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.”
- Criminal case grant-and-holds. There was just one criminal case grant-and-hold. The case is now waiting for a decision in People v. Lynch (see 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.