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California Supreme Court’s term: Following the lead

By J. Clark Kelso

Clark KelsoSome of the most interesting decisions during the California Supreme Court’s 2015-16 term were ones where the court essentially followed the lead set by other lawmaking entities, even when that lead may have taken the court in a direction that it otherwise would not have gone by itself.

A court’s capacity to follow should not be interpreted as a sign of weakness. After all, the judicial branch is – and is supposed to be – the weakest of the three branches, in part because it lacks any true enforcement power but also because it is the least representative branch.


In a year when, most improbably, a hip-hop musical based on a founding father’s life garnered 11 Tony awards, it is appropriate to remember Alexander Hamilton’s statement in Federalist No. 78 that courts “have neither force nor will, but merely judgment.” Sometimes, the most prudent judgment is to follow along.

Amending proposed initiatives

California’s wide-open initiative process has become over the last 35 years a reliable source for some of the state’s most hard-fought political battles and substantial changes in law and policy. In Brown v. Superior Court, 63 Cal.4th 335 (2016), the court followed the apparent will of the Legislature to make the initiative process a little more flexible than it has been, notwithstanding a clear risk associated with that new flexibility.

In Brown, the court interpreted for the first time a statute enacted in 2014, Section 9002 of the Elections Code, that changed the process by which a proposed initiative measure can be amended by its proponent. Prior to the 2014 legislation, a proposed initiative would be submitted to the Attorney General, who would provide a copy of the title and summary to the Secretary of State within 15 days of the receipt of the fiscal estimate or opinion. During that 15-day period, the initiative’s proponents could make technical, nonsubstantive amendments to the initiative without affecting the initiative’s progress through the process. If substantive amendments were made, however, a new 15-day period would begin for the Attorney General to prepare a revised title and summary.

As amended in 2014, Section 9002 now provides for a 30-day public comment period after a proposed initiative is submitted to the Attorney General. After the comment period, the Attorney General prepares the final title and summary. Subdivision (b) of Section 9002 permits the proponents to amend the measure during the 30-day public comment period and for five days after the comment period so long as the amendments “are reasonably germane to the theme, purpose, or subject of the initiative measure as originally proposed.” If amendments are submitted, the Attorney General prepares the title and summary based on the amended version without conducting a new 30-day public comment period.

In Brown, a proposed initiative was submitted dealing primarily with reform of certain juvenile justice provisions including, among other things, parole suitability review for prisoners under 23 years of age at the time of their controlling offense. After the comment period had closed, the initiative was amended by removing most of the juvenile justice provisions and replacing them with revisions to the adult parole system. The California District Attorneys Association immediately sought a writ of mandate to restrain the Attorney General from proceeding with the amended measure, contending that the amendments were not “reasonably germane” to the original measure and were, essentially, a “gut-and-amend” of the original provisions. The trial court granted the writ.

The California Supreme Court granted an emergency writ and reversed the trial court 6-1, with the majority opinion by Justice Corrigan and a dissent by Justice Chin. As the majority explained, the “reasonably germane” language in Section 9002 was plainly derived from the Supreme Court’s cases interpreting the “single subject” rule which requires that an initiative measure may not embrace more than one subject. See Californians For An Open Primary v. McPherson, 38 Cal.4th 735, 764 (2006) (the single subject rule is satisfied “so long as challenged provisions meet the test of being reasonably germane to a common theme, purpose, or subject”). The single subject rule has been liberally interpreted by the court in its cases, and the majority opinion held that a similarly liberal approach should be employed under Section 9002. As the court explained, Section 9002(b) “permits even sweeping changes, so long as they are reasonably germane to the theme, purpose, or subject of the original proposal.” Brown, 63 Cal.4th 335, 351. Under this standard, the amendments were reasonably germane to the broad topic of parole reform for inmates in state prisons who had become rehabilitated.

Justice Chin’s dissent is grounded in his fear that as interpreted by the majority, Section 9002 can now be used to essentially “evade the period of public review” by “hijack[ing] a vaguely similar measure that was in the process of qualifying.” Id., 63 Cal.4th at 362 (Chin, J., dissenting). Justice Chin’s fears are probably well-founded, but when the Legislature uses clearly defined terms of art, such as “reasonably germane,” a majority of the court demonstrates good judgment by following the Legislature’s lead.

