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At the Lectern

Four more straight grants at another busy conference — Part I [Updated]

December 19, 2024

After agreeing to hear five new cases last week, the Supreme Court took on another four at yesterday’s conference. Two in particular are potentially momentous. In the first of two parts, we discuss those two grants and some other highlights. [December 20 update: Part II is here.]

Undocumented student employment. See: Supreme Court orders Court of Appeal to decide whether undocumented UC students can be hired for campus work [Updated with links to court filings].

Racial Justice Act dissenting statement. See: Racial Justice Act catch-22 is claimed by separate statement dissenting from a somewhat puzzling order denying review.

Discriminatory jury selection.

The court granted review in People v. SanMiguel to write what should be its first opinion about Assembly Bill 3070, by which the Legislature added Code of Civil Procedure section 231.7 “to put into place an effective procedure for eliminating the unfair exclusion of potential jurors based on race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, through the exercise of peremptory challenges.” The court limited the issue to, “Did the trial court properly overrule defendant’s Code of Civil Procedure section 231.7 objection to the People’s peremptory challenge of a prospective juror?”

The Second District, Division Six, in a 2-1 partially published opinion, affirmed an attempted murder and assault with a deadly weapon conviction, rejecting an argument that section 231.7 required reversal because of the prosecution’s peremptory challenge of an Hispanic prospective juror. A concurring justice wrote that subdivision (j) of the statute, detailing how appellate review is to be conducted of the denial of a section 231.7 objection, should be held to be unconstitutional as a separation of powers violation. He called for the “overrul[ing]” of the Division Six decision in People v. Uriostegui (2024) 101 Cal.App.5th 271, which reversed a burglary conviction based on section 231.7. (There was no petition for review in Uriostegui, but the Supreme Court did deny a district attorney’s request to depublish the opinion. (See here.)) The dissenting justice in SanMiguel “disagree[d] . . . with the majority’s conclusion that the presumption of invalidity [established by section 231.7] was overcome.”

Justice Goodwin Liu consulted with legislators about AB 3070 when it was pending before the Legislature in 2020 and, because of that involvement, an officer of the California District Attorneys Association said at the time that prosecutors might seek Justice Liu’s recusal in cases challenging a juror’s removal.  (Here.)

Papering judges to be limited?.

The court will also hear J.O. v. Superior Court, in which the petition for review directly attacks the court’s 6-1 decision in Solberg v. Superior Court (1977) 19 Cal.3d 182. (Uncommonly, there was no Court of Appeal opinion in the case; the Third District summarily denied a writ petition, as it did in several other cases that are now grant-and-holds for J.O. (See below.))

The Solberg court upheld a deputy district attorney’s disqualification of a judge under Code of Civil Procedure section 170.6, a statute allowing a party to disqualify a judge based on a declaration, without any supporting showing, that the judge is prejudiced against the party or their attorney. The Solberg dissenter — Justice Mathew Tobriner — wrote that “the use of ‘blanket’ challenges under section 170.6 to disqualify a judge because of his judicial philosophy or his prior rulings on questions of law seriously undermines the principle of judicial independence and distorts the appearance, if not the reality, of judicial impartiality.” In J.O., the petitioner claims the County Counsel has been filing blanket section 170.6 motions against a particular judge in all County Counsel mental health cases.

Eight years ago, when the Fourth District, Division Three, “question[e]d the wisdom of the Solberg holding” and “urge[d] the Supreme Court to revisit the issue of blanket papering” (People v. Superior Court (Tejeda) (2016) 1 Cal.App.5th 892, 896), the Supreme Court barely denied review, with Justices Kathryn Werdegar, Goodwin Liu, and Mariano-Florentino Cuéllar recording votes to hear the case. (Here.)

[December 20 update: Here is the issue as summarized by court staff (see here) — “Should this court’s decision in Solberg v. Superior Court (1977) 19 Cal.3d 182 be overruled or limited insofar as it allowed a public agency to bring ‘blanket challenges’ against particular judges under Code of Civil Procedure section 170.6?”]

Papering judges grant-and-holds. Besides agreeing to hear J.O. v. Superior Court apparently to revisit its Solberg decision (see above), the court issued grant-and-hold orders in the similar cases of J.L. v. Superior Court, I.P. v. Superior Court, C.R. v. Superior Court, and J.R. v. Superior Court, all following summary denials of writ petitions by the Third District.

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