September 9, 2014

October’s calendar is five sixths criminal

The Supreme Court today announced its October calendar.  There are six cases on it, five of them criminal, including a death penalty case that is being argued for a second time.  Each case will have a different pro tem.  Not double counting the reargued case, in which the pro tem justice who participated in the first argument will return for the second round, October will bring to 39 the number of cases with pro tems since Justice Kennard left the court in April.

On October 7, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Packer v. Superior Court:  Did the trial court abuse its discretion by denying a motion for recusal of a prosecutor without an evidentiary hearing on the grounds that defendant failed to make a prima facie showing that recusal was warranted?   (Second District, Division Seven, Court of Appeal Justice Fred Woods is the pro tem.)

People v. Centeno:  Did the prosecutor commit misconduct during closing argument by misstating the state’s burden of proof?  (Second District, Division Three, Court of Appeal Justice Richard Aldrich is the pro tem.)

People v. Grimes: [This is an automatic appeal from a January 1999 judgment of death.  The court's website does not list issues for such appeals.] (Second District, Division Seven, Justice Laurie Zelon is the pro tem.)  [Note:  for this second argument, following supplemental briefing, the court has limited each side to 15 minutes this time.  Argument in death penalty cases can be up to 45 minutes per side.)

Rashidi v. Moser:  If a jury awards the plaintiff in a medical malpractice action non-economic damages against a healthcare provider defendant, does Civil Code section 3333.2 entitle that defendant to a setoff based on the amount of a pretrial settlement entered into by another healthcare provider that is attributable to non-economic losses or does the statutory rule that liability for non-economic damages is several only (not joint and several) bar such a setoff?  (Fifth District Court of Appeal Justice Jennifer Detjen is the pro tem.)

People v. Lavender:  Did the Court of Appeal err by reversing defendants’ convictions for juror misconduct and remanding for a new trial rather than remanding for an evidentiary hearing into the misconduct?  (First District, Division One, Justice Robert Dondero is the pro tem.)

People v. Smith:  Was defendant properly convicted of murder under the natural and probable consequences theory of aiding and abetting?  Four months ago, the court asked for supplemental briefing with this order:  The trial court’s instructions to the jury included the following sentence:  “If the murder or voluntary manslaughter was committed for a reason independent of the common plan to commit the disturbing the peace or assault or battery, then the commission of murder or voluntary manslaughter was not a natural and probable consequence of disturbing the peace or assault or battery.”  (RT 8283; see CALCRIM No. 402.)  The parties are requested to brief the following questions:  (1) Does this sentence correctly state the law?  (2) If so, is there evidence in the record to support a jury finding that the murders in this case were not committed for a reason independent of the common plan to commit the disturbing the peace or assault or battery?  (Sixth District Court of Appeal Justice Patricia Bamattre-Manoukian is the pro tem.)


September 8, 2014

“Petitioning to Right a Historic Wrong”

This month’s Los Angeles Lawyer includes an essay by Rachelle Chong, an attorney and former FCC commissioner, about her great uncle — Hong Yen Chang — and the effort by UC Davis law students to have the California Supreme Court reverse its 1890 race-based decision (In re Hong Yen Chang (1890) 84 Cal. 163) denying Chang admission to the California bar.  The state Senate several months ago passed a supporting resolution.

In the New York Times archives, you can read an 1888 article about Chang becoming licensed to practice law in New York (after an earlier denial) and being at the time, according to the article, “the only regularly admitted Chinese lawyer in this country.”


September 6, 2014

California’s newest state Supreme Court justice discusses his rise

Howard Mintz has the exclusive interview of Mariano-Florentino Cuéllar for the San Jose Mercury News.  The headline is slightly presumptuous, however.  Although Cuéllar’s nomination was recently confirmed by the Commission on Judicial Appointments, he must still be approved by the voters in November and, even then, must wait until January to join the court.


September 4, 2014

The 2014 Court Statistics Report documents continued decline in Supreme Court filings.

