March 1, 2017

Opinions filing tomorrow about public officials’ emails, prejudgment interest; two more opinions probably coming Monday [Updated]

Tomorrow morning, the Supreme Court will file its opinions in City of San Jose v. Superior Court, which was argued on the December calendar, and Flethez v. San Bernardino County Employees Retirement Association, which was heard in January.

City of San Jose is a high-profile case, having attracted briefs from numerous amici curiae, including news organizations, the ACLU, and public employee associations.  The case raises this issue:  Are written communications pertaining to city business, including email and text messages, which (a) are sent or received by public officials and employees on their private electronic devices using their private accounts, (b) are not stored on city servers, and (c) are not directly accessible by the city, “public records” within the meaning of the California Public Records Act?

In Flethez, the court will decide whether, if a retroactive award of service-connected disability retirement benefits is made in an administrative mandate proceeding, prejudgment interest under Code of Civil Procedure section 3287 is calculated from the day after the employee’s last day of regular compensation or the day on which the employee submitted the claim for the benefits.

Once the City of San Jose opinion issues, there will be two one undecided cases from the December calendar for which this Monday will be the last regular opinion-filing day within the 90-day deadlinePeople v. Sivongxxay, a death penalty appeal, and J.M. v. Huntington Beach Union High School District, concerning procedural issues under the Government Claims Act.  The opinion in the one other undecided December case — McGill v. Citibank, N.A. — is not due until mid-May because, after the argument, the court vacated submission and ordered supplemental briefing; the 90-day clock did not re-start until two weeks ago when the last additional brief was filed.

The San Jose and Flethez opinions can be viewed starting at 10:00 a.m.

[March 2 update:  The Sivongxxay opinion will not file Monday.  Yesterday, as it had done in McGill, the court vacated submission and ordered supplemental briefing.  The briefs are to discuss “whether any state-law error as to a special circumstance jury waiver (see People v. Memro (1985) 38 Cal.3d 658, 700-704) may be found harmless based on an evaluation of the likelihood that, absent the error, defendant would have chosen not to waive a jury trial as to the special circumstance allegation.  (Cf. People v. Blackburn (2015) 61 Cal.4th 1113, 1130-1137; People v. Tran (2015) 61 Cal.4th 1160, 1168-1170; People v. Martinez (2013) 57 Cal.4th 555; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183; People v. Sanchez (1995) 12 Cal.4th 1, 30-31; People v. McClellan (1993) 6 Cal.4th 367; In re Alvernaz (1992) 2 Cal.4th 924; U.S. v. Williams (7th Cir. 2009) 559 F.3d 607, 610-616; Fortune v. U.S. (D.C. 2013) 59 A.3d 949, 955-957; State v. Little (Minn. 2014) 851 N.W.2d 878, 883-886; State v. Williams (Or.Ct.App. 2005) 104 P.3d 1151, 1153; see 6 RT 903-905.)”  Briefing is to be completed within 3 weeks, at which time the case will be re-submitted and the 90-day clock will re-start, making an opinion due around the middle of June.]

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