California Courts recently posted a video reviewing Tani Cantil-Sakauye’s accomplishments as California’s chief justice. Among a number of others, former Justice Ming Chin and Justice Carol Corrigan talk about the Chief.
And if you’re looking for some extra nostalgia, here’s a brief 2011 video reporting on Cantil-Sakauye’s first day as chief justice. She is shown being sworn in by then Justice Joyce Kennard and then herself swearing in Governor Jerry Brown and California Attorney General Kamala Harris.
Justice Goodwin Liu is a co-author of the recently published study, “Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals.” With him on the detailed paper are Jeremy Fogel, retired U.S. District Court judge and current executive director of the Berkeley Judicial Institute at the Berkeley School of Law, and Pepperdine Law School Professor Mary Hoopes.
The study is discussed in Ruth Marcus’s Washington Post column, “Are federal judges violating the Constitution when they hire their clerks?”
It’s a long study, but it says, “in short, diversity among judges affects diversity among clerks.”
The study’s summarized findings:
1. With few exceptions, appellate judges hire clerks as an “ensemble” and assign positive value to diversity, although judges vary in the dimensions of diversity they seek.
2. Most judges disclaim any interest in ideological alignment when hiring clerks; we situate this finding in the context of factors that contribute to ideological segmentation of the clerkship market.
3. Republican appointees, compared to Democratic appointees, more often reported socioeconomic diversity as the primary dimension of diversity they seek.
4. Judges who graduated from law schools outside the U.S. News & World Report top twenty are significantly more likely than other judges to hire clerks from schools outside the top twenty.
5. Almost all judges in our sample consider gender in clerkship hiring, and many have specific goals for gender balance. Republican appointees reported more difficulty drawing women into their applicant pool than Democratic appointees.
6. Most judges in our sample assign positive value to racial diversity and consider race to some degree in evaluating applicants, although it is important to note that some judges believe strongly that such consideration is inappropriate.
7. Many judges who view racial diversity positively nonetheless reported difficulty hiring Black and Hispanic clerks. [Footnote omitted.] The judges with the most robust records of minority hiring are those who make affirmative efforts to draw minority candidates into their applicant pool or place greater emphasis on indicators of talent besides grades and law school rank, or do both.
8. Black judges are particularly successful in hiring Black clerks; we estimate that Black judges, who comprised less than one-eighth of active circuit judges during our study, accounted for more than half of the Black clerks hired each year in the federal courts of appeals.
The opinion is expected to address: (1) Did the trial court err in ruling that defendant’s overdose on heroin during his jury trial was an implicit waiver of his right to be present and made him voluntarily absent within the meaning of Penal Code section 1043, subdivision (b)(2)? (2) Did the trial court err in denying the defense motion for a one-day continuance to permit defendant to testify? The court granted review in June 2020.
The opinion can be viewed Monday starting at 10:00 a.m.
Yesterday, Chief Justice Tani Cantil-Sakauye held her last annual meeting with the press before her retirement in one month. At The Lectern attended the virtual conference.
Among the Chief Justice’s responses to questions were:
Bail reform. After a referendum defeating what would have been landmark bail statutes, changes in the future to the bail system will be by case law, not by legislation. (Related: here and here.)
The justice gap. “If there was anything that [the Judicial Council] and I left on the table,” it is addressing the continually growing justice gap that “is firmly rooted in social inequity, in racial, gender, [and] economic classifications and proxies.” She said California now “has its hands tied” by legislation preventing an exploration of using paraprofessionals to serve legal needs.
ADR shortcutting law development. The decrease in case filings in California is worrying. Cases are going to mediation or arbitration, or are not being filed at all because of the justice gap. This impedes the “[development of] the rule of law.” She wondered whether the courts in the future will see mostly cases where the litigants can’t afford alternative forums.
Judicial hellholes. When asked about California’s regular ranking by the Chamber of Commerce as among the nation’s top “judicial hellholes,” the Chief acknowledged that the Supreme Court’s reputation as being employee and consumer friendly is “probably accurate” (related: here), but it’s because of the statutes and wage orders the court is interpreting. “We don’t make this stuff up,” she said.
