In a conference call with reporters this afternoon, hours after announcing his retirement from the Supreme Court, Justice Mariano-Florentino Cuéllar said the court still hasn’t “worked out” his involvement in the cases argued last week and to be argued next month. He did assure that he will remain “totally engaged” in his judicial work until he leaves the court in a little over six weeks.
One of the things that might need to be “worked out” is whether Justice Cuéllar will sit as a pro tem justice after he leaves the court. If he doesn’t, the court could be rushed to get out opinions before his retirement in the September and October cases (assuming he sits on the October cases). There was an opinion rush when Justice Carlos Moreno retired 10 years ago without serving as a pro tem.
The first question is whether, as a private foundation president, he would even be eligible to be a pro tem. I haven’t done more than cursory research on the topic, but the state Constitution says only, “A retired judge who consents may be assigned [by the Chief Justice] to any court,” which apparently allows for Cuéllar to serve.
If Cuéllar can be assigned, the next question is whether he and the Chief Justice want that. Justice Moreno didn’t want the assignment. Cuéllar did say this afternoon, however, “part of me wants to stay a judge forever.”
During the conference call, Cuéllar denied that he announced his retirement only after seeing that Governor Gavin Newsom had survived a recall election two days ago. It is reasonable to speculate that Cuéllar didn’t want a Republican governor filling his seat and wouldn’t have left the court now if Tuesday’s balloting had gone differently. “I count judicial votes, not” other votes, Cuéllar said.
In discussing whether judicial experience should be a factor in Governor Newsom’s choice for his replacement, Cuéllar, who, like three of his colleagues, was never a judge before joining the court, praised the “diversity of experiences” that has “benefited” the court. He also expressed confidence in the Governor to make an excellent pick.
Cuéllar declined to single out favorite opinions of his, but he did mention two cases he particularly enjoyed having the opportunity to collaborate on with the other justices: the March decision in In re Humphrey (2021) 11 Cal.5th 135, when Cuéllar wrote for the court that “conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” and the 2019 opinion in Southern California Gas Leak Cases (2019) 7 Cal.5th 391, a decision — that he also wrote — limiting a gas company’s liability for a massive four-month-long gas leak. He also said that, because of his legal life before going on the court, tort cases were a “revelation” for him and that such matters are “particularly important in state courts.”