As we noted here, the Judicial Council recently issued its 2014 Court Statistics Report, with detailed statistics on caseload trends at all levels of the judicial branch. The report includes data for the ten years leading up to and including fiscal 2012-2013, which ended on June 30, 2013. The report reveals that the Supreme Court issued more opinions in fiscal 2013, with 94 written opinions issued compared with the previous year’s 87. The 94 opinions issued in fiscal 2013 is about par for the course, with the Court having issued 98 opinions in fiscal 2011. The Court also ordered depublished 16 opinions of the Court of Appeal, which is in line with the moderate but consistent rate of depublication we have observed in the years since Chief Justice Tani Cantil-Sakauye took over from her predecessor, Ronald M. George.

With the exception of the increase in the Supreme Court’s written opinions, however, the Report largely tells a story of statistical decline. Total petitions for review fell to 4,188, down significantly from 4,620 in the previous fiscal year and 4,999 the year before. Filings of civil petitions for review exhibited a similar decline. There were just 1,108 civil petitions for review filed in fiscal 2013, compared with 1,203 in fiscal 2012 and 1,247 in fiscal 2011.

Original writ proceedings filed in the Supreme Court also declined in fiscal 2013, with 2,911 such filings compared to 3,581 in fiscal 2012 and 4,082 original proceedings filed in fiscal 2011. Original civil writ proceedings displayed an even more precipitous decline, with just 174 initiated in fiscal 2013, compared with 294 in the previous fiscal year, and 507 the year before that.

We are typically reluctant to speculate about the possible reasons for a statistical trend, but here the cause of the decline in filings seems pretty clear. Justice Douglas Miller, chair of the Judicial Council’s Executive and Planning Committee, blamed the “worrisome” decrease in court filings on several years of judicial branch budget cuts. Justice Miller said those cuts, in turn, have resulted in “the increase in court filing fees to offset General Fund budget cuts and closure of courthouses and/or the reduction of hours at our courthouses.” As the Court noted last year in its 2013 Workload Statistics Report, these factors, plus staff furloughs, have hindered the flow of cases through the system and have thus reduced the number of filings in the Supreme Court.

September 3, 2014

No conference held the week of September 1, 2014

The Court is holding no conference this week because it is hearing oral argument in San Francisco. Accordingly, this week no action will be taken on petitions for review and no opinions will be ordered published or depublished.

September 2, 2014

Supreme Court Cases and Bananas – Both Can Come in Bunches

Sometimes an “issue du jour” generates a number of intermediate appellate opinions before guidance is provided by the California Supreme Court.  That has been the situation with issues concerning the enforceability of arbitration agreements in California, as our latest conference report summary for civil cases reflects.  After issuing its recent decision in Iskanian v. CLS Transportation Los Angeles, LLC, the Supreme Court has now decided to continue holding two of those cases (Caron v. Mercedes-Benz Financial Services USA and Flores v. West Covina Auto Group) until the resolution of Sanchez v. Valencia Holding Co.; the Court has chosen to dismiss review altogether in one case (Reyes v. Liberman Broadcasting, a decision that favors the defense side from the Second District, Division One); and the Court has transferred the following three cases back to the Courts of Appeal for reconsideration in light of Iskanian: (1) Franco v. Arkelian Enterprises (a decision for the plaintiff from the Second District, Division One); (2) Brown v. Superior Court (another decision for the plaintiff from the Sixth District); and (3) Ybarra v. Apartment Investment & Management Co. (a decision for the defense from the Second District, Division Two).

These cases viewed together provide an interesting overview of three of the four options the Court has in dealing with grant-and-hold cases—the fourth being to take a held case up on the merits after the lead case is decided, and call for full briefing and argument.  If Sanchez does not answer the questions posed in Caron and Flores, or in one of the other cases being held pending the resolution of Sanchez, that may yet happen.

We have previously posted information about the time lag that has sometimes occurred between issuance of the lead case and either dismissing review in held cases or transferring them to the Court of Appeal, and we have also discussed the need for litigants in grant-and-hold cases to move fast to express their views on the appropriate treatment of the case after the lead case is decided.