Advisory questions

The court also bowed to the apparent will of the Legislature in Howard Jarvis Taxpayers Association v. Padilla, 62 Cal.4th 486 (2016), which held that the California Legislature has power to place on a general election ballot a nonbinding advisory question relating to possible amendments to the U.S. Constitution. The precise advisory question at issue was contained in Proposition 49, and it would have asked the California electorate whether Congress should propose and the Legislature ratify a constitutional amendment overturning the controversial decision in Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010).

In an exhaustive opinion for the majority, Justice Werdegar reasoned that placing this type of advisory question on the ballot was a valid exercise of the Legislature’s power to conduct an investigation into how and whether the Legislature should act with respect to a potential future federal constitutional amendment. The Legislature’s powers with respect to federal constitutional amendments are a matter generally governed by Article V of the U.S. Constitution, and Justice Werdegar’s opinion was narrowly crafted as an interpretation of how the Legislature could inform itself in matters involving Article V. Her opinion does not express a view on the broader question of whether advisory questions could be asked outside the context of the Legislature’s Article V powers, reserving that question for another day. Id., 62 Cal.4th at 504.

In two concurring opinions, Chief Justice Cantil-Sakauye and Justice Corrigan express their view that the majority opinion does not go nearly far enough. Both concurring opinions argue that the Legislature’s power to put advisory questions on the ballot is not limited to the Article V context. As Justice Corrigan explained, “For the reasons stated by the Chief Justice, advisory measures that are reasonably related to any proper use of legislative power are permissible.” Id., 62 Cal.4th at 551 (Corrigan, J., concurring). Justice Liu separately concurred to emphasize his view that advisory opinions should be limited as set forth in the majority opinion, and Justice Chin dissented, expressing fears about how this power could be abused by legislative majorities for political purposes. Id., 62 Cal.4th at 585 (Chin, J., dissenting) (“Permitting the Legislature to place advisory measures on the ballot would allow it to greatly interfere with the people’s reserved initiative rights”).

The split of the justices in Howard Jarvis leaves the broader question open until the Legislature next tries to put an advisory question on the ballot. Only then will we discover whether the court will continue to follow the Legislature’s lead.

Consumer, employee and class arbitration

There were three cases this term involving the enforceability of arbitration clauses in the context of consumer transactions or employment. For the last 15 years, there has been a quiet war of resistance waged by California courts and the California Legislature against arbitration clauses imposed on consumer and employees. Time and again, the Supreme Court of the United States has stepped in to declare clearly and forcefully that such arbitration clauses, including clauses that contain waivers of class actions, are enforceable under the Federal Arbitration Act. And time and again, California courts have tried to discover ways around these federal decisions.

This year, the California Supreme Court appears to have yielded to the superior authority of the U.S. Supreme Court. In Sanchez v. Valencia Holding Company, LLC, 61 Cal.4th 899 (2015), the Court upheld an arbitration clause in an automobile sales contract that, among other things, waived class-wide arbitration and limited appeals to a three-arbitrator panel to cases where the award was either $0, in excess of $100,000 or included injunctive relief. In Baltazar v. Forever 21, Inc., 62 Cal.4th 1237 (2016), the court rejected a set of arguments that certain provisions in an employment arbitration clause were so unfair and one-sided as to render the agreement unconscionable. Finally, in Sandquist v. Lebo Automotive, Inc., 2016 Westlaw 4045008 (Cal. July 28, 2016), the court held that the question of whether an arbitration agreement permits or prohibits class-wide arbitration was a question for the arbitrator to decide.

It remains to be seen whether following the U.S. Supreme Court’s lead in these cases is the right thing to do. Many of the court’s consumer and employment arbitration opinions have been close 5-4 decisions, with the conservatives on the court holding the majority. This could possibly be an area where a Scalia replacement might change the balance. There certainly would be plenty of room for an argument that the current interpretation of the Federal Arbitration Act by the Supreme Court has stretched its application far beyond what Congress originally intended. Although it now appears the California Supreme Court is on the same page as the U. S. Supreme Court, we can reliably forecast that the battle in the trenches is far from over.

