October 12, 2015
A law professor who submitted an amicus curiae brief in Howard Jarvis Taxpayers Association v. Padilla, which was argued last week, writes in today’s Daily Journal [subscription] about what he calls “[a]n interesting and perplexing problem: What does an amicus do when the amicus brief is called out by a justice during oral arguments, and the justice is incorrect?”
It’s strictly a rhetorical question, however, because the professor isn’t interested in discussing a Supreme Court practice issue. Rather, the column is in effect a supplemental, post-argument amicus brief that the court would almost certainly never accept if the amicus were operating within the rules. It gives a lengthy explanation why the professor believes that the justice who “called out” the amicus (unnamed in the column, but it was Justice Goodwin Liu) was incorrect in stating that the amicus brief “cited the wrong revision” of two reports by the California Constitution Revision Commission. The column’s substance contains argument that the professor himself admits had been omitted from the amicus brief — “the amicus considered adding an explanatory note in an already overly long brief.” If the column’s intent to evade the rules were not transparent enough already, it concludes, “Hopefully, justices read newspapers.”
Rule 8.520(f)(7) allows parties to answer an amicus brief. The Daily Journal might have an analogous rule permitting parties to respond to amicus briefs masquerading as newspaper columns.
October 11, 2015
The Court held no conference this week because it heard oral argument in San Francisco. Accordingly, this week no action was taken on petitions for review and no opinions were ordered published or depublished.
October 7, 2015
The California Channel televised yesterday morning’s Supreme Court arguments. If you missed it live, you can watch the video.
[October 8 Update: A video of just the argument in Howard Jarvis Taxpayers Association v. Padilla is available on You Tube.]
October 2, 2015
The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conferences on September 16 and 30, 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.
There were no outright grants of review. One case did result in a grant-and-transfer for the Court of Appeal to consider on its merits a petition for writ of review following a ruling by the Workers’ Compensation Appeals Board.
Review Denied (with dissenting justices)
Cosentino v. Fuller, S227157—Depublished Court of Appeal Opinion—September 23, 2015
The Reporter of Decisions was directed not to publish in the Official Appellate Reports the opinion in Cosentino v. Fuller (2015) 237 Cal.App.4th 790, in which the Court of Appeal, Fourth District, Division Three, held that sovereign immunity afforded to Indian tribes applies only when the claims against tribal officials are based on actions the officials took in their official capacity and within the scope of their official authority. Holding the defendants’ actions—revoking the plaintiff’s gaming license without cause and in retaliation against him for acting as an informant for the Department of Justice—exceeded the scope of their authority as gaming commission officials, the Court of Appeal reversed the trial court’s order granting the defendants’ motion to dismiss.
October 2, 2015
The California Channel will broadcast the three oral arguments on Tuesday morning of the Supreme Court’s October calendar. The first argument is in Howard Jarvis Taxpayers Association v. Padilla, the case to decide if the Legislature can put a measure on the ballot asking voters to give their advisory opinion whether the United States Constitution should be amended to overturn the United States Supreme Court’s Citizens United decision.
Anti-Citizens United demonstrators are being urged to “pack the hearing room.” But now they can watch at home, and they need not surreptitiously record the argument, as demonstrators have done at the United States Supreme Court.
October 2, 2015
The Supreme Court today announced its November calendar, which will be held in Sacramento. On November 3, the court will hear the following cases (with the issue presented as stated on the court’s website):
Monterey Peninsula Water Management District v. California Public Utilities Commission: Does the Public Utilities Commission have the authority to review and regulate a user fee imposed by a local government entity that is collected through the bills of a regulated public utility?
People v. Safety National Casualty Insurance Co.: 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)?
People v. Arroyo: May the criminal prosecution of a juvenile offender under Welfare and Institutions Code section 707, subdivision (d), be commenced by grand jury indictment or only by the filing of an information after a preliminary hearing?
People v. Masters: This is an automatic appeal from a July 1990 judgment of death. The court’s website does not list issues for such appeals.
Yes, the judgment on appeal is over 25 years old. Briefing in the case — comprising more than 800 pages — was completed almost 12 years ago.
