November 7, 2016

Supreme Court makes AG involuntary two-time loser as it holds a petitioner can paper a judge soon after filing a habeas corpus petition

In Maas v. Superior Court, the Supreme Court today holds that a habeas corpus petitioner “who requests the name of the judge assigned to examine his or her habeas corpus petition is entitled to notice of that assignment, and also is entitled to peremptorily challenge the assigned judge, so long as all of the procedural requirements of [Code of Civil Procedure] section 170.6 have been satisfied, including the requirement that the assigned judge not have participated in the petitioner’s underlying criminal action.”  The court’s unanimous opinion is written by Chief Justice Tani Cantil-Sakauye.

Because the Supreme Court had taken the unusual step of granting review on its own motion, we were hoping the opinion might disclose what had attracted the court’s attention.  The opinion doesn’t do that, however.  And the mystery behind the own-motion review is compounded by the fact that the court affirms the Court of Appeal (Fourth District, Division One), and it also approves of another Court of Appeal opinion (a 1980 opinion from groundhog-daythe First District, Division Three).  No prior decisions are reversed, disapproved, or overruled.

You’ve got to have a little sympathy for the Attorney General in this case.  She lost in the Court of Appeal in a published opinion and, even though she decided not to challenge the decision in the Supreme Court, the court took the case anyway, dragging the Attorney General in to hand her a loss once again.  Years ago, I lost a case in both the Court of Appeal and the Supreme Court, but at least I asked for it by petitioning for review.  In this case, it would have been appropriate for the court to not file the opinion until February 2.

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