May 4, 2011

Still short-handed court continues to dig into its death penalty docket

The Supreme Court hears no oral arguments during July and August. But it doubles up on its argument calendar before then — this year it will hear nine cases on May 24 and 25 in San Francisco and then another five cases the following week in Los Angeles. And, as has been true since the end of February, the court will hear these cases with just six regular justices and a different Court of Appeal justice serving pro tem in each case.

Significantly, half of the 14 pre-summer cases are automatic death penalty appeals. That’s on top of the seven automatic appeals or habeas corpus petitions after death sentences (out of 16 total cases) that the court is hearing this week. A number of months ago, we speculated that the court might be granting discretionary review in fewer cases to allow it to take a bigger bite out of its backlog of automatic death-penalty appeals. The court’s recent calendars do nothing to dispel that speculation.

The late-May, early-June cases (and the issues presented, as stated on the court’s website) are:

Howell v. Hamilton Meats & Provisions, Inc.: (1) Is the “negotiated rate differential” — the difference between the full billed rate for medical care and the actual amount paid as negotiated between a medical provider and an insurer — a collateral source benefit under the collateral source rule, which allows plaintiff to collect that amount as economic damages, or is the plaintiff limited in economic damages to the amount the medical provider accepts as payment? (2) Did the trial court err in this case when it permitted plaintiff to present the full billed amount of medical charges to the jury but then reduced the jury’s award of damages by the negotiated rate differential? [Disclosure: Horvitz & Levy submitted an amici curiae brief in this case.]

Voices of the Wetlands v. Cal. State Water Resources Control Bd.: The court ordered briefing deferred pending decision on the petitions for writ of certiorari in Entergy Corporation v. Environmental Protection Agency, No. 07-588, PSEG Fossil LLC. v. Riverkeeper, Inc., No. 07-589, and Utility Water Act Group v. Riverkeeper, Inc., No. 07-598, which present issues concerning the application of section 316(b) of the Clean Water Act (33 U.S.C. section 1326(b)) to the issuance of a National Pollutant Discharge Elimination System permit.

People v. McKinnon: [This is an automatic appeal from a March 1999 judgment of death. The court’s website does not list issues for such appeals.]

Duncan v. W.C.A.B.: When do cost-of-living adjustments under Labor Code section 4659, subdivision (c), for payments for total permanent disability and life pensions begin?

People v. Lowery: Is Penal Code section 140, subdivision (a), which makes it a crime to threaten a victim or witness who provided assistance to law enforcement, unconstitutionally overbroad, because it fails to require either the specific intent to retaliate against the victim with the present ability to do so or the specific intent that the threat be communicated to the potential victim?

People v. Milward: (1) Is assault with a deadly weapon (Pen. Code section 245, subd. (a)(1)) a necessarily included offense of assault by a life prisoner with a deadly weapon (Pen. Code section 4500)? (2) Was People v. Noah (1971) 5 Cal.3d 469 binding on the Court of Appeal unless and until overruled by this court?

Seabright Ins. Co. v. U.S. Airways: When an employee of an independent contractor sustains an on-the-job injury, can the hirer of the contractor be liable on the theory that the hirer’s breach of a non-delegable duty contained in a statute or regulation constituted an “affirmative contribution” to the injury within the meaning of Hooker v. Dept. of Transp. (2002) 27 Cal.4th 198, 212, footnote 3? [Disclosure: Horvitz & Levy submitted an amicus curiae brief in this case.]

Ardon v. City of Los Angeles: Does Government Code section 910 authorize a class claim for refund of a local tax, or must each putative class member file his or her own claim prior to the filing of a class action suit?

People v. Mendoza: [This is an automatic appeal from an October 1997 judgment of death. The court’s website does not list issues for such appeals.]

People v. Scott: [This is an automatic appeal from a March 1998 judgment of death. The court’s website does not list issues for such appeals.]

People v. Garcia: [This is an automatic appeal from a March 1995 judgment of death. The court’s website does not list issues for such appeals.]

People v. Clark: [This is an automatic appeal from a February 1995 judgment of death. The court’s website does not list issues for such appeals.]

People v. Thomas: [This is an automatic appeal from an October 1999 judgment of death. The court’s website does not list issues for such appeals.]

People v. Blacksher: [This is an automatic appeal from a February 1999 judgment of death. The court’s website does not list issues for such appeals.]

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