People v. Johnson: This is an automatic appeal from a November 2009 judgment of death. The court’s website does not list issues for such appeals.
September 30, 2015
There will likely be lots of people attending next week’s argument of Howard Jarvis Taxpayers Association v. Padilla, the case to decide whether the Legislature can ask the voters to give their advisory opinion — through an initiative on the ballot — whether the United States Constitution should be amended to overturn the United States Supreme Court’s Citizens United decision. The California Clean Money Action Fund is encouraging its supporters to attend a pre-argument rally outside the court and to then “pack the hearing room” for the purpose of, as an email announcement states, “show[ing] the justices how many Californians demand our right to vote on Prop 49.”
Although they might not be joining the crowd at the court, legislators will probably also be keenly interested in the argument.
It’s good to remember that this case has nothing to do with the merits of Citizens United. Rather, the issue is the Legislature’s power under the state constitution to place on the ballot an initiative that asks for the voters’ nonbinding opinion on a topic of public importance. It’s likely at least some members of the California Supreme Court agree that Citizens United was wrongly decided, but that doesn’t mean they believe Prop. 49 was a proper use of the Legislature’s initiative authority.
September 25, 2015
John Roemer previews in today’s Daily Journal [subscription] the October 6 argument in Howard Jarvis Taxpayers Association v. Padilla, the case to decide whether the Legislature can ask the voters to give their advisory opinion whether the United States Constitution should be amended to overturn the United States Supreme Court’s Citizens United decision. The article quotes Rick Hasen, UC Irvine law professor and Horvitz & Levy former lawyer and current consultant.
September 25, 2015
Horvitz & Levy’s Jessica Di Palma writes for Law360 [subscription] about the Supreme Court’s power to order Court of Appeal opinions republished after review is granted and about the rule proposal that could make the power obsolete.
The piece’s headline — not written by Jessica — is a bit misleading. The court is not proposing doing away with its power to depublish opinions; rather, the rule change would eliminate only the automatic depublication effect of an order granting review.
September 25, 2015
At the Supreme Court’s Wednesday conference this week, Justice Carol Corrigan twice disagreed with the court’s use of its (de)publication powers. In People v. Allen, the Supreme Court depublished the Court of Appeal’s opinion that rejected a defendant’s Batson/Wheeler challenge (a Supreme Court hot button issue), but Justice Corrigan recorded a vote to keep the opinion on the books. Conversely, in In re Elias, the court denied requests to depublish an opinion that found a Miranda violation, but Justice Corrigan recorded a vote to depublish. (Justices do not always have their dissenting votes at conference publicly recorded.)
As noted, the Supreme Court also on Wednesday depublished an opinion in a civil case. There was no recorded vote on that order, nor on three other cases in which the court denied depublication requests.
September 25, 2015
The following is a summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, September 23, 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 Denied (with dissenting justices)
Cosentino v. Fuller, S227157—Court of Appeal Opinion Depublished—September 23, 2015
The Reporter of Decisions was directed not to publish in the Official Appellate Reports the opinion in Cosentino v. Fuller (2015) 237 Cal.App.4th 790, in which the Court of Appeal, Fourth District, Division Three, held that sovereign immunity afforded to Indian tribes applies only when the claims against tribal officials are based on actions the officials took in their official capacity and within the scope of their official authority. Finding that the defendants’ actions — revoking the plaintiff’s gaming license without cause and in retaliation against him for acting as an informant for the Department of Justice — exceeded the scope of their authority as gaming commission officials, the Court of Appeal reversed the trial court’s decision to grant the defendant’s motion to dismiss.
September 23, 2015
Reconsidering the constitutionality of Civil Code section 3333.2 — the limit on noneconomic damages in healthcare professional negligence cases enacted as part of the 1975 Medical Injury Compensation Reform Act (MICRA) — seemed a possible Supreme Court agenda item after Justices Mariano-Florentino Cuéllar and Leondra Kruger took the bench in January. Today, however, it appears the issue is not on the court’s to-do list.
