The California Appellate Law Podcast

The Cal. Supreme Court’s Outgoing and Incoming Chief Justices, with David Ettinger

October 04, 2022 Tim Kowal & Jeff Lewis Season 1 Episode 53
The Cal. Supreme Court’s Outgoing and Incoming Chief Justices, with David Ettinger
The California Appellate Law Podcast
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The California Appellate Law Podcast
The Cal. Supreme Court’s Outgoing and Incoming Chief Justices, with David Ettinger
Oct 04, 2022 Season 1 Episode 53
Tim Kowal & Jeff Lewis

The California Supreme Court is getting a new chief justice. What does it mean? The author of prominent legal blog At the Lectern, David Ettinger, joins co-hosts Tim Kowal and Jeff Lewis to look back on Chief Justice Tani Cantil-Sakauye’s 11-year tenure, her legacy, her replacement, Justice Patricia Guerrero—and why is the governor “appointing” a new Supreme Court justice when the state constitution says he needs to “nominate”?

David’s critical coverage of Gov. Newsom’s decision to “appoint” rather than “nominate” drew a phone call from the governor’s office, which he discusses.

Other topics discussed include:

  • “Taking one for the team”: how the CJ described her decision to write some of the Court’s more controversial opinions.
  • “We don’t need to speak so broadly”: how the CJ described her approach to writing judicial opinions.
  • The Court’s very long “pandemic docket” might have played a role in CJ Cantil-Sakauye’s retirement.
  • When the Supreme Court granted review of the case involving Los Angeles DA Gascon’s challenge to Three Strikes, David suggests the Court might be more interested in the scope and exercise of prosecutorial discretion, rather than taking a blow at Three Strikes directly.
  • When Gov. Jerry Brown got frustrated with the Supreme Court. Today, the Court grants all of Gov. Newsom’s clemency requests, but it denied many of Gov. Brown’s. Why? Turns out, governors get just as frustrated at summary denials as the rest of us do: “Read the ones who were approved and read the ones who were disapproved,” Gov. Brown challenged, “and you tell me what the rule is.”

David Ettinger’s biography, LinkedIn profile, and At The Lectern blog.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Show Notes Transcript

The California Supreme Court is getting a new chief justice. What does it mean? The author of prominent legal blog At the Lectern, David Ettinger, joins co-hosts Tim Kowal and Jeff Lewis to look back on Chief Justice Tani Cantil-Sakauye’s 11-year tenure, her legacy, her replacement, Justice Patricia Guerrero—and why is the governor “appointing” a new Supreme Court justice when the state constitution says he needs to “nominate”?

David’s critical coverage of Gov. Newsom’s decision to “appoint” rather than “nominate” drew a phone call from the governor’s office, which he discusses.

Other topics discussed include:

  • “Taking one for the team”: how the CJ described her decision to write some of the Court’s more controversial opinions.
  • “We don’t need to speak so broadly”: how the CJ described her approach to writing judicial opinions.
  • The Court’s very long “pandemic docket” might have played a role in CJ Cantil-Sakauye’s retirement.
  • When the Supreme Court granted review of the case involving Los Angeles DA Gascon’s challenge to Three Strikes, David suggests the Court might be more interested in the scope and exercise of prosecutorial discretion, rather than taking a blow at Three Strikes directly.
  • When Gov. Jerry Brown got frustrated with the Supreme Court. Today, the Court grants all of Gov. Newsom’s clemency requests, but it denied many of Gov. Brown’s. Why? Turns out, governors get just as frustrated at summary denials as the rest of us do: “Read the ones who were approved and read the ones who were disapproved,” Gov. Brown challenged, “and you tell me what the rule is.”

David Ettinger’s biography, LinkedIn profile, and At The Lectern blog.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

David Ettinger  0:03 
We may start off with a broad opinion. But as we weigh, as we each weigh in, we start to narrow it because we realize we don't need to speak so broadly.

Announcer  0:13  
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:27 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:29  
And I'm Tim Kowal, the California appellate law podcast as a resource for trial and appellate attorneys. Both Jeff and I are appellate specialists. We split our practices about evenly between trial and appellate courts and we try to make this podcast a resource for trial attorneys and appellate attorneys to give them some perspectives they can use in their practice.

