December 21, 2010
The lawsuit to block the sale to private investors of a number of state buildings, including the Supreme Court’s San Francisco and Los Angeles homes, is back in the Supreme Court, but, in an extremely rare occurrence, none of the current Supreme Court justices will decide the matter. As we noted, after the Superior Court denied an injunction to halt the sale, the plaintiffs filed a writ petition in the First District Court of Appeal, the First District asked the Supreme Court to transfer the case to another district (presumably because the First District sits in one of the disputed buildings), the Supreme Court transferred the case to the Sixth District, and the Sixth District issued a temporary stay.
Governor Schwarzenegger, one of the real parties in interest in the writ proceedings, has been trying mightily to have the Court of Appeal’s stay order lifted so the sale can go through before the end of the year and, not coincidentally, the end of his term of office. Yesterday, the Court of Appeal denied his motion for relief from the stay. So, today the Governor filed in the Supreme Court a writ petition (thanks to Pacific Progressive for the link) – naming the Sixth District as the respondent — that, according to the San Francisco Chronicle, asks the court to lift the stay because, “unless the state can close escrow before the end of the year, ‘the sale may well disappear forever.’”
The Supreme Court just entered an order recusing itself from the case, apparently because, like the First District Court of Appeal, it sits in one of the buildings that is the subject of the lawsuit. The court’s order, as stated on its on-line docket, says:
“All members of the Supreme Court recuse themselves in the matter of Schwarzenegger v. California Court of Appeal, Sixth Appellate District, No. S189114. In accordance with Article VI, section 6, subdivision (e), of the California Constitution, the undersigned as Acting Chief Justice hereby directs that seven justices of the Court of Appeal be selected for assignment as pro tempore justices to act in the place and stead of the recused Supreme Court justices, pursuant to the established procedure set out in section IV.J. of the Internal Operating Practices and Procedures of the California Supreme Court. (See Mosk v. Superior Court (1979) 25 Cal.3d 474.) Upon selection of the pro tempore justices, a further order reflecting the assignments and the designation of an Acting Chief Justice shall be issued.”
Section IV.J. of the court’s Internal Operating Practices and Procedures provides:
“When a justice is unavailable or disqualified to participate in a vote on a petition for review or other matter and four justices cannot agree on a disposition, the Chief Justice, pursuant to constitutional authority (Cal. Const., art. VI, § 6), assigns in alphabetical order (except as set forth below) a Court of Appeal justice as a pro tempore justice to participate in the vote on the petition or matter. The assigned justice is furnished all pertinent petitions, motions, applications, answers, briefs, memoranda, and other material. A newly-appointed Court of Appeal justice will be assigned as a pro tempore justice of the Supreme Court only after he or she has served on the Court of Appeal for one year. If a Court of Appeal justice is unable to serve on a particular case, the next justice on the alphabetical list will be assigned, and the Court of Appeal justice who was unable to serve will be assigned in the next case in which a pro tempore appointment is required.”
We assume that, in addition to the replacement-justice criteria in the court’s internal operating practices, no Court of Appeal justices will be selected from the First or Second Districts, because those districts’ buildings are at issue in the case.
UPDATE: The court’s recusal order is here.