Judicial terms. Terms of office instead of lifetime appointments do not affect judicial decisions and they “keep judges and justices engaged with their community.” (Related: here and here.)
State Bar. Because “not a penny of general funds” goes to the State Bar, the Legislature and the Bar need to increase dues lawyers pay so that the Bar can “buy a competent computer system, hire more investigators, [and] revamp their disciplinary system.” Regarding the latter, the Chief said “the Bar needs to do an in-house cleaning and investigation of the Girardi” matters. (Related: here.) The Chief questioned “whether it makes sense” to have a one-year Bar chair who is reliant on Bar staff and she said there was “more action” when the chair was elected rather than, under a fairly recent change, appointed by the Supreme Court.
Mediator regulation. The State Bar should “regulate, oversee, [and] discipline mediators.”
Clemency. When asked why the court did not explain its reasons for rejecting ten of former Governor Jerry Brown’s requests for clemency recommendations (here and here), the Chief said the court doesn’t explain because, under the state constitution, “the court doesn’t have to explain.” (Here.) She added that the court couldn’t get to review-granted cases if the court had to write an opinion as to every clemency request made by a governor.
Loss of institutional memory. Despite recent or impending retirements of the Chief Justice, the court’s chief supervising attorney (here), and the heads of its criminal and capital central staffs (here and here), the Chief said she’s “very confident in the Supreme Court going forward.” She noted that chief supervising attorney Jake Dear — whom she highly praised — has offered to serve as a volunteer in retirement and that the new leaders of the central staffs are “long-accomplished, experienced attorneys in the Supreme Court.”
Narrow opinions. Unlike the U.S. Supreme Court, which “write[s] broadly,” California Supreme Court opinions are “narrow.” (Related here and here.)
More time on cases. In contrast to the U.S. Supreme Court, California’s Supreme Court allows “a great deal of time” for attorneys to brief, and for the justices to consider and discuss, cases before a decision is made.
At The Lectern. The Chief Justice said she “always appreciate[s] [the] astute observations” in this blog and good naturedly said, “we always think you have a listening device at the Supreme Court.”
Media coverage of the meeting includes:
Cheryl Miller in The Recorder — “Lawmakers Should Raise Lawyer License Fees, Outgoing Chief Justice Says”
Bob Egelko in the San Francisco Chronicle — “One reason the California Supreme Court is less divided than SCOTUS? It has more women, says chief justice”
[December 3 update: Darrell Smith in the Sacramento Bee — “Outgoing chief justice, a trailblazer in California courts, says more barriers need to be broken”]
In People v. Ware, the Supreme Court today finds insufficient evidence to support a conviction for conspiracy to commit murder. The court says that the “conspiracy consisted of a two-year-long agreement among at least 20 gang members to kill members of rival gangs, without agreement as to any specific times, persons, or places where killing would take place” and that “[t]he prosecution . . . sought to tie [the defendant] to the charged conspiracy primarily through evidence of his gang membership, access to weapons, and social media posts celebrating violence against rival gangs.”
Saying it is “particularly critical for courts to carefully distinguish between evidence of mere membership in a gang embroiled in a violent rivalry and evidence sufficient to support a conviction for conspiracy to commit murder,” the court’s unanimous opinion by Justice Leondra Kruger concludes that “absent proof of intent to play some role in achieving the conspiracy’s unlawful goals, neither being a cheerleader nor passively accepting the benefits of others’ unlawful activities constitutes participation in a conspiracy.” Although the defendant “was an active member of a gang whose other members committed acts of violence, that he celebrated those acts of violence, and that he had access to weapons that he could use in furtherance of those acts, if he so chose,” the court holds the evidence “is not sufficient to support a finding that [the defendant] specifically intended to enter an agreement to commit murder, or that he specifically intended to commit murder, either personally or through others.”
The court reverses the Fourth District, Division One, Court of Appeal’s partially published opinion.
