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Continuing Legal Education at the Bar Association of San Francisco: Committees

California Supreme Court Trends


On March 24, 2010, The Litigation and Appellate Sections of The Bar Association of San Francisco, the SF Jurisprudence Café, the California Academy of Appellate Lawyers and the San Francisco Trial Lawyers Association presented their Third Annual Jurisprudence Luncheon program on California Supreme Court Trends.  The esteemed panel of speakers included Justice Carlos R. Moreno of the California Supreme Court, Joseph R. Grodin, Professor of Law at UC Hastings College of the Law and former Justice of the California Supreme Court, Gerald Uelmen, Professor of Law at Santa Clara University School of Law and Justice Maria P. Rivera of the First District Court of Appeal.  The panel and program were moderated by Jim Brosnahan, trial lawyer and senior partner at Morrison & Foerster.

The program covered an analysis and discussion of trends from the key cases in the California Supreme Court in the areas of class actions, privacy, labor, attorney client privilege and same sex marriage.

Jim Brosnahan opened the discussion with two cases, one decisional and the other legislative. The decisional case, In re Lawrence (2008) 44 Cal. 4th 1181, is about parole for prisoners and the requirement for evidence.  The second case, Sargent Shriver Civil Counsel Act, or AB 590, is a legislative effort to deal with the fact that 80% of people who go to civil court have no lawyer.  Mr. Brosnahan emphasized that this is a nationwide condition showing the courts have a broken system.

Justice Moreno gave an overview of the California Supreme Court’s procedures describing the court’s schedule and discretionary review of cases from petition to final decision. 

Professor Uelmen discussed Sheehan v. San Francisco 49ers (2009)45 Cal.4th 992 and Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, which deal with privacy. The California constitutional right of privacy protects against private individuals and entities as well as governmental entities.  The question of whether there is an obligation to use less intrusive means was discussed.  He alerted us to a U.S. Supreme court case set for argument April 19, 2010, City of Ontario v. Quon. Mr. Brosnahan raised a point with the private versus public setting, and mentioned an older cased called Sahadi.  Professor Uelmen also covered several recent criminal cases.  With the availability of a growing bank of DNA samples, there is an increasing number of prosecutions in cold hit cases such as People v. Nelson (2008) 43 Cal. 4th 1242 and People v. Robinson (2010) 47 Cal.4th 1104.  Professor Uelmen then discussed the continuing impact of the death penalty cases as shown in People v. Butler (2009) 47 Cal.4th 814, the only reversal of a death judgment so far this year.

Professor Grodin discussed labor and employment law cases and the element of statutory interpretation.  These issues were raised in the case Miklosy v. Regents of University of California (2009) 44 Cal.4th 876.   He also covered the same sex marriage cases and stated that after re Marriage Cases (2008) 43 Cal.4th 757, and similar cases around the nation, there is an increased public awareness of the significance of state constitutions.  In the case of Strauss v. Horton (2009) 46 Cal.4th 364, the broad point that can be taken here is that we are really in need of some guidance as to what constitutes the distinction between an amendment and a revision in California.  Professor Grodin thought that perhaps this can be accomplished by a state constitutional convention.

Justice Rivera covered cases in the area of class actions and attorney client privilege.  She first focused on the issue of class actions and unfair competition cases post-Prop 64, such as In Re Tobacco II Cases (2009) 46 Cal.4th 298 and the Direct TV case that followed soon after.  There was discussion of percolating cases that address standing versus commonality and cases that the will be addressed in the near future by the California Supreme Court.   There was discussion of attorney client privilege and the case of Costco Wholesale v. Superior Court (2009) 47 Cal. 4th 725 that affirms confidential communication between an attorney and a client is protected.  Moreover, this can not be disclosed to anyone, even the court.  The U.S. Supreme Court seems to be headed in the other direction.   Coito v. Superior Court (Cal. Ct. App. - March 4, 2010) recently decided that witness statements are no longer work-product.  This case looks like it may head to the California Supreme Court.

Mr. Brosnahan closed the program with thoughts for the audience, “What is it that judges do and how do they do it?”  He recommended reading philosophical works by American pragmatists William James and John Dewey who describe the American character.  It is not ideological and they strive to solve the problem in front of them.  James and Dewey were also devoted to evolution.  Mr. Brosnahan said evolution is what comes in the Daily Journal and the Recorder each morning.  Evolution is the nature of law and it is what keeps the intellectual curiosity fueling, that there is a problem and how will it be solved.


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