Yesterday, the 274th day since Justice Kathryn Werdegar announced her retirement, the Supreme Court released its January calendar. There will be eight more pro tem justices, necessitated by Governor Jerry Brown not having appointed Werdegar’s replacement yet. (Using a mostly alphabetical selection system, only half of the January pro tem justices have been assigned at this point.)
It will be the fifth month in a row that the court has had to call on Court of Appeal justices to fill in. By comparison, there were seven calendars with pro tems before Governor Brown named Justice Leondra Kruger in 2014 to fill retiring Justice Joyce Kennard’s seat, although Justice Kennard gave shorter notice of her retirement than did Justice Werdegar.
On January 3 and 4, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):
Regents of the University of California v. Superior Court: Do California public institutions of higher education and their employees have a duty of care to their students while in the classroom to warn them of and protect them from foreseeable acts of violence by fellow students? The court granted review in January 2016. (The pro tem justice has not yet been assigned for this case.)
Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism: (1) May a motion to strike under the anti-SLAPP statute be brought against any claim in an amended complaint, including claims that were asserted in prior complaints? (2) Can inconsistent claims survive an anti-SLAPP motion if evidence is presented to negate one of the claims? The court granted review just eight months ago. (Third District Court of Appeal Presiding Justice Vance Raye is the pro tem. He was originally assigned as a pro tem on a December calendar case, but a colleague replaced him.)
People v. Buza: Does the compulsory collection of a biological sample from all adult felony arrestees for purposes of DNA testing (Pen. Code, §§ 296, subd. (a)(2)(C); 296.1, subd. (a)(1)(A)) violate the Fourth Amendment to the United States Constitution or article I, section 13, of the California Constitution? (Second District, Division Seven, Court of Appeal Presiding Justice Dennis Perluss is the pro tem.)
The court granted review nearly three years ago. Actually, the court initially granted review in the case more than six years ago. There is a complicated procedural story behind Buza and a related case, People v. Lowe, in which the court granted review more than three-and-a-half years ago and which has been fully briefed without argument since March 2015.
Additionally of interest, there are numerous amicus curiae briefs in Buza, including one by former Justice Joseph Grodin.
People v. DeHoyos: Does the Safe Neighborhood and Schools Act [Proposition 47] (Gen. Elec. (Nov. 4, 2014)), which made specified crimes misdemeanors rather than felonies, apply retroactively to a defendant who was sentenced before the Act’s effective date but whose judgment was not final until after that date? What is the significance, if any, of the decision in People v. Conley (2016) 63 Cal.4th 646 on the issues in this case? The court granted review in September 2015, and added the question about Conley in January of this year. (First District, Division Five, Court of Appeal Justice Henry Needham, Jr., is the pro tem.)
In re Figueroa: In this capital habeas corpus case, the court issued an order to show cause why petitioner is not entitled to relief because (1) material false evidence was admitted at the guilt phase of his trial, and (2) trial counsel rendered ineffective assistance. The order to show cause was issued in September 2014, but briefing wasn’t completed until March of this year. (The pro tem justice has not yet been assigned for this case.)
As with Buza, there’s interesting history on this case. The original habeas corpus petition was filed over 15 years ago. Four years later, however, the court granted leave to file an amended petition “as necessary as a result of the allegedly fraudulent work product of Habeas Corpus Resource Center (HCRC) Investigator Kathleen Culhane.” Culhane was sentenced in 2007 to five years in prison for forgery, perjury, and filing false documents in multiple death penalty habeas cases, and, according to the Los Angeles Times, was unrepentant, saying that capital punishment is “a brutal legacy of lynching” and that “I cannot have remorse for a government that kills at midnight and invests millions of dollars in the process.”
People v. Daveggio and Michaud: This is an automatic direct appeal from a September 2002 judgment of death. The court’s website does not list issues for such appeals. (First District, Division Three, Court of Appeal Justice Stuart Pollak is the pro tem.)
People v. Martinez: Could defendant use a petition for recall of sentence under Penal Code section 1170.18 to request the trial court to reduce his prior felony conviction for transportation of a controlled substance to a misdemeanor in light of the amendment to Health and Safety Code section 11379 effected by Proposition 47? The court granted review in March 2016. (The pro tem justice has not yet been assigned for this case.)
In re Butler: Should the Board of Parole Hearings be relieved of its obligations arising from a 2013 settlement to continue calculating base terms for life prisoners and to promulgate regulations for doing so in light of the 2016 statutory reforms to the parole suitability and release date scheme for life prisoners, which now mandate release on parole upon a finding of parole suitability? The court granted review 13 months ago. (The pro tem justice has not yet been assigned for this case.)
[December 15 update: Pro tems — and a recusal — announced for the January calendar.]