At its conference yesterday, a double one, the Supreme Court straight-granted review in one case, depublished two opinions, approved a gubernatorial pardon, and saw a separate statement and a host of dissenting votes. Here is information about those actions and others:
Implied malice murder. Separate concurring statement in implied murder case.
Retirement board salaries. The court agreed to hear Los Angeles County Employees Retirement Association v. County of Los Angeles. Justice Martin Jenkins was recused. The Second District, Division Seven, Court of Appeal’s published opinion framed the issues this way: “does the fiduciary board of a county public employee retirement system established under the County Employees Retirement Law of 1937 (Gov. Code, § 31450 et seq. (CERL)) have authority under the California Constitution and relevant statutes to create employment classifications and set salaries for employees of the retirement system?” and “does section 31522.1 impose a ministerial duty on a county board of supervisors to include in the county’s employment classifications and salary ordinance the classifications and salaries adopted by the board of a county public employee retirement system for employees of that system?” (Footnote omitted.) In answering “yes” to both questions, Division Seven disagreed with the Third District’s decision in Westly v. Board of Administration (2003) 105 Cal.App.4th 1095. The Supreme Court denied review in Westly with Justices Joyce Kennard and Carlos Moreno recording dissenting votes.
[October 18 update: Here are the issues as summarized by court staff — “(1) Does the board of a county public employee retirement system established under the County Employees Retirement Law of 1937 (CERL) (Gov. Code, § 31450 et seq.) have authority under the California Constitution and relevant statutes to create employment classifications and set salaries for employees of the retirement system? (2) Does Government Code section 31522.1 impose a ministerial duty on a county board of supervisors to include in the county’s employment classifications and salary ordinance the classifications and salaries adopted by the board of a county public employee retirement system for employees of that system? (3) Do Proposition 162 (Cal. Const., art. XVI, § 17) and CERL override a county board of supervisors’ constitutional authority to establish civil service classifications, set salaries, and maintain a civil service system for county employees under article XI of the California Constitution?”]
Resolving a conflict by depublication. The court denied review in People v. Malbry, but it depublished the Second District, Division Eight, opinion affirming the denial of a petition to end the requirement that the defendant annually register as a sex offender. The defendant had pleaded no contest 30 years earlier to repeatedly sexually abusing a young child. Saying “[i]t is unnecessary for the trial court to have stated the right rationale if its result is legally proper,” Division Eight held, “The persistence and extent of [the defendant’s] offense conduct, his lack of insight, and his willingness to exploit a trusting child support the trial court’s ruling.” It also disagreed with the Second District, Division Two, decision in People v. Franco (2024) 99 Cal.App.5th 184, which had concluded it was not relevant the defendant there likely would have been convicted of violating a statute enacted after the defendant’s crime, a violation requiring lifetime registration. There was no petition for review in Franco.
Public contract depublication. The court also denied review but depublished the Fourth District, Division Three, opinion in Talley Amusements v. 32nd District Agricultural Association. The case involved a statute barring a state agency from drafting a request for proposal on a public contract for services to be rendered to the state in a way directly or indirectly limiting bidding to any one bidder. The appellate court held the statute was inapplicable to a district agricultural association’s request for proposal for a master carnival operator contract to run the midways at a county fair because the contract was “not a contract for services to be rendered to the state.”
Clemency greenlighted. The court granted Governor Gavin Newsom’s request for a constitutionally required recommendation (see also here and here) that allows him to pardon Anthony Brown for convictions in the 1990s of (1) possession, transport, and sale of a controlled substance; (2) possession of a weapon; (3) possession and sale of a controlled substance; (4) possession of a controlled substance; and (5) possession and transport of a controlled substance. Newsom has a nearly perfect clemency record — he withdrew one request before a ruling, but the court has approved all 65 of his other requests (not counting five that are pending). That’s better than former Governor Jerry Brown, who had the court without explanation block 10 intended clemency grants. The denial of a request implies that a clemency grant would be an abuse of power.
Youth offender murder resentencing dissenting votes. The court denied review in People v. Carpio, another Senate Bill 1437 resentencing case, over the recorded dissenting votes of Justices Goodwin Liu and Kelli Evans. The Second District, Division Two, unpublished opinion in the case affirmed the denial of a petition to resentence the defendant for a murder committed by his brother when defendant was 19. Division Two agreed the superior court erred in not considering the defendant’s relative youth in finding he had acted with reckless indifference to human life, but concluded the error was harmless.
More dissenting votes for review about youth offender parole denial. Justices Liu and Evans also recorded dissenting votes from the denials of review in People v. Camorlinga, People v. Smyer, and People v. Stewart. Unpublished decisions by the Fifth District, the Second District, Division Eight, and the Second District, Division One, respectively, rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed (see here, here, here, here, here, here, here, here, and here). It seems unlikely the court will ever grant review in any such case unless a Court of Appeal goes against the tide and adopts a defense cruel-or-unusual argument. (See: The Supreme Court doesn’t decide all important issues.)
COVID-related tuition refund dissenting votes. Justices Liu and Joshua Groban recorded dissenting votes from the court’s denial of review in Stoffel v. Regents of the University of California. In an unpublished opinion, the Second District, Division Five, held the superior court improperly bounced at the demurrer stage a lawsuit by students at University of California schools claiming they should get refunds of tuition and fees paid for times when instruction was remote rather than in-person because of the COVID pandemic. The appellate court held that the “plaintiffs’ allegations regarding the UC System’s statements in marketing materials, course catalogs, and class schedules” were enough to “allege an implied contract to provide an in-person and on-campus educational experience.” Division Five distinguished the First District, Division Three, decision in Berlanga v. University of San Francisco (2024) 100 Cal.App.5th 75 that affirmed the dismissal after summary adjudication of a similar lawsuit against a private school. There was no petition for review in Berlanga.
Attorney fees for challenging COVID vaccination requirement. The court denied a request to depublish the Fourth District, Division One, opinion in Let Them Choose v. San Diego Unified School District. There was no petition for review. The appellate court had previously held a school district could not require COVID vaccinations for students over 15 years old when the Legislature has not enacted such a mandate, and the Supreme Court denied a request to depublish that opinion, too. (See here.) In the second case, Division One said the parties challenging the vaccine mandate were entitled to attorney fees under the private attorney general statute. The opinion stressed its first opinion wasn’t about whether the mandate “was a good public health policy and a prudent precaution,” but rather the problem with the mandate “was that the State had established procedures for adding new school attendance vaccination requirements, and the District failed to follow the law.” It then concluded attorney fees were appropriate because the lawsuit challenging the mandate “promoted the strong public interest in following fair and uniform procedures.”
Sentence enhancement grant-and-transfer. The court granted review in People v. Paul and sent the case back to the Second District, Division Eight, for reconsideration in light of the August decision in People v. Walker (2024) 16 Cal.5th 1024 (see here).
Criminal case grant-and-holds. There were seven criminal case grant-and-holds: one more waiting for a decision in People v. Mitchell (see here and here), one more on hold for People v. Patton (see here), one more holding for People v. Emanuel (see here), and four more waiting for People v. Rhodius (see here). The Attorney General’s petition for review in the Patton grant-and-hold was a day late and was filed with the court’s permission. (See here; also: Getting relief for a late petition for review might not be a hopeless cause.)
More Lynch grant-and-hold dispositions (see here). Fourteen more cases that had been grant-and-holds waiting for the August decision in People v. Lynch (2024) 16 Cal.5th 730, which concerned the standard of review for sentencing error (see here), were sent back to the Courts of Appeal for reconsideration in light of Lynch.