August 20, 2014

Death penalty opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Lucas, an automatic appeal from a September 1989 judgment of death.  Lucas was argued on the court’s late-May calendar.

After the decision in Lucas, there will remain two late-May cases without opinions, both of which — like Lucas — are death penalty appeals:  People v. Grimes and People v. Bryant, Smith, and Wheeler.  In Grimes, after oral argument, the court vacated submission of the case and ordered supplemental briefing, resubmitting the matter on July 24 when the supplemental briefing was complete, thus giving the court until late October to file an opinion within the 90-day rule.  For Bryant, Smith, and Wheeler, however, you can expect to see an opinion on Monday, the court’s last regular opinion-filing day before the 90 days runs out for that case.

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

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August 19, 2014

Recent article assesses Mariano-Florentino Cuellar’s judicial outlook and temperament

In a recent article in the Daily Journal [subscription required], Emily Green reads the available tea leaves to assess the likely judicial philosophy of recent California Supreme Court appointee Mariano-Florentino Cuellar. Green points out that Cuellar’s writings endorse legal realism, which, in her words, “champions the idea that courts can and should consider the law in a broader social and political context when making their decisions.” Green notes that Cuellar wrote in his 2001 doctoral thesis that “ ‘[a]s far as the law is concerned, political responses are actually fair game for interpreters [i.e., judges] to consider when crafting their decisions.’ ” The central idea of Cuellar’s thesis, Green adds, is that, in the complex relationship between courts and elected officials, judicial decisions are not the last word on an issue but simply a starting point, “ ‘the tip of the iceberg.’ ” Green properly contrasts Cuellar’s legal realism with legal formalism, the notion that judges should decide cases based on the strict language of the law and the facts, without regard for social context or policy outcomes. Given his appointment by the left-of-center Governor Brown, Cuellar’s embrace of legal realism probably will not come as much of a surprise to Court watchers.

Just as important as Cuellar’s likely judicial outlook is his possible judicial temperament. And in that area Green may have shed some much-needed light. She describes Cuellar as cautious and sensitive to political realities, quoting his fellow Stanford Law prof Hank Greely as saying Cuellar is “ ‘a pragmatic Democrat . . . Very policy-oriented, very practical, very realistic. He has a good sense of how things work and is unlikely to go off on futile crusades.’ ” Green also quotes Caroline Frederickson, executive director of the progressive American Constitution Society—on whose board Cuellar served with Justice Goodwin Liu (appointed to the Court by Governor Brown in 2011). Much like Greely, Frederickson describes Cuellar as “ ‘[t]houghtful, careful, thorough. . . . He thinks deeply before he makes suggestions or expresses himself.’ ”

Such forecasts are excellent fodder for discussion and debate. But as watchers of the U.S. Supreme Court know, predicting judicial behavior before a candidate even dons the robe is a dicey endeavor. As tempting as such prognostication is, we would do well to remember Winston Churchill’s observation: “It is always wise to look ahead, but difficult to look further than you can see.”

August 19, 2014

Two Supreme Court justices, one prospective justice — and no more — on November’s ballot

Having timely filed their declarations of candidacy, Justices Kathryn Werdegar and Goodwin Liu will appear on the November 4 ballot throughout California.  Recently nominated Professor Mariano-Florentino Cuéllar will also be on the ballot, assuming he is confirmed next week by the Commission on Judicial Appointments.  (Also on the ballot, but only in their respective districts, not statewide, will be 47 Court of Appeal justices or prospective justices.)

For Werdegar, Liu, and Cuéllar, the voters will be asked the same question, whether the candidate shall “be elected to the office for the term provided by law.”  But, under the state constitution, each is on the ballot for a different reason.

The 12-year term of Justice Werdegar, who has been on the Supreme Court for 20 years, is expiring in January.  To continue in office, she had to declare her candidacy — and must be elected — “to succeed to the office presently held by” her.  If elected, she will not have to be on the ballot for another 12 years.

Justice Liu was appointed and confirmed three years ago.  An appointee to a vacant seat “holds office until the Monday after January 1 following the first general election at which the appointee had the right to become a candidate.”  This November 4 is that “first general election.”  So, even though the vacant term to which Liu was appointed does not expire for another eight years, he must face the voters now.  If elected this year, he’ll be facing an expiring term in 2022, like Werdegar is this year.