Jeff Lewis  0:47 
And a quick announcement the podcast is sponsored by casetext, casetext, a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber of casetext since 2019. And I highly endorse the service listeners of our podcasts will receive a 25% lifetime discount available to them if they sign up at That's

Tim Kowal  1:12 
Today, we are pleased to welcome David Ed injure to the show, David has briefed and argued many notable appeals including more than a dozen arguments before the California Supreme Court. He is considered by many in the industry as a scholar in appellate law, and he leverages his keen insights to support clients immediate and long term challenges in the appellate courts after many years as a partner at Horvitz and levy David is currently of counsel where which he joined in 1982. His many legal publications include several articles on hospital peer review committee confidentiality, David served two terms on the appellate Advisory Committee for the Judicial Council to California to which he was appointed by Chief Justice Ronald George. David also publishes the venerable appellate blog at at the lectern, which with news about important cases and newsworthy developments out of the California Supreme Court and the California Court of Appeal. So David, welcome to the podcast.

David Ettinger  2:06 
Now it's good to be with you.

Tim Kowal  2:07 
I also didn't mention that you are an esteemed alumnus of the California appellate law podcast, we were pleased to have you and your your colleague, Dean Buck Bhatia, join us on episode 20 to talk about the no citation rule. But today we're talking about a string of articles that you have been writing on at the lectern talking about the California Supreme Court and our forthcoming new chief justice. So David, we'll get to the big news shortly about about the state getting a new chief justice. But besides that, I wanted to just kind of back up and ask you what sorts of other things coming out of our court system in the past months have struck you as surprising or significant? Are there any big trends or storm clouds on the horizon?

David Ettinger  2:51 
Well, the big news is, is the change in personnel at the Supreme Court. You know, if if the election goes as expected, we'll have a new chief justice in in January, the beginning of January, and will also have a new associate justice if her appointment is confirmed in November. So that's, that's a big change. We haven't had a new chief justice in a dozen years.

Tim Kowal  3:17 
That's right. That's right. What about there's another the three strikes law in California is is another subject that comes up quite with some regularity in our courts, and therefore on act at the lectern where you write for our listeners, to remind them three strikes is the famous California constitutional amendment that was enacted by voter initiative that enhances sentencing to 25 years to life for three time offenders of violent or serious felonies. So in my my reading, following at the lectern, I keep seeing evidence that the three strikes law could be in some form of trouble. Is there anything to that? Or my overriding things?

David Ettinger  3:55 

Well, I don't I don't know about in trouble. But they did take the LA District Attorney gas cones case for review, they granted review just recently, where he is the district attorney is seeking to be able to use his discretion not to file charges to third strike charges against against defendants. And there was a mixed ruling out of the Court of Appeal on that. I think they said that he was obligated to charge three strikes, but he didn't have to go and try to prove it at trial. So that's that's the decision that the Supreme Court is is going to be reviewing. And that's that's in the process of briefing now. It probably will be a number of months before we see any decision on that.

Tim Kowal  4:44 
Was that a surprise to you when the California Supreme Court granted review of the Gasco in case

David Ettinger  4:49 

that's a pretty important issue. So which is one of the stated grounds for for review by the Supreme Court, so it certainly wasn't a surprised it was big news that they granted review. But it wasn't a big surprise.

Tim Kowal  5:04 

Is the do you think the focus will be three strikes? Or is the focus going to be the extent to which district attorneys have prosecutorial discretion to to simply fail to refuse to charge in these cases? Or is it I guess, I guess it's hard to disentangle the two. But what do you think is peak the California Supreme Court's interest there?

David Ettinger  5:27 
Well, I have I have to preface my remarks by saying that I am not a criminal law practitioner or expert or anything like that. But it sounds like it's more the extent the scope of District Attorney discretion that that will be before the court. But again, that take that with my disclaimer,

Jeff Lewis  5:47 
yes, it says shake that tension there. How much of that discretion is vested in the office of district attorney to make a decision not to charge as opposed to the Deputy District Attorneys who are in the trenches actually doing the work and and prosecuting these cases? I can't wait to read the briefing on that case. Hey, let me ask you, David, you recently you brought to our attention. You recently successfully briefed and argued a pro bono case before the California Supreme Court guardianship of Saul H. And this was a case about migrant children and obtaining findings from the California courts. Can you tell us two things? Can you tell us a little bit about the case? And two, there's an unusual issue regarding the appointment of counsel your your opponent? Could you tell us a little bit about that?

