Supreme Court is divided over how much federal law preempts CEQA

In County of Butte v. Department of Water Resources, the Supreme Court unanimously concludes that the Federal Power Act to some extent preempts California environmental regulations regarding the state Department of Water Resources’ application to renew its federal license to operate hydroelectric projects. But the scope of the preemption is disputed, with the 5-justice majority finding less preemption than the dissenters.

The justices all agree the California Environmental Quality Act can’t interfere with a settlement agreement reached as part of licensing proceedings with the Federal Energy Regulatory Commission. But the majority opinion by Justice Goodwin Liu holds CEQA can require that DWR consider in an environmental impact report whether to seek certain mitigation measures by amending its license application or by seeking reconsideration once FERC has issued a license.

In a 38-page concurring and dissenting opinion that is longer than the court’s opinion, Chief Justice Tani Cantil-Sakauye, joined by Justice Carol Corrigan, writes that “[t]he scope of preemption . . . is considerably broader” than the majority finds. The Chief Justice asserts “[t]he mitigation measures required by CEQA, enforced by the equally compulsory mitigation monitoring program, create a competing state regulatory regime that stands as a direct obstacle to the accomplishment of the congressional purpose and objective of vesting unchallenged regulatory authority over hydropower in FERC.”

The court affirms in part and reverses in part the Third District Court of Appeal opinion it depublished when it granted review.


Bob Egelko in the San Francisco Chronicle: “State can seek environmental safeguards for Oroville Dam beyond federal regulations, California Supreme Court rules.”

CEQA not preempted by federal railroad law for state-owned railroads.

With three Brown justices in dissent, Supreme Court gives prosecutors more charging leeway

It’s not often that the Supreme Court splits 4-3. (A May 4-3 division was the court’s first in almost two years.) Rarer still is when all appointees of Governor Jerry Brown are by themselves on a case. But that’s what happened today in People v. Henson, with three Brown justices in dissent. It might be the first instance of Brown appointees voting alone as a block since, before Justice Mariano-Florentino Cuéllar left the court, they formed a four-justice majority almost three years ago in a privacy decision, Mathews v. Becerra (2019) 8 Cal.5th 756 (see here).

In Henson, the court’s opinion by Justice Martin Jenkins holds a district attorney can, without superior court permission, file a single information combining related offenses that were the subject of separate preliminary hearings. As is often the case, the decision requires parsing some less-than-pellucid statutory language and examining legislative history.

Justice Leondra Kruger dissents, for herself and Justices Goodwin Liu and Joshua Groban. She criticizes what she terms an “unusual deviation from standard charging procedures” and calls it a rule that can be effective only during a 15-day period. It’s “the Cheshire Cat of procedural rules,” Justice Kruger says. The dissent admits that the majority’s statutory interpretation is “not impossible,” but claims “the reading does not seem especially likely.”

The court affirms a divided Fifth District Court of Appeal published opinion, although, the court says, “we do not employ the Court of Appeal’s reasoning.”

Only 48 days to name a new chief justice

After Chief Justice Tani Cantil-Sakauye announced on Wednesday that she would not stand for reelection, some news reports said Governor Gavin Newsom would choose a new chief justice after January 2, when Cantil-Sakauye’s 12-year term expires, and then only if Newsom himself is reelected.

The actual timeline is much tighter than that. The Governor should name the Chief Justice’s replacement by September 15. It’s required by the state constitution.

Article VI, section 16(d)(1), of the constitution gives a Supreme Court justice with an expiring term until August 15 to file a declaration of candidacy for the November election. That section goes on to provide, “If the declaration is not filed, the Governor before September 16 shall nominate a candidate.”

The Governor’s choice then must be confirmed by the Commission on Judicial Appointments — after the required vetting by the Commission on Judicial Nominees Evaluation — before the nomination “is effective” (section 16, subdivision (d)(2)) and the nominee faces the voters in November.

Similar timelines have been followed when other justices have not filed declarations of candidacy.

The Chief Justice’s predecessor, Ronald George, announced in mid July 2010 that he would not seek a new term, Governor Arnold Schwarzenegger chose Cantil-Sakauye less than two week’s later, her nomination was confirmed on August 25, she was elected on November 2, and she took office on January 3, 2011.