Professor Cuéllar was not appointed to a vacancy.  Rather, he was nominated as the candidate to succeed to the office presently held by Justice Marvin Baxter, whose term is expiring in January, but who opted not to file a declaration of candidacy.  If elected, Cuéllar, like Werdegar, will not be on the ballot again until 2026.

There remains one vacancy on the court, created by Justice Joyce Kennard’s retirement earlier this year.  However, it is now too late for any appointee to that seat to be on this year’s ballot.  (The appointee would have had to have been appointed and confirmed by the end of last week to face the voters in November.)  That appointee will not have to stand for election until 2018 and, if elected, will not be on the ballot again until 2030 because the 12-year term for the seat expires in four years.

August 17, 2014

Legislature acts to overturn 4-3 Supreme Court decision

Penal Code section 1473, subdivision (b), provides that one ground for habeas corpus relief is that “[f]alse evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at any hearing or trial relating to his incarceration.”  Less than two years ago, a 4-3 Supreme Court concluded that such “false evidence” does not include expert testimony — in the case before the court, it was bite-mark testimony by a dental expert — that, post-conviction, had been recanted by the expert himself and discredited by other experts based on newly available computer technology.  (In re Richards (2012) 55 Cal.4th 948.)  Justice Liu in dissent, joined by Justices Werdegar and Chin, said “there is no reason to treat expert testimony differently from lay testimony under section 1473(b).”

The Legislature last week passed a bill to essentially codify the Richards dissent.  If signed by Governor Brown, Senate Bill 1058 will add to section 1473 the proviso that “‘false evidence’ shall include opinions of experts that have either been repudiated by the expert who originally provided the opinion at a hearing or trial or that have been undermined by later scientific research or technological advances.”

No, this is not “payback” for the Supreme Court removing Prop. 49 from the November ballot.  By the time the Supreme Court acted last Monday to strike the anti-Citizens United measure, both houses of the Legislature had many weeks earlier already approved the pertinent amendment to section 1473; on Wednesday the Senate concurred in a separate Assembly addition to the bill.  Also, it is not unusual for the Legislature to respond to Supreme Court decisions with statutory changes, although the governor has vetoed that kind of legislation more than once.

August 15, 2014

Summary of August 13, 2014 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, August 13, 2014. 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

City of Montebello v. Vasquez (Arakelian Enterprises), S219052—Review Granted—August 13, 2014

This case presents the following issue: Did votes by city officials to approve a contract constitute conduct protected under Code of Civil Procedure section 425.16 (the anti-SLAPP statute) despite the allegation that they had a financial interest in the contract?

The City of Montebello Vasquez sued four city council members for violations of Government Code section 1090 based on the council members’ votes to award Arakelian Enterprises an exclusive waste hauling contract in the city. Arakelian had made significant contributions to the council members’ campaigns and interest groups. The defendants filed anti-SLAPP motions to strike the City’s complaint arguing their voting conduct was protected under the statute. The city opposed the motion invoking the anti-SLAPP statute’s “public enforcement exception.” (Code Civ. Proc., § 425.16, subd. (d).) The trial court denied the defendants’ anti-SLAPP motion.

The Court of Appeal, Second District, Division One, affirmed In a published opinion, City of Montebello v. Vasquez (2014) 226 Cal.App.4th 1084. It held the public enforcement exception was not applicable, as this was not an action brought on behalf of the people of California nor was it an issue of statewide concern. The court went on to explain that because the defendants’ conduct did not implicate First Amendment protections (it was conduct arising out of their official duties, not the First Amendment), it did not qualify as protected conduct under the anti-SLAPP statute. Because no protected conduct was at issue, the court did not reach the question whether the City had demonstrated a likelihood of success on the merits.

People v. American Contractors Indemnity Co., S219842—Review Granted and Held—August 13, 2014

The court granted review and ordered briefing deferred pending decision in People v. Safety National Casualty Ins. Co., S218712, which presents the following issue: May Penal Code section 977, subdivision (b)(1), be utilized to determine whether a proceeding at which a defendant charged with a felony failed to appear was a proceeding at which the defendant was “lawfully required” to appear for purposes of forfeiting bail under Penal Code section 1305, subdivision (a)(4)?

