Former Justice Cuéllar criticizes SCOTUS “Unwelcome Forays Into Foreign Policy”

Former Justice Mariano-Florentino Cuéllar, who left the California Supreme Court in 2021 to become president of the Carnegie Endowment for International Peace, has co-authored an article that is sharply critical of the U.S. Supreme Court. The article, which appeared yesterday on the Foreign Affairs journal’s website, is titled, “Diplomats in Robes? The Supreme Court’s Unwelcome Forays Into Foreign Policy.”

Saying the high court “is well on its way to becoming a shadow ministry of foreign affairs,” the article claims the Court has taken cases “in ways that buck precedent and stretch the power of the Court beyond its familiar bounds” and is hampering American diplomats in dealing with the present dangerous “conjunction of great-power competition and an accelerating climate emergency.” “[T]he justices defer to experts in the executive branch only when it suits them and only erratically recognize judicial precedent,” the article asserts.

Cuéllar and his co-author, University of Chicago law professor Aziz Huq, blame “[t]he new, aggressive judicial posture” on “the success of conservative activists” who “have been lobbying Republican presidents since the 1980s to appoint judges who would cater to their ideological fellow travelers rather than to the American public as a whole.”

Chief Justice likely to participate remotely in next week’s oral arguments because she has COVID

The Supreme Court’s Clerk/Executive Officer Jorge Navarrete issued this statement today:

“Chief Justice Patricia Guerrero tested positive yesterday for COVID-19 and is exhibiting mild symptoms. She is fully vaccinated.

“The Chief Justice will be working in isolation in accordance with state and local health guidelines. Pending further developments, she presently anticipates participating at the April 4 oral argument [see also here] remotely.”

Two days before testing positive, the Chief Justice was in close contact with many state government leaders when she delivered her first State of the Judiciary address to the Legislature in person.

Guerrero’s predecessor, Chief Justice Tani Cantil-Sakauye, missed entirely one day of last June’s oral arguments after contracting COVID. (See here.)

COVID insurance highlights this week’s conference

At yesterday’s conference, the Supreme Court granted review in two COVID insurance coverage cases (see: Supreme Court takes two more COVID insurance cases; one, from the Ninth Circuit, is a grant-and-hold). Otherwise, things were fairly quiet. Non-COVID actions of note included:

  • SVP placement. The court denied review in People v. Superior Court (Cheek) over the dissenting recorded vote of Justice Goodwin Liu. Justice Kelli Evans was recused. A 2-1 published opinion by the Sixth District Court of Appeal overturned an order conditionally releasing a sexually violent predator because his placement was in a residence within a statutorily prohibited quarter mile of a “public or private school.” The opinion summarized the bases for the superior court’s decision — “the school in question is a private home school that did not exist until after the community was notified of Cheek’s pending release — suggesting the school was created for the very purpose of preventing placement in that area.” The appellate justices all agreed that the timing of the school’s creation didn’t negate the statutory bar; “it is for the Legislature to remedy any perceived loophole, not the courts,” the opinion said. The dispute was whether a home school qualifies as a “public or private school” under the statute. The majority said “the text of the statute does not support an intention to limit its application based on school size or character.” The dissent, on the other hand, claimed “the majority’s definition of ‘any public or private school’ as encompassing any private home in which the residents elect to home school their children to be inconsistent with both the plain language of the statute and the Legislature’s balancing of competing interests.”
  • Criminal case grant-and-holds. There were four criminal case grant-and-holds, two more each waiting for decisions in People v. Lynch (see here) and People v. Reyes (see here), which will be argued next week.
  • More Delgadillo grant-and-hold disposals. The court continued its disposal — apparently alphabetical (see here) — of grant-and-holds that had been waiting for the December decision in People v. Delgadillo (2022) 14 Cal.5th 216. In 30 cases from People v. Goethe to People v. Taylor, the court dismissed review in three and transferred 27 with orders stating, the “matter is transferred to the Court of Appeal . . . with directions to vacate its decision and reconsider whether to exercise its discretion to conduct an independent review of the record or provide any other relief in light of People v. Delgadillo (2022) 14 Cal.5th 216, 232-233 & fn. 6.”
  • Non-Delgadillo disposals. The court granted review in one case and sent it back to the Court of Appeal for reconsideration in light of January’s opinion in People v. Espinoza (2023) 14 Cal.5th 311. In three cases that were grant-and-holds for the November decision in People v. Henderson (2022) 14 Cal.5th 34, the court dismissed review in two and sent one back for reconsideration.

Criminal case harmless error opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in In re Lopez. (Briefs here; oral argument video here.)

After the opinion files, there will be two undecided cases from the January calendar. Decisions in those two are expected a week from today.

