[0:00] BAILIFF: All rise.

[0:02] [Gavel]

[0:04] The Honorable Chief Justice

[0:06] and the Associate Justices of the Supreme Court of California.

[0:09] Hear ye, hear ye, hear ye.

[0:12] The Honorable Supreme Court sitting en banc

[0:14] is now in session.

[0:18] Please be seated.

[0:20] CHIEF JUSTICE GUERRERO: Good morning.

[0:22] Welcome to Oral Argument for the California Supreme Court.

[0:25] The clerk may call the calendar, please.

[0:26] COURT CLERK: Good morning.

[0:28] The Supreme Court of California

[0:29] hearing Oral Arguments in San Francisco on Thursday,

[0:31] May 7, 2026, at 9:00 a. m. Case No. S287786,

[0:36] the People, Plaintiff and Respondent v.

[0:38] Joel SanMiguel, Defendant and Appellant.

[0:41] For Appellant, Mr. Matthew Alger.

[0:44] MATTHEW ALGER: Here.

[0:46] COURT CLERK: For Respondent, Ms. Blythe J. Leszkay.

[0:48] BLYTHE LESZKAY: Ready.

[0:50] COURT CLERK: Case No. S28724,

[0:52] Conservatorship of the Person of E. A.,

[0:55] Public Guardian of Contra Costa County,

[0:57] Plaintiff and Respondent v.

[0:59] E. A., Defendant and Appellant.

[1:00] For Appellant, Mr. Brian C. McComas.

[1:03] BRIAN McCOMAS: Good morning and ready.

[1:05] COURT CLERK: For Respondent, Ms. Andrea L. Russi.

[1:07] ANDREA RUSSI: Good morning, ready.

[1:09] COURT CLERK: Case No. S283172,

[1:11] In re Thomas John Spielbauer on Discipline.

[1:15] For Petitioner, Mr. Glen L. Moss.

[1:23] They were here must a minute ago.

[1:28] For Amicus Curiae,

[1:29] Lawyers' Mutual Insurance Company, Mr. John B. Sprangers.

[1:31] We're looking for them right now.

[1:35] For Respondent, Ms. Rachel Grunberg.

[1:38] RACHEL GRUNBERG: Ready.

[1:40] CHIEF JUSTICE GUERRERO: Thank you.

[1:42] Calling the first matter, the People v. Mr. SanMiguel.

[1:45] On this case,

[1:47] the Court is pleased to be joined by Justice Egerton

[1:49] from the Second District Court of Appeal.

[1:53] MATTHEW ALGER: Good morning.

[1:55] I'm Matthew Alger, Counsel for the Appellant Joel SanMiguel.

[2:01] May it please the Court.

[2:03] This case is here before the Court this morning

[2:08] because the trial court failed to follow

[2:11] the explanation requirement of subdivision (g)(2)

[2:18] of Code of Civil Procedure, Section 231.7.

[2:22] When I refer to subdivisions, I will of course

[2:24] be referring to Code of Civil Procedure, Section 231.7.

[2:29] That's why we're here.

[2:32] I'm here because the point I'd like to make

[2:37] is that the explanation requirement matters.

[2:41] You wouldn't think I'd have to say that

[2:43] because it's in the statute,

[2:46] but it didn't matter to the Court of Appeal

[2:49] because the Court of Appeal said it could be disregarded --

[2:52] or at least the majority did.

[2:54] It didn't matter to the trial court,

[2:56] or at least it didn't matter to the trial court's ruling,

[2:59] because it wasn't considered.

[3:01] It's not even clear that the trial court was aware of it.

[3:04] And it doesn't matter to Respondent

[3:07] because Respondent says you can bypass

[3:09] the explanation requirement.

[3:12] Now, how does the explanation requirement matter?

[3:16] Why does it matter?

[3:18] Because it is a means of evaluating a reason

[3:25] for a peremptory challenge

[3:27] that has historically been associated

[3:30] with improper discrimination in jury selection.

[3:36] It is a means by which the trial court obtains the information

[3:43] that the Legislature deemed necessary

[3:46] for the court to exercise informed discretion

[3:50] when it considers such a reason.

[3:53] And that's evident from the intent of the statute

[3:59] that's expressed in Assembly Bill 3070,

[4:03] which is to rid jury selection of improper discrimination, not

[4:09] only purposeful discrimination but discrimination

[4:14] that is based upon stereotypes - stereotypes

[4:19] that have resulted in injustice.

