Author: David Ettinger

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.”

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.)

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.

March 31 is Cesar Chavez Day, a state and judicial holiday.  The Supreme Court will be closed.

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.)

Related:

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

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.

Diversity

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.”

Related:

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“

Tani Cantil-Sakauye, who retired as California’s Chief Justice at the beginning of the year and became president and CEO of the Public Policy Institute of California, has agreed to join ADR Services, Inc. She will start there April 24 while also remaining as the head of PPIC.

At ADR, Cantil-Sakauye will do mediations, but not arbitrations. She will also “be available to handle appellate consultations, including case evaluations and moot courts,” Theresa Nguyen, ADR’s business manager, said in an email.

In a phone interview, Cantil-Sakauye said she learned from retired Justice Ming Chin, her former court colleague who is currently an ADR Services neutral, that the consultations can include not just moot courting a case, but, earlier in the process, while briefing is being developed, consulting “on the nature of the case and the strength of the arguments that are being made at the appellate level” to evaluate “what might be more successful to emphasize.”

Before leaving the bench, the former Chief Justice expressed reservations about private alternative dispute resolution systems. At her final meeting with the press, she said cases are going to mediation or arbitration, or are not being filed at all, because of a “justice gap,” which she characterized as “firmly rooted in social inequity, in racial, gender, [and] economic classifications and proxies.” Diverting cases to private resolution services impedes the “[development of] the rule of law,” Cantil-Sakauye said then, and she wondered whether the courts in the future will see mostly cases where the litigants can’t afford alternative forums.

While she was chief justice, Cantil-Sakauye started a program to make retired judges available to serve as mediators in civil cases at no cost to litigants.

In the interview today, Cantil-Sakauye said that she continues to have “reservations about the oversights, or potentially lack thereof, of mediation services” and that she still believes “there ought to be robust oversight through the State Bar of mediation services for the public because it must be futile and exasperating for people who are seeking mediation and have no recourse and have serious complaints.”

Despite leading PPIC, Cantil-Sakauye assured she still has “a lot of energy” and “the time” to be involved with matters through ADR. She thinks it will be a good fit because, even though she is no longer a judge, she “gravitate[s] towards reading the cases and finding out what’s happening and following up on certain issues out of curiosity as to how they’re developing.”

Related:

Cheryl Miller in The Recorder.

David Houston in the Daily Journal.

The end of the Cantil-Sakauye court

[March 28 update: Kevin Rector in the Los Angeles Times — “Former California chief justice joins private mediation firm after criticizing industry“]

In a letter from the Supreme Court’s Clerk and Executive Officer Jorge Navarrete, the court today told the State Bar it must amend rules about vetting applicants for State Bar Court judges and for the Bar’s board of trustees (see here and here) to prevent conflicts of interest.

The letter says: “At a minimum, these amendments should: (1) require candidates to disclose financial and nonfinancial interests that might affect, or might be affected by, the candidate’s service in the State Bar office in question; (2) require candidates to provide a list of attorneys whom the candidate would identify as creating a conflict in any future service with the State Bar; and (3) require the committees to review this information and evaluate whether it might disqualify a candidate or reduce a candidate’s rating.”

Related:

Matt Hamilton and Harriet Ryan in the Los Angeles Times: “Tom Girardi gave $1 million in payments, gifts to top State Bar investigator, corruption probe finds“

“ ‘Shocking’ Tom Girardi scandal shows need for legal reforms, California chief justice says”