The Supreme Court yesterday announced it will hear eight cases on its early-May calendar. (May is the only month with two argument calendars.)
One of the cases is Taking Offense v. State of California, which by our count is the second oldest non-capital case on the court’s docket. When review was granted, it looked like the court would decide a hot-button issue — “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?” Later, the court indicated it might avoid answering that question, asking for supplemental briefing on whether the case should have been dismissed on lack-of-standing grounds.
Taking Offense is not the only old case to be argued next month. People v. Faial also made our lingering-matters list.
The eight-case calendar will be the biggest so far of the 2024-2025 term. It looks like the court might be doing this term what it did in the last — saving most of the oral arguments for the end. (For the end of the 2023-2024 term, see here, here, and here.) This is a change from a policy instituted for the 2016-2017 term, when the court decided to have its calendars more evenly balanced throughout the term instead of backloading cases.
On Tuesday and Wednesday, May 6 and 7 (the only two-day calendar so far this term), in San Francisco, the court will hear these cases (with the issue or issues presented as summarized by court staff or limited by the court itself):
In re Ja.O.: Does the duty [under the federal Indian Child Welfare Act and complementary state statutory law] of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry apply to children who are taken into custody under a protective custody warrant? The court later asked for supplemental briefing about new legislation that might have resolved the issue. The court granted review in July 2023. More about the case here and here.
EpicentRx, Inc. v. Superior Court: Is a forum selection clause enforceable when a party’s right under California state law to a jury trial for their civil claims would not apply in the exclusive forum identified by the clause? The court granted review in December 2023. More about the case here.
Taking Offense v. State of California: See above. The court granted review in November 2021 and asked for supplemental briefing in May 2023. More about the case here, here, here, and here.
People v. Choyce: This is an automatic direct appeal from a December 2008 judgment of death. The court’s website does not list issues for death penalty appeals. Counsel was appointed in February 2012. Briefing was completed in October 2019. In May 2024, the court issued its now-routine order for supplemental briefing “[i]f appellant contends any changes in the law (including any ameliorative statute) since the filing of the reply brief are relevant to this appeal.” No supplemental brief was filed.
People v. Faial: “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?” The court granted review in May 2022. More about the case here and here.
People v. Dain: When the court granted review in May 2024, it limited the issue to: “Did the Court of Appeal err in remanding the case with directions to reinstate the strike finding and to resentence defendant as a person who has suffered a prior strike conviction under the Three Strikes Law? (See People v. Williams (1998) 17 Cal.4th 148, 164, fn. 7; see also People v. McGlothin (1998) 67 Cal.App.4th 468, 478; People v. Humphrey (1997) 58 Cal.App.4th 809, 814; but see People v. Mayfield (2020) 50 Cal.App.5th 1096, 1109; People v. Strong (2001) 87 Cal.App.4th 328, 347.)” More about the case here.
People v. Dunn: This is an automatic direct appeal from a July 2010 judgment of death. The court’s website does not list issues for death penalty appeals. Counsel was appointed in January 2014. Briefing was completed in November 2019. In September 2024, the court issued its now-routine order for supplemental briefing “[i]f appellant contends any changes in the law (including any ameliorative statute) since the filing of the reply brief are relevant to this appeal.” No supplemental brief was filed.
People v. Bankston: This is an automatic direct appeal from a January 1995 judgment of death. The court’s website does not list issues for death penalty appeals. However, there are a number of non-capital cases holding for Bankston, and, when those cases were held, court staff stated that Bankston “include[s] an issue involving the retroactivity of the provision in Assembly Bill No. 2799 (Stats. 2022, ch. 973) limiting the admissibility of creative expressions (Pen. Code, § 352.2).” The cases are also being held for People v. Hin (2025) 17 Cal.5th 401, which was decided in February, but did not resolve the retroactivity issue (see here). Additionally, the court requested supplemental briefing addressing a Racial Justice Act (here and here) procedural issue: “What is the effect, if any, of the recent amendment to Penal Code section 745, subdivision (b) on the issues in this case? (Stats. 2023, ch. 464, § 1.)” Counsel in Bankston was appointed in November 1999. Initial briefing was completed in June 2014 and the last supplemental brief was filed in February 2024.
Briefs for the cases will soon be posted here. The arguments will be live streamed. Opinions in the cases should file by August 4.