[4:22] JUSTICE KRUGER: Counsel, can I ask you a question?

[4:24] MATTHEW ALGER: Certainly.

[4:26] JUSTICE KRUGER: One of the things that I think

[4:28] is challenging about interpreting subdivision (g)(2)

[4:33] of the statute is that it covers different kinds of behaviors,

[4:38] demeanors, and inferences from those things;

[4:43] so for example,

[4:45] failure to make eye contact with an observed behavior.

[4:49] And an inference you might - one inference

[4:51] you might draw from that failure to make eye contact

[4:53] might be this juror isn't paying intention.

[4:56] That's an inference about not behavior as such

[5:01] but about that person's --

[5:03] and sort of how that person is performing the role.

[5:06] And I guess I'd like to understand from you

[5:08] whether you think

[5:10] that the explanation requirement applies the say

[5:14] way across all of these different behaviors and

[5:19] demeanors that are specified in the statute.

[5:23] In other words does a person - it's one thing to explain,

[5:27] "I'm inferring from the fact

[5:28] that this juror is playing on her phone

[5:30] while you're instructing the demurrer," or whatever,

[5:35] "I'm inferring that this person isn't paying attention

[5:37] to courtroom proceedings."

[5:38] That's one kind of explanation.

[5:40] Another kind of explanation would be,

[5:43] "I think that it is important for jurors to pay attention

[5:47] because it is going to be the People's burden

[5:50] to prove the case,

[5:52] and I want jurors who are listening to the evidence."

[5:55] Which, or both,

[5:57] of those things do you think the statute requires?

[6:00] MATTHEW ALGER: Well, the statute is broad, yes.

[6:04] It applies to all of the reasons identified in subdivision (g)(1)

[6:11] because as Justice Cody said in her dissent in this case,

[6:15] the lawyer needs to be able to make a connection

[6:19] between the reasons

[6:21] that are specified in this particular case.

[6:23] And if he's unable to,

[6:25] or she, unable to articulate why it matters,

[6:31] then that raises a reason to doubt that the reason

[6:36] for the challenge is actually based upon

[6:40] something other than perhaps stereotypes that result in-

[6:43] JUSTICE KRUGER: Is there a category?

[6:45] I mean, you're familiar with the examples

[6:48] that are raised in the briefing of behaviors

[6:52] that are sort of so egregious

[6:54] that they kind of require no further elaboration about

[6:57] why they would be undesirable for a sitting juror -

[7:01] so things like failing to pay any attention at all

[7:06] when the judge is speaking and giving instructions to folks

[7:10] who are sitting in the courtroom,

[7:12] things like making rude gestures in a particular way.

[7:17] I guess I'm wondering would you agree

[7:19] that there is some category - it might be a very small category -

[7:21] but some category

[7:23] where it doesn't really require further explanation to know

[7:27] why a particular litigant,

[7:30] whether the prosecution or the defense,

[7:32] would not consider this person to be an appropriate person

[7:37] to perform jury service.

[7:38] Sure, I think the Attorney General's example where

[7:41] a prospective juror gives the prosecutor a rude hand gesture,

[7:48] I mean that's- JUSTICE CORRIGAN: How about

[7:52] if the juror gets into the jury box.

[7:55] It's great, everything's fine;

[7:57] and they promptly fall asleep and they're just asleep.

[8:02] Does the prosecutor or the defense counsel have to say,

[8:06] "You know, Judge,

[8:08] I excuse that juror because they went to sleep in the jury box,

[8:10] and we'd only been in session for a half hour"?

[8:13] Is it required that they say, "Your Honor, it seems to me

[8:17] that an attentive juror is particularly required.

[8:22] And if the juror is not willing to stay awake

[8:25] throughout the proceedings,

[8:27] that might have an impact on their ability

[8:30] to adjudicate the case."

[8:32] I'm just trying to figure out where the outer real limits are.

[8:36] It is required.

[8:38] JUSTICE CORRIGAN: It is? MATTHEW ALGER: It is.

[8:39] JUSTICE CORRIGAN: Okay.

[8:41] MATTHEW ALGER: Because it is very broad, no doubt about that.