Without recorded dissent (Justice Kathryn Werdegar was absent and did not participate), the court at its weekly conference denied review in Chan v. Curran, in which the First District, Division One, Court of Appeal had rejected a constitutional challenge, concluding that “the legitimate debate over the wisdom of MICRA’s noneconomic damages cap remains a matter for the Legislature and state electorate.”
In February, the court passed up another opportunity to reevaluate its 30-year-old precedent upholding the MICRA damage cap. That action, and today’s, make it less likely than it once was that the court as presently constituted will ever revisit the issue.
September 18, 2015
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, September 16, 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.
Castro v. IndyMac INDX Mortgage Loan Trust 2005-AR21, S227876—Review Granted and Held—September 16, 2015
The court ordered briefing deferred pending decision in Yvanova v. New Century Mortgage Corp., S218973, which presents the following issue: In an action for wrongful foreclosure on a deed of trust securing a home loan, does the borrower have standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void?
The Court of Appeal, Fourth District, Division Two, held in an unpublished decision, Castro v. IndyMac INDX Mortgage Loan Trust 2005-AR21 (June 9, 2015, S227876) 2015 WL 3562455 [nonpub. opn.], that the plaintiff lacked standing to challenge the assignment of a promissory note and deed of trust on his home because the transfer did not change his obligation to pay the note.
Review Denied (with dissenting justices)
September 17, 2015
The Supreme Court yesterday issued an invitation to the United States to file an amicus curiae brief in a case involving the federal Indian Child Welfare Act. The issue in the case — In re Abbigail A. — is whether rules 5.482(c) and 5.484(c)(2) of the California Rules of Court conflict with Welfare and Institutions Code section 224.1, subdivision (a), by requiring the juvenile court to apply the provision of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) to a child found by a tribe to be eligible for tribal membership if the child has not yet obtained formal enrollment. The issue about which the court would like the federal government’s opinion is whether those court rules are preempted to the extent they purport to require California courts to apply the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) in child custody proceedings involving a minor who is not an “Indian child” as defined in ICWA. (See 25 U.S.C. § 1903(4); cf. id., §§ 1902 & 1921.)
The Supreme Court solicits amicus briefs occasionally. When it does so, as in Abbigail A., it usually addresses the request to a governmental entity, like when it asked for a brief from the state Division of Labor Standards Enforcement about suitable employee seating regulations or when it asked the United States to chime in about the effect of federal law on whether to grant a law license to an undocumented immigrant.
September 17, 2015
Out now is “Olga’s Promise: One Woman’s Commitment to the Children of Nepal.” The memoir’s author is endorsed by former President Jimmy Carter: “Olga Murray, at 90, has been a tireless crusader for the freedom and dignity of thousands of young girls in Nepal consigned to indentured servitude. Her work has helped to provide them with access to education and the chance for a decent life.”
So, why is this relevant to a California Supreme Court blog? Because Olga Murray was a lawyer at the court for 37 years, working mostly for the late Justice Stanley Mosk.
September 15, 2015
Howard Mintz reports in today’s San Jose Mercury News that the California Building Industry Association has filed a certiorari petition asking the U.S. Supreme Court to hear the Association’s challenge to a San Jose ordinance that requires all new residential development projects of 20 or more units to sell at least 15 percent of the for-sale units at a price affordable to low or moderate income households. In California Building Industry Association v. City of San Jose, the California Supreme Court three months ago held the enactment did not offend the takings clause of the federal and state constitutions.
September 11, 2015
In its conference on Wednesday, September 9, 2015, the Court granted no petitions for review in civil cases, no civil petitions were denied with dissenting justices, and no civil opinions were ordered published or depublished.
September 10, 2015
Pennsylvania appellate lawyer and nationally known appellate blogger Howard Bashman recently offered some sage advice on brief writing and oral argument in The Legal Intelligencer [subscription required]. Bashman writes that now, more than ever, the briefs are key to success on appeal. Oral argument is secondary because, even when it is available, “[y]ou cannot expect to rescue an appeal at oral argument that you have already lost on the briefs.”