American Contractors Indemnity Company (American) and El Primo Bail Bonds posted a $30,000 bail bond for Jose Abraham Maldonado for felony charges. Although the court did not expressly order Maldonado to appear at a continued settlement conference, when he did not appear, the court ordered the bail bond forfeited and entered summary judgment on that basis. American moved to set aside the summary judgment and to discharge the forfeiture. It asserted that (1) the notice of the forfeiture was legally deficient, and (2) since the court had not expressly ordered Maldonado to appear at the conference, he had not failed to appear at a hearing he was “lawfully required” to attend under Penal Code section 1305. The trial court denied American’s motion.

In a published opinion, People v. American Contractors Indemnity Company (2014) 226 Cal.App.4th 1059, the Court of Appeal, First District, Division One, affirmed. It held that because American is a sophisticated, licensed insurer who routinely works with section 1305, the defects in the notice (not citing the statutory provisions leading to forfeiture and not citing what relief is available and the time restrictions on seeking relief) would not render the notice deficient. The court further held that Penal Code section 977, subdivision (b)(1), is sufficient to satisfy section 1305’s requirement that a defendant’s presence be “lawfully required” to justify bail forfeiture.

Order to Show Cause Issued

Howard Jarvis Taxpayers Association v. Bowen (Legislature of the State of California), S220289—Order to Show Cause Issued—August 11, 2014

Original proceeding. The Court issued an order directing the parties to show cause why the relief prayed for in the petition for writ of mandate should not be granted. This case involves the validity of proposed Proposition 49 for the November 2014 General Election — specifically, whether the Legislature had the authority to place on the ballot a non-binding measure in the form of an advisory question seeking the views of the electorate. We have blogged about this case before (see these posts).

Review Denied (with dissenting justices)

None.

Depublished

None.

August 15, 2014

Death penalty, prosecutorial misconduct opinions filing Monday

On Monday morning, the Supreme Court will file opinions in two criminal law cases, both of which were argued on the late-May calendar.

In People v. Shazier, the court will decide whether the Court of Appeal correctly reversed an order of commitment for prejudicial prosecutorial misconduct at a third commitment trial under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.).

People v. Merriman is an automatic appeal from a May 2001 judgment of death.

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

August 14, 2014

Another divided opinion, another dissenting pro tem

The Supreme Court this morning divided 4-3 on whether the prosecution could use at trial a defendant’s pre-Miranda silence.  In People v. Tom, the majority said “yes,” holding that the “defendant, after his arrest but before he had received his Miranda warnings, needed to make a timely and unambiguous assertion of the privilege in order to benefit from it.”  Justices Werdegar and Liu each filed dissenting opinions.  Fourth District, Division Three, Court of Appeal Justice William Rylaarsdam, sitting as a pro tem justice, signed Justice Liu’s opinion.

A dissenting pro tem has now become somewhat of a trend on the court since Justice Kennard’s April retirement left a vacancy that required a succession of Court of Appeal justices to sit on cases by assignment.  Of the 22 opinions filed without Justice Kennard, there have been 5 non-unanimous decisions.  In each one of those 5 cases, the pro tem has been in dissent, either alone or joining one or two permanent members of the court.

 

August 13, 2014

Fifth Amendment, two death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in three criminal cases.

People v. Banks, which was argued in June, is an automatic appeal from a July 1999 judgment of death.

People v. McCurdy was on the court’s late-May calendar and is an automatic appeal from an April 1997 judgment of death.

In People v. Tom, which was also argued in late May, the court will decide whether the use of a defendant’s postarrest, pre-Miranda silence in the prosecution’s case-in-chief violates the Fifth Amendment privilege against self-incrimination or the Fourteenth Amendment right to due process when the silence was neither compelled nor induced by governmental action beyond the arrest itself, and whether any error concerning the admission of defendant’s postarrest, pre-Miranda silence was harmless.  The court asked for supplemental briefing on how, if at all, the instant matter is affected by the United States Supreme Court decision in Salinas v. Texas (2013) ___ U.S. ___ [133 S.Ct. 2174].

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

August 12, 2014

Could Prop. 49 be Prop. 140 redux?

When we reported that the Supreme Court would be addressing separation of powers issues on Monday, we weren’t expecting a doubleheader.  But in addition to filing its opinion in Steen v. Appellate Division, which concerned whether a court clerk rather than a prosecutor could issue a certain type of misdemeanor complaint, the court late yesterday struck Prop. 49 from this November’s ballot.