[8:44] But it is required because this is not an afterthought

[8:50] that we've put into the statute.

[8:53] It needs to - we've put it in there

[8:55] so that it could cover all kinds of scenarios

[8:58] where you may not have a legitimate reason -

[9:02] where you have a pretext for discrimination;

[9:05] or it's just based upon stereotypes

[9:09] that have resulted in the unjust treatment of prospective jurors,

[9:16] like an assumption that a juror is inattentive merely

[9:21] because he's not maintaining eye contact

[9:24] when that may just be a cultural difference.

[9:26] JUSTICE KRUGER: But that - it seems to me

[9:28] that that particular example, that's the reason

[9:30] the confirmation requirement is there.

[9:32] The judge has to confirm that the behavior is occurring.

[9:37] But it seems like a separate question

[9:38] whether or not then explaining,

[9:40] "And the reason why attentiveness is important

[9:42] is because jurors have to pay attention to do their job,"

[9:46] really helps us understand

[9:48] whether impermissible discrimination has played a role

[9:53] in the decision with respect to that juror or not.

[9:57] I guess I'm curious to know what you think

[10:01] that additional kind of formal explanation of

[10:04] why attentiveness matters in general

[10:06] or why making rude gestures or whatever matters in general

[10:10] helps to illuminate that kind of fundamental question

[10:13] that the statute lays out for us.

[10:16] MATTHEW ALGER: Well, rude gestures,

[10:19] that's kind of a distraction

[10:20] because it didn't happen in this case;

[10:22] and we're dealing with the explanation requirement,

[10:25] not the confirmation requirement.

[10:26] JUSTICE KRUGER: Right,

[10:28] but of course the explanation requirement

[10:30] and whatever rule we're writing here

[10:31] is going to apply to a wide range of scenarios,

[10:36] not just concerning explanations that involve attentiveness

[10:40] but including the rude gesture scenario.

[10:43] So I think we need to be able to understand

[10:45] how the explanation requirement works in general

[10:48] across this range. MATTHEW ALGER: Sure,

[10:51] the trial judge can evaluate the reason on its face

[10:55] and see if it makes sense but can also evaluate

[11:00] how the attorney gives that explanation,

[11:05] whether he believes - whether the court believes

[11:09] that it's sincere for one thing.

[11:11] So like I said, it wasn't an afterthought;

[11:18] and if it's not given effect, it's meaningless.

[11:22] So it does need to be followed.

[11:25] Subdivision (g)(2)

[11:28] prescribes the means by which a reason --

[11:33] and it's historically been associated

[11:35] with improper discrimination is absolved of a presumption

[11:42] that it is founded upon.

[11:45] JUSTICE LIU: Counsel, isn't it the case

[11:47] that the Legislature expressly thought about

[11:53] the inattentive scenario?

[11:55] I mean, it says right here in subdivision (g)(1)(A),

[11:57] right, "inattentive."

[11:59] MATTHEW ALGER: Yes.

[12:00] JUSTICE LIU: And nonetheless still requires

[12:02] the explanation requirement, having considered that scenario.

[12:06] MATTHEW ALGER: Yes, that shows

[12:08] that the Legislature intended the explanation requirement

[12:11] to apply to something that seems as simple-

[12:15] JUSTICE LIU: So even though it may seem obvious,

[12:17] the explanation requirement

[12:19] does apply because the Legislature said

[12:20] so straightforwardly in the statute.

[12:23] That's right. And in a similar bill, AB 37,

[12:27] it was adopted because of studies showing

[12:33] that stereotypes, such as lack of eye contact,

[12:38] do not necessarily mean someone's a bad juror.

[12:41] It's based upon stereotypes and differences in culture.

[12:47] The Legislature basically said that this is a new era.

[12:52] And when it comes to possible discrimination,

[12:57] we are no longer going to accept reasons

[13:00] for a peremptory challenge that are based

[13:02] upon hunches and behaviors

[13:06] that previously were accepted as valid

[13:09] because studies have shown they are not valid

[13:13] and they will result in injustice.

[13:16] CHIEF JUSTICE GUERRERO: What if the consequence of finding

[13:19] that a specific reason as invalid?

[13:21] If you take the inattentiveness as an example,

[13:25] then your position is that inattentiveness cannot

[13:29] then be relied upon to justify the strike, correct?

