The Supreme Court issued three new opinions this morning, and two of them are candidates for rehearing. It is noteworthy that these opinions are the last that recently retired Justice Marvin Baxter will sign (he authored two of them). Moreover, Justice Baxter’s retirement is a reason why the chances for rehearing are better than normal in two of the cases. In those two, Justice Baxter and a pro tem Court of Appeal justice are in the majority of 5-2 decisions, and new Justices Mariano-Florentino Cuéllar and Leondra Kruger, rather than Justice Baxter and a pro tem, will vote on any rehearing petition. An important caveat: saying that the chances for rehearing are better than normal is not going too far out on a limb when you remember that “normal” rehearing chances are considerably less than one percent.
In People v. Mosley, a 5-2 court holds that, under Apprendi v. New Jersey (2000) 530 U.S. 466, a judge without a jury can make the required “findings underlying his or her discretionary order that a convicted criminal defendant must register as a sex offender” even if that order “includes registered sex offender residency restrictions imposed by Proposition 83, the Sexual Predator Punishment and Control Act: Jessica’s Law.” The majority opinion, authored by Justice Baxter, reverses the Fourth District, Division Three, on that issue. Justice Goodwin Liu, joined by Justice Kathryn Werdegar, issues a concurring and dissenting opinion asserting that the imposition of the residency restriction “required a determination of facts that historically lay within the jury’s domain” and that the restriction “is a penalty that exceeds what the jury’s verdict in this case permits.” Justice Liu also criticizes what he calls the majority’s “highly unorthodox” approach of deciding the Apprendi issue even though the Attorney General argued that the residency restriction did not apply to the defendant in this case. Instead of the more traditional rule of avoiding constitutional issues when it’s possible to do so, the majority, according to Justice Liu, “invents a doctrine of statutory avoidance: It avoids an issue of statutory interpretation in order to resolve the case on constitutional grounds.”
The other 5-2 decision is in Berkeley Hillside Preservation v. City of Berkeley. In an opinion by Justice Ming Chin, the court holds that the First District, Division Four, erred in concluding that a project was not exempt from environmental review. The City of Berkeley had relied on two categorical exemptions established by the Secretary of the Natural Resources Agency, but the Court of Appeal found applicable an exception to those exemptions. As in Mosley, Justice Liu, joined by Justice Werdegar, writes separately. His is a concurring opinion — he agrees with the majority that the matter should be remanded, but he disagrees with the court’s interpretation of the exception to the categorical exemptions. Plaintiffs’ attorney Susan Brandt-Hawley tells us that plaintiffs have already decided to petition for rehearing.
The third opinion is unanimous and, like Mosley, it concerns the Jessica’s Law residency restriction for registered sex offenders. Justice Baxter’s opinion for the court in In re Taylor affirms the Fourth District, Division One, in holding that the residency restriction is unconstitutional as applied to the petitioners in the case and to those “similarly situated registered sex offenders on parole in San Diego County.” The court concludes that the restriction fails the deferential “rational relationship” test: “Blanket enforcement of the residency restrictions against these parolees has severely restricted their ability to find housing in compliance with the statute, greatly increased the incidence of homelessness among them, and hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees, while further hampering the efforts of parole authorities and law enforcement officials to monitor, supervise, and rehabilitate them in the interests of public safety.”