David Ettinger  6:27 
Sure, I can. I'll try to give you the Reader's Digest version, because it's kind of complicated. Congress established a very unique kind of system where the state courts, the courts have evolved 50 states perform a fact finding function for the federal government on certain immigration matters. Juveniles are entitled to some protected status. It's called Special Immigrant juvenile status. If they can apply, they can only apply to the federal government for that status. If they first get a finding a state court that reunification with one or both of their parents is not viable. That's the term that's used in the statute not viable because of abuse, neglect, abandonment, or similar basis under state law. So that's what this that's why this immigration case was in a state court in the first place, because Congress requires state court findings, and the Superior Court refused to make the necessary findings. The Court of Appeal affirmed that refusal, and then the Supreme Court granted review. And you mentioned the unusual nature of the of our, quote unquote, opponent, there was no opposition to our clients petition for these findings. And there was no opposition to to our appeal, either in the Court of Appeal when the Supreme Court granted review. They obviously didn't want to have one sided briefing, so they enlisted as pro bono counsel, the greenest Martin firm to be what they would the court called amicus curiae AI, but which the Court said they would treat that amicus curiae I brief as the answer brief on the merits, and the grayness firm is really to be commended. For for taking that on, not only did they do it pro bono, but the Supreme Court set a very tight briefing and argument schedule. So they had they had very little time to get up to speed. They were just dropped into this case after review was granted. And they Yeah, they had very little time to get up to speed on it.

Tim Kowal  8:52 
Yeah, that seems like a really interesting case. And I think we could probably get bogged in the weeds in it. But I'm curious if there were other states who that have taken this issue up, you mentioned that this is a federal law, that that basically invites or allows state courts to make findings that would be used by by what the immigration authorities to determine path to permanent residence status for minors. And were there other states who were likewise refusing to make these findings and saying, you know, keep me out of this. This is a federal issue, or was California alone was a California Superior Court and Court of Appeal alone in that, at that point?

David Ettinger  9:25 
Not Alone? Certainly. And it's not it's not inviting state court findings. It's requiring state court findings. If you don't get those state court findings, the child cannot apply to the federal government period

Tim Kowal  9:42 
by requiring the various state courts to do that. Does. Does the federal law risk inviting inconsistent standards in in the making of those findings?

David Ettinger  9:51 

i Well, in a way, yes. But I think that's by design. They recognize that I think the I can Congress recognize that do Different states might have different standards for for judging what is abuse, neglect or abandonment or a similar basis? Yes. But but other you asked about other states, the other states, there had been some problems in the lower courts. And there were some good opinions that came out of the High Courts of states like Maryland and Nevada and Vermont, probably missing a couple, you know, so So California is not unique in trying to flush out this this, this issue.

Tim Kowal  10:35 

So just in our in our light banter here, David, we've talked about immigration, we've talked about the three strikes law and prosecutorial discretion. And but what we're really here to talk about is the news right from the top, which is the changing of the guard and in the California Supreme Court. The news from the California Supreme Court is that the Chief Justice Tani can tell us soccer UI is retiring. So let's discuss, I want to discuss with you first some big picture questions, including the Chief Justice's legacy. And then maybe we'll talk about some nuts and bolts about how the transition works. And there's been a little bit of controversy, at least for us legal nerds, controversy about about the way the new appointment is happening, or is it an appointment or a nomination or which should it be and what's the difference and doesn't matter? And then we'll talk about who's going to be serving as our new Chief Justice. So So let's first talk about our outgoing Chief Justice. Tani Cottontail Sacco Lea, she's announced her retirement from the California Supreme Court after 11 years as Chief Justice. So let me ask you, David, to at the outset here just to engage in some rank speculation for us by telling us why do you think she's retiring? Well,

David Ettinger  11:45  
yeah, it is. It's definitely rank speculation, because I don't know. But the thing is spending, it will be 12 years by the time she retires. And it under just normal times, the Chief Justice job is incredibly taxing one got two very much more than full time jobs that she's handling. So she's not only the leader of the Supreme Court and pulling her weight as one of seven justices on the Supreme Court with the caseload. But she's also leading the she's also head of the largest judiciary, I think, in the entire world. As far as number of judicial officers is concerned, it's larger than the federal says judicial system, you know, and that's, that's under just normal times. But as she mentioned, her tenure, was bookended has been bookended by the Great Recession and drastic budget cuts when she when she came into office. And by the pandemic, when she's when she's leaving office. In fact, the pandemic probably is covering about 20% of her tenure 20 to 25% of her tenure by the time she retires. So given all that, my guess is that it's it's the taxing nature, the very difficult nature of the job as to as to why she's retiring. Now. That's my guess

Tim Kowal  13:17 
that seems like a good hunch when you David, when you mentioned to me about how her her tenure has been bookended as you said by that by the recession at the beginning, and all the drastic budget cuts and then the pandemic, I went back and looked at your one of your articles on at the lectern about the pandemic docket on the California Supreme Court. And there have been extraordinary petitions filed in the Supreme Court to reduce for example, youth populations and juvenile detention centers to transfer prison inmates to postpone the bar exam or to make it available remotely. And literally dozens of other extraordinary petitions that you've listed in your in your article that the Supreme Court has has had to take up and decide in the wake of the pandemic. And yeah, I think like I said, I think it's a good hunch on your part that that having to administer the court and our judiciary during this difficult the pandemic Yeah, must have played a role. Do you think that if she had if she was just an Associate Justice and not the Chief Justice, maybe she would have stuck around for another term?

