January 30, 2017
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, January 25, 2017. 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.
United Auburn Indian Community of the Auburn Rancheria v. Brown, S238544 – Review Granted – January 25, 2017
In a partially published opinion, United Auburn Indian Community of the Auburn Rancheria v. Brown (2016) 4 Cal.App.5th 36, the Third District Court of Appeal held that (1) the Governor’s concurrence that land is suitable for Indian gaming is not a legislative act and thus does not violate the separation of powers doctrine, and (2) the Governor did not exceed his authority in conducting negotiations before a parcel became “Indian land.”
This case presents the following issue: May the Governor concur in a decision by the Secretary of the Interior to take off-reservation land in trust for purposes of tribal gaming without legislative authorization or ratification, or does such an action violate the separation of powers provisions of the state Constitution?
Additional Issues Added
Shaw v. Superior Court, S221530 – Additional Issues Added – January 25, 2017
In a published opinion, Shaw v. Superior Court (2014) 229 Cal.App.4th 12, the Court of Appeal, Second District, Division Three, held that (1) a petition for writ of mandate was the correct method of review for the wrongful termination claim; (2) a statute granted the right to a jury trial; and (3) the employee had a constitutional right to a jury trial. The Supreme Court granted review on November 12, 2014. The parties submitted briefs addressing the following issues: (1) Did the Court of Appeal err by reviewing plaintiff’s right to a jury by writ of mandate rather than appeal? (2) Is there a right to jury trial on a retaliation cause of action under Health and Safety Code section 1278.5?
In addition to the points raised in the briefs filed, the Court last week requested that the parties be prepared at oral argument to address, in connection with the constitutional jury trial issue, the relationship between an action for wrong termination under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, and an action for retaliatory termination under Health and Safety Code section 1278.5, subdivision (g), including the relevance of the provisions of Health and Safety Code section 1278.5, subdivision (m).
Review Denied (with dissenting justices)