Prop. 49 — which would have asked the voters to give their nonbinding, advisory opinion whether the United States Constitution should be amended to overturn the United States Supreme Court’s Citizens United opinion — had been placed on the ballot not by citizens’ initiative but by the Legislature.  The court has not yet ruled that the Legislature exceeded its (state) constitutional authority by doing so — an opinion will come months later and yesterday’s order said only that the proposition’s validity is “uncertain” and it held out the prospect of the measure being “placed on a future ballot at the Legislature’s direction if the court ultimately determines it is valid.”  But the detailed discussion of the merits in Justice Liu’s concurring statement makes it quite unlikely he will “ultimately determine [Prop. 49] is valid” and it’s a good guess that his views are shared by some, if not all, of the other four justices who voted to take the measure off this year’s ballot.

Whether the court ultimately holds Prop. 49 is valid, yesterday’s order at the least questions the Legislature’s authority.  Also, the Legislature wanted the measure on the ballot this November, not years from now.  So, the Legislature cannot be happy about the court’s action.  And, in fact, the proposition’s author, State Senator Ted Lieu, called it “a bizarre order,” and said, “There is nothing in the California Constitution that prevents this Legislature from putting an advisory measure on the ballot.  This, in essence, silences voters in November.”

Which raises the question of how the Supreme Court’s order will affect inter-branch relations and brings to mind the court’s action almost a quarter century ago on another ballot measure, Proposition 140.  That measure was definitely not placed on the ballot by the Legislature.  Instead, it was a citizens’ initiative that imposed term limits on legislators and cut the Legislature’s budget.  After its approval by 52 percent of the vote in 1990, the Legislature challenged its validity.  But the Supreme Court mostly upheld the measure (Legislature v. Eu (1991) 54 Cal.3d 492), which greatly displeased the Legislature.

Former Chief Justice Ronald George, who had just joined the court as an associate justice at the time of the Prop. 140 case, recounts in his memoir how the court’s ruling soured relations between the legislative and judicial branches.  George says that the court’s decision — especially the inclusion in the opinion of some inflammatory language — caused “damage that persisted for years.”  According to George, “legislators view many court decisions . . . through a political prism” and “their immediate reaction . . . was to view the [Prop. 140] decision as something that would merit retribution on their part, or, as they put it more succinctly, ‘payback.’ ”  He also recounts a legislative leader saying to then-Chief Justice Malcolm Lucas, ” ‘After what you guys just did to us, we would look like a bunch of wimps if we didn’t do anything to you.’ ”

The court’s upholding Prop. 140 seems a much more serious and direct attack on the legislative branch than yesterday’s order striking Prop. 49, or, at least, you would think it would be viewed that way by legislators.  Nonetheless, the Prop. 140 history cannot be comforting to the current Chief Justice, who, as head of the state judicial branch, has been dealing with the Legislature, formally and informally, in trying to restore devastating budget cuts that are impairing the functions of California’s courts.  Because of her unique role, Chief Justice Cantil-Sakauye might be viewing the Prop. 49 case through a somewhat different “prism” than the associate justices, which might partially account for her lone dissent from the order pulling Prop. 49 off the ballot.  In that dissent, she criticizes the majority for “resolv[ing] doubt against the Legislature’s action instead of in favor of it.”

George relates in his memoir that, as Chief Justice, he often assigned to himself the writing of the court’s opinion “in cases that involved disputes between two or three branches of government” to make sure the tone of the opinion — even if not the bottom-line holding — was less than incendiary.  “I had to devote so much time and effort to establishing good working relationships with the other two branches,” George says, that “I certainly didn’t want one ill-chosen adjective or adverb to torpedo all of our good efforts.”  It would not be surprising if the final opinion on Prop. 49 is written by Cantil-Sakauye, finds the measure to be beyond the Legislature’s authority, but is phrased in diplomatic and conciliatory terms.

 

August 11, 2014

Divided Supreme Court takes anti-Citizens United proposition off the ballot, for now

After last week asking for expedited preliminary briefing concerning a writ petition that seeks to remove an anti-Citizens United proposition (Prop. 49) from this November’s election ballot, the Supreme Court this afternoon issued an order to show cause.

