January 16, 2017

Who the “H” is likely to decide the Prop. 66 case?

The Supreme Court is currently considering whether it will hear on the merits a writ petition challenging Prop. 66, the initiative passed in November to speed up California’s death penalty system.  But it’s not the entire court that’s considering the petition — Chief Justice Tani Cantil-Sakauye and Justice Ming Chin are recused.

So, who will take the Chief Justice’s and Justice Chin’s places?  At this preliminary stage, when the court is just deciding whether it will decide the writ petition’s merits, probably nobody.  According to the court’s Internal Operating Practices and Procedures, a pro tem justice will be appointed only if “four justices cannot agree on a disposition,” and at least four of the five non-recused justices will probably agree whether or not to hear the case.

If the court does agree to hear the case — and it’s likely that the court will — one of the remaining associate justices will be chosen on a rotational basis to be the Acting Chief Justice (we understand that will be Justice Carol Corrigan) and the Acting Chief will assign two pro tem justices to sit on the case.  If the court’s Practices and Procedures are followed, the assignments will go to two Court of Appeal justices.  But those Practices and Procedures can be “temporarily suspended by affirmative vote of four justices” when there is “good cause for special action,” and it’s not impossible that, for a case of this importance, the court will call on retired Supreme Court justices to serve.  (Cal. Const., art. VI, section 6(e) [“A retired judge who consents may be assigned to any court”].)

If the court takes the normal route and two Court of Appeal justices are assigned, who might they be?  Under the Practices and Procedures, Court of Appeal justices — who have served on the Court of Appeal for at least one year — are assigned in alphabetical order, and, “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.”

Who’s next on the alphabetical list?  We believe that we’re into the H’s and that Fourth District, Division One, Justice Judith Haller was the last Court of Appeal jurist to serve pro tem, in McGill v. Citibank, N.A., which was argued on the December calendar.  If so, the next in line in the H’s are Presiding Justice Brad Hill (Fifth District), Justice Andrea Hoch (Third District), Justice Brian Hoffstadt (Second District, Division Two), Justice Thomas Hollenhorst (Fourth District, Division Two), Justice Richard Huffman (Fourth District, Division One), Justice Harry Hull, Jr. (Third District), and Presiding Justice Jim Humes (First District, Division One).

The “unable to serve” qualification to the rule of alphabetical assignment makes it difficult to predict with any certainty the pro tem justices for the Prop. 66 case.  We’re guessing that Presiding Justice Hill and Justice Huffman will not be assigned because they’ve both served as pro tems fairly recently (here and here).  That leaves Justices Hoch and Hoffstadt at the top of the alphabetical list, but they could be preempted by justices who were “unable to serve” on earlier cases.

Whoever gets the call, however, will be stepping into the spotlight of an emotionally charged, high-profile case and might be wishing that they hadn’t won the assignment lottery.

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