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.

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