September 1, 2014

Judicial Lawmaking, Public Policy, and the California Supreme Court

Evan Richard Youngstrom, a student at the University of San Diego School of Law, has posted this abstract for a paper to appear in California Legal History, the annual journal of the California Supreme Court Historical Society (disclosure:  I serve on the Society’s board of directors):

For the past quarter century the California Supreme Court has been the most influential state supreme court in the nation.  This paper explains this influence can be attributed to the court’s rejection of legal formalism and its embrace of a policy-based lawmaking role.  After discussing examples of the court’s innovative decisions, this paper explains why this type of judicial lawmaking is appropriate for a state supreme court.

If the Supreme Court is influential because of its rejection of legal formalism, likely new Justice Mariano-Florentino Cuéllar might just fit right in.

September 1, 2014

Summary of August 27, 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 27, 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

Yvanova v. New Century Mortgage Corporation, S218973 – Review Granted – August 27, 2010 [Justice Chin was recused]

The court limited briefing and argument to this 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?

Plaintiff executed a promissory note secured by a deed of trust on her residence.  Later, when plaintiff had an unpaid balance approximating $538,000, the trustee executed a notice of sale and subsequently sold plaintiff’s property.  Plaintiff filed a quite title action, alleging that a predecessor trustee never possessed the deed of trust and all subsequent transfers were therefore invalid.  The trustee demurred on the ground that plaintiff lacked standing to seek quiet title because she defaulted on the loan and failed to tender the amount due. The trial court sustained defendant’s demurrer and dismissed plaintiff’s complaint without leave to amend.  The Court of Appeal, Second District, Division One, held in a published opinion, Yvanova v. New Century Mortgage Corporation (2014) 226 Cal.App.4th 495, that plaintiff was not permitted to quiet title because she failed to repay the amount due on the promissory note and because any assignment of her note did not change her obligations.

Please Continue to Hold

Caron v. Mercedes-Benz Financial Services, S205263 – Review Granted & Held – October 24, 2012; Deferred Briefing Continued – August 27, 2014

Flores v. West Covina Auto Group, LLC, S208716 – Review Granted & Held – April 10, 2013; Deferred Briefing Continued – August 27, 2014

In light of its decision in Iskanian v. CLS Transportation Los Angeles, LLC, the court dismissed review in one case and transferred three others back to the Courts of Appeal for reconsideration.  As in those four cases, review had been granted in Caron and Flores and action had been deferred pending a decision in Iskanian.  Instead of dismissing review or transferring the matters, however, the court has ordered that further action in Caron and Flores will now be deferred pending the decision in Sanchez v. Valencia Holding Co. LLC, S199119, which includes the following issue:  Does the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. 321 [131 S.Ct. 1740], preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable?

Review Denied (with dissenting justices)




August 30, 2014

Court of Appeal Justice Walter Croskey dies

It is being reported that Second District Court of Appeal Justice H. Walter Croskey has died at 81.  This is a huge loss for California’s judicial system.  Justice Croskey, who served on the appellate bench for over 26 years, would make anyone’s list of best Court of Appeal justices.  He was also a co-author of a highly regarded insurance law treatise and the recipient of numerous prestigious awards, most recently the Beacon of Justice Award given five months ago by the Friends of the L.A. Law Library.CroskeyWalter

Given the focus of this blog, we note that Justice Croskey was on the governor’s short list of candidates to fill a Supreme Court vacancy in 1988.  That appointment went to Justice Joyce Kennard.

Although he did not become a permanent member of the Supreme Court, Justice Croskey did sit there by assignment several times:  in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155; People v. Wells (2006) 38 Cal.4th 1078; and Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763.

Croskey was one of the greats on the Court of Appeal.  He would have been an excellent Supreme Court justice.


