When the Supreme Court heard oral arguments last week, it marked the 15th consecutive calendar with Court of Appeal justices temporarily filling the vacancy created by Justice Kathryn Werdegar’s retirement. But the court’s session in January, announced today, should see seven permanent justices in the courtroom for the first time since June 2017. That will be the case if, as is most probable, Joshua Groban’s appointment to the court is confirmed in eight days.
The shorthanded court apparently avoided scheduling argument in cases where a result was not tentatively backed by a majority of permanent justices. Chief Justice Tani Cantil-Sakauye stated a while ago that some cases were stuck due to 3-3 ties. (The reason was likely to avoid having a pro tem justice cast a deciding vote, a situation that has occurred only once so far during the long vacancy.) A Justice Groban could break that logjam and the court might start issuing a higher-than-normal number of 4-3 decisions. There’s one case on the January calendar in which review was granted five years ago. That might be one of the previously stuck cases.
On January 8, in San Francisco, the court will hear the following cases (with the issue presented as summarized by court staff or stated by the court itself):
T-Mobile West LLC v. City and County of San Francisco: (1) Is a local ordinance regulating wireless telephone equipment on aesthetic grounds preempted by Public Utilities Code section 7901, which grants telephone companies a franchise to place their equipment in the public right of way provided they do not “incommode the public use of the road or highway or interrupt the navigation of the waters”? (2) Is such an ordinance, which applies only to wireless equipment and not to the equipment of other utilities, prohibited by Public Utilities Code section 7901.1, which permits municipalities to “exercise reasonable control as to the time, place and manner in which roads, highways, and waterways are accessed” but requires that such control “be applied to all entities in an equivalent manner”? The court granted review in December 2016.
Meza v. Portfolio Recovery Associates, LLC: At the Ninth Circuit’s request, the court will address the issue, Under section 98, subdivision (a), of the Code of Civil Procedure, must an affiant in a limited jurisdiction matter be physically located and personally available for service of process at an address provided in the affiant’s declaration that is within 150 miles of the place of trial? The court agreed in August 2017 to answer the question.
[December 26 update: the court isn’t completely kicking the pro tem habit in January. For the Meza case, First District, Division Three, Justice Martin J. Jenkins will serve as a pro tem, presumably sitting in place of Justice Mariano-Florentino Cuéllar, who was recused when the court agreed to answer the Ninth Circuit’s question. Justice Cuéllar’s wife — Judge Lucy Koh — is the federal district court judge in the underlying litigation. Justice Jenkins sat pro tem on the Supreme Court’s November 2017 calendar.]
People v. Aranda: Did the Court of Appeal err by holding that double jeopardy prevents retrial of defendant for first degree murder where the jury did not return a verdict on that offense and deadlocked on the lesser included offenses of second degree murder and voluntary manslaughter, because the trial court failed to afford the jury an opportunity to return a partial acquittal on the charge of first degree murder? (See Blueford v. Arkansas (2012) 566 U.S. 599; Stone v. Superior Court (1982) 31 Cal.3d 503.) This is the really old case; the court granted review in December 2013 and briefing has been complete since June 2014.
Gardner v. Superior Court: Is the Appellate Division of the Superior Court required to appoint counsel for an indigent defendant charged with a misdemeanor offense on an appeal by the prosecution? The court granted review in February 2018.
In re H.W.: Did the Court of Appeal err in holding that a pair of pliers, which the defendant used to remove an anti-theft device from a pair of blue jeans in a department store, qualified as a burglary tool within the meaning of Penal Code section 466? The court granted review in November 2016.
People v. Sanchez: This is an automatic direct appeal from a March 2000 judgment of death. The court’s website does not list issues for such appeals.