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The Court's Full Plate

By Megan Kinneyn | Aug. 2, 2007

Law Office Management

Aug. 2, 2007

The Court's Full Plate

When it reconvenes next month, the California Supreme Court will be faced with deciding a number of blockbuster cases, from gay marriage to the reach of Proposition 64—while battling the continuing backlog of death penalty cases. By Gerald F. Uelmen

By Gerald F. Uelmen
      In the term to come, California's Supreme Court takes on some meaty issues, from gay marriage to the sentencing crisis.
      The justices of the California Supreme Court left for their summer recess knowing they will return to a full plate in the upcoming term, with cases on the docket serving up a number of contentious issues: a sentencing crisis, gay marriage, the reach of the state's Unfair Competition Law, a $500 million judgment against Genentech, and a huge death penalty backlog.
      As the cases stack up, the waiting time for oral argument is growing. There will be 140 fully briefed cases awaiting oral argument when the court returns to the bench next month, 69 of them death cases?one of which has been fully briefed for seven years. And the Genentech case was fully briefed in December 2005.
      But few people are complaining about the delays?certainly not the death row inmates; with a 95 percent chance of losing, they're in no rush to have their cases heard. And for appellate lawyers, if the choice is between the court taking fewer cases or waiting two or three years for argument, most would prefer the wait. The court now agrees to hear only 3.75 percent of the petitions it receives, and no one wants to see that number reduced to speed up the process.
      In a case where the delay is likely to have an impact on many other cases or to harm someone, such as in family law or election disputes, the court is willing to move the matter to the front of the line. But in general once the briefs are filed, a two-year wait has become routine, often requiring supplemental briefings when the case is finally heard.
      Looking Back at Last Term
      An analysis of the 115 opinions published between April 1, 2006, and March 30, 2007, suggests the state Supreme Court is increasing its productivity after the disruption of a lengthy vacancy. Most prolific was Justice Marvin Baxter, who wrote 21 majority opinions, followed by Justices Ming Chin and Kathryn Werdegar, with 18 each.
     Concurring opinions were at the lowest level ever: only 23 for the year. Unanimity was at an all-time high, with 79 of this year's opinions drawing no dissents. The overall dissent rate remained down at 8.7 percent?the low level achieved last year because of Justice Janice Rogers Brown's departure. Her dissent rate was 14.2 percent; her replacement on the court, Justice Carol Corrigan, is dissenting at a rate of only 6.4 percent. The leading dissenter is now Justice Carlos Moreno (13.9 percent), followed by Justices Joyce Kennard (13 percent) and Werdegar (12.6 percent).
      Justice Kennard enjoyed the rare satisfaction of seeing two of her previous dissents fully vindicated this year. In the case of In re Jaime P. (40 Cal. 4th 128 (2006), the court reversed its 1994 ruling over Justice Kennard's dissent in In re Tyrell J. (8 Cal. 4th 68), holding that warrantless searches of juveniles subject to a probationary search condition were valid even if the searching officer was unaware of the condition. Justice Kennard was also the sole dissenter in People v. Black (35 Cal. 4th 1238 (2005)), disapproved by the U.S. Supreme Court in People v. Cunningham, which held that California's Determinate Sentencing Law was unconstitutional (127 S. Ct. 856 (2007)).
      The Sentencing Crisis
      Cunningham was hardly a surprise, but the U.S. Supreme Court ruling leaves many defendants in limbo. On March 30, 2007, the governor signed SB 40, urgency legislation amending California Penal Code section 1170 to give sentencing judges full discretion to select any of the three terms of imprisonment specified for each crime without a factual finding of aggravating or mitigating factors.
      Although this resolves the problem for future cases, many of the aggravated sentences imposed in the three years between the announcement of Blakely v. Washington (542 U.S. 296 (2004)) and the enactment of SB 40 are subject to challenge. The U.S. Supreme Court has not yet resolved the question of whether Blakely will be applied retroactively, but even if retroactivity is denied, the ruling will still apply to cases in which direct appeals were pending when Blakely was decided, as well as to defendants sentenced after it.
      Unfortunately, all the case law defining and explaining Blakely's application under California's Determinate Sentencing Law was depublished while the California Supreme Court was incorrectly deciding People v. Black. Within weeks of the Cunningham decision, the California Supreme Court granted hearings in five cases addressing various Cunningham issues, setting an expedited briefing schedule. One of those cases, People v. Sandoval (No. S148917) was argued along with a rehearing of Black (No. S126182) on May 29.
      The Blockbusters
      Looking forward to the term ahead, at least three cases on the court's plate have blockbuster potential.
      The most politically divisive is the gay-marriage case. San Francisco Superior Court Judge Richard A. Kramer's ruling that the denial of marital status to gay couples violates the California Constitution was reversed in a 2?1 decision by the First District Court of Appeal last October. (In re Marriage Cases, 143 Cal. App. 4th 873.) The California Supreme Court granted a hearing to issue the final word on one of the major civil rights issues of our time: Does California's statutory ban on marriage between two people of the same sex violate the state constitution by denying equal protection of the laws on the basis of sexual orientation or sex, by infringing on the fundamental right to marry, or by denying the right to privacy and freedom of expression? (No. S147999.) The court ordered supplemental briefs, which were due July 18, focused on the differences between marriage and registration as domestic partners.
      It is also reviewing a $500 million judgment against Genentech for cheating the City of Hope National Medical Center out of royalties due under licensing agreements for biotech patents. The judgment includes $200 million in punitive damages, which were awarded on a tort theory of breach of a fiduciary relationship. The court will decide whether an arrangement entrusting a discovery to another for development and exploitation must be treated like an ordinary contract, a breach of which does not support an award of punitive damages. (City of Hope v. Genentech, No. S129463.)
      One of last year's blockbusters was certainly Californians for Disability Rights v. Mervyn's (39 Cal. 4th 223 (2006)), in which the court ruled that Proposition 64's new standing requirements for cases brought under California's Unfair Competition Law (UCL) apply to pending cases. In a companion case, Branick v. Downey Savings & Loan Ass'n (39 Cal. 4th 235 (2006)), the court held that trial courts have discretion to allow new plaintiffs with standing to be substituted. Both were unanimous rulings written by Justice Werdegar.
      The reach of Proposition 64 reappears this year, as the court is called on to decide whether the amendments to the UCL now require every member of the specified class to have suffered "injury in fact," and to have actually relied on the manufacturer's representations. This ruling will affect hundreds of pending consumer-rights class actions, and it is also a good example of a case allowed to jump the queue. The case was fully briefed on February 22 and put on the calendar for oral argument in June. (In re Tobacco II Cases, No. S147345.)
      The Death Penalty Backlog
      Over the past year, the California Supreme Court decided 20 death penalty cases, affirming all but one, in which the penalty was reversed. (People v. Gonzales, 38 Cal. 4th 932 (2006), holding that the defendant was prejudiced by the prosecution's failure to provide discovery of rebuttal evidence during the penalty phase.) All but two of the death decisions were unanimous. The overall dissent rate for capital cases was a minuscule 2.8 percent, compared with 9.9 percent for all other cases.
      The court's pace was slightly ahead of the number of new death judgments (17), so that backlog did not grow. The court also made progress in appointing lawyers to handle the direct appeals in death cases. The number of inmates without lawyers to handle their appeals is now 85, down from 103 last year.
      The real challenge is to find lawyers for the 283 inmates who have no attorneys to handle their habeas corpus claims. Between unresolved appeals and habeas corpus cases, the California Supreme Court now has a backlog of 510 actively litigated death cases awaiting review on direct appeal or habeas. If this year's pace is maintained, there will be a 25-year wait from judgment until a case is ready to move into the federal courts. At the current pace, the delay will be down to ten years by 2110. But that doesn't take into account those who die of natural causes while awaiting review. So far, 56 death-row inmates have died from causes other than execution, while 13 have been executed. If these mortality trends continue, the delay could be reduced to ten years by 2031?that is, if none of the lawyers working on the cases dies.
      Following the Leader
      The California Supreme Court has long had the reputation of leading the way?and now there's proof. Jake Dear, chief supervising attorney at the California Supreme Court, and reporter of decisions Edward W. Jesson collaborated to identify the opinions of all 50 state supreme courts since 1940 that have been designated by Shepard's as "followed" by a state court outside the originating jurisdiction.
      California leads the pack, with 1,260 decisions followed at least once by an out-of-state court. The Washington Supreme Court is second, with 942. Even more impressive, 160 California Supreme Court decisions have been followed at least three times, compared with 72 for second-place Washington. And that doesn't reflect just the glory days of Justices Phil Gibson and Roger Traynor. The highest annual rate of decisions followed out of state was racked up from 1987 to 1996, while Malcolm Lucas served as Chief Justice.
      The two California decisions cited most often were Dillon v. Legg (68 Cal. 2d 728 (1968)), which limited bystander recovery for emotional distress, currently with 88 follows; and Tarasoff v. Regents of University of California (17 Cal. 3d 425 (1976)), which imposed liability for a psychiatrist's failure to warn potential victims of a dangerous patient, now with 52 follows. A draft of the paper can be downloaded at: http://ssrn. com/author=789583.
      The Newest Justice: Self-Assured and Succinct
      New appointees to the California Supreme Court frequently start out with a high rate of agreement with the Chief Justice, and Carol Corrigan is no exception. Her highest rates of agreement on the court were with Justice Chin (94.5 percent) and Chief Justice Ronald George (93.6 percent). Her lowest rates of agreement were with Justice Kennard (82.7 percent) and Justice Moreno (83.6 percent).
      But most remarkable is the fact that six of her seven disagreements with Chief Justice George came in cases that split the court 4?3. There, her rate of agreement with the Chief was 50 percent, which put her in the dissenting column in five of the twelve splits. Four of those five were criminal cases. Her overall dissent rate was 6.4 percent, among the lowest on the court. Four of her six dissenting votes were accompanied by a dissenting opinion, however.
      And though Corrigan's dissents were not as vitriolic as those of Justice Janice Rogers Brown, whom she replaced, it is clear that she picks her shots carefully. Both her majority and her dissenting opinions were notable for their clarity and brevity. Her dissent in People v. Brendlin gained the unanimous support of the U.S. Supreme Court. (127 S. Ct. 2400 (2007).) And her dissent in Bernard v. Foley (39 Cal. 4th at 82125) displays a masterful command of statutory construction, which may have inspired the rare concurring opinion of Chief Justice George urging the Legislature to undo the court's own ruling.
      My favorite dissent was her shortest, a delightful riposte to the Chief's obtuse majority opinion in People v. Kelly (40 Cal. 4th 106 at 115 (2006)). Finding an apt quotation by Clitus Barbour in the Califor-nia constitutional debates of 1878?79, Corrigan concludes that the need for "judicial literature" is hardly compelling for appeals that by definition are meritless, adding, "Every case is important, but for these appeals, in which repeated review by appointed counsel and the court has revealed no meritorious issue, Mr. Barbour's prescription for a succinct statement of reasons should be followed."
      Succinct is a good word to sum up Corrigan's judicial style. Her opinions are concise and tightly crafted. Her output of 15 majority opinions is an impressive performance for her freshman year?and bodes well for the court's future productivity.
      The 4?3 Splits
      Though only 12 of this year's 115 cases split the court 4?3, those cases provide the best evidence of where the fault lines lie. One thing hasn't changed: The majority of four usually includes Chief Justice George. In eleven of the twelve split decisions this year, the Chief Justice was in the majority. His overall dissent rate was 2.6 percent, the lowest on the court.
      Below is a breakdown of how frequently the other justices appeared in the majority in a 4?3 split.
      Justice Chin
      Votes with Majority: 8
      Total Splits: 12
      Justice Corrigan
      Votes with Majority: 7
      Total Splits: 12
      Justice Baxter
      Votes with Majority: 6
      Total Splits: 11
      Justice Kennard
      Votes with Majority: 6
      Total Splits: 12
      Justice Werdegar
      Votes with Majority: 5
      Total Splits: 12
      Justice Moreno
      Votes with Majority: 4
      Total Splits: 12
      The patterns are even more revealing when the civil and criminal cases are considered separately (see below). Justices Chin, Corrigan, and Baxter were with the Chief in four of the five civil cases in which he voted in the majority; however, in the six criminal cases, Chin agreed with him three times, Corrigan only twice, and Baxter only once. Justice Moreno was among the dissenters in all six civil cases, and Justice Kennard joined him in five of the six. But Kennard was in the majority in five of the six criminal splits, and Moreno was in the majority in four of them. Criminal defendants were successful in four of the six criminal splits.
      Thus, when the court splits 4?3 in a civil case, the majority is most likely to include George, Chin, Corrigan, and Baxter. And when the court splits 4?3 in a criminal case, the majority is most likely to include George, Kennard, Moreno, and Chin.
      The Civil Splits
      Question: Are county zoning ordinances regulating locations for timber operations preempted by state forestry statutes? (Big Creek Lumber Co. v. County of Santa Cruz, 38 Cal. 4th 1139 (2006).)
      MAJORITY?NO: Chin, Corrigan, George, Werdegar
      DISSENT?YES: Baxter, Kennard, Moreno
      Question: Can liability for transmitting the HIV virus be based on constructive knowledge that a person is infected? (John B. v. Superior Court, 38 Cal. 4th 1177 (2006).)
      MAJORITY?YES: Baxter, Chin, Corrigan, George
      DISSENT?NO: Kennard, Moreno, Werdegar
      Question: Does presumptive disqualification of "care custodians" from recovering testamentary transfers apply to personal friends who provide health services to the decedent? (Bernard v. Foley, 39 Cal. 4th 794 (2006).)
      MAJORITY?YES: Baxter, Chin, George, Werdegar
      DISSENT?NO: Corrigan, Kennard, Moreno
      Question: Does sovereign immunity of Indian tribes extend to enforcing campaign-contribution reporting requirements of the state's Political Reform Act? (Agua Caliente Indians v. Superior Court, 40 Cal. 4th 239 (2006).)
      MAJORITY?NO: Baxter, Chin, Corrigan, George
      DISSENT?YES: Kennard, Moreno, Werdegar
      Question: When appointed counsel representing a conservatee challenging conservatorship finds no appealable issue, must an Anders/Wende brief be filed? (In re Conservatorship of Ben C., 40 Cal. 4th 529 (2007).)
      MAJORITY?NO: Baxter, Chin, Corrigan, Werdegar
      DISSENT?YES: George, Kennard, Moreno
      Question: Can the state issue tax-exempt bonds for the benefit of "pervasively sectarian" schools without violating the state constitutional prohibition of aid for sectarian purposes? (California Statewide Cmty. Dev. Auth. v. All Persons Interested, 40 Cal. 4th 788 (2007).)
      MAJORITY?YES: Baxter, Corrigan, George, Kennard
      DISSENT?NO: Chin, Moreno, Werdegar
      The Criminal Splits
      Question: Is an in-custody defendant whose preliminary examination is extended beyond the statutory requirement that the hearing be held within ten days of arraignment entitled to release on his own recognizance? (People v. Standish, 38 Cal. 4th 858 (2006).)
      MAJORITY?YES: Corrigan, George, Kennard, Moreno
      DISSENT?NO: Baxter, Chin, Werdegar
      Question: May a police officer stop a vehicle and detain the driver based on an anonymous phoned-in tip? (People v. Wells, 38 Cal. 4th 1078 (2006).)
      MAJORITY?YES: Chin, Corrigan, Croskey (for Baxter), George
      DISSENT?NO: Kennard, Moreno, Werdegar
      Question: Is a passenger in a vehicle stopped for a traffic violation without reasonable suspicion "seized" within the meaning of the Fourth Amendment? (People v. Brendlin, 38 Cal. 4th 1107 (2006); cert. granted, 127 S. Ct. 1145 (2007).)
      MAJORITY?NO: Baxter, Chin, George, Kennard
      DISSENT?YES: Corrigan, Moreno, Werdegar
      Question: May a defendant's statements to mental health professionals during a court-ordered competency examination be used to impeach his testimony at trial? (People v. Pokovich, 39 Cal. 4th 1240 (2006).)
      MAJORITY?NO: Chin, George, Kennard, Moreno
      DISSENT?YES: Baxter, Corrigan, Werdegar
      Question: Must a court of appeal identify reasons for affirming a judgment in an Anders/Wende frivolous appeal? (People v. Kelly, 40 Cal. 4th 106 (2006).)
      MAJORITY?YES: George, Kennard, Moreno, Werdegar
      DISSENT?NO: Baxter, Chin, Corrigan
      Question: May a finding that a prior "strike" was for a serious felony be based on statements in a probation report? (People v. Trujillo, 40 Cal. 4th 165 (2006).)
      MAJORITY?NO: George, Kennard, Moreno, Werdegar
      DISSENT?YES: Baxter, Chin, Corrigan
      Gerald F. Uelmen ( is a professor of law at Santa Clara University School of Law and executive director of the California Commission on the Fair Administration of Justice.

Megan Kinneyn

Daily Journal Staff Writer

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