Justice Marvin Baxter announced on June 18, 2014, that he would not run for reelection, Governor Jerry Brown picked Mariano-Florentino Cuéllar on July 22 to take Baxter’s place, Cuéllar’s nomination was confirmed on August 28, he was elected on November 4, and he was sworn in on January 5, 2015.

Schwarzenegger and Brown acted well before the September 15 constitutional deadline. But if Newsom waits until the last minute to make his choice, he might be squeezing the Secretary of State and other election officials.

According to Secretary of State Shirley Weber’s website, a certified list of candidates for the November 8 election will be posted by September 1 and mailing of ballots to voters will begin no later than October 10. A September 15 nomination, followed by a Commission on Judicial Appointments confirmation a month later, could blow past the election deadlines concerning the Chief Justice’s election. The Secretary of State’s office did not respond to an inquiry about timing.


One year to Election Day for five Supreme Court justices.

Two Supreme Court justices, one prospective justice — and no more — on November’s ballot.

CEQA, charging information opinions filing Monday

On Monday morning, the Supreme Court will file its opinion in County of Butte v. Department of Water Resources and People v. Henson. (Briefs here; oral argument videos here and here.)

These will be the last of five opinions for cases argued on the early-May calendar. That will leave 15 cases in the summer pipeline.

When the court granted review in County of Butte (for a second time) and depublished the Third District Court of Appeal’s opinion in December 2019, it limited the issues to:  “1. To what extent does the Federal Power Act preempt application of the California Environmental Quality Act when the state is acting on its own behalf, and exercising its discretion, in deciding to pursue licensing for a hydroelectric dam project? 2. Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act to comply with the federal water quality certification under section 401 of the federal Clean Water Act?”

In Henson, the court is expected to decide the question, when a defendant is held to answer following separate preliminary hearings on charges brought in separate complaints, can the People file a unitary information covering the charges in both those cases or must they obtain the trial court’s permission to consolidate the pleadings? (See Pen. Code, §§ 949, 954.) The court granted review over three years ago, in January 2019.

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

Death penalty affirmed for serial murderer

The Supreme Court today affirmed the death sentence in People v. Ng for 11 Northern California murders in 1984 and 1985.

The court’s unanimous 178-page opinion by Justice Joshua Groban rejects many defense arguments for reversal, including that the superior court shouldn’t have admitted at trial a jailhouse informant’s earlier testimony during the defendant’s extradition hearing in Canada, that court-appointed standby counsel improperly interfered with the defendant’s ability to represent himself, that the superior court erroneously revoked his self representation, that the trial shouldn’t have been moved to Orange County, and that the defendant was improperly required to wear a stun belt in court.

Supreme Court will decide government immunity issue

At the Supreme Court’s conference yesterday, after which Chief Justice Tani Cantil-Sakauye announced her retirement, actions of note included:

  • Government immunity. The court granted review in County of Santa Clara v. Superior Court and limited the issue to: “Is Santa Clara County immune under the Government Claims Act (Gov. Code, § 810 et seq.) from an action seeking reimbursement for emergency medical care provided to persons covered by the county’s health care service plan?” In a published opinion, the Sixth District Court of Appeal held a hospital that provided emergency care to patients enrolled in a county-operated health plan could not sue the county for reimbursement for the services even though a provision of California’s Knox-Keene Health Care Service Plan Act states, “A health care service plan . . . shall reimburse providers for emergency services and care provided to its enrollees.” The appellate court concluded that, because common law claims cannot be brought against public entities, the county could not be sued for breach of an implied-in-fact or implied-in-law contract. The opinion acknowledged, “under our interpretation of the relevant statutes a provider has greater remedies against a private health care service plan than it does against a public entity health care service plan.” Horvitz & Levy filed the successful petition for review.
  • Dependency mootness. The court granted-and-held in In re Z.T., which is now another case waiting for the court’s decision in In re D.P.  Review was granted in D.P. in in May 2021 and the issues were limited to:  “(1) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she has been or will be stigmatized by the finding?  (2) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she may be barred from challenging a current or future placement on the Child Abuse Central Index as a result of the finding?” In Z.T., the First District, Division Three, unpublished opinion dismissed as moot a father’s appeal because “[t]he juvenile court has vacated the dependency proceedings with respect to Father’s children and dismissed their dependency petitions,” and it said, “Father’s concern that future dependency or family law proceedings will be ‘infected’ if findings are not reversed is speculative.”
  • Forum selection clause. The court granted review in Cynosure, LLC v. Superior Court and transferred the case back to the Fourth District, Division Three, which had summarily denied a writ petition by a divided vote. Division Three will now address in a written opinion the merits of the writ petition. A plastic surgery group filed a cross-complaint against the petitioner alleging causes of action arising from the purchase of a product the petitioner manufactured. The petitioner, a Massachusetts company, unsuccessfully moved to dismiss the cross-complaint based on a clause in the product’s sales agreement that said the buyer “agrees to submit all disputes arising out of, or relating to, this Agreement to a court in Boston.” The plastic surgeons have argued “the parties merely agreed that Boston courts are an alternative forum for litigation.” Here are the petition for review, answer, and reply.
  • Inevitable discovery. The court denied review in In re A.L., but Justice Goodwin Liu recorded a vote to hear the case. A divided Third District unpublished opinion affirmed juvenile court orders denying a suppression motion and finding a minor to be a ward of the court. The majority concluded the seized evidence “would have inevitably been discovered.” The dissent, however, asserted the record did not support the inevitable discovery doctrine “where the application of that doctrine was not raised, much less adequately fleshed out, below” and because “the record is, at best, ambiguous as to the doctrine’s application to the facts of this particular case.”
  • Insurance coverage. Justice Liu also recorded a dissenting vote from the denial of review in Ghukasian v. Aegis Security Insurance Company, where a published opinion of the Second District, Division Four, held an insurance carrier had no duty to defend a lawsuit against a homeowner for grading land and cutting trees on a neighbor’s property, because the conduct was intentional even if the homeowner acted on the good faith belief that the work was being done on her own property. The homeowner acknowledged other Court of Appeal cases were adverse to her position, but claimed the Supreme Court had disapproved those opinions in Liberty Surplus Ins. Corp. v. Ledesma & Meyer Construction Co. (2018) 5 Cal.5th 216 (see here). Division Four rejected the argument. Justice Liu had separately concurred in the Liberty Surplus case “to clarify three aspects of the understanding of an ‘accident.’ ”
  • Slip and fall. The court denied review in Hassaine v. Club Demonstration Services, Inc., but Justice Joshua Groban recorded a vote to grant. The partially published opinion of the Fourth District, Division One, reversed the summary judgment for a company operating food sample tables at a Costco. A Costco shopper fell after slipping on liquid soap on the floor, but the superior court concluded the company could not be liable because the company’s contract with Costco limited its maintenance obligations to a specified area around each sample table and the shopper fell outside that area. Division One held the contract “may allocate responsibility and liability as a matter of contract between those parties, [but] it does not limit the scope of [the company’s] common law duty to customers.” The opinion noted a separate question is whether the company breached its duty and said the company “would have no liability so long as its conduct was reasonable under the circumstances.”
  • Habeas dissenting vote. The court denied a pro per’s habeas corpus petition in In re Villegas, but Justice Liu recorded a vote to issue an order to show cause. The docket gives no information about the issues raised by the petition, so we can’t tell the reason for the dissenting vote.
  • Criminal case grant-and-holds. There were 4 criminal case grant-and-holds: two more waiting for a decision in People v. Strong (see here), which was argued in May; one holding for In re Lopez (see here and here); and one more waiting for People v. Tran, which was argued in May (see also here).
  • Disposal of grant-and-holds. The court shed eight former grant-and-holds. Six had been holding for the March decision in Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905: review was dismissed in four of them — Poblete v. Specialized Loan Servicing (see here), Beier v. Bank of America (see here), Sheen v. FCI Lender Services, Inc. (see here), and Bank of America v. Phillips (see here) — and the other two — Domondon v. Three Olives Inc. (see here) and Weimer v. Nationstar Mortgage, LLC (see here) — were sent back to the Courts of Appeal for reconsideration. Also, review was dismissed in two cases that were holding for both People v. Padilla (2022) 13 Cal.5th 152, which was decided in May, and People v. Federico, which the court transferred back to the Court of Appeal in February.

Chief Justice will recommend candidates to succeed her . . . if asked [Updated]

During a phone call with the media following the announcement of her decision not to seek reelection to a second 12-year term (see here), California Chief Justice Tani Cantil-Sakauye said she “still has anxiety” about her decision to retire, even though she has served as a judge for over three decades. She also conveyed that she presently has no future plans, although she definitively ruled out any role in politics.