David Ettinger  14:13 
That's very possible. That's very possible. I mean, the pandemic was burdensome for the added significant burden to the court in general, all all seven justices not not just the Chief Justice, because besides having to adjust to operating remotely, they had all these additional cases that that came up in petitions for review and an emergency emergency petitions for relief that came up that they wouldn't have otherwise had on top of all the other stuff that they normally deal with.

Tim Kowal  14:49 
David, you mentioned that the Chief Justice really has two full time jobs. She is a she's a justice. She writes she has her opinion writing duties like every other associate justice, but she also So has the job of managing the court and the judiciary system, given all of the administrative duties that Chief Justice has, does this mean? Because when you say that two full time jobs, I get your point, but we all have the same 24 hours in a day. So does does does her her commitments and her duties on the administrative side? Does that impact the her ability to write decisions? Does she not get to write as many decisions as maybe she would have liked? Does this mean that the Chief Justice maybe in a certain sense, is less influential than other justices, if if all the administrative duties take away time to to write, write the opinions that they otherwise might like to have taken up?

David Ettinger  15:39 
I haven't done a count of, you know, how many opinions she's written versus how many opinions other justices have written. My sense, though, is that she is carrying her weight as a justice and producing, you know, around the same number of opinions as other justices on the court. So I don't think that's an issue. But certainly, you know, the point you make about, there's only 24 hours in her day, just like anybody else's, you know, that she might, she very well may have to rely more on on her staff, than other justices would have to rely to get opinions put together.

Tim Kowal  16:23 
Or they're in a most of the time, we talked about changes on a Supreme Court, it's usually the United States Supreme Court, and most of a lot of commentators will note that the United States Supreme Court is tends to be more, shall we say raucous than is maybe the California Supreme Court by comparison, and that the California Supreme Courts tends, and maybe one of the reasons for that is that our Supreme Court tends to be more ideologically homogeneous. And is there any reason to think that this may play a role in the Chief Justice's decision to retire? If if she thinks that there's not going to be a big ideological shake up? If she steps down and is replaced? Does that help assuage concerns when a Chief Justice might decide to retire?

David Ettinger  17:06 

I would get again, this is really speculation, because I don't know the chief, you know, but I would think that some thought is given to any justice when, you know, when they kind of contemplating retiring, who might be taking their place on the court. You know, the the Chief Justice may have been made more confident in her decision to retire by Governor Newsom, this appointment of justices Jenkins, and Guerrero, and found out and, you know, after she works, has worked with both of them on the court, she's confident that that they're solid choices for serving on the court and that Governor Newsom would be picking somebody good to fill the vacancies.

Tim Kowal  17:56 
Okay, and so, and then to loop back around to the point you made about, about the productivity of the court and the challenges that the Chief Justice has faced. One of the other topics that you've written about recently on at the lectern is, is that the the court has experienced a bit of a decline in productivity in recent years, and I've found these John Eisenberg also has noted and noted down these quotes for Mr. Eisenberg, he says that yearly output of written opinions has plummeted and alarming 61% compared to a decade ago, and I wondered if the cause of this decline in productivity can be traced back to the pandemic or do you think it predates the pandemic and as other causes?

David Ettinger  18:38 

Well, I think it does predate the pandemic. I think the pandemic probably exacerbated the problem. Probably having to work remotely exacerbated the problem. Also, there were some lengthy vacancies on on the court, which reduces reduces the productivity, I think, but there there are probably other factors to involve, which I'm not sure, you know, other internal factors as to why why there just hasn't been as many opinions filed and as many petitions for review granted, as in past years.

Tim Kowal  19:14 
All right. Well, let's move on to talk about Chief Justice Cottontail Sokka Uwais legacy as the Chief Justice. David, you had mentioned to me offline here a few, a few issues in cases that that may be candidates for, for part of the Chief Justice's legacy, you you mentioned to me, the immigration and that the chief had given harsh criticism of ice arrests at California courthouses, you had mentioned on the on the topic of civics that the chief has promoted civics education in California schools. And and then there are other notable opinions like the dynamex opinion and Vasquez Bristol Myers in Ray Richards. You want to give maybe a little bit of a tour of how do you how you think legal historians will rate the Chief Justice's legacy?

