Fauber in some sense,” the majority held the evidence-exclusion claim was not grounds for relief because, under the deferential standard of review, “No clearly established federal constitutional law holds that an unaccepted plea offer qualifies as evidence in mitigation that must be admitted in a capital penalty proceeding.” The majority also concluded the defendant couldn’t show prejudice from the exclusion in any event. The dissent disagreed with both points, saying “the prosecutor argued that death was the only appropriate penalty after successfully excluding evidence that would have rebutted that very claim.”

A different Ninth Circuit panel unanimously rejected habeas claims in Montiel v. Chappell. The Supreme Court had first reversed the defendant’s death penalty for a 1979 murder (People v. Montiel (1985) 39 Cal.3d 910), but then affirmed the capital sentence after a retrial (People v. Montiel (1993) 5 Cal.4th 877, disapproved in People v. Sanchez (2016) 63 Cal.4th 665) and denied a state habeas petition.

When the Supreme Court affirmed Montiel’s death sentence, Justice Stanley Mosk dissented, asserting the penalty should have been reversed because of ineffective assistance of counsel, because “the trial was tainted by pervasive and serious deficiencies on the part of defense counsel related to pervasive and serious misconduct on the part of the prosecutor” and because “defense counsel egregiously failed to prepare his case for life.” (5 Cal.4th at pp. 947, 948.) The Ninth Circuit addressed — and rejected — ineffective assistance claims concerning counsel’s alleged neglect only in respects other than those related to prosecutorial misconduct. The appeals court said “there is merit to [those] claims,” but concluded “the California Supreme Court’s ruling denying relief was not so lacking in justification that it meets th[e] [AEDPA’s] demanding standard.”

The Ninth Circuit usually, but not always, refuses to overturn Supreme Court death penalty affirmances.

Related:

“From the bench, an ‘impotent silence’ ”

Significant murder resentencing opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. Strong. (Briefs here; oral argument video here.)

In the case, there was an unusual acrimonious and public split between the defendant’s appellate counsel and amici who are supporting the defendant, including the State Public Defender.

This will be the second of seven opinions for cases argued on the late-May calendar. Four of the other opinions will likely file by August 22 and one, in a death penalty appeal with post-argument briefing, should file by September 12.

Strong is expected to decide whether a felony-murder special circumstance finding (Pen. Code, § 190.2, subd. (a)(17)) made before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 precludes a defendant from making a prima facie showing of eligibility for resentencing relief under Penal Code section 1170.95. The court granted review in March 2021.

The opinion should be a consequential one if for no other reason than that there are many dozens of grant-and-holds waiting for the decision.

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

School districts shielded from liability under state civil rights act

Noting that “there are exceedingly compelling, yet competing, policy concerns implicated by this case,” the Supreme Court in Brennon B. v. Superior Court today holds a school district cannot be sued under California’s Unruh Civil Rights Act. The court’s unanimous opinion by Justice Joshua Groban requires the plaintiff — who alleges that, while a special education high school student, he was sexually assaulted by a school district employee and by other students — to look elsewhere for relief.

The court assures that alternative relief is available, “through the Education Code, the antidiscrimination components of the Government Code, and various other constitutional and statutory provisions,” although those do not allow remedies as comprehensive as the Unruh Act, which provides for statutory penalties and attorney fees. It leaves to the Legislature “the policy question of whether to make the Act’s enhanced remedies available in this context, and how to weigh the various competing interests at stake.”

The Unruh Act doesn’t apply to the plaintiff’s case, the court concludes, because “public schools, as governmental entities engaged in the provision of a free and public education, are not ‘business establishments’ within the meaning of the Act.” The court says, “When acting in their core educational capacity, public school districts do not perform ‘customary business functions,’ nor is their ‘overall function . . . to protect and enhance . . . economic value.” The opinion also rejects an argument that 1990s amendments to the Act — making actionable violations of the federal Americans with Disabilities Act — and to the Education Code brought school districts within the Act’s scope.

The court affirms the published opinion of the First District, Division One, Court of Appeal. It also disagrees with what it says is the majority of federal courts that concluded school districts are subject to the Unruh Act.

Former Supreme Court attorney launches new “Caste Equality Program” to educate Dalit lawyers in Nepal

At age 67, Olga Murray retired from a 37-year career as a Supreme Court attorney, working for Chief Justice Phil Gibson and, mostly, for Justice Stanley Mosk. But she is not at all the retiring type. 30 years later, she remains devoted to an organization she founded, Nepal Youth Foundation, which has a mission of “offer[ing] hope and opportunity to Nepal’s most impoverished children by providing them what is every child’s birthright: vital healthcare, education, and a safe environment.”

The Foundation recently launched a new, law-related program. Educating Dalit Lawyers, the first phase of the organization’s Caste Equality Project, will provide law school scholarships for graduating Dalit high schoolers aiming to become human rights lawyers. Dalits are the lowest caste in Nepal and still face significant discrimination, according to the NYF website.

Related:

From the Supreme Court to Nepal

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