Justice Jenkins to keynote Santa Clara University graduation

Commencement time is approaching and Supreme Court justices are often sought-after speakers for undergraduate and law school ceremonies. So, it’s not surprising that Justice Martin Jenkins will deliver the keynote address at Santa Clara University’s 173rd commencement ceremony on June 15, especially since he’s also an alum.

Jenkins, class of 1977, is quoted in the school’s news release, “My Jesuit education has informed virtually every aspect of my life, and I am delighted to share this special day with a new generation of exceptional graduates from my alma mater.” The release reports, “Jenkins received his B.A. in history from Santa Clara University, where he played on the Bronco football team as a defensive back.”

Solar energy, civil sexual assault cases to be decided [Updated x 2]

Here are some of the notable actions at yesterday’s Supreme Court conference, a double one:

Three-justice separate statement in denial of habeas petition filed by youth offender serving an LWOP sentence because she tried to protect her boyfriend

Supreme Court won’t hear Ninth-Circuit-referred sexual assault case against Uber

Solar energy rates. The court will hear the big-deal case of Center for Biological Diversity v. Public Utilities Commission. It concerns what the First District, Division Three, Court of Appeal described in its published opinion as a change to California’s decades-long “net energy metering . . . tariff to encourage public utility customers to install renewable energy systems,” a tariff that, “[i]n practical effect . . . requires utilities to purchase excess electricity exported by renewable systems to the electrical grid at the price paid by a utility’s customers for electricity.” Responding to utility complaints that the tariff “overcompensates owners of renewable systems for their exported energy and thereby raises the cost of electricity for customers without such systems” and to Public and Utilities Code section 2827.1, the PUC “significantly reduce[d] the price utilities pay for customer-generated power.” (See Sammy Roth’s December column in the Los Angeles Times for a more detailed look at what’s involved.) Environmental groups filed the writ petition now under review to challenge the PUC’s action, claiming it violates the statute because “it does not take account of the social benefits of customer-generated power, improperly favors the interests of utility customers who do not own renewable systems, fails to promote sustainable growth of renewable energy, and omits alternatives to promote the growth of renewable systems among customers in disadvantaged communities.” Division Three rejected the challenge, applying a standard of review strongly deferential to PUC decisions and concluding “the successor tariff adequately serves the various — albeit sometimes inconsistent — objectives of section 2827.1.”

[April 12 update. The issues as summarized by court staff are: “(1) What standard of review applies to judicial review of a Public Utilities Commission decision interpreting provisions of the Public Utilities Code? (2) Did the Public Utilities Commission proceed in the manner required by law, specifically Public Utilities Code section 2827.1, subdivision (b)(1) and (3), when it adopted the successor tariff in Decision Revising Net Energy Metering Tariff and Subtariffs (2022) Cal.P.U.C. Dec. No. D.22-12-056?”]

Lawsuit dismissal and res judicata. The court also granted review in Doe v. Marysville Joint Unified School District, where the Third District’s 2-1 published opinion affirmed the dismissal of a lawsuit claiming sexual misconduct by an elementary school counselor. The appellate court held the voluntary dismissal of an earlier federal court action — after the voluntary dismissal of an even earlier state court action — was res judicata. Disagreeing with the Sixth District’s decision in Gray v. La Salle Bank (2023) 95 Cal.App.5th 932, the majority reasoned, “Because a second voluntary dismissal in federal court is claim preclusive in a federal question case, the plaintiff cannot strip out the federal claims and file the action in state court solely as a California law action.” The dissent said, “The problem with importing res judicata principles here is it applies Federal Rules of Civil Procedure, rule 41 too broadly, ‘clos[ing]the courthouse doors to an otherwise proper litigant.’ ” The Supreme Court denied review in Gray four months ago.

[April 12 update. The issues as summarized by court staff are: “(1) Did the plaintiffs’ second voluntary dismissal of their federal court action preclude a subsequent state court action based on the same claims? (2) Did the defendant’s assertion of sovereign immunity over plaintiffs’ state law claims in federal court divest that court of subject matter jurisdiction over those claims?”]

[April 13 update. I should have noted that Horvitz & Levy is Supreme Court counsel for the school district in the Doe case.]