At the Supreme Court’s conference yesterday, actions of note included:
Covid contempt. The court denied review in People v. Calvary Chapel San Jose, but it depublished the Sixth District Court of Appeal’s opinion reversing contempt orders imposed for a church’s violation of temporary restraining orders that had required the church to comply with public health orders issued to combat the Covid pandemic. The appellate court concluded the TROs were “facially unconstitutional pursuant to the recent guidance of the United States Supreme Court regarding the First Amendment’s protection of the free exercise of religion in the context of public health orders that impact religious practice.” In one of the U.S. Supreme Court’s shadow docket decisions on which the Sixth District relied, Justice Elena Kagan in a three-justice dissent criticized the Court majority for its “foray into armchair epidemiology” and for “insisting that science-based policy yield to judicial edict.” (South Bay United Pentecostal Church v. Newsom (2021) 592 U.S. __ [141 S.Ct. 716, 723].)
Another ICWA grant: While the U.S. Supreme Court considers in Haaland v. Brackeen whether the federal Indian Child Welfare Act is even constitutional, the California Supreme Court granted review in In re Kenneth D. The Third District held in a published opinion that there was an “abject failure of [a county] Department and juvenile court to inquire as to father’s possible Native American heritage,” but the error was harmless. There was no prejudice, the appellate court found, because a post-parental-rights-termination investigation established any indigenous ancestry was in Mexico and, thus, the father’s “family did not have Native American heritage.” It disagreed with the Second District, Division Seven, conclusion that a belated investigation could not be considered (In re M.B. (2022) 80 Cal.App.5th 617, 629 [there should be “a conditional reversal with directions for full compliance with the inquiry and notice provisions of ICWA and related California law”]) and with the Fourth District, Division Three, decision that there can’t be harmless error in failing to investigate (In re E.V. (2022) 80 Cal.App.5th 691, 700-701). There were no petitions for review in M.B. or E.V. In September, the California Supreme Court agreed to hear another ICWA-compliance case — In re Dezi C. (See here.) Because Kenneth D. is not a grant-and-hold for Dezi C., the cases apparently raise sufficiently distinct issues to warrant two separate opinions.
ICWA grant-and-hold. Kenneth D. might not be a grant-and-hold for Dezi C. (see above), but In re E. L. is now a grant-and-hold for Kenneth D. In E. L., the Second District, Division Six, in a published opinion, used the rarely used power under Code of Civil Procedure section 909 of appellate courts to take evidence, reviewing a tribal letter stating that the children at issue were not tribal members for ICWA purposes. Division Six thus allowed for a termination of parental rights and an adoption, reasoning that “[r]emand would unnecessarily delay the likelihood of adoption of the children and would achieve the same result we do here.”
Grant-and-hold disposals. The court continued to remove from its docket grant-and-holds that had been waiting for the August decision in People v. Strong (2022) 13 Cal.5th 698. Review was dismissed in eight of those and 22 were sent back to the Courts of Appeal for reconsideration in light of Strong.
When it granted review in Ware in December 2020, the court limited the issue to be decided: “Does sufficient evidence support Hoskins’s Count 1 conviction for conspiracy to commit murder?” Earlier, the court requested an answer to the petition for review, saying the answer should address, “Whether a defendant may be convicted of conspiracy to commit murder where it was undisputed that the conviction was based entirely on circumstantial evidence of a conspiracy and his only connection to the coconspirators is common gang affiliation and social media posts which fail to prove his involvement in the conspiracy.” The case is called Ware, but the court denied Ware’s petition for review and that of one co-defendant, granting only co-defendant Hoskins’s petition.
The opinion can be viewed tomorrow starting at 10:00 a.m.
The Supreme Court today affirms the death sentence in People v. Camacho for the 2003 murder of a police officer during a traffic stop in Oceanside. As the court describes it, defendant unsuccessfully argued to the jury that he didn’t have the mental state for first degree murder because he shot the officer “during a period of delirium and psychosis brought about by a combination of illicit substances and prescription medication he had ingested.”