Expert witness testimony

We next examine two cases involving expert witness testimony. In the first case, People v. Sanchez, 63 Cal.4th 665 (2016), the court follows the lead set by the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and imposes stricter limits upon an expert’s ability to put before the jury case specific out-of-court statements that formed the basis of the expert’s opinion. In the second case, In re Richards, 63 Cal.4th 291 (2016), the court correctly applies a recent amendment to the definition of “false evidence” under Section 1473 of the Penal Code, thereby following the clear lead set by the California Legislature in dealing with state habeas petitions.

In Crawford, the U.S. Supreme Court held that the Sixth Amendment’s Confrontation Clause was violated upon the admission of testimonial hearsay against a criminal defendant unless the declarant is legally unavailable and the defendant had a prior opportunity for cross-examination. Crawford was a significant change in the law; prior to Crawford, testimonial hearsay could be admitted if the statement fell within a “firmly rooted” exception to the hearsay rule or if there were “particularized guarantees of trustworthiness.” See Ohio v. Roberts, 448 U.S. 56, 66 (1980) (abrogated by Crawford v. Washington, 541 U.S. 36 (2004)).

In People v. Sanchez, an expert in gang behavior testified generally about gang culture and practices and about one gang in particular, the “Delhi” street gang, in which defendant allegedly participated. The expert also testified about specific statements the defendant allegedly made to police officers and about statements contained in police documents relating four other contacts with the defendant between 2007 and 2009. The prosecutor then asked the expert a lengthy hypothetical based, in part, on these prior statements, and the expert ultimately answered the hypothetical by concluding that the defendant’s conduct benefitted the Delhi gang. Under prior law, the trial court could instruct the jury that matters admitted through an expert go only to the basis of the experts’ opinion and should not be considered for their truth, and this curative instruction might have been enough for the testimony to be admitted, depending upon whether the potential for prejudice outweighed its proper probative value.

Applying both the letter and spirit of Crawford, the California Supreme Court adopted a much stricter approach to this common type of expert testimony, holding that “when any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay,” and if the statements are testimonial hearsay, they are then inadmissible unless “(1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.” This new rule establishes significant new hurdles for litigants who try to rely upon expert testimony and responses to complex, case-specific hypotheticals to carry the great weight of a case. According to Sanchez, case-specific hearsay that an expert wants to use to form his or her opinion usually will have to be introduced separately.

Court experts and criminal convictions that rely upon expert testimony took another hit in In re Richards. In this case, the petitioner was convicted of murdering his wife based on circumstantial evidence and the testimony of a dental expert who testified that a lesion on the victim’s hand was a human bite mark matching petitioner’s unusual teeth. About a decade later, the dental expert recanted his testimony, and the petitioner filed a petition for a writ of habeas corpus. The California Supreme Court held by a 4-3 vote in its first review of this conviction that the expert’s recantation did not constitute “false evidence” within the meaning of Section 1473 of the Penal Code because the recantation did not, by itself, establish that the expert’s opinion expressed at trial was “objectively untrue.”

The California Legislature disagreed with the court’s interpretation of Section 1473, and during the 2013-14 session, added subdivision (e)(1) to Section 1473 to provide that “for purposes of this section, ‘false evidence’ shall include opinions of experts that have either been repudiated by the expert who originally provided the opinion at a hearing or trial or that have been undermined by later scientific research or technological advances.” Taking its cue from the Legislature, the court granted the petitioner’s newly filed petition for habeas relief concluding that “it is reasonably probable that the false evidence presented by [the expert] at petitioner’s 1997 jury trial affected the outcome of that proceeding.” Needless to say, those convicted of crime largely based upon the testimony of expert witnesses now have a clearer pathway to a successful habeas petition: after the conviction, try to convince the “oh-so-sure-at-trial” expert to recant his or her testimony.

J. Clark Kelso is a professor at the University of the Pacific McGeorge School of Law. The views expressed in this article are his own.