Among Bashman’s advice on brief-writing is this nugget: “Submitting a brief that is credible, reliable and subtly persuasive is in my experience the best way to earn or maintain the trust of the decision makers and also the most likely way to cause them to conclude that your side should prevail.” Bashman goes on to explain why the contrary approach does not work: “The more that an advocate needs to shout, exaggerate, or declare in bold, italicized and underlined text just how right he or she is and how wrong the other side happens to be, the less likely a neutral decision maker will find the presentation persuasive. Indeed, as counterintuitive as it may sometimes seem, the more egregiously incorrect a trial court’s ruling or an adversary’s argument is, the less strident one should be in order to usefully and persuasively demonstrate the errors at hand.”
We could not agree more.
September 8, 2015
John Roemer reports in today’s Daily Journal [subscription] about the Supreme Court’s decision in People v. Seumanu, where the court revisited the issue whether delay in implementing the state’s death penalty law renders the law unconstitutional. Although a federal district court had struck down a death sentence on that ground, the Supreme Court (again) rejected the argument. However, the Supreme Court did so in a way that the article says “represents a sea change for a court that has solidly backed the death penalty ever since 1987, when Chief Justice Rose Bird and two colleagues were ousted by voters for opposing capital punishment.” (Link added.) The court wrote that, despite past adverse decisions on the delay claim, “doctrine can evolve[,] . . . especially . . . when interpreting the Eighth Amendment, which was ratified in 1791,” and that the claim is more appropriately presented in a habeas corpus proceeding than in the Seumanu direct automatic appeal.
Roemer has reported before about changes in the court’s death penalty jurisprudence, and the court has been the target of criticism for recent death sentence reversals. One possible reason for any shift might be the constraints placed on the federal courts in reviewing Supreme Court decisions, which increase the likelihood that the state court will have the last word on life-and-death issues.
September 7, 2015
Maura Dolan has an important report on the front page of Sunday’s Los Angeles Times about a federal law — the 1996 Antiterrorism and Effective Death Penalty Act — and the U.S. Supreme Court’s interpretations of the law that “have robbed federal judges of much of their power to overturn convictions obtained in state court, where the vast majority of criminal defendants are tried.”
The article quotes law review articles by two Ninth Circuit judges — Alex Kozinski and Stephen Reinhardt — critical of the resulting injustices. Judge Kozinski says that federal judges “now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted” and he calls for repeal of the law that is “cruel, unjust and unnecessary [and] that effectively removes federal judges as safeguards against miscarriages of justice.” Similarly, Judge Reinhardt argues that “[t]he collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era,” and he criticizes the U.S. Supreme Court’s interpretations of the legislation for creating “a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the Writ as it would be for a Supreme Court Justice to strike out Babe Ruth, Joe DiMaggio, and Mickey Mantle in succession — even with the Chief Justice calling balls and strikes.” (Link added.)
Restrictions on federal habeas review have given state court criminal decisions — including those of the California Supreme Court — greater finality. In June, for example, the U.S. Supreme Court held the Ninth Circuit had improperly granted habeas relief for a prisoner whose death sentence the California high court had affirmed. Because “the safety net [of federal habeas review] is largely gone,” Dolan writes, “some state judges are calling for closer examination of criminal cases,” and she cites Justice Goodwin Liu as one who “has been trying to push his colleagues to examine trial mistakes more carefully. He has complained in dissents that the California court is out of the norm in upholding so many criminal convictions tainted by legal errors at trial and possible racial bias in jury selection.” (Links added.)
Equally disturbing is one reason given for limiting the federal courts’ powers. The article reports that a representative of a “law-and-order group[ ]” supportive of the current state of the law believes “[t]he California Supreme Court should have the last word because the justices serve at the will of the voters” and it quotes the representative as saying, “We can’t get rid of Reinhardt. We got rid of Rose Bird,” referring to the 1986 purge of three justices from the California Supreme Court.
Such attempts to intimidate state court judges who — unlike their federal counterparts — stand for election, are a threat to judicial independence. But, ironically, they also bolster the argument, made recently by at least one death row prisoner, that state court death sentences and affirmances are invalid because the impartiality of those courts’ judges is compromised by their fear of being voted out of office if they rule in favor of a capital defendant. The next brief including that claim could well include a section heading saying simply, “‘We can’t get rid of Reinhardt. We got rid of Rose Bird.'”