Noting that the measure “can be placed on a future ballot at the Legislature’s direction if the court ultimately determines it is valid,” the court’s order directs the Secretary of State “to refrain from taking any further action related to the placement of Proposition 49 on the November 4, 2014, ballot.”  It also requires a formal return to be filed by September 10.

Today is the deadline for the Secretary of State to send the voter information guide to the state printer.  It looks like Prop. 49 won’t be part of what is sent.

Chief Justice Cantil-Sakauye filed a concurring and dissenting statement, agreeing that the writ petition merits review by the court, but disagreeing with the court’s decision to take Prop. 49 off the ballot.  Justice Liu issued a concurring statement that responds to the Chief Justice’s statement.

August 11, 2014

Another pro tem begs to differ

The Supreme Court’s opinion today in Steen v. Appellate Division is notable for addressing an interesting separation of powers issue and for justifying (in footnote 1) the rare active participation by a lower court in a reviewing court’s proceedings.  But the opinion is also significant because the pro tem sitting on the case — First District, Division Three, Court of Appeal Justice Peter Siggins — didn’t agree with it.  Justice Siggins instead signed a (technically) concurring opinion by Justice Liu, an opinion that takes issue with the majority’s separation of powers reasoning.

By disagreeing with the opinion of the Supreme Court on which he is sitting by assignment, Justice Siggins is not alone.  As mentioned, a dissenting pro tem has become somewhat common in cases heard since Justice Kennard’s retirement left a vacancy on the court.  By our count, this is the fourth time that’s happened in 19 post-Kennard opinions.

August 8, 2014

Separation of powers opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Steen v. Appellate Division.

Steen, which was argued in June, raises the issue whether a misdemeanor conviction for failure to appear in court on a traffic infraction should be vacated on the ground that Penal Code section 959.1, subdivision (c)(1), violates the separation of powers doctrine (Cal. Const., art. III, section 3) by permitting a clerk of court, rather than a prosecutor, to issue a complaint “for the offenses of failure to appear, pay a fine, or comply with an order of the court.”  The court asked for supplemental briefing regarding (1) whether Penal Code section 959.1, subdivision (c), violates due process (see U.S. Const., 14th Amend.; Cal. Const., art. I, § 7), and (2) whether the prosecution in the case was not commenced within the statute of limitations (see Pen. Code, §§ 802, subd. (a), 804).

Atypically, the superior court’s appellate division has been an active participant in this case at the Supreme Court level, but not without effort.  The appellate division first had to fend off a motion by the petitioner to exclude it as a party and then fought the prosecution for the right to go first at the oral argument.

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

August 8, 2014

No conference held the week of August 4, 2014

The Court held no conference this week.  The court normally does not have its Wednesday conference during the first week of the month.  Accordingly, no action will be taken on petitions for review and no opinions will be ordered published or depublished.

August 6, 2014

Supreme Court heads back to the courtroom for its September calendar [UPDATED x2]

Following a 3-month break, the Supreme Court will return to hear oral arguments after Labor Day.  Of course, the “break” refers only to the time the court has been deprived of hearing scintillating expositions on the law from us lawyers.  Since the last argument in early June, the court has issued 24 opinions and ruled on hundreds of petitions for review, habeas corpus, and writ relief.oral argument

There are four criminal cases and one civil case on the September calendar.  And five more Court of Appeal justices will be sitting on the court by assignment, bringing to 34 the number of cases with pro tems since Justice Kennard left the court in April.

On September 3, in San Francisco, the court will hear the following cases (with the issue(s) presented as stated on the court’s website):

Riverside County Sheriff’s Department v. Stiglitz:  Does the hearing officer in an administrative appeal of the dismissal of a correctional officer employed by a county sheriff’s department have the authority to grant a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531?  In April, the court asked the parties for supplemental briefing on these issues:  (1) Assuming that a motion for discovery of officer personnel records may be filed in an administrative proceeding (Evid. Code, § 1043, subd. (a)), and a hearing officer has authority to determine that the motion states good cause for discovery (Evid. Code, § 1043, subd. (b)(3)), is there any existing statutory mechanism that would allow the matter to be transferred to the superior court for an in camera review of the records by a judicial officer (Evid. Code, § 1045, subd. (b))?  (2) If no existing statutory mechanism applies, do we have the authority to create such a transfer mechanism?  (With a pro tem to be named later.)