Cantil-Sakauye expressed a willingness to give Governor Gavin Newsom names of possible successors for the position of leading the Supreme Court and the state’s judiciary, the world’s largest. But she said she would do so only if Newsom requests her advice. The Chief Justice spoke briefly with the Governor this morning. He issued a statement of praise this afternoon.

Under the state constitution, Governor Newsom has only until mid September to nominate the next Chief Justice. (Article VI, section 16(d).) Before the nominee can take office when Cantil-Sakauye’s term ends on January 2, they must be confirmed first by the Commission on Judicial Appointments and then by the voters in November.

A recommendation from the outgoing Chief Justice was a big factor in Cantil-Sakauye’s promotion to her present office. In his memoir, “Chief: The Quest for Justice in California,” Ronald George related that, when he announced he would not stand for reelection as Chief Justice in 2010, then-Governor Arnold Schwarzenegger asked George for his views on his successor. George had a list of four people, and Cantil-Sakauye — then a justice on the Third District Court of Appeal — was his top choice. George had appointed her to the Judicial Council and considered her “a star in the area of statewide court administration.” He also told the Governor that Cantil-Sakauye’s “very compelling life story . . . would bring many advantages to the performance of her duties as Chief Justice of our large and multicultural state.”

The Chief Justice’s decision to step down was not a complete surprise. She had been noncommittal about her plans of late. Also, Cantil-Sakauye seemed to presage her choice when she mentioned in her State of the Judiciary address in March that her tenure as Chief has been “bookended” by two crises; she echoed that theme in her statement today, saying, “My career as chief justice is bookended by the Great Recession and administrative challenges at the beginning and now an historic judicial branch budget and the persisting difficulties of a Global Pandemic.”

Related media coverage:

Don Thompson for the Associated Press. (I’m quoted in the article.)

Cheryl Miller in The Recorder.

Bob Egelko in the San Francisco Chronicle.

Kevin Rector in the Los Angeles Times.

Rosalio Ahumada in the Sacramento Bee.

Maria Dinzeo for Courthouse News Service.

Daniel Wiessner for Reuters.

[July 28 update: David Houston and Malcolm Maclachlan in the Daily Journal here, here, and here.]

Death penalty opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Ng. (Briefs here; oral argument video here.)

This will be the third of five opinions for cases argued on the early-May calendar. Opinions in the other two cases should file on Monday.

Ng is an automatic direct appeal from a June 1999 judgment of death. The court’s website does not list issues for death penalty appeals. Counsel was appointed in January 2005. Briefing was completed in September 2013. Chief Justice Tani Cantil-Sakauye is recused and First District, Division Four, Presiding Justice Stuart Pollak is sitting pro tem in her place.

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

The Chief Justice keynoted the AALL conference

Marci Wicker reported on the American Association of Law Libraries conference earlier this month in Denver. Included in her account is this about Chief Justice Tani Cantil-Sakauye’s address:

“The Colorado Convention Center ballroom was bursting at the seams as the keynote speaker, Chief Justice of California Tani G. Cantil-Sakauye, gave a talk during the opening general session on July 17. She delivered an inspiring message on the vital role law libraries play in advancing access to justice and the importance of collaborations in promoting a strong judicial system. A Q&A segment followed her keynote address in which she discussed the importance of bringing diverse groups of people into conversations to help make more equitable decisions, which strengthens the justice system and leads to greater justice for us all.”

Historical Society writing competition winners announced

The California Supreme Court Historical Society has announced the winners of this year’s Selma Moidel Smith Law Student Writing Competition. (I’m on the Society’s board of directors.)

The winners, who will receive cash prizes and have their papers published in the next edition of the Society’s journal California Legal History, are:

First place: Leah Haberman, Columbia Law School (JD Candidate, class of 2024) for “More than Moratoriums: The Obstacles to Abolishing California’s Death Penalty.”

Second place: Ryan Carter, UCLA School of Law (MLS, 2022), for “San Fernando Valley Secession: How a Quest to Change the Law Almost Broke L.A. Apart (and Whether It Still Could).”

Third place: Simon Ruhland, UCLA School of Law (LLM, 2022), for “Wind of (Constitutional) Change: Amendment Clauses in the Federal and State Constitutions.”

The competition judges were Professors Lawrence Friedman of Stanford Law School and Rebecca Latham Brown of USC Gould School of Law.

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