David Ettinger  19:58 
Well, the first tooth Actors points you. You mentioned the immigration point and civics point. Those are when Chief Justice was wearing her hat as head of the judiciary. So it really, it had nothing to do with the Supreme Court itself. Then Then there were the opinions that you talked about, which are the Supreme Court, and she was the author of some substantial, significant opinions. I think she might be best known historically, for her administrative duties as head of California judiciary has headed the Judicial Council in headed California's courts. And you know, one of those, one of the things that will be prominent, I think, is the criticism she had of the last administration, the last federal administration and having ice make arrests in California courthouses. And she spoke out often and extremely strongly about then and publicly about how those arrests were causing problems with access to justice in California's courts. And she wrote a letter to I think it was the then Attorney General, and the Head of Department of Homeland Security, criticizing what she called the stalking that was going on at California's courthouses. And she said that California Court should not be used as bait by by the federal government for for immigration arrests. And you know that that letter was just the start. I mean, repeatedly after that she was she was critical of of making arrests at at California courthouses.

Tim Kowal  21:48 
Would that be an example of how the judiciary as being the the least political or the non political branch can still have a political impact? Because the Chief Justice, just speaking, basically, as the Chief Justice not not within an opinion of any sort, not within a case, but just saying, just decrying that practice? Did it have an impact in your view?

David Ettinger  22:08 
Well, it didn't have an immediate impact. But it was the new administration, the policy changed, and she applauded the policy. You know, I really don't know whether anybody in Washington at the time cared under the previous administration when she thought it didn't, didn't seem like it. But But who knows, but she was definitely staying in her lane. At that point. She was not criticizing immigration policies in general. It was just specifically how they affect California courts. And that's that's her job as has had. She's the Chief Justice of California, not just the Chief Justice of the Supreme Court.

Tim Kowal  22:48 
Well, there is a separation of powers issues. There. She is, she's protecting her turf, I guess you could, you could say of what what she was was saying do what do whatever you need to do in your own arenas. But in my court house, we'd ask that you not do this.

David Ettinger  23:03  
In a sense. I think that's right. Do you saw harm to the California judicial system from this and she spoke out about it.

Tim Kowal  23:10 

Well, and then let's talk about we don't need to talk about specific opinions, because again, that would could lead us down a deep rabbit holes, but but just to name a few of the opinions again, Dynamax Vasquez, Bristol, Bristol Myers inrae Richards. To the extent these these kinds of big cases out of the Supreme Court are part of the Chief Justice's legacy. In what way? Does the Chief Justice owner take credit for these decisions? Is it because of the Chief Justice's role in in in writing the opinions or assigning the job of writing writing the opinions? The Chief Justice still just has one vote in granting review? I take it but so what is what is the role of the Chief Justice there and in those opinions, and how do they factor into the Chief Justice's legacy? Well, I

David Ettinger  23:55 
did see her quoted, I think it was a several years ago, saying that she did take for herself, the task of writing some of the bigger the big opinions, the more controversial opinions. And she was quoted as saying that sometimes she will take one for the team, is the way she put it. And I think that's accurate. I mean, there were certainly been some very consequential opinions during her tenure that she did not write, but, you know, the Dynamax and Vasquez on on independent contractor stuff. She wrote a couple of opinions holding a statutory limitations on pensions. You know, it was those were ones she kept for herself.

Tim Kowal  24:39 
And so when you say that, or when she said that she would would take one for the team. She was specifically talking about writing the more controversial opinions. Right. That's what she meant. Yeah. I think you've also mentioned or reported that, that the Chief Justice would write opinions in The in a deliberately narrow way. Can you talk a little bit about that?

David Ettinger  25:04 
Yeah, she said in after she announced her retirement, she was interviewed by the New York Times. And she said that the Supreme Court tries to keep their opinions narrow. And I'm trying to, I think I wrote down, I wrote down the quote, she said, we may start off with a broad opinion. But as we weigh, as we each weigh in, we start to narrow it because we realize we don't need to speak so broadly. We're more geared toward providing guidance and clarification on California law that I think makes the difference for why we are able to agree that goes to the consensus factor. But yeah, she she talks about, about narrow about keeping it narrow. And in fact, in the case that that I argued, briefed and argued, she wrote a concurring opinion, saying that she thought the majority opinion answered some questions that that didn't need to be answered, for for the resolution of the case I was I was working on.

Tim Kowal  26:09 
So her discipline of writing opinions narrowly is not necessarily one that is shared by all of our associate justices.

David Ettinger  26:18 
That's probably that's probably accurate. Yeah, I think some of the justices are willing to to speak more broadly, maybe touch on issues that don't need to be decided for that case, or even to make recommendations to the legislature to take new looks at certain statutory schemes or make statutory changes. So that, you know, so that, that that happens, and that's something that was less likely to be seen from the Chief Justice,

Tim Kowal  26:49 

as a practitioner. Do you have an opinion about? Do you prefer a Supreme Court to write a holding broadly, or narrowly? Or is it just depend on what side of the argument you're on?