[13:34] MATTHEW ALGER: It can be relied upon if it's confirmed

[13:37] and if an explanation is given that satisfies-

[13:39] CHIEF JUSTICE GUERRERO: But if the explanation requirement

[13:42] isn't met, then the inattentiveness cannot be relied

[13:46] upon to justify the strike.

[13:48] But what about other reasons?

[13:50] Do you agree that other reasons that are proffered

[13:53] and other circumstances can still be relied

[13:56] upon to determine whether the strike is unlawful?

[13:59] Not if you don't meet the explanation requirement.

[14:02] Both the confirmation

[14:04] and the explanation requirement must be met.

[14:08] It says in subdivision (g)(2)

[14:10] unless you meet these requirements,

[14:12] these reasons are presumed invalid.

[14:15] That means that is the way

[14:17] in which they're absolved of the presumption of invalidity.

[14:19] And if they're not absolved of it by that means,

[14:23] as recognized in the Caparrotta case,

[14:27] you haven't established by operation of law

[14:31] that a reason for a peremptory challenge is based

[14:34] upon improper discrimination.

[14:38] And if you then go to a totality of the circumstances analysis,

[14:43] there is no way

[14:45] that an objectively reasonable juror could conclude

[14:49] that in this case race was not a factor in the exercise

[14:57] of the peremptory challenge.

[14:59] JUSTICE GROBAN: And following up on the Chief's question,

[15:01] you think that applies to even the confirmation?

[15:03] So imagine a situation where a lawyer says,

[15:08] "I want to strike this juror;

[15:09] she was sleeping the entire time,

[15:12] and the one time she woke up she looked at her phone,"

[15:17] and then goes on and explains,

[15:19] "I think this is a problem for this case.

[15:21] It shows inattention; it's a complicated case."

[15:26] And the judge says, "You're right, she did sleep a lot.

[15:32] I confess I didn't see her on her phone.

[15:34] I can't confirm that; I was looking at notes a lot.

[15:37] I'm unable to confirm that part of it;

[15:40] but I did see she was sleeping,

[15:42] and I understand your concern there."

[15:44] Your position is because both bases weren't confirmed,

[15:48] it's still invalid?

[15:50] It's still invalid?

[15:52] MATTHEW ALGER: I don't know that I would go that far;

[15:55] I haven't given it thought.

[15:57] But I would think you have a sufficient basis

[15:59] for a finding of inattention based

[16:02] upon only one of the observed behaviors.

[16:06] JUSTICE GROBAN: But that's a - I'm hearing a different answer

[16:07] than you gave to the Chief,

[16:09] so I just want to make sure I understand your position.

[16:11] Because the Chief was asking you, fine,

[16:14] if there's one basis that can't be confirmed

[16:17] or wasn't explained,

[16:18] we understand that can be relied on.

[16:20] But you can still go on and rely on other bases

[16:24] that were both confirmed and explained.

[16:26] And I understand you to be saying,

[16:28] "In some situations, yes, you can."

[16:31] MATTHEW ALGER: Perhaps, perhaps,

[16:33] I don't know that I can definitively answer

[16:37] that question the way -

[16:39] if you give a literal meaning to the statute,

[16:41] both would have to be confirmed.

[16:45] And then you'd have to say why,

[16:48] at least as a whole and in aggregate, they matter.

[16:53] And I'm not second-guessing the wisdom of the Legislature;

[17:01] that's their prerogative.

[17:03] JUSTICE EVANS: Counsel,

[17:04] I wanted to turn your attention for a moment

[17:06] to the difference in language of the statute between subdivisions

[17:11] (e) and (g)(2).

[17:13] Subdivision (e)

[17:15] of course says that the peremptory is invalid,

[17:18] whereas (g)(2) says the reason is invalid.

[17:22] Did the Legislature intend anything different?

[17:24] How do you interpret the different language

[17:26] in those two sections?

[17:31] MATTHEW ALGER: Well, I mean in subdivision (g)(2)

[17:35] if you find that - go straight to the fact

[17:37] that - straight to an analysis of

[17:40] whether racism was a factor in the challenge,

[17:43] then obviously that takes care of that.

[17:46] That either eliminates the presumption or confirms it.

[17:53] In the subdivision (g)(2)

[17:56] analysis, you just have two different levels -

[17:58] first the reason and then the factor.