August 28, 2014

Dissenting pro tems keep a streak going

The Supreme Court issued two 4-3 opinions this morning — in People v. Chandler and Patterson v. Domino’s Pizza LLC.  In each, the pro tem justice was one of the three dissenters.  In Chandler, Second District, Division Two, Justice Victoria Chavez joined Justices Corrigan and Baxter in a concurring and dissenting opinion.  In Patterson, Second District, Division One, Justice Victoria Gerrard Chaney and Justice Liu signed Justice Werdegar’s dissent.

By our count, since Justice Joyce Kennard’s retirement required a parade of Court of Appeal justices to sit on the Supreme Court by assignment, there have now been seven non-unanimous decisions and the pro tem justice on the case has been in the minority in all seven.  That’s a definite trend.  Of course, this doesn’t mean that pro tems are always disagreeable.  During the same time, there have been 21 unanimous opinions that the pro tems have joined.  So, a pro tem is more likely than not to sign the court’s opinion.  However, whenever there has been a dissent, the pro tem justice on the case has been either part of it or the lone dissenter.

August 28, 2014

Cuéllar confirmed; election next

The Commission on Judicial Appointments this morning confirmed Governor Brown’s nomination to the Supreme Court of Professor Mariano-Florentino Cuéllar.  The Commission members — Chief Justice Tani Cantil-Sakauye, Attorney General Kamala Harris, and Court of Appeal Presiding Justice Joan Dempsey Klein — voted unanimously in favor of Cuéllar.

The State Bar’s Commission on Judicial Nominees Evaluation (JNE), which is required to vet the governor’s nominees and appointees, gave Cuéllar its highest possible rating — “exceptionally well qualified.”  No one testified in opposition to the nomination.

Unlike a confirmed Supreme Court appointee, an approved nominee does not immediately join the court.  Rather, the nominee first must win election in November and then wait two months until his or her retiring predecessor’s term expires.  In Cuéllar’s case, he will appear on the November 4 ballot and, if elected, will become a Supreme Court justice on January 5, when Justice Marvin Baxter’s term expires.

There is still one vacancy on the court.  If the governor makes an appointment soon, as could happen, and the Commission promptly confirms the appointee, he or she could join the court before Cuéllar does.

August 27, 2014

Tomorrow’s Cuéllar confirmation hearing will be televised

As with past Supreme Court confirmation hearings, tomorrow morning’s Commission on Judicial Appointments hearing on Governor Brown’s nomination of Professor Mariano-Florentino Cuéllar will be televised on the California Channel.  The hearing is scheduled to start at 9:00 a.m. and last two hours.

August 27, 2014

An empty pipeline when criminal-threat, franchisor-vicarious-liability opinions file tomorrow

As expected, tomorrow morning, the Supreme Court will file opinions in two June calendar cases.

In Patterson v. Domino’s Pizza LLC, the court will decide whether the defendant franchisor is entitled to summary judgment on plaintiff’s claim that it is vicariously liable for tortious conduct by a supervising employee of a franchisee.

People v. Chandler presents the question:  Did the trial court err by failing to instruct the jury that the crime of attempting to make a criminal threat – like the completed crime of making a criminal threat (Pen. Code, § 422) – requires that it be reasonable under the circumstances for the victim to have been in sustained fear?

After tomorrow and until next week’s oral arguments, the court will have no argued cases awaiting an opinion.  That is common for this time of year, because the court doesn’t hear arguments in July or August and because cases usually must be decided within 90 days of argument.  As a result, the Patterson and Chandler opinions might be the last ones we see for a month or more.

Besides Patterson and Chandler, there had been one other case — People v. Grimes — left in the pipeline, but it was lagging behind for a good reason.  Although Grimes was argued on the late-May calendar, the court subsequently vacated submission of the case and ordered supplemental briefing, resubmitting the matter on July 24 when the supplemental briefing was complete.  (There was one similar resubmitted case at this time last year.)  Last week, however, the court took Grimes out of the pipeline altogether, granting the appellant’s request for additional oral argument and vacating submission again.