People v. Eroshevich:  (1) If a trial court issues a ruling equivalent to an acquittal after a jury has entered a guilty verdict and the Court of Appeal reverses the trial court’s ruling on appeal, does the trial court’s erroneous acquittal nevertheless bar retrial under principles of double jeopardy if, on remand, the defendant renews an earlier motion for a new trial?  (2) In such circumstances, is the Court of Appeal permitted to direct a trial court to dismiss charges and acquit a defendant if the trial court decides to grant the defendant’s motion for a new trial under Penal Code section 1181?  (With a pro tem to be named later.)

Teal v. Superior Court:   Did defendant have the right to appeal the trial court’s denial of his petition to recall his sentence under Penal Code section 1170.126, part of the Three Strikes Reform Act of 2012, when the trial court held he did not meet the threshold eligibility requirements for resentencing?  (Third District Court of Appeal Justice Ronald Robie is the pro tem.)

People v. Gonzalez:  Was defendant properly convicted of both oral copulation of an unconscious person and oral copulation of an intoxicated person? (See People v. Craig (1941) 17 Cal.2d 453.)  (First District, Division Five, Justice Henry Needham, Jr., is the pro tem.)

People v. Adams:  [This is an automatic appeal from a July 2003 judgment of death. The court's website does not list issues for such appeals.]  (Second District, Division Six, Justice Kenneth Yegan is the pro tem.)

[August 13 update:  Second District, Division Four, Justice Thomas Willhite, Jr., has been assigned as the pro tem for Riverside County Sheriff's Department v. Stiglitz.  No word yet on the pro tem for People v. Eroshevich.]

[August 19 update:  the court's first amended calendar shows that the pro tem for People v. Eroshevich is Fifth District Justice Dennis Cornell.]

August 6, 2014

CEQA/election law opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Tuolumne Jobs & Small Business Alliance v. Superior Court.  In the TJSBA case, which was argued on the court’s late-May calendar, the court will address these issues:  (1) Must a city comply with the California Environmental Quality Act [CEQA] (Pub. Resources Code, § 21000 et seq.) before adopting an ordinance enacting a voter-sponsored initiative under Elections Code section 9214, subdivision (a)?  (2) Is the adoption of an ordinance enacting a voter-sponsored initiative under Elections Code section 9214, subdivision (a), a “ministerial project” exempt from CEQA under Public Resources Code section 21080, subdivision (b)(1)?

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

August 4, 2014

Citizens United writ petition: Supreme Court requests expedited preliminary briefing

About the writ petition that was filed Friday in the Supreme Court asking for the removal of the anti-Citizens United ballot measure:  the court today asked for expedited preliminary briefing.  Instead of the normal 10-day period, the court asked  for a preliminary opposition by this Wednesday at 4:00 p.m.  The petitioners will have until Friday at 4:00 p.m. to reply.

August 4, 2014

Disagreeable pro tems

When the Ninth Circuit asks the Supreme Court to decide a question of California law, it must formally promise to accept the Supreme Court’s decision.  Court of Appeal justices who sit on the Supreme Court by assignment are under no similar constraints to be agreeable, as has been demonstrated recently.

Today, the Supreme Court filed three opinions.  Two of them were 5-2 decisions and the pro tem justices were dissenters in both.  In People v. Capistrano, the court affirmed a death judgment.  Justice Liu penned a 30-page dissent, which was joined by Fifth District Court of Appeal Justice Rosendo Peña, Jr.  In Gregory v. Cott, an assumption of the risk case, it was the pro tem justice — Justice Laurence Rubin of the Second District, Division Eight — who authored the dissenting opinion; Justice Werdegar signed on.

Less than two weeks ago, in People v. Whitmer, the court decided by a 6-1 vote that a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed according to a single overarching scheme.  The lone dissenter there was the pro tem, Sixth District Presiding Justice Conrad Rushing, who wrote a 31-page separate opinion.

Since early May, after Justice Kennard retired and left a still-unfilled vacancy on the court, a different Court of Appeal justice has sat pro tem on 29 cases.  Opinions have issued in 17 of those cases.  Except for Capistrano, Gregory, and Whitmer, all have been unanimous decisions.

