At the Supreme Court’s conference yesterday, a double one, there were no straight grants (the second conference in a row without one), but there were some petition denials of note and a handful of grant-and-holds:
Supreme Court disbars attorney who claimed racial discrimination in State Bar discipline.
Decide the constitutionality of the Racial Justice Act? Not yet. The majority in the Second District, Division Six, Court of Appeal’s 2-1 published opinion in People v. Simmons upheld the constitutionality of the Racial Justice Act, but said, “We are hopeful, indeed confident, that our Supreme Court will resolve this issue . . . soon.” Not in this case. The Attorney General conceded error and didn’t petition for review. The dissent specifically urged the Supreme Court to grant review on its own motion (see rule 8.512(c)(1)), as did the California District Attorneys Association, but the court declined. The disputed issue concerns the RJA statement that “racism in any form or amount, at any stage of a criminal trial, is intolerable, inimical to a fair criminal justice system, is a miscarriage of justice under Article VI of the California Constitution, and violates the laws and Constitution of the State of California.” (Emphasis added.) Article VI, section 13, provides, “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Emphases added.) The majority recognized that “[t]he statute forecloses any traditional case-specific harmless error analysis,” but concluded that “section 13 does not prohibit the Legislature from making this presumptively constitutional determination” because “the state constitution does not limit the Legislature’s power to define a miscarriage of justice.” The dissent, on the other hand, argued that “the majority’s deferral to the Legislature violates the California Constitution’s separation of powers clause” because “the Legislature usurped the judiciary’s authority to determine what constitutes ‘a miscarriage of justice’ within the meaning of Article VI.” The Supreme Court has previously granted-and-transferred in a couple of RJA cases. (See here and here.)
Facebook discrimination case can continue. The court denied review and a depublication request in Liapes v. Facebook after a First District, Division Three, published opinion reversed the dismissal on demurrer of a complaint alleging — according to the decision — that Facebook “does not provide women and older people equal access to insurance ads on its online platform in violation of the Unruh Civil Rights Act and Civil Code section 51.5.” Division Three held the plaintiff “alleged intentional discrimination, not disparate impact as Facebook asserts.” It also concluded that Facebook is not immune under section 230 of the federal Communications Decency Act of 1996 because Facebook is “more akin to a content developer” than simply the publisher of information provided by another. The Supreme Court was uncharacteristically divided when it addressed the federal legislation over five years ago in Hassell v. Bird (2018) 5 Cal.5th 522. (See here.)
[January 12 update: Horvitz & Levy submitted an amicus letter supporting the petition for review. The letter, on behalf of Santa Clara law school Professor and Associate Dean Eric Goldman, argued that the appellate opinion “creates uncertainty and conflict regarding the scope of immunity under title 47 United States Code section 230 (section 230) for the widespread practice by interactive computer services of using algorithmic sorting to deliver content or advertisements to specific audiences.”]
School COVID policies. The court also declined to hear Shaw v. Los Angeles Unified School District. The Second District, Division Four, in a published opinion, revived a lawsuit alleging — according to the decision — that the defendant school district “adopted distance-learning policies that discriminated against poor students and students of color—and deprived all students of basic statewide educational equality—in violation of the California Constitution.” The trial court had dismissed the case on mootness grounds because distance learning had ended, but Division Four concluded, “Because the plaintiffs propose a seemingly viable remedy for the past and continuing harms they allege, their constitutional claims are not moot.” Among other things, the appellate court said, “it appears to be within the realm of probability that the trial court—with the assistance of the parties—could fashion appropriate injunctive relief consisting of workable programs and techniques for evaluating and remediating any learning deficits occasioned by the District’s distance learning program.” Additionally, that court brushed aside a divided First District, Division Three, opinion (Campaign for Quality Education v. State of California (2016) 246 Cal.App.4th 896), authored by then-Court of Appeal Justice (now-Supreme Court Justice) Martin Jenkins, which stated that the state constitution “leave[s] the difficult and policy-laden questions associated with educational adequacy and funding to the legislative branch.” (Id. at p. 903.) Division Four said “no other appellate court has examined the issue in detail, and Quality Education is not binding on us.” The Supreme Court barely denied review in Quality Education; three justices (Justices Ming Chin, Goodwin Liu, and Mariano-Florentino Cuéllar) voted to grant and Justices Liu and Cuéllar wrote separate statements explaining why the court should have heard the case. (See here.)
[January 12 update:
More issues in criminal appellate procedure case. In People v. Superior Court (Mitchell) (review granted in November (see here)), the court denied a motion by the People to dismiss review and it ordered the parties to brief, in addition to the issues already limited by its order granting review, “(1) In the absence of further order or other direction, when does a Court of Appeal’s temporary stay of superior court criminal proceedings against a defendant expire? (2) If the temporary stay issued by the Court of Appeal had not expired at the time of defendant’s guilty plea, what was the effect, if any, of the stay on the resolution of defendant’s criminal proceedings?”]
Criminal case grant-and-holds. There were eight criminal case grant-and-holds: one more waiting for a decision in People v. Lynch (see here); one more holding for People v. Mitchell (see here); two more on hold for People v. Hardin (see here and here), which was argued last month; two more waiting for People v. Walker (see here); one more on hold for People v. Fletcher (see here); and one holding for In re Hernandez (see here).