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

August 22, 2014

Summary of August 20, 2014 conference report for civil cases

Summary of August 20, 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 20, 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

Kesner v. Superior Court (Pneumo Abex LLC), S219534—Review Granted—August 20, 2014

This case presents the following question: Do employers owe a duty to family members of employees in asbestos take-home exposure cases?

The plaintiff’s uncle was an employee of Pneumo Abex, where he came into contact with manufacturing processes that allegedly left asbestos dust on his clothing. Plaintiff did not live with his uncle but, during a six-year period, was a frequent visitor to his uncle’s house. Later, plaintiff was diagnosed with peritoneal mesothelioma, which he attributed to spending time with his uncle. Plaintiff sued Pneumo Abex, alleging negligence and other causes of action. Pneumo Abex moved for nonsuit, relying on Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, and asserting that it owed no duty to plaintiff for exposure to asbestos through contact with an employee where that exposure did not take place at Abex’s facilities. The trial court agreed and granted the nonsuit motion.

In a published opinion, Kesner v. Superior Court (2014) 226 Cal.App.4th 251, the Court of Appeal, First District, Division Three, reversed. The court ruled that the likelihood of causing harm to a person with recurring and non-incidental contact with an employee is sufficiently foreseeable to bring a family member within the scope of those to whom the employer owes a duty of care. [Horvitz & Levy represents real party in interest Pneumo Abex LLC in this case.]

Haver v. BNSF Railway Co., S219919—Review Granted—August 20, 2014

This case presents the following question: Do employers owe a duty to family members of employees in asbestos take-home exposure cases?

Plaintiffs’ decedent’s former husband was an employee of the predecessor to BNSF Railway Company and was exposed to products and equipment containing asbestos. The asbestos adhered to his work clothing and plaintiffs’ decedent claimed to have been secondarily exposed through her direct and indirect contact with him at their home. The decedent suffered permanent injuries including throat cancer and progressive lung disease from which she died. Subsequently, her heirs brought a wrongful death suit against BNSF. Relying on Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, BNSF demurred, asserting that it owed no duty of care to avoid exposing the decedent to asbestos. The trial court agreed and sustained the demurrer without leave to amend.

In a published opinion, Haver v. BNSF Railway Co. (2014) 226 Cal.App.4th 1104, the Court of Appeal, Second District, Division Five, affirmed. Plaintiffs asserted that Campbell was not controlling because it was (1) distinguishable from the present case, and (2) incorrectly decided. The court rejected both of those contentions. The court went on to reiterate the rule established in Campbell: premises owners owe no duty to protect family members of workers on their premises from secondary exposure to asbestos used during the course of the property owners’ business.

Review Denied (with dissenting justices)



In re Felicity S., S219627—Depublished—August 20,2014

This case presented the following issue: Should a minor’s appellate counsel be subject to public admonishment where counsel (1) failed to address the reasons the First District Appellate Project (FDAP) sought her appointment, (2) filed an unhelpful brief on behalf of the minor, and (3) altered the minor’s position on appeal without the consent of the minor’s guardian ad litem?

The minor’s appellate counsel was appointed by the Court of Appeal during a custody hearing where the court adjudged the minor a dependent of the court in preparation for removing her from her mother’s home. At the trial level, the minor’s trial counsel, also appointed as her guardian ad litem, took the position that the minor should be removed from her mother’s home.

However, on appeal, the minor’s appellate counsel took the opposite position, stating in her combined brief that the minor communicated a desire to return under her mother’s care. Consequently, counsel for the minor’s mother filed no response to the combined brief since the minor was taking the same position as her mother. Following the submissions, the Court of Appeal affirmed the juvenile court’s earlier orders and included published sections explaining its reasons for publicly admonishing the minor’s appellate counsel. The appellate counsel filed a petition for rehearing directed at the Court of Appeal’s public admonishment. Although the Court of Appeal denied the rehearing, it deleted those sections of its earlier ruling that publicly admonished the appellate counsel but ordered her to show cause why she should not be publicly admonished.

