Sparse oral argument calendars with many old cases waiting

The Supreme Court hasn’t been holding many oral arguments this term: only 23 cases have been heard or scheduled through the court’s recently announced March calendar, which will be its seventh of 2024–2025. But it’s not like there’s a shortage of cases that are fully briefed and that have been waiting for argument for a long time.

We irregularly identify the 10 oldest non-death-penalty cases on the court’s docket that have not been argued or scheduled for argument. The last update was in June 2024. Seven of the ten cases on that list are still unargued.

To identify the top 10 lingerers (actually, 11 this time, because case number 5 might not be argued at all), we look for the matters with the lowest case numbers on the court’s pending issues summaries. They are:

1. Still at the top of the list is People v. Kopp. The court granted review over five years ago, in November 2019, and it limited the issues to:  “Must a court consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments?  If so, which party bears the burden of proof regarding defendant’s inability to pay?” Party briefing was completed in January 2021. Amicus briefing was completed in December 2021. (Horvitz & Levy is co-counsel for amicus UC Irvine law school’s Consumer Law Clinic.) Seventeen months ago, the defendant moved to stay the appeal and for a limited remand or, in the alternative, for calendar preference. There’s been no ruling on the motion. The court sent its oral argument letter in September. In October, the court assigned a pro tem justice to replace an unidentified recused justice. More about the case here.
2. Taking Offense v. State of California — the court granted review in November 2021. The issue as summarized by court staff is: “Did the Court of Appeal err in declaring the provision of the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights (Health & Saf. Code, § 1439.51) that criminalizes the willful and repeated failure to use a resident’s chosen name and pronouns unconstitutional on its face under the First Amendment?” Party briefing was initially completed in June 2022, but the court ordered supplemental briefing in May 2023 about “[w]hether California recognizes a common law taxpayer standing doctrine to bring actions against state officials” and, if so, “whether the plaintiff in this case has established any such standing.” Amicus briefing was completed in September 2022. The requested supplemental briefing was completed in August 2023. Additional supplemental briefs were filed more than a year ago. The court sent its oral argument letter in December 2023, but the case won’t be calendared until May at the earliest because the court has found good cause for one attorney’s request not to set the case for argument in April. More about the case here and here.
3. People v. Faial — the court granted review in May 2022. The issue as summarized by court staff is: “Does Assembly Bill No. 1950 (Stats. 2020, ch. 328) apply retroactively to a defendant, serving a suspended-execution sentence, whose probation was revoked before the law went into effect?” Briefing was completed in October 2022. In October 2023, the court denied an application (filed more than six months earlier) and a motion (filed 16 months earlier) for a limited remand. The court sent its oral argument letter in January and has found good cause for attorney requests not to have argument set on the March, April, early-May, or September 2025 calendars. More about the case here.
4. Los Angeles Police Protective League v. City of Los Angeles — the court granted review in August 2022 and limited the issues on review to: “(1) Does Penal Code section 148.6, subdivision (a), particularly subdivision (a)(2), constitute improper viewpoint discrimination in violation of the First Amendment? (2) Does Penal Code section 148.6, subdivision (a), particularly subdivision (a)(2), impose an impermissible burden on the ability to file, or on the City to accept, police misconduct complaints? (3) Is it error to compel the City to comply with a statute that has been ruled unconstitutional by the United States Court of Appeals for the Ninth Circuit?” Party briefing was completed in February 2023. The response to amicus briefs was filed in May 2023. A supplemental amicus brief was filed in June 2024 and an answer to that brief was filed in July. The court sent its oral argument letter 11 months ago. More about the case here.
5. Association of Deputy District Attorneys for Los Angeles County v. Gascón — the court granted review in August 2022. The issues as summarized by court staff are: “(1) Does the Three Strikes law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12) violate the separation of powers doctrine by requiring prosecutors to plead and prove prior qualifying felony convictions? (2) If there is a duty to plead prior qualifying convictions, is mandamus the proper remedy to compel a prosecutor to act?” Party briefing was completed in March 2023. Responses to amicus briefs were filed in June 2023. Horvitz & Levy filed one of the amicus briefs in the case, supporting the plaintiff Association. No oral argument letter has been sent. The case might never be decided because the plaintiff Association moved in December to dismiss review as moot. The still-pending motion relies on the newly elected Los Angeles County District Attorney’s rescinding of his predecessor’s Three Strikes policy that is at issue in the case. (See here.) More about the case here, here, and here.
6. Iloff v. LaPaille — the court granted review in October 2022, and it limited the issues to: “1. Must an employer demonstrate that it affirmatively took steps to ascertain whether its pay practices comply with the Labor Code and Industrial Welfare Commission Wage Orders to establish a good faith defense to liquidated damages under Labor Code section 1194.2, subdivision (b)? 2. May a wage claimant prosecute a paid sick leave claim under section 248.5, subdivision (b) of the Healthy Workplaces, Healthy Families Act of 2014 (Lab. Code, § 245 et seq.) in a de novo wage claim trial conducted pursuant to Labor Code section 98.2?” Party briefing was completed in August 2023. An amicus brief was filed in September 2023. No oral argument letter has been sent. More about the case here.
7. People v. Mitchell — the court granted review in December 2022. The issue as summarized by court staff is: “Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?” Briefing was completed in June 2023. No oral argument letter has been sent. More about the case here.
8. Camp v. Home Depot U.S.A. — the court granted review in February 2023. The issue as summarized by court staff is: “Under California law, are employers permitted to use neutral time-rounding practices to calculate employees’ work time for payroll purposes?” Party briefing was completed in September 2023. The response to amicus curiae briefing was filed in December 2023. No oral argument letter has been sent. More about the case here.
9. Morgan v. Ygrene Energy Fund, Inc. — the court granted review in February 2023. The issue as summarized by court staff is: “Must a homeowner exhaust administrative tax remedies by filing a claim for a refund with an assessment board before filing an action asserting consumer protection claims against private entities involved in the implementation of a loan program in which the loans are repaid through assessments on the property and the local government acquires a tax lien on the property?” Party briefing was completed in September 2023. The last response to amicus curiae briefing was filed in March 2024. The court sent its oral argument letter in December. More about the case here.
10. Zhang v. Superior Court — The court granted review in February 2023. The issues as summarized by court staff are: “(1) If an employer files a motion to compel arbitration in a non-California forum pursuant to a contractual forum-selection clause, and an employee raises as a defense Labor Code section 925, which prohibits an employer from requiring a California employee to agree to a provision requiring the employee to adjudicate outside of California a claim arising in California, is the court in the non-California forum one of ‘competent jurisdiction’ (Code Civ. Proc., § 1281.4) such that the motion to compel requires a mandatory stay of the California proceedings? (2) Does the presence of a delegation clause in an employment contract delegating issues of arbitrability to an arbitrator prohibit a California court from enforcing Labor Code section 925 in opposition to the employer’s stay motion?” Party briefing was completed in July 2023. An amicus curiae brief was filed one month later. No oral argument letter has been sent. More about the case here.
11. In re Kowalczyk — The court granted review in March 2023 and limited the issues to: “(1) Which constitutional provision governs the denial of bail in noncapital cases — article I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3), of the California Constitution — or, in the alternative, can these provisions be reconciled? (2) May a superior court ever set pretrial bail above an arrestee’s ability to pay?” Party briefing was completed in October 2023. The response to extensive amicus curiae briefing was filed in January 2024. No oral argument letter has been sent. More about the case here.