In Lopez, the court is likely to answer these questions: (1) Does a true finding on a gang-killing special circumstance (Pen. Code, § 190.2, subd. (a)(22)) render Chiu error (People v. Chiu (2014) 59 Cal.4th 155) harmless? (2) To what extent or in what manner, if any, may a reviewing court consider the evidence in favor of a legally valid theory in assessing whether it is clear beyond a reasonable doubt that the jury based its verdict on the valid theory, when the record contains indications that the jury considered the invalid theory? (See People v. Aledamat (2019) 8 Cal.5th 1.) The Chiu error was instructing the jury that the defendant could be convicted of first-degree murder under the natural and probable consequences doctrine. About Aledamat, see here. The court granted review in January 2020.

The opinion can be viewed Monday starting at 10:00 a.m.

Supreme Court takes two more COVID insurance cases; one, from the Ninth Circuit, is a grant-and-hold [Updated]

The Supreme Court today granted review in John’s Grill, Inc. v. The Hartford Financial Services Group, Inc., where the First District, Division Four, partially published opinion found potential business interruption insurance coverage for losses a restaurant sustained in connection with the COVID pandemic. The court also told the Ninth Circuit it will answer the question the federal court asked in French Laundry Partners, LLP v. Hartford Fire Insurance Co., but it made that case a grant-and-hold for John’s Grill.

The John’s Grill opinion issued even though the parties had settled the case after oral argument. The appellate court there noted that insurance coverage for pandemic-related damages is a “rapidly evolving area of law.”

[March 31 update: The case is not moot. Craig Anderson reports in today’s Daily Journal that the settlement was contingent on the appeal being dismissed and was thus negated when the Court of Appeal issued its opinion.]

Although acknowledging that “a nearly uniform line of cases in California and across the country” has rejected insureds’ claims, and disagreeing with a number of federal district court rulings, Division Four said “[t]he twist in this case is that [the insurance carrier’s] policy has customized trigger-of-coverage language that is virus-specific.” It found significant that the policy “(1) contains an affirmative grant of coverage specifically for ‘loss or damage’ caused by a virus, and (2) a special definition of ‘loss or damage’ that includes ‘[d]irect physical loss or direct physical damage to’ property, but is broad enough to encompass pervasive infiltration of virus particulates onto the surfaces of covered property.” The appellate court also concluded a limitation on the virus coverage is “unenforceable under the illusory coverage doctrine.”

In French Laundry, the Ninth Circuit asked the Supreme Court to answer this question: “Is the virus exclusion in French Laundry’s insurance policy unenforceable because enforcing it would render illusory a limited virus coverage provision allowing for the possibility of coverage for business losses and extra expenses allegedly caused by the presence and impacts of COVID-19 at an insured’s properties, including the loss of business due to a civil authority closure order?”

Four weeks ago, the Supreme Court agreed to answer a different Ninth Circuit, COVID insurance question. Before that, however, the court had consistently avoided addressing those coverage issues that had arisen in state court cases — it denied petitions for review in at least three of those cases and denied a depublication request in a fourth. (See here.)


One Ninth Circuit panel is waiting to see if the Supreme Court will answer COVID insurance questions, but another panel isn’t

Chief Justice Guerrero praises judicial diversity in her first State of the Judiciary address

Declaring that the courts’ “number one goal now is access, fairness, diversity, and inclusion,” new Chief Justice Patricia Guerrero delivered her first State of the Judiciary address to the California Legislature yesterday afternoon. (Transcript here; video here.) Besides members of the Senate and Assembly, Governor Gavin Newsom, Attorney General Rob Bonta, and Associate Justices Carol Corrigan, Leondra Kruger, Joshua Groban, Martin Jenkins, and Kelli Evans attended.


As the successor to retired Chief Justice Tani Cantil-Sakauye, Guerrero noted the historical significance of “the first transition of judicial leadership from one female chief justice to another and from one person of color . . . to another.” She is also the first Latina chief justice and she thanked her father in Spanish for supporting her.

The Chief Justice said that “our state’s diversity is a strength” and that she and Cantil-Sakauye “are both the beneficiaries certainly of our own hard work, but also a decades-long commitment to building a pathway to the bench for qualified minority candidates by successive governors, the legal profession, and the judicial branch in partnership with bar associations and educators.”

She praised her four most recent predecessors, including Chief Justice Rose Bird, who Guerrero said “helped generations to come by breaking gender barriers in the courts.”

Mental health and housing

Guerrero “applaud[ed]” Governor Newsom and the legislators for their “efforts in exploring ways to address the needs of Californians with untreated mental health, substance abuse challenges, and in crisis to gain access to housing, treatment, and care.”

The court currently has pending before it an original writ petition — filed two months ago (here and here) — challenging the constitutionality of the recently enacted CARE Act, high-profile legislation that the Governor described as “a new framework to get people with mental health and substance use disorders the support and care they need.”

Remote proceedings

The Chief Justice said the judiciary has “been moving from in-line to online whenever we can do so in the most effective way and when permitted.”