David Ettinger  27:01 

That's not the latter? I'm not sure. I'm not really sure what my opinion is on that, you know, it probably is valuable in certain circumstances where where the justices see that a statute is either unclear, or it's plain language is leading to results contrary to probably what the legislature intended to point that out to the legislature and have them take a look and make fixes. I know, Justice Lew, during his tenure, has made suggestions regularly to the legislature and has been followed up on a number of times, I think the Chief Justice even many years ago, and I can't remember what the topic was, but suggested a legislative change that the this legislature did adopt later on. So I think that's a good thing.

Tim Kowal  28:00 
One of the topics you talk about on at the lectern with some regularity is about clemency decision. And I have to admit, when I read about those, I sometimes wonder why, why I should care. And, and I, but when I read a little bit deeper into it, I think it's a fascinating question, but because because of how it dovetails into the Chief Justice's legacy here. And also, as you've drawn out on your blog, at the lectern, there's there was a difference in the in the Supreme Court's tendency to deny more of Governor Brown's clemency request compared to Governor Newsom, who seemed to seems to have sailed through with just about all of his clemency requests. And so I wonder if you could first kind of tell our audience a little bit about gubernatorial clemency requests in California, and and what is the court's role there? Why does the court have a role in clemency decisions?

David Ettinger  28:53  
Well, they have a role because the Constitution requires that to have a role the state constitution, the the federal clemency power is extremely broad. The President has extremely broad power to grant pardons and commute sentences. And Congress has no oversight over that at all in the Supreme Court has no oversight over that, under the California constitution. However, the governor's power of clemency is still broad, but it is a little more circumscribed in the President's if it the Constitution provides that if the governor wants to grant clemency to someone who has been twice convicted of a felony, they have that Governor has to first get the four justices or more of the Supreme Court to sign off on it. So the governor when when he's wants to pardon or commute a sentence for a twice convicted felon, he has to send a request to the Supreme Court. are asking for the court's permission to go ahead and do it. And you mentioned that the court denied some of Governor Browns that there were 10 times and that right near the end of browns term that the Supreme Court said no. And that has not continued into Governor nuisance. 10 Nuisance tenure he's been except for he withdrew one request. But otherwise he's been 100% successful in getting the Supreme Court to Okay, his his clemency requests, recommendation requests. And in fact, there was even one that the Supreme Court granted when Newsom submitted it when they when the court just a few years earlier denied Governor Browns request for the same guy. It was the same same prisoner. I think it was a commutation of a life without parole sentence. And the the court denied it. When brown submitted the request. And then under Newsom, the Court granted it

Tim Kowal  31:07 
right. And you've you've written that the courts denials of clemency requests from the governor are, quote, essentially court determinations that the client clemency grants would have been abuses of gubernatorial powers and quote, and that suggests that a denial is rather significant. And is the court required to provide reasons for its clemency decisions, particularly if you're correct that they amount to a determination that this would be an abuse of the governor's powers,

David Ettinger  31:31 
they are not required, there's no requirement to explain their grants or denials. And that abuse of power language comes from a an order that the Supreme Court itself issued before these tonight before any of these denials, they on their own without asking for briefing or anything or without any apparent catalyst, they issued an order published order, I think it was about 10 pages long, where they in detail explained their role as Supreme Court justices in the clemency review process. And they said it was they said, This is a very deferential review, we're going to give to governor's request for clemency recommendations. And the only time we're going to say no, is if we think this is an abuse of gubernatorial power. So the denials that came in I think, I don't know about a year after they issued this order. We're very striking because based on the this order, explaining their role, the denials equate to a finding of abuse of gubernatorial power, but they didn't explain why, which is one of the one of the few things I have criticisms of the of the Supreme Court on is it is their lack of explanation. In fact, I remember seeing a quote of Governor Brown, they asked him, you know, about these denials, these unexplained denials, and he said, well look at some of the grants and look at the denials. And you tell me what the role is. So he was perplexed, he had he has no idea why some get denied, and some got granted. And that's just not a good thing when the governor himself doesn't understand the ground rules for for how these clemency recommendation requests work.

Tim Kowal  33:42 
Yeah, when the governor makes the clemency request, as the governor is supported by any kind of statement of reasons or grounds.