[18:00] And as to Caparrotta, the court noted if you find

[18:03] that a reason for a peremptory challenge

[18:07] is discriminatory by operation of the presumption,

[18:10] well then a factor necessarily is - it necessarily was a factor

[18:14] in the use of the peremptory challenge.

[18:16] So I don't think it matters a whole lot.

[18:21] JUSTICE EVANS: So you don't think the Legislature intended

[18:22] any difference in the different language

[18:25] in those two provisions?

[18:26] MATTHEW ALGER: Different procedures.

[18:28] JUSTICE EVANS: Different procedures, but...

[18:30] MATTHEW ALGER: Yes, yes, I mean you could conceivably go from

[18:32] (g)(2) to the (d)(1) totality of the circumstances analysis,

[18:37] but the end result is dictated by the failure

[18:39] to satisfy the (g)(2) standard.

[18:43] JUSTICE EGERTON: Mr. Alger, going back for a moment

[18:44] to the explanation requirement,

[18:46] one of the things the prosecutor said here

[18:48] was that the juror had reentered the courtroom

[18:51] when the jurors were supposed to remain in the hall

[18:53] and therefore he wasn't following

[18:56] the court's instructions. If we can assume for a moment

[18:59] that the ability and willingness

[19:01] to follow the court's instructions, whether it's,

[19:04] "If the defendant does not testify,

[19:06] you may not consider that," or whether it's,

[19:08] "Please wait in the hall

[19:10] until you're called back in by the court or the bailiff,"

[19:13] is it a sufficient explanation in terms of what matters

[19:17] to the case to be tried for the lawyer simply to say,

[19:22] "The juror seems to be unable

[19:24] or unwilling to follow the court's instructions"?

[19:26] Isn't it in every criminal case important

[19:29] that the juror be willing

[19:30] and able to follow the court's instructions?

[19:32] MATTHEW ALGER: Of course but again,

[19:35] as I said, this was intended to have broad application

[19:40] so that it would apply to reasons

[19:43] that obviously make a difference and to reasons

[19:46] that may not make a difference

[19:49] and to a determination of the sincerity of those reasons

[19:53] and whether they're based upon stereotypes.

[19:56] So it's intended to have broad application.

[19:59] And in this case,

[20:01] the fact that the juror walked back into the courtroom

[20:05] during a break was not contrary to any

[20:09] of the court's instructions.

[20:13] I mean, he's not required to pay attention

[20:15] to what the other jurors are doing during a break,

[20:19] and that was offered as a reason as well.

[20:22] So if anything in this case,

[20:23] that militates in favor of a conclusion

[20:26] that the prosecutor's reasons were a pretext

[20:30] and were not legitimate.

[20:32] But in any event, my point this morning

[20:37] is that if the Legislature had intended that means other

[20:45] than confirmation and an explanation

[20:48] could be used to rid a presumption

[20:54] of discrimination based upon a subdivision (g)(1) reason,

[21:00] it could rid it, the presumption,

[21:04] they would have said you could use other reasons.

[21:07] They didn't do that, and it's not really at issue here

[21:13] because the court never even got to the explanation requirement.

[21:19] You can't even get to the totality

[21:22] of the circumstances analysis

[21:24] unless you satisfy both the confirmation

[21:27] and the explanation.

[21:29] And when you don't have an explanation,

[21:32] when the trial court doesn't have an explanation,

[21:34] it doesn't have the information

[21:37] that the Legislature intended it to have

[21:39] for the exercise of informed discretion,

[21:43] the trial court cannot exercise the informed discretion

[21:48] envisioned by the Legislature.

[21:50] And that's what we have here,

[21:52] and that's why the trial court did

[21:55] not properly overrule the objection

[22:00] to the peremptory challenge to S. M.

[22:02] CHIEF JUSTICE GUERRERO: Would you like to reserve the balance

[22:04] of your ten minutes?

[22:05] MATTHEW ALGER: Yes, thank you.

[22:14] BLYTHE LESZKAY: Good morning, Your Honors.

[22:16] May it please the Court.

[22:18] Deputy Attorney General Blythe Leszkay for Respondent.

[22:21] Demeanor-based reasons are unique in jury selection

[22:24] in that they often reflect a legitimate concern

[22:28] about a juror's behavior.