There is no institutional problem when a pro tem justice dissents.  What can be damaging is a 4-3 decision with a pro tem in the majority.  When that happens, there will be the suspicion that the case’s outcome was determined by which Court of Appeal justice was randomly chosen to sit on the Supreme Court for that one case.

August 4, 2014

Overly agreeable Ninth Circuit jumps the gun

When the Ninth Circuit asks the California Supreme Court to decide a question of California law, the Ninth Circuit is required to affirmatively state that it “will accept the [Supreme Court's] decision.”  (Rule 8.548(b)(2).)  After the Supreme Court’s most recent answer of a Ninth Circuit question — in Peabody v. Time Warner Cable, Inc. — the federal appeals court not only accepted the decision, it did so too quickly.

Following an answer of a Ninth Circuit question, the Supreme Court clerk “must notify that court and the parties when the decision is final.”  (Rule 8.548(f)(6).)  Decisions are typically final no sooner than 30 days after the Supreme Court files its opinion, and the clerk sends a finality letter soon after that, as he did, for example, in Verdugo v. Target Corporation.

In Peabody, the Supreme Court filed its opinion on July 14.  Just 17 days later, however, the Ninth Circuit issued a memorandum remanding the case to the district court for reconsideration consistent with the Supreme Court’s decision.  However, the Supreme Court clerk’s finality letter probably won’t issue until the end of next week.

Nobody has filed a rehearing petition in Peabody and the Supreme Court’s decision is very unlikely to change.  But still, things could get messy if there were a change after the Ninth Circuit had already ruled based on the original decision.

August 1, 2014

Challenge to anti-Citizens United ballot measure before the Supreme Court

It’s not quite a staple for the Supreme Court table, but challenges to election initiatives do occasionally land on the docket.  The most recent example is an original writ petition filed Friday to take Proposition 49 off this November’s ballot.

Proposition 49 was placed on the ballot by the Legislature’s passage of SB 1272  and Governor Brown allowing it to become law without his signature.  If approved, the ballot measure would encourage — in a strictly advisory and nonbinding way — enactment of a constitutional amendment to overturn the United States Supreme Court’s 5-4 decision in Citizens United v. Federal Election Commission (2010) 558 U.S. 310.  The initiative asks the voters to answer this question:  “Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are the rights of natural persons only?”

Last week, opponents of Proposition 49 filed a writ petition — Howard Jarvis Taxpayers Association v. Bowen — in the Third District Court of Appeal to block a vote on the initiative.  This Thursday, the court denied the writ petition by a 2-1 vote.  The dissenter, Presiding Justice Vance Raye, believes “Proposition 49 is clearly invalid and thus review prior to the election is required.”  The next day, the opponents filed a new writ petition — not a petition for review — in the Supreme Court.

According to the docket, the Court of Appeal writ petition informed of an August 11 printing deadline, which probably refers to the date when the Secretary of State’s office must send the voter information guide to the state printer.  Presumably, the Supreme Court writ petition mentions the same deadline.  Under those circumstances, the Supreme Court will likely take some action next week.

August 1, 2014

Jurors behaving badly in death penalty cases

Yesterday, the Supreme Court reversed a death penalty judgment because of jury misconduct, the second time it did so within a month.  In yesterday’s decision — People v. Hensley — the court found prejudicial misconduct during the penalty phase of the trial when a juror consulted his pastor during deliberations.  A little over three weeks earlier, in People v. Weatherton, the court concluded a juror’s prejudgment of the case had impermissibly infected the guilt phase.  Both opinions were unanimous and authored by Justice Corrigan.

The Hensley court distinguished a 10-year-old, 4-3 Supreme Court decision — People v. Danks (2004) 32 Cal.4th 269 — in which the court had affirmed a death judgment despite evidence that two jurors had consulted their pastors.  The Daily Journal’s Emily Green reports today [subscription required] that the defense attorney in the Danks case is not happy.  Counsel is quoted as saying that the error in Danks was “more egregious” than in Hensley and that, “I’m not minimizing the error [in Hensley], but I think this is complete hypocrisy.”  Justices Baxter, Werdegar, and Chin were in the majority in both Hensley and Danks.

According to Green’s article, before Weatherton, the Supreme Court had not reversed a death judgment in two years.