State Bar Court didn’t take the hint. Put this one in the Supreme Court’s “Aw, c’mon man” file. The court in Everett on Discipline ordered the State Bar Court’s Review Department to file as timely an attorney’s petition for review and other documents. That’s not a big deal in itself, but consider what came before — the order was responding to a second Review Department ruling that the documents were untimely, and there was a second ruling only because, after the first ruling, the Supreme Court had remanded the matter with a statement that “the filings . . . appear on their face to have been timely filed.”

Respondeat superior depublication. The court granted a request to depublish the Fourth District, Division Three, opinion in Adams v. Department of Corrections and Rehabilitation. There was no petition for review. Division Three reversed a summary judgment for the defendant Department in a case arising from a prison guard’s reckless pursuit of a vehicle on his way to work that caused severe injuries. The appellate court found there were triable issues of fact whether the guard was acting within the scope of his employment. It said there was evidence to support two competing theories — that the guard “was engaged in law enforcement functions as an ‘outgrowth’ of his employment” or that “he engaged for purely personal reasons in a ‘road rage incident.’ ” Depublication orders have been relatively rare of late.

Murder resentencing dissenting votes. The court denied review in People v. Collins and People v. Walker over the recorded dissenting votes of Justices Goodwin Liu and Kelli Evans. Unpublished opinions in both Collins and Walker, issued by the same panel in the Fourth District, Division Two, affirmed the denials of resentencing petitions under Senate Bill 1437, 2018 legislation that limited criminal liability for felony murder and eliminated it for murder under the natural-and-probable-consequences doctrine. The defendants in both cases were convicted of the same robbery and murder. In Walker, Division Two found “substantial evidence supports the trial court’s findings that Walker was a major participant in the robbery who acted with reckless indifference for the life of the victim” and that “it would have made no difference” if the trial court had been required to consider Walker’s age at the time of the offense (he was 20). The appellate court came to the same conclusions in Collins, where the defendant was 22 years old when the victim was killed. SB 1437 is a regular staple of the Supreme Court’s docket. (See, e.g., here and here.)

Discovery sanctions grant-and-hold. Agnone v. Agnone is a grant-and-hold for City of Los Angeles v. PricewaterhouseCoopers, in which the court in January 2023 agreed to decide whether a court’s authority to impose monetary sanctions for misuse of the discovery process is limited to circumstances expressly delineated in a method-specific provision of the Civil Discovery Act, or whether courts have independent authority to impose monetary sanctions for such discovery misconduct, including under Code of Civil Procedure sections 2023.010 and 2023.030. The Pricewaterhouse case involves a $2,500,000 sanction. In Agnone, the Second District, Division Three, unpublished opinion reversed a sanction of under $10,000 against a non-party witness in a divorce case, a sanction that was imposed after the case settled and the sanctions motion was withdrawn.

COVID insurance. The court declined to hear San Jose Sharks v. Superior Court. The Sixth District’s published opinion held that the National Hockey League and many of its teams could not claim coverage under commercial insurance policies for losses incurred because of the COVID-19 pandemic. The Sixth District relied on a contamination exclusion in the policies. A year ago, the hockey plaintiffs had unsuccessfully petitioned to transfer the writ proceeding to the Supreme Court before a Court of Appeal decision. (See here and here.) The Supreme Court has agreed to decide two COVID insurance cases — Another Planet Entertainment v. Vigilant Insurance Co. (see here), which was argued last month (video here) and John’s Grill, Inc. v. The Hartford Financial Services Group, Inc. — and has granted-and-held others. (See hereherehereherehere, and here.) But it has also denied review and/or depublication in cases, like San Jose Sharks, that rejected COVID insurance claims. (See here.)

Disclosure of drone videos. The court denied review in Castañares v. Superior Court after a Fourth District, Division One, published opinion held a month’s worth of a police department’s videos taken by a drone were not categorically exempt from disclosure under California’s Public Records Act. Video “that is part of an investigatory file” is exempt, the appellate court held, as is video “where officers used a drone to investigate whether a violation of law was occurring or had occurred but did not create a corresponding investigatory file.” What might be disclosable, Division One said, are videos from when “a drone [is] dispatched in response to a call to service from the public wherein the use of the drone could not be considered investigatory in nature,” such as “potentially dangerous wildlife roaming the neighborhood, a
stranded motorist, a water leak.” But it left to the trial court to sort out any disagreements about into which category any particular video falls and about, even as to the last category, whether the right to obtain videos might be outweighed by the burden of redacting the videos and by privacy rights implicated in disclosure. Regarding privacy considerations, the appellate court noted, “As the drones travel en route to the various scenes, it logically follows that they would, from time to time, travel over and film private backyards, perhaps capturing pool parties, barbeques, sunbathing, or other activities that are intended to be private.” There were several amicus curiae briefs filed in Division One, which is not nearly as common in the Court of Appeal as in the Supreme Court.