[22:30] But they are subjective

[22:32] and often invisible on a cold record;

[22:36] and that makes them especially ripe for unconscious bias,

[22:41] pretext, and even outright falsification.

[22:44] The Legislature recognized this as an historical association

[22:48] with improper discrimination

[22:50] and set those reasons aside for special consideration

[22:55] under subdivision (g)

[22:58] and stated that these reasons are now presumptively invalid

[23:02] and require confirmation and explanation.

[23:05] And the confirmation/explanation requirements

[23:09] are specifically designed to combat the unique problem

[23:13] with demeanor-based reasons,

[23:16] which is to ensure that there is some information on the record

[23:20] that can be evaluated to determine

[23:22] whether or not the reason was exercised in good faith

[23:27] and beyond just the reason itself.

[23:31] And that's important because under Batson,

[23:34] the opposite was true.

[23:35] Under Batson, a reason was presumed to be valid.

[23:40] And when demeanor-based reasons were given,

[23:43] they were generally assumed to support the challenge.

[23:47] Now, subdivision (g)

[23:50] flips both of those presumptions and assumptions

[23:53] and requires that certain information be put on the record

[23:57] so that demeanor-based reasons can be evaluated

[24:01] in a meaningful way.

[24:04] The information is important and it's meaningful,

[24:07] but it is not outcome-determinative.

[24:10] And that's because subdivision (g)

[24:12] doesn't answer the ultimate question

[24:14] that the Legislature wanted every peremptory challenge

[24:18] to be evaluated for bias,

[24:20] which is would an objectively reasonable person consider race

[24:23] or other characteristics a factor in the challenge.

[24:27] And that is the key question

[24:29] that must be answered in every case where this arises.

[24:35] And subdivision (e)

[24:38] explicitly answers that question.

[24:39] Subdivision (d)

[24:41] explicitly answers that question.

[24:42] But subdivision (g)

[24:45] does not; it doesn't ask that question,

[24:46] and it doesn't answer it.

[24:48] It simply provides additional information

[24:50] for the court to be able to evaluate the demeanor

[24:54] that is given as a reason,

[24:56] along with all of the other reasons and circumstances

[25:00] that are applicable in the case.

[25:03] JUSTICE KRUGER: So what does it mean to say

[25:05] that the presumption of invalidity

[25:07] has not been overcome under subdivision (g)?

[25:09] What's the effect of that?

[25:12] BLYTHE LESZKAY: So the effect would be

[25:13] that the presumption of invalidity remains,

[25:17] and the reason is now considered in the negative weight

[25:22] and under the totality of the circumstances analysis.

[25:26] So because it remains presumptively invalid,

[25:29] it would weigh against a challenge ultimately;

[25:32] but there may be,

[25:34] depending on the other facts and circumstances,

[25:37] would still potentially be outweighed in a totality

[25:39] of the circumstances analysis under subdivision (d)

[25:43] when the question is,

[25:45] "Would an objectively reasonable person view race

[25:48] as a factor in the challenge?"

[25:50] JUSTICE LIU: Could I ask about that?

[25:51] We have that scenario here,

[25:53] where there are multiple reasons given.

[25:55] And it's not uncommon;

[25:57] we see lots of cases with multiple reasons given.

[25:59] So your contention is that if one of the reasons given

[26:07] is invalid because the presumption of invalidity

[26:10] has not been rebutted, that just goes into the weighing

[26:15] of all the other possible reasons.

[26:21] Why is that? I mean,

[26:24] if you have an improper reason that's already been given,

[26:29] why would an objective observer look at that

[26:33] and say, "Hm," you know?

[26:39] BLYTHE LESZKAY: "Presumptively invalid" under subdivision (g)

[26:42] does not mean biased.

[26:44] It cannot because a reason can be - the requirements

[26:50] of subdivision (g) can be met,

[26:53] but the explanation could potentially reveal

[26:56] bias in the reasons.

[26:57] JUSTICE EVANS: But didn't the Legislature call

[26:59] out these specific examples because of history

[27:03] and because there was a belief

[27:05] that there was an unacceptable risk of the taint of bias?

[27:10] BLYTHE LESZKAY: Yes, and that is

[27:12] why that they are considered presumptively invalid

[27:14] in the first place because we recognize

[27:18] - the Legislature has recognized the problem,

[27:20] potentially, with these kinds of reasons

[27:23] that they have room for pretext

[27:30] or unconscious bias basically behind them, right?