The court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye holds to be error both a superior court order requiring the defendant to submit to a mental examination by a prosecution expert and the use against the defendant of his refusal to obey the order. (Such orders were not determined to be improper until a Supreme Court opinion after the defendant’s trial, and the Legislature later abrogated the opinion.) However, applying a deferential standard of prejudicial error, the court concludes a more defense-favorable verdict “was not reasonably probable” had the errors not occurred.
As is typical in direct death penalty appeals, where the court cannot limit the issues to be decided, the opinion rejects numerous other defense arguments, including claims of prosecutorial misconduct, that the superior court should not have admitted jailhouse letters the defendant wrote expressing hostility to the police, and that the jury was wrongly told it could not consider sympathy for the defendant’s family in deciding whether to recommend a death sentence. The court does find error in allowing expert testimony in violation of People v. Sanchez (2016) 63 Cal.4th 665 (see here), but it finds there was no prejudice.
The opinion will leave two undecided cases from the court’s September calendar. Opinions in those cases should file on December 1 or 5.
Camacho is an automatic direct appeal from a February 2006 judgment of death. The court’s website does not list issues for death penalty appeals. Counsel was appointed in January 2010. Briefing was completed in February 2015.
The opinion can be viewed Monday starting at 10:00 a.m.
Slip-and-fall depub. The court denied review in Perez v. Hibachi Buffet, but it depublished the Second District, Division Eight, Court of Appeal opinion that reinstated a $850,000 damage award to a slip-and-fall plaintiff after the superior court had granted judgment notwithstanding the verdict and, in the alternative, a new trial. The superior court had found no evidence the defendant restaurant’s employees were responsible for the spilled water on the floor that caused the plaintiff’s fall, but Division Eight concluded evidence supported the plaintiff’s “commonplace explanation for how the floor got wet: a Buffet employee spilled the liquid taking dishes to the kitchen for washing.” The appellate court also held, “It is an abuse of discretion to grant a new trial on the ground of insufficient evidence without mentioning a pertinent discovery admission.”
Civil right to counsel. Justice Joshua Groban recorded a dissenting vote from the denial of review in Espinoza v. Superior Court after the Second District, Division Three, summarily denied a writ petition. The petition for review asked the court to find a right to counsel for indigent parents who are at risk of losing parental rights in contested probate guardianship proceedings. In what it said is called the “hidden foster care system,” the petition claimed that child welfare agencies will sometimes threaten to remove a child in a dependency proceeding — where there is a right to counsel — unless custody is relinquished to a relative or friend through the guardianship process. The petition was supported by two amicus letters (here and here) on behalf of numerous organizations, law professors, two retired Court of Appeal justices, and a retired superior court family law judge. The Supreme Court’s order says the denial of review is “without prejudice to petitioner raising the issues on direct appeal.”
Prisoner medical care. The court granted review in In re Devon and transferred the case to the Sixth District — which had summarily denied a habeas corpus petition — with directions to order a superior court evidentiary hearing on whether the refusal to grant petitioner’s request for spinal decompression surgery violates the Eighth Amendment of the United States Constitution, and article I, section 17 of the California Constitution. Justice Groban did not vote for review.
Sexually violent predator commitment. After the Fourth District, Division Three, summarily denied a habeas corpus petition, the Supreme Court granted review in In re Russo and ordered the appellate court to decide whether the petitioner is “entitled to relief on the ground insufficient evidence supported the Orange County Superior Court’s February 20, 2020, finding that a reasonable person could entertain a strong suspicion petitioner ‘has a diagnosable mental disorder’ that ‘makes it likely he . . . will engage in sexually violent criminal conduct if released . . . .’ (Cooley v. Superior Court (2002) 29 Cal.4th 228, 236.)”
Grant-and-hold disposals. The court took 31 criminal case grant-and-holds off its docket. Review was dismissed in one that was waiting for the August decision in People v. Aguayo (2022) 13 Cal.5th 974. The other 30 were all on hold for the August decision in People v. Strong (2022) 13 Cal.5th 698 — the court dismissed review in 11 and sent the remaining 19 back to the Courts of Appeal for reconsideration in light of Strong.