Criminal case grant-and-holds. There were five criminal case grant-and-holds: one more waiting for a decision in People v. Reynoza (see here), which was argued in February; one more on hold for People v. Lynch (see here); another one waiting for People v. Patton (see here); one more holding for People v. Fletcher (see here); and one on hold for People v. Antonelli (see here).

Three-justice separate statement in denial of habeas petition filed by youth offender serving an LWOP sentence because she tried to protect her boyfriend

The Supreme Court today denied the habeas corpus petition in In re Mendoza, but three justices issued a separate concurring statement expressing discomfort with Nancy Mendoza’s sentence and suggesting other avenues of relief. Mendoza is serving a life without parole sentence for her part in two kidnappings when she was 18 years old.

Justice Joshua Groban, writing for himself and Justices Goodwin Liu and Kelli Evans, said Mendoza “simply has not shown that counsel rendered prejudicial ineffective assistance of counsel at sentencing.” “However,” the statement continued, “there are several facts that raise significant questions as to whether Mendoza’s sentence of life without the possibility of parole is a just result,” including that if she “had been a few months younger at the time of her offenses, she would not be eligible for her life without the possibility of parole sentence.”

Also, the statement reported, Mendoza turned down a plea deal for a 15-year sentence in exchange for testimony against her boyfriend. Two other co-defendants took deals, leading the justices to conclude, “Mendoza, in an apparent effort to protect her boyfriend, is currently condemned to life without parole, while two of her accomplices are not.”

Justice Groban then said, “I write separately to highlight that our denial of the petition for writ of habeas corpus here does not necessarily preclude Mendoza from obtaining [resentencing] relief at some point in the future.” And he specified how she might get that relief.

The same three justices filed a similar concurring statement last month when the court denied a petition for review in a case where the justices said the defendant “has spent over 27 years in prison for stealing a pair of jeans.”


It should be easier to find Justice Groban’s recent separate statement

Supreme Court won’t hear Ninth-Circuit-referred sexual assault case against Uber

The Supreme Court today declined to answer questions of California law posed by the Ninth Circuit that the federal appeals court said are at the heart of an appeal involving a sexual assault of an Uber passenger by a former Uber driver posing as a still-authorized driver. Justice Joshua Groban recorded a vote to hear the case, Doe v. Uber Technologies.

The district court in the case granted summary judgment for Uber based on the Second District, Division One, Court of Appeal opinion in the factually similar Jane Doe No. 1 v. Uber Technologies, Inc. (2022) 79 Cal.App.5th 410 matter, in which the Supreme Court denied a petition for review and four depublication requests. The Ninth Circuit said the Supreme Court’s subsequent decision in Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993 (see here) — which also came from the Ninth Circuit — “calls into question whether the court would decide the issue presented in Jane Doe No. 1 similarly.” Today’s denial suggests the Supreme Court is fine with the way Jane Doe No. 1 was decided. (See here.)

The Supreme Court has now turned down two of the last three Ninth Circuit rule 8.548 requests. In the long run, however, the court has been extremely accommodating, having granted 21 of the last 24 requests, dating back to July 2018.  Before the other recent rejection, in August 2023, the lone denial over the past five years had been in October 2019.

Not only was the denial rare, it also took an unusually long time for a ruling. It’s been 92 days since the Ninth Circuit made its request. There’s no deadline for the Supreme Court to decide whether it will answer a question from another jurisdiction, but the court almost always rules well within the maximum 90-day period that applies to petitions for review. I believe this is the 55th request since August 2010 and in that time there have been only six rulings — including today’s — that have taken longer than 75 days. Even so, 92 days isn’t even close to a record. There have been waits for rulings of 189 and 140 days. (See here.)