David Ettinger  33:48 
Well, that's a separate issue at the file that he submits is is submitted, he submits it, the governor submits it with a request that it be filed under seal, and it is, and the Supreme Court has automatically filed an under seal, and they will entertain motions from third parties to open up the files, in which case they will then send the court the file back to the governor and say, okay, justify, you know, keeping all of this or parts of it secret, and but without without those third party motions, the file stay secret,

Tim Kowal  34:29 
right? Well, so. So the Chief Justice's legacy on clemency request is, is in the black box, so to speak, because we don't have the reasons for why they're granted or denied. So let's, let's just end our discussion about the legacy. Chief Justice Cottontail Soccerway by asking you a counter historical question, what would California jurisprudence have looked like if Governor Schwarzenegger had not nominated Tane Santiago Saku a as Chief Justice back in 2011

David Ettinger  34:59 
Wow. That's a great, that's that's a hard one to answer without knowing who he was appointed to replace that bet. I mean, the California Supreme Court during her tenure has been, at least outwardly very collegial, most often consensus driven, most of their opinions are unanimous, far more unanimous opinions than the US Supreme Court. It's It's unusual to have to have any notable dissents there. There are occasionally four three decisions, but not very often, a different Chief Justice might not have handled the the drastic budget cuts, as well as the chief did, might not have handled the pandemic as well as the chief did. You know, it's it's really hard to say but though, those were the major challenges for Chief Justice in her role as the as the head of the judiciary, as far as California Supreme Court decisions themselves, I don't know that there would have been that much difference if someone else had been chief.

Tim Kowal  36:09  
Okay. All right. So we've wrapped up with the legacy of the Chief Justice. Now let's talk about some nuts and bolts about how how the new Chief Justice is going to be appointed. And perhaps more, more interestingly, how the new Chief Justice's old seat old associate justice seat is going to be filled. So Governor Newsom has selected justice Patricia Guerrero as the new Chief Justice, and to replace Guerrero Governor Newsom has selected judge Kelly Evans, but there's some uncertainty and speculation about whether the governor is nominating Evans for this for the seat or appointing her to the seat. And in fact, just before we started taping this episode on September 21 2022, David, you posted an article on at the lectern stating that quote on November 10, the three member commission on judicial appointments will consider Governor Gavin Newsom, his appointment of Judge Kelly Evans to the Supreme Court and quote, and you note that because Evans was appointed and not nominated, she will not face the voters for four years. And I wonder if you could unpack that a little bit and explain what is the difference between appointment and nomination and why it matters?

David Ettinger  37:21 
Well, let me do why why it matters first, because that's the easy but the in this situation why it matters is that Justice Guerrero being nominated for for the Chief Justice position means she's the nominee nominated as a candidate for election at this November's election. So she will stand for election as chief justice in November, but the appointment because it will not take effect until after the election. Justices only stand for election at gubernatorial elections. So she said judge Evans, or justice Evans, when she's confirmed, would not be on the ballot until 2026.

Tim Kowal  38:06 
Now, David, you wrote a blog post at the lectern urging that the governor should nominate judge Evans now rather than appoint her later. And then in that post, you said that the governor has opted for an appointment, you said, quote, I think he should nominate judge Evans instead, because that's what the State Constitution mandates and quote and you also point out that under the state constitution, the governor before September 16, shall nominate a candidate. Do you have any information about what the governor's office makes of this constitutional provision and why it opted for the for the route it chose?

David Ettinger  38:43 
Well, the governor's office definitely does not agree with with my position. I thought that and I think that the the governor had the constitutional obligation to nominate a candidate for for Guerreros seat, and so that that candidate, Judge Evans would have been would stand for election this November, and the governor's office I after that post was was published. I got a call from the governor's office where they were, you know, not not happy with with that post, I guess, and explaining the governor's office was explaining what their position is. And, you know, it's I certainly understand their position. It's it's, it's certainly not frivolous. And I don't think there's anything nefarious about their, their position. I just, I just happen to disagree with that. Is that

Tim Kowal  39:41 
something that the governor's office is hoping that you'll relate in at the lectern to your readers?

David Ettinger  39:47 
Well, I think in that post would very long post I think I explained what the governor's position was as to why why a nomination wasn't necessary and why an appointment was The right way to go which has the way he is is going with Judge Evans. Right.

Tim Kowal  40:05 
Now this story about, you know, this many drama over nomination or appointment ensuing from the Chief Justice's announcement of her retirement in in an election year. It reminded me of an anecdote about in 1968, when the Chief Justice of the US Supreme Court or a Warren Warren announced his retirement 1968 was a presidential election year and a debacle ensued. After President Lyndon Johnson announced that aid, Fortis would replace Warren and Fortis thereafter, wound up lying to the judiciary committee about not having given policy advice to LBJ that led to LBJ ordering his staff to destroy all the four test papers. And all this led to the first and only SCOTUS nominee blocked by filibuster and it also led to a norm that a justice a prudent justice should not retire during a presidential election year. And obviously, you know, I'm not drawing a comparison. We don't have anything like less such a scandal here. But I wonder if these nice legal questions that we've been talking about conference nomination versus appointment, maybe they wouldn't have occurred if the Chief Justice did not retire or announcer retirement in an election year, you think there would be some value in a norm that justices shouldn't shouldn't retire in an election year?

