At the Supreme Court’s Wednesday conference, its actions of note included:
- In In re Palmer, the First District, Division Two, Court of Appeal held in a published opinion that the “serial denials of parole” to a habeas corpus petitioner, imprisoned over 30 years ago at age 17 under a sentence of life with possibility of parole for kidnapping for robbery, “resulted in punishment so disproportionate to his individual culpability for the offense he committed, that it must be deemed constitutionally excessive.” The appellate court so ruled even though the petitioner has recently been released on parole. It ordered the petitioner discharged from “from all forms of custody, physical and constructive.” The Supreme Court granted review and limited the issues to: “(1) Did this life prisoner’s continued confinement become constitutionally disproportionate under article I, section 17 of the California Constitution and/or the Eighth Amendment of the United States Constitution? (2) If this life prisoner’s continued confinement became constitutionally disproportionate, what is the proper remedy?”
There are some unusual procedural aspects of Palmer:
- For starters, the court granted review on its own motion, which doesn’t happen very often. Losing counsel — the Attorney General — did not petition for review, but the California District Attorneys Association filed a depublication request. (The court denied the request, leaving the Court of Appeal’s opinion citable as possibly persuasive precedent pending review.)
- As in past cases, the Attorney General might end up being an involuntary two-time loser — losing in the Court of Appeal and then again in the Supreme Court even though he didn’t seek high court review. (Here and here.)
- This is the third time the Supreme Court has granted review in a case involving this petitioner. (See here.) The last time, in a matter still pending and fully briefed, besides granting review, the court depublished the Court of Appeal’s opinion.
- The author of the Court of Appeal’s opinion, Presiding Justice Anthony Kline, filed an opposition to the depublication request. He’s done that before, but it’s unusual.
- Practice tip: When you file a depublication request, don’t forget to serve the Court of Appeal, as the rule requires. In Palmer, the Association didn’t do that and PJ Kline objected. The Supreme Court clerk notified the Association, which then fixed the omission.
- The court denied review in People v. Morrison, but Justice Goodwin Liu recorded a vote to grant. In the case, the Second District, Division Four’s published opinion reversed the superior court’s dismissal of a petition seeking to civilly commit the defendant as a sexually violent predator. The appellate court held that, under the facts of the defendant’s case, “Releasing him without submitting the issue to a jury would be an absurd result, frustrating the statutory purposes of protecting the public and providing treatment to sexually violent offenders.”
- There were three criminal case grant-and-holds, and the court transferred three habeas corpus grant-and-holds.