Rule 8.548

Asked and answered:  California Supreme Court responses to Ninth Circuit questions

The constitutionality of the Supreme Court answering the Ninth Circuit’s legal questions

Ask not what the Supreme Court can do for the Ninth Circuit

Justice Kruger and Judge Owens talk about the Supreme Court answering Ninth Circuit questions

The shadow docket . . . of California’s Supreme Court, part 2

Heavyweight writ petition asks Supreme Court to declare death penalty unconstitutional [Updated]

The State Public Defender’s office and several civil rights groups and individuals today filed an original writ petition in the Supreme Court — Office of the State Public Defender v. Bonta — claiming “[e]xtensive empirical evidence demonstrates that California’s capital punishment scheme is administered in a racially discriminatory manner and violates the equal protection provisions of the state Constitution.” They ask the court to declare the scheme to be unconstitutional as applied and to “bar[ ] the prosecution, imposition, or execution of sentences of death throughout the State of California.” (News release here.)

The petition summarizes its evidence this way: “Black defendants are up to 8.7 times more likely to be sentenced to death than all other defendants. Latino defendants are up to 6.2 times more likely to be sentenced to death than all other defendants. And defendants of all races are up to 8.8 times more likely to be condemned when at least one of the victims is White.” (Footnote omitted.)

In addition to the Public Defender, the parties as identified in the petition are Eva Paterson, a civil rights litigator and cofounder of the Equal Justice Society; LatinoJustice PRLDEF, a nonprofit civil rights organization that works to advance equity and justice for Latino communities; the Ella Baker Center for Human Rights, an organization that mobilizes Black, Brown, and low-income people in campaigns for racial and economic justice; and Witness to Innocence, an organization that works to empower exonerated death row survivors.

The petitioners are represented by prominent counsel — former U.S. Solicitor General Seth Waxman and three of his colleagues at WilmerHale; the American Civil Liberties Union of Northern California; the American Civil Liberties Union Capital Punishment Project; and the NAACP Legal Defense and Educational Fund.

California’s Constitution contains its own equal protection provision. (Article I, section 7(a).) But, separately, it also says that death penalty statutes in effect in 1972 “shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments . . . nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution.” (Article I, section 27.)

The writ petition argues section 27 is not an impediment to the relief sought because the provision “merely precludes a judicial determination that capital punishment is unconstitutional per se—that is, that death is an impermissible form of punishment in the abstract” and because the petition doesn’t assert a per se claim, but “is instead based upon a robust evidentiary showing that California’s death penalty statutes as applied violate the state’s equal protection guarantee.”

The petition also addresses another obstacle, the U.S. Supreme Court’s rejection of a statistics-based equal protection argument in McCleskey v. Kemp (1987) 481 U.S. 279. It acknowledges that California’s Supreme Court “has sometimes characterized California’s equal protection guarantee as substantially equivalent” to the federal counterpart in the Fourteenth Amendment. But it says that the state guarantee is in fact a more expansive one, that the state high court “has the authority—indeed, the duty—to apply its own, broader equal protection jurisprudence,” and that “the United States Supreme Court’s construction of the federal equal protection clause does not govern.”

The respondent — California Attorney General Rob Bonta — has 10 days to submit an optional preliminary opposition to the petition. (Rule 8.487(a)(1).) If none is filed within that time, the court can, as it often does, issue a specific request for a response.

The court will at some point decide (there’s no time limit) whether to hear the petition on the merits or summarily deny it. If it’s the former, that would be huge news.

[Update: Bob Egelko has an in-depth report on the writ petition and the death penalty in California — “California’s death penalty is irreparably racist, lawsuit contends”]


50 years ago, the California Supreme Court (temporarily) ended the death penalty

Supreme Court affirms death penalty for murder of elderly couple; concurrence criticizes California’s death penalty system

Claiming “racial discrimination infects the administration of California’s death penalty,” Governor submits amicus brief supporting defendant’s appeal

Ninth Circuit says a Supreme Court decision rejecting a Batson/Wheeler claim in the affirmance of a death sentence was unreasonable

A Ninth Circuit panel last week issued a five-page memorandum decision in Jackson v. Broomfield affirming a district court grant of habeas corpus relief to a prisoner whose death sentence for a 1984 murder the Supreme Court had upheld (People v. Jackson (1996) 13 Cal.4th 1164). Post-appeal state habeas relief by the superior court had already overturned the death penalty and left the prisoner serving life in prison without parole. The Ninth Circuit ruling now negates the conviction as well and could result in the prisoner’s freedom.