She acknowledged that “there are still challenges with the digital divide and technology,” but claimed, “what we learned during the pandemic is that ‘remote’ worked for pretty much everyone involved” and she pledged to work towards “solutions that are fair, equitable, and just.”

The environment

Guerrero said, “we are all also keenly aware of another major transformative driver — and that is the impact of climate change on our world, nation, and state.” She reported that “the Judicial Council has created an environmental program that’s focused primarily on water law issues” and that “we are following up on these efforts with an Environmental Law Summit this summer, along with publications, podcasts, and more training on issues related to the complex areas of water law, climate change, and environmental litigation.”


Cheryl Miller in The Recorder: “Chief Justice Patricia Guerrero Lauds Remote Technology in First State of the Judiciary Address

Malcolm Maclachlan in the Daily Journal: “Chief Justice tells lawmakers court must be modernized and budgets protected

Court clarifies rules governing continuances of hearings on suppression of evidence in criminal cases

In People v. Brown the Court held that, when a prosecutor files a motion seeking a continuance of a hearing on a motion to suppress evidence, the trial court is generally required to grant the motion if the challenged evidence is so important that its suppression would require dismissal of the charges. The prosecution bears the burden of proving an inability to proceed without the evidence in question.

The decision reverses a decision by the Sixth Appellate District.

All seven justices concurred in the rule adopted by the court, but Justice Groban wrote a dissenting opinion, joined by Justices Liu and Evans, disagreeing with the majority’s conclusion that the trial court’s ruling complied with the standard articulated by the court. The dissenters would have sent the case back to the trial court to determine whether the prosecution had satisfied its burden of showing that the disputed evidence was so important that suppression of the evidence would require dismissal of the case.

Attorney General has duty to disclose evidence in response to a habeas petition alleging a Brady violation

The court ruled today in In re Jenkins that the Attorney General has a duty to disclose exculpatory evidence in response to a petition for writ of habeas corpus that alleges a Brady violation.

Petitioner Jasmine Jenkins was convicted of manslaughter for stabbing Britneeh Williams. Sade Williams, the victim’s sister, witnessed the incident and testified against Jenkins, refuting Jenkins’ claim of self-defense and stating that Britneeh had never been violent in the past. During postconviction proceedings, Jenkins’ counsel discovered an unpublished opinion on Lexis indicating that sisters “Brit. W.” and “Sade W.” had been prosecuted for aggravated assault and hate crimes as a minor.

Jenkins filed a habeas petition claiming that the the “Brit. W” and “Sade W.” mentioned in the opinion appeared to be the same individuals involved in this case, and that the prosecution committed a Brady violation by failing to disclose the violent history of Britneeh and Sade, which would have been relevant to Jenkins’ claim of self-defense.

The Attorney General opposed the writ petition but refused to say whether the parties in the unpublished opinion were the same parties involved in this case. The Attorney General described the Court of Appeal’s unpublished opinion as “an apparent printout of an unspecified and unverified Internet source.” The Second Appellate District, Division One, held that, even assuming the unpublished opinion involved the same parties, Jenkins had failed to show how the violent histories of Britneeh and Sade were relevant to her claim of self-defense.

When Jenkins petitioned for review, the Attorney General filed an answer stating that he had no obligation to disclose whether the unpublished opinion involved the same parties as this case. The Supreme Court granted review and limited the issue to the question question whether the Attorney General owes such a duty.

In a unanimous opinion authored by Chief Justice Guerrero, the Supreme Court concluded that the Attorney General does in fact owe both an ethical and a constitutional duty to disclose material exculpatory evidence in response to a habeas petition that alleges a Brady violation. The opinion concludes: we urge the prosecutors in this case, and in every other, to carefully consider the constitutional, ethical, and habeas corpus procedural duties that we have outlined herein to ensure that they faithfully bear the special responsibilities ascribed to the prosecution in our system of justice.”

Opinions filing Monday on continuances of criminal hearings and Attorney General’s duty to disclose material evidence

On Monday morning the Supreme Court will file its opinions in People v. Brown and In re Jenkins. (Briefs here, oral argument videos here and here.)

The issue in Brown is: Did the trial court err in granting the People’s motion under Penal Code section 1050 to continue the hearing on a motion to suppress evidence, when it was reasonably foreseeable that denying the continuance would result in a dismissal of the case but the People otherwise failed to show good cause for a continuance?

The court limited review in Jenkins to the following issue: When a habeas corpus petitioner
claims not to have received a fair trial because the district attorney failed to disclose material evidence in violation of Brady v. Maryland (1963) 373 U.S. 83—and when the Attorney General has knowledge of, or is in actual or constructive possession of, such evidence—what duty, if any, does the Attorney General have to acknowledge or disclose that evidence to the petitioner? Would any such duty be triggered only upon issuance of an order to show cause?

The opinions can be viewed Monday starting at 10:00 am.

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