[27:33] Because we don't know.

[27:35] If somebody simply says that a juror was being inattentive,

[27:38] if the juror is actually being inattentive that is a quality

[27:41] that is legitimately considered undesirable in a juror.

[27:45] But saying a juror is inattentive leaves a lot of room

[27:50] open for either unconscious bias or pretext

[27:53] or other - or even falsification.

[27:56] JUSTICE LIU: So if the presumption of invalidity

[27:59] is not rebutted,

[28:02] why wouldn't the inference be that it is discriminatory?

[28:07] Because the Legislature says right in the statute,

[28:10] "The following reasons," including inattentiveness,

[28:13] "have historically been associated

[28:15] with improper discrimination."

[28:17] That's the whole point of the statute.

[28:19] In other words,

[28:21] when the presumption of invalidity hasn't been rebutted,

[28:23] there's a strong inference of discrimination.

[28:26] Isn't that the whole point of the statute?

[28:28] BLYTHE LESZKAY: The whole point of the statute

[28:30] is to prevent bias from being exercised in the use

[28:34] of peremptory challenges.

[28:36] With the demeanor-based reasons,

[28:38] the presumption of invalidity under subdivision (g)

[28:42] suggests that that is possible, right?

[28:44] Historically, there's an association;

[28:46] and we understand that that is still a possibility.

[28:49] And so through the confirmation and explanation requirements,

[28:52] we're going to require certain information

[28:54] to be put on the record that can --

[28:57] traditionally this is what has helped us to decipher

[29:01] whether the demeanor-based reason is in fact

[29:03] exercised in good faith. Without that information,

[29:07] there may still be other information in the record --

[29:12] the other circumstances under subdivision (d)(3),

[29:16] the other reasons that are given, the way

[29:18] that even the demeanor-based reasons is exercised.

[29:21] So there is a difference between if somebody saying

[29:25] that this juror was being inattentive or,

[29:27] for example in this case,

[29:29] where we have specific behaviors that the juror was engaged in

[29:32] that are described on the record and are confirmed.

[29:37] And so we can - we can - that gives us more information

[29:40] to be able to analyze the substance of the reason

[29:44] and to determine whether or not there is in fact

[29:47] still that historical association or whether or not

[29:50] that historical association has now been severed.

[29:54] The reason is now valid, and we can move -

[29:57] and it can be weighed as any other valid reason-

[29:59] JUSTICE LIU: I guess, so you're asking us - well,

[30:02] you're saying that there could be a scenario

[30:04] in which the strike is deemed proper even though

[30:09] an invalid reason was one of the reasons supplied, correct?

[30:13] A presumptively invalid reason under subdivision (g).

[30:16] JUSTICE LIU: No, not presumptively invalid - invalid

[30:19] because the presumption has not been rebutted.

[30:22] BLYTHE LESZKAY: It's our interpretation because

[30:25] the subdivision says, "presumptively invalid unless"

[30:30] that when those two requirements are not met

[30:33] that the reason remains presumptively invalid

[30:37] and can then move into an analysis under subdivision (d).

[30:45] And if we look at the example of a failure in the confirmation,

[30:48] we can understand a little bit better why this is.

[30:50] Because the confirmation -

[30:53] if a judge has simply missed what happened,

[30:57] that doesn't indicate bias.

[31:01] The reason under subdivision (g)

[31:04] would remain presumptively invalid

[31:06] because the confirmation requirement was not met,

[31:08] but that doesn't necessarily mean that the reason is biased.

[31:12] We would give that a different kind of weight

[31:15] if the judge simply doesn't happen to notice

[31:18] versus if the judge was looking and says,

[31:21] "No, that didn't happen."

[31:23] Those are two very different scenarios, and under-

[31:25] JUSTICE GROBAN: And on your point about different

[31:27] kind of weight, the second scenario,

[31:30] so if three reasons were given and the first one

[31:37] the judge says, "Oh, that's very troubling to me.

[31:40] I did not see that happen at all.

[31:42] That's a concerning basis."

[31:45] But then there are two other bases provided

[31:48] in which the judge said, "Yeah, I did see them.

[31:51] I understand your concern. I confirm them.

[31:56] They're a problem."

