Category: Uncategorized

What Does California’s Experience with Recall of Judges Teach Us?

What Does California’s Experience with Recall of Judges Teach Us?

Recently there has been much public discussion about whether Santa Clara Superior Court Judge Aaron Persky should be recalled. We thought it would be useful to provide an overview of the facts about judicial recalls in California, their history, and the issues involved. This article takes no position on the merits question of whether Judge Persky should be recalled. The Issues Involved In general, the design of California’s judiciary is influenced by some competing policy alternatives, known as “value sets.” In a value set, favoring one alternative over another reflects a decision to advance a particular policy goal, and one...

Event announcement: SCOCA Historical Society book launch

Event announcement: SCOCA Historical Society book launch

The California Supreme Court Historical Society is hosting an event to celebrate the publication of Constitutional Governance and Judicial Power: The History of the California Supreme Court. The event is Tuesday 15 November, 5:00 to 7:30 p.m. in the Milton Marks Auditorium at 455 Golden Gate Avenue in San Francisco. 5:00 – 6:00 panel discussion with Chief Justice Cantil-Sakauye and former Chief Justice George 6:00 – 7:30 reception with drinks and snacks Click here to register!

Why Summary Reversals Are Not The Answer

Why Summary Reversals Are Not The Answer

Several months ago, Brandon Stracener wrote a post suggesting that the California Supreme Court (the “Court”) should use summary reversals instead of granting and transferring or depublishing erroneous Court of Appeal decisions. Citing the U.S. Supreme Court’s summary reversal procedure and the Ninth Circuit’s use of memorandum dispositions, Mr. Stracener claims that the use of summary reversals will improve efficiency and eliminate miscarriages of justice. Mr. Stracener’s goal is certainly commendable. Procedures that help the Court manage its workload should always be welcome, and errors, as a general principle, should be corrected whenever possible. But the Court is not the...

Opinion Analysis: Laffitte v. Robert Half International Inc.

Opinion Analysis: Laffitte v. Robert Half International Inc.

On August 11, 2016, the California Supreme Court unanimously decided Laffitte v. Robert Half International, Inc., and, as we predicted, held that when an attorney fee is awarded out of a common fund preserved or recovered by means of litigation, the fee award is not per se unreasonable merely because it is calculated as a percentage of the common fund. Facts The following facts are summarized from the opinion. For additional background, see our argument analysis posted on June 4, 2016. Three related wage-and-hour class-action lawsuits were filed against staffing firm Robert Half and related companies in Los Angeles County...

Postcard From The Ninth Circuit: “Please Help”

Postcard From The Ninth Circuit: “Please Help”

This week an LA Times article described a recurring problem in the relationship between SCOCA and the Ninth Circuit. The issue concerns the brevity of SCOCA orders denying state habeas petitions. When those cases reach the Ninth Circuit, that court must determine the basis for the SCOCA ruling: specifically, whether the petition was denied as untimely. According to the article, SCOCA decides most such petitions “with one-paragraph summary rulings that frustrate federal judges who later are asked to review them.” The issue stems from the SCOTUS decision in Harrington v. Richter (2011) 562 U.S. 86, holding that the prohibition in...

The California Supreme Court Should Consider Using Summary Reversal

The California Supreme Court Should Consider Using Summary Reversal

The California Supreme Court has a problem. There is tension between its mission to give each case due consideration, and the need to keep its docket under control. This piece proposes a possible solution: summary reversal.[1] On average, each year the court considers twenty capital cases, forty related habeas corpus petitions, 5200 petitions for review in civil and criminal matters, and 3400 writ petitions (primarily noncapital habeas corpus petitions). 2013 Court Statistics Report (2013) at 5. Except for oral argument weeks, the justices meet each week in conference to discuss and vote on between 150 and 300 petitions. Goodwin Liu,...

What if SCOCA Decided to Fund the State Bar with Judicial Branch Fees?

What if SCOCA Decided to Fund the State Bar with Judicial Branch Fees?

In this article we consider a simple separation of powers issue with serious implications: Can the California judicial branch fund the State Bar of California by imposing fees on practitioners?[1] We think this is a problem in two stages. The first question (whether the judiciary can impose such fees) raises one sort of separation of powers issue, and the second (the likely consequences) requires a different analysis. Background The state bar was created by statute in 1927. It received constitutional entity status in 1966, when article 6, section 9 of the California constitution was added: “The State Bar of California is...

U.S. Senate: Be Afraid of State Supreme Courts

U.S. Senate: Be Afraid of State Supreme Courts

President Obama has nominated Merrick Garland, chief judge for the U.S. Court of Appeals for the District of Columbia Circuit, for appointment as a justice of the U.S. Supreme Court. Senators who are at all familiar with the system of dual sovereignty created by the U.S. Constitution will move quickly to act on that nomination, because without a full bench the nation’s high court is severely limited in its ability to prevent state supreme court decisions from being the final word. So to all the Federalists in the chamber: fear the state supreme courts. Because unless you act on this...

Do felony disenfranchisement laws in California violate the Equal Protection Clause of the Fourteenth Amendment?

Do felony disenfranchisement laws in California violate the Equal Protection Clause of the Fourteenth Amendment?

I.  Introduction Equal protection is once again the doctrine of the day. It figured prominently in the same-sex marriage cases: a losing argument in SCOCA, and the dispositive principle in SCOTUS. As Anne Gordon noted in her recent post entitled “Is SB 277 a denial of the right to education?,” the pending litigation over school funding (which will be heard before the California Court of Appeal on January 27 and is likely to reach SCOCA) also largely turns on equal protection. And there is another issue on the horizon that might ultimately call for SCOCA resolution: felon disenfranchisement. This post...