In a previously published opinion, In re Felicity S. (2014) 225 Cal.App.4th 1389, the Court of Appeal, First District, Division Two, revisited its earlier order and discharged the order to show cause. The court determined that public admonishment was not appropriate for counsel’s failure to address the reasons FDAP sought her appointment or for her filing of an unhelpful brief. With regard to counsel’s complete reversal of the position taken by the minor’s guardian ad litem, without his consent, the court said the appropriateness of public admonishment was a “closer question.” However, the court determined that, on balance, public admonishment was not warranted.

August 22, 2014

Death penalty opinion filing Monday

As expected, the Supreme Court on Monday morning will file its opinion in People v. Bryant, Smith, and Wheeler, an automatic appeal from an October 1995 judgment of death.  The case was argued on the court’s late-May calendar.

Look for opinions in Patterson v. Domino’s Pizza LLC and People v. Chandler on Thursday.  Those are the last two opinion-less cases from the June calendar and Thursday will be the court’s last regular opinion filing day within the 90-day rule.

The Bryant, Smith, and Wheeler opinion can be viewed Monday starting at 10:00 a.m.

August 20, 2014

The specter of more frequent “100-year floods”

Not long after California voters ousted Chief Justice Rose Bird and Associate Justices Joseph Grodin and Cruz Reynoso from the state Supreme Court, new Chief Justice Malcolm Lucas assured that the election “was analogous to a 100-year flood — a very unusual circumstance, which I do not anticipate happening again.”  That was 28 years ago.  So far, so good.  But, as climate change science has taught us since then, “100-year floods” are now more frequent than every 100 years.

Around the country, judicial elections have become increasingly expensive and politicized, even retention elections like California’s where appellate justices do not face opponents on the ballot but are subject to simply a yes-or-no vote.  Four years ago, Iowa voters removed three justices from their Supreme Court because of the justices’ votes in a unanimous opinion overturning a same-sex marriage ban.  Earlier this month, three Tennessee Supreme Court justices prevailed in their retention elections, but only after a well-funded campaign against them, including television commercials calling the court “the most liberal place in Tennessee.”

California’s Supreme Court has not been subject to such big money campaigns since the 1986 Rose Bird election, but one-issue opposition groups have made their appearances here.  Former Chief Justice Ronald George and Justice Ming Chin were targets of anti-abortion forces in 1998 because they had voted in a case to strike down a parental consent law.  (George has spoken in favor of getting rid of retention elections and Chin has said he’s “getting closer” to that position.)

But attacks don’t come only from the right.  I received an email from a group upset about the Supreme Court’s recent decision to strike from this November’s ballot a proposition asking the voters to give their advisory opinion whether the U.S. Constitution should be amended to overturn the U.S. Supreme Court’s Citizens United opinion.  According to the email, the state Supreme Court’s action “proves we now have a problem with right wing agenda driven judges throughout our court system.”  The email identified Justices Liu, Baxter, and Werdegar as three of the five “responsible” judges who are subject to a retention election this November and said, “if [the justices] think they can act unilaterally to deny the People a chance to speak out in opposition to Citizens United, maybe we’ll all come out and vote anyway, AGAINST them.”

These attacks are profoundly ignorant, and not just because the author of the email didn’t know that Justice Baxter is not on the ballot but is retiring, or because it would be news to the Republican Senators who blocked Justice Liu’s appointment to the Ninth Circuit that Liu is a “right wing agenda driven judge.”  Rather, they betray a fundamental misunderstanding of the role of the judiciary.  The California Supreme Court’s action on the ballot measure had nothing to do with the justices’ views on the propriety of Citizens United and everything to do with the more mundane issue of the California Legislature’s powers under the state constitution.

But that kind of ignorance plus a lot of money — from the right or the left — can increase the frequency of “100-year floods.”

August 20, 2014

Judicial Council issues 2014 Court Statistics Report

As reflected in this press release, the Judicial Council recently issued its 2014 Court Statistics Report. We’re looking forward to going through it in detail, as we do every year. In the meantime, here’s the low-down from our friend and colleague Ben Shatz at Southern California Appellate News.

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.

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.