[31:58] As part of the totality of circumstances analysis,

[32:00] can the judge go on and say, "It's still a totality.

[32:04] I'm still going to weigh quite heavily the fact

[32:07] that the first reason you gave is something

[32:11] I didn't observe at all.

[32:13] And I am so troubled by it that in the totality analysis,

[32:18] I'm going to - even though reasons two and three are valid,

[32:24] I'm so troubled by what I perceive on issue one

[32:28] that I'm going to deem the strike invalid."

[32:31] Is that appropriate?

[32:33] Absolutely, and

[32:35] because ultimately what the Court is asking in that scenario

[32:38] is would an objectively reasonable person consider

[32:40] race a factor in the challenge.

[32:42] And if the failure to confirm or the failure to explain is such

[32:48] that it suggests that this is a really problematic reason

[32:52] and we have not eliminated the historical association

[32:56] with improper discrimination, and so that still remains.

[32:59] And when we look at the totality

[33:01] none of these other circumstances

[33:03] are sufficient to outweigh that,

[33:05] then certainly that's the end of the challenge.

[33:08] JUSTICE LIU: I guess I'm just puzzled

[33:10] by the notion of weighing here

[33:12] when the Legislature has made very clear that --

[33:16] you can call it a presumption of invalidity,

[33:18] or I think of it as invalidity -

[33:20] but the point is it hasn't been rebutted.

[33:24] If my teenage child came home late one night and I said,

[33:28] "Why," and they gave three reasons - I went to the store,

[33:33] I was studying with a friend,

[33:35] I was at the library - and one of those was not substantiated,

[33:39] would I say that that explanation as a totality

[33:43] holds water because two of them were and one of them wasn't?

[33:46] BLYTHE LESZKAY: Potentially, I guess it would depend on

[33:49] why that third reason wasn't substantiated.

[33:52] Is it simply because nobody else was there to substantiate,

[33:55] but you believe your child

[33:57] because they have a history of being truthful;

[34:00] and these other reasons are explained,

[34:03] and we have corroboration or-

[34:05] JUSTICE LIU: Well apart from the scenario

[34:07] that I think you've come back to a couple of times

[34:08] now about not noticing,

[34:10] which is the trial court not paying attention -

[34:12] which we don't normally think of in the sense of

[34:15] if the trial court doesn't confirm it,

[34:18] that's just - I mean, I don't know that many transcripts

[34:22] where the trial judge says,

[34:24] "Oh, sorry, I wasn't paying attention; I didn't see that."

[34:30] Well, jury selection is a dynamic process.

[34:33] It is the most dynamic point of a jury trial,

[34:36] and there are a lot of moving parts.

[34:39] It is a highly fact-dependent determination,

[34:44] and really no two cases are alike.

[34:46] And the trial courts really need a workable standard

[34:49] and something - a flexible standard like the totality

[34:53] of the circumstances analysis really provides

[34:56] how courts see the ability to evaluate peremptory challenges.

[35:04] And a bright-line rule,

[35:07] like Appellant is suggesting, especially for just one reason,

[35:11] a demeanor-based reason, when subdivision (g)

[35:16] does not call for a conclusive determination.

[35:19] And one of the best ways to see how subdivision (g)

[35:26] works in the statute is to compare it with subdivision (e)

[35:28] because they're very different. Even though they both look at

[35:32] and consider presumptively invalid reasons, subdivision (e)

[35:38] states that the peremptory challenge in its entirety

[35:40] is presumptively invalid.

[35:42] And in order to give meaning to the different language

[35:45] in subdivision (g), which only applies to a reason,

[35:50] they would have to be interpreted differently.

[35:53] Additionally, subdivision (e)

[35:55] addresses particularly pernicious reasons.

[35:58] These are inherently problematic kinds of reasons,

[36:01] things that are pretextual or biased on their face.

[36:04] We're talking about what a juror was wearing

[36:06] or the fact that they speak in an accent

[36:09] or know a different language.

[36:11] These are inherently problematic in a way

[36:13] that demeanor-based reasons are not.

[36:16] And additionally, subdivision (e)

[36:18] contains - it incorporates

[36:20] the objectively reasonable person standard from (d).

[36:24] It asks the same question,

[36:26] except it does so under a heightened burden,

[36:28] the clear and convincing standard.

[36:30] So it's asking the same question under a heightened standard