David Ettinger  41:20 
Well, under the Constitution, Supreme Court justices terms, necessarily and in in a gubernatorial election year. So, you know, unless unless they retire or resign before their term is ending, then you're going to have that situation like, like we have this year where where a justice retires, and just before just before an election, gubernatorial election.

Tim Kowal  41:51 
Now, yeah, that is a big difference. The federal bench obviously does not have retention elections, like we do here in in California for for judges, but an 11 year term is a is a long term. And certainly if she had, if our Chief Justice had run for another retention election, she she could have retired sometime into her term. Could she not have?

David Ettinger  42:13  
Yeah, she she certainly could have it's a 12 year term, by the way. So even longer, even longer term, but yeah, all the Court of Appeal and Supreme Court justices have 12 year terms. But yeah, she could she could have retired before her term expired. Justice. Just that's the way more often happens. Justice quedar. Justice chin justice worker, I believe they all retired before their terms were up. Chief Justice, George let his term retire. expire. And so so that's the way he retired, just the way that the current chief is, is retiring. So it can it can go either way.

Jeff Lewis  42:56 
Well, let's shift gears here looking forward with the appointment of Chief Justice Guerrero or nomination I should say, What do you think we should keep an eye on in terms of changes to the court? Or what do you think will stay the same looking forward to a Guerrero court?

David Ettinger  43:12 
It's really hard to say because she has been on the Supreme Court for such a short time, I think just since March, I think is when her appointment was confirmed. She hasn't written any opinions yet, which is not on the Supreme Court. And she's written lots as a Court of Appeal, which is justice, not unusual for the there to be that long gap between joining the court and writing your first opinion. That's it's common. So it's kind of hard to tell on that. But you know, I have a feeling there won't be much difference as far as how cases are decided, you know, the bottom line as to how cases are decided there might be a difference in the productivity of the court, we mentioned that the number of opinions would have had been going down. And number of review grants have been going down that that could conceivably change under Chief Justice Guerrero. It's all speculation I I just I just don't know. But as far as the consensus and collegiality of the court that I would expect to be continuing. She I don't know her at all. But from the little I've seen and read about her, it seems like she would she's a very good candidate to continue the collegiality that that seems to reign at the court.

Tim Kowal  44:37 
All right, David. Well, we appreciate your you're coming on the show and sharing your your thoughts about the Chief Justice, the her legacy, what's coming up next. Any other aspects of this transition that that our listeners should be aware of?

David Ettinger  44:53 
I don't think so. I you know, there's there's the election justice Guerrero has to win she has to get it Yes vote from the voters a majority us vote to become Chief Justice on January 2. And the only other thing that that I guess we didn't get into is is the timing of Judge Evans appointment. You know, the governor has appointed in the Commission on Judicial Appointments, will vote, almost certainly to confirm her before there's a vacancy to fill in the vacancy that she is filling is is justice Guerreros Associate Justice position. But that's that's not going to be vacant until January 2. So there there is a question. Can a governor appoint somebody to fill a vacancy? That's an impending vacancy vacancy? That hasn't happened yet? I think that I found one court of appeal case that dealt with a municipal court judge. I think that that suggests that. Yeah, this is fine for the governor to to do that. And yeah,

Tim Kowal  46:00  
and so the issue is that we have a governor who is about to stand for reelection, who is appointing justice to the California Supreme Court, but but to be taking her seat only after the election.

David Ettinger  46:13 
That's right. That's right. And I think I think he can do that. I think he probably has to win reelection in November for it to be an effective appointment. But I think it's a good thing that he's doing this advance so that there's not a vacancy. There's there's no gap where the Court of Appeal has I mean, the Supreme Court has to deal with bringing up Court of Appeal justices as Pro tems to fill to fill temporarily fill a vacancy. And that that has been a definite problem for the court. In the past, there were some very long vacancies, unfilled vacancies, that that hampered the courts ability to function to decide some cases,

Tim Kowal  47:02 

right? Well, if our listeners are interested in much more in depth coverage of the California Supreme Court and Courts of Appeal, they should visit at the That's where David Ed injure writes prolifically about all things California judiciary, and that's going to wrap up our episode for today. Again, we want to thank casetext for sponsoring the podcast and each week we include links to the cases we discussed using case text and listeners of the podcast can find a 25% lifetime discount available to them if they sign up at

Jeff Lewis  47:36 

And if you have suggestions for future episodes, please email us at info at Cal For upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  47:46 
All right. See you next time.

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