Twenty-eight years ago, the Supreme Court concluded “the trial court did not abuse its discretion in denying defendant’s Wheeler motion” that claimed racial discrimination in the prosecution’s use of peremptory challenges to strike all Black prospective jurors in the trial of the Black defendant. (13 Cal.4th at p. 1198.) However, even applying a highly deferential standard of review, the district court and the Ninth Circuit disagreed.

The district court said federal precedent required it “to analyze the voir dire record to determine how the black potential jurors were treated compared to non-black potential jurors,” but, it continued, “In contrast, the California Supreme Court did not perform that analysis, but instead simply deferred to the reasoning and terse ruling of the trial judge.” (Jackson v. Davis (C.D. Cal., Feb. 9, 2022) 2022 WL 18284663, at *1.) Additionally, it ruled “a fairminded jurist reviewing the trial court’s decision on appeal would have found it to be clearly erroneous.” (Id. at p. *30.) The Ninth Circuit “agree[d] with the district court’s conclusion that the state court’s decision . . . was unreasonable on the record before it.”

The affirmed district court order provided that the prisoner “either be retried or set free.” It then said, “Based on the age of the case, the Court assumes that retrial is not possible, but of course that is a decision for the Riverside County District Attorney.” (2022 WL 18284663, at *30.)

The Ninth Circuit usually, but not always, refuses to overturn Supreme Court death penalty decisions.


“From the bench, an ‘impotent silence’ ”

Ninth Circuit says Supreme Court death penalty opinion on Batson claim was unreasonable, but denies habeas relief anyway

Ninth Circuit won’t overturn Supreme Court’s rejection of Batson challenge in death penalty appeal

Supreme Court affirms death penalty, with a Batson dissent

Justice Corrigan to moderate U.S. Supreme Court program

Justice Carol Corrigan will be the moderator for what is being billed as a discussion/debate about the U.S. Supreme Court. The April 23 program at Berkeley Law will feature the law school’s Dean, Erwin Chemerinsky, and Case Western Reserve Law Professor Jonathan Adler.

The lunchtime program — Reshaping American Life: Today’s Supreme Court in Historical Context, and its Potential Impact on our Future — will be both in-person and accessible remotely. It is described this way: “Few would dispute that the current Supreme Court is shaking up the legal landscape in ways that strike at settled expectations from a generation ago.  But is the Court really acting differently from its predecessors? And what does this tell us about what we can expect from this Court going forward?”

Registration is here.

Video available for one of yesterday’s oral arguments

The Supreme Court’s livefeed of yesterday’s oral arguments was disrupted by technical issues, so the Court has posted this “unprocessed” video of yesterday’s oral argument in Make UC a Good Neighbor v. The Regents of the University of California. (See here for a description of the case.)

Per the Supreme Court’s newsroom, videos from the other cases argued yesterday will be posted at a later date.

Opinions from yesterday’s arguments are expected by July 2.

Ninth Circuit refuses habeas relief from death sentence for 1986 murder and rape

In an opinion and a separate unpublished memorandum, the Ninth Circuit last week affirmed a district court’s denial of the habeas corpus petition in Hart v. Broomfield. The petitioner is under a death sentence imposed in 1988 for, two years earlier, sexually assaulting and murdering one high school girl and raping another in Riverside County.

On automatic appeal, the Supreme Court affirmed the death sentence (People v. Hart (1999) 20 Cal.4th 546) and then denied several state habeas petitions (without opinion, but with some cursory reasons stated), the last denial coming in 2011 (here, here, and here).

The Ninth Circuit’s opinion rejected a claim that the prosecution had unconstitutionally suppressed evidence relevant to the credentials of the pathologist who performed the autopsy on the murder victim. Using a highly deferential standard of review, the federal appeals panel found that, in denying the petitioner state habeas relief, the Supreme Court “could have reasonably concluded that th[e] evidence was not material.” It also found unavailing the argument that the petitioner’s “trial counsel was ineffective for failing to investigate and criticize [the pathologist’s] lack of certification in forensic pathology or rape trauma.”

In the memorandum, the Ninth Circuit said it would not disturb the Supreme Court’s denial as untimely a claim that the prosecution had withheld evidence relating to the penalty phase testimony of the petitioner’s former cellmate. The petitioner asserted the prosecution didn’t disclose that the cellmate had received a more favorable plea deal than had been revealed or that the witness had been put in the petitioner’s cell to extract a confession.

The Ninth Circuit usually, but not always, refuses to overturn death sentences that the Supreme Court has upheld.


“From the bench, an ‘impotent silence’ ”

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