It’s been 337 days since Justice Kathryn Werdegar announced her retirement, and Governor Jerry Brown has yet to name her replacement. The delay is causing both consternation and puzzlement. Nonetheless, work goes on at the short-handed Supreme Court, which today released its March oral argument calendar with a whopping 14 cases.
All 14 cases will have pro tem justices (one case will have two pro tems because of a recusal), assigned alphabetically for the most part (and we’re back to the start of the alphabet this month). That will bring to an astounding 56 the number of cases with pro tems since Justice Werdegar left the court. Pro tems risk an institutional problem (see here, here, and here), which already manifested itself late last year.
On March 6, 7, and 8, in San Francisco, the court will hear the following cases (with the issue presented as summarized by court staff or framed by the court itself):
Liberty Surplus Insurance Corp. v. Ledesma and Meyer Construction Company, Inc.: Whether there is an “occurrence” under an employer’s commercial general liability policy when an injured third party brings claims against the employer for the negligent hiring, retention, and supervision of the employee who intentionally injured the third party. The case is before the court at the Ninth Circuit’s request, a request the Supreme Court granted in October 2016. (Second District, Division Eight, Court of Appeal Presiding Justice Tricia Bigelow is the pro tem.)
Facebook Inc. v. Superior Court: (1) Did the Court of Appeal properly conclude that defendants are not entitled to pretrial access to records in the possession of Facebook, Instagram, and Twitter under the federal Stored Communications Act (18 U.S.C. § 2701, et seq.) and People v. Hammon (1997) 15 Cal.4th 117? (2) Does an order barring pretrial access to the requested records violate defendants’ right to compulsory process and confrontation under the Sixth Amendment or their due process right to a fair trial? (3) Should this court limit or overrule People v. Hammon (1997) 15 Cal.4th 117? The court granted review in December 2015. The court also granted review in a similar Facebook case last month. (Second District, Division Two, Court of Appeal Justice Kenneth Yegan is the pro tem.)
United Riggers & Erectors, Inc. v. Coast Iron & Steel Co.: May a contractor withhold retention payments when there is a good faith dispute of any kind between the contractor and a subcontractor, or only when the dispute relates to the retention itself? The court granted review in March 2016. (Sixth District Court of Appeal Justice Patricia Bamattre-Manoukian is the pro tem.)
People v. Ruiz II: May a trial court properly impose a criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) and a drug program fee (Heath & Saf. Code, § 11372.7, subd. (a)) based on a defendant’s conviction for conspiracy to commit certain drug offenses? The court granted review in September 2016. (Second District, Division Two, Court of Appeal Justice Judith Ashmann-Gerst is the pro tem.)
People v. Buycks, People v. Valenzuela, In re Guiomar: The consolidated cases raise a similar issue (as stated in Buycks) — Was defendant eligible for resentencing on the penalty enhancement for committing a new felony while released on bail on a drug offense even though the superior court had reclassified the conviction for the drug offense as a misdemeanor under the provisions of Proposition 47? The court granted review on its own motion in Buycks in January 2016. It granted review in Valenzuela in March 2016. In Guiomar, the court granted and held in January 2017 and then unheld the case nine days later. (The pro tem justice has not yet been assigned for this case.)
People v. Penunuri: This is an automatic direct appeal from a January 2001 judgment of death. The court’s website does not list issues for such appeals. (Second District, Division Four, Court of Appeal Justice Thomas L. Willhite, Jr., is the pro tem.)
Delano Farms Company v. California Table Grape Commission: Under Article 1, section 2, subdivision (a), of the California Constitution, can the California Table Grape Commission compel unwilling produce growers to contribute for generic commercial advertising? The court granted review in July 2015. (Justice Leondra Kruger is recused. Fourth District, Division Two, Court of Appeal Presiding Justice Manuel A. Ramirez and Fourth District, Division One Justice Cynthia Aaron are the pro tems.)
In re Lewis: The court issued an order to show cause, in October 2007, limited to claims why petitioner is not entitled to relief (1) as a result of trial counsel’s failure to adequately investigate and present mitigating evidence at the penalty phase of petitioner’s trial, and (2) on the ground that he is mentally retarded within the meaning of Atkins v. Virginia (2002) 536 U.S. 304. (See In re Hawthorne (2005) 35 Cal.4th 40.) In December 2008, the court issued a more detailed statement of the issues when it directed a superior court judge to serve as a referee. (The pro tem justice has not yet been assigned for this case.)
People v. Gonzalez: Was the trial court’s failure to instruct on murder with malice aforethought, lesser included offenses of murder with malice aforethought, and defenses to murder with malice aforethought rendered harmless by the jury’s finding of a felony murder special circumstance? The court granted review in July 2016. (Second District, Division Seven, Court of Appeal Justice Laurie Zelon is the pro tem.)
People v. Adelmann: If a case is transferred from one county to another for purposes of probation (Pen. Code, § 1203.9), must a Proposition 47 petition to recall sentence be filed in the court that entered the judgment of conviction or in the superior court of the receiving county? The court granted review in November 2016. (First District, Division Two, Court of Appeal Justice Therese Stewart is the pro tem.)
People v. Case: This is an automatic direct appeal from an October 1996 judgment of death. The court’s website does not list issues for such appeals. (The pro tem justice has not yet been assigned for this case.)
People v. Smith: This is an automatic direct appeal from an October 1997 judgment of death. The court’s website does not list issues for such appeals. (Fourth District, Division One, Court of Appeal Justice Patricia Benke is the pro tem.)
People v. Rodriguez: (1) Was the accomplice testimony in this case sufficiently corroborated? (See People v. Romero & Self (2015) 62 Cal.4th 1, 36.) (2) Is defendant’s constitutional challenge to his 50 years to life sentence moot when, unlike in People v. Franklin (2016) 63 Cal.4th 261, his case was not remanded to the trial court to determine if he was provided an adequate opportunity to make a record of information that will be relevant to the Board of Parole Hearings as it fulfills its statutory obligations under Penal Code sections 3051 and 4801? The court granted review in April 2017. (The pro tem justice has not yet been assigned for this case.)
People v. Hardy: This is an automatic direct appeal from a January 2003 judgment of death. The court’s website does not list issues for such appeals. (Second District, Division Five, Court of Appeal Justice Lamar Baker is the pro tem.)
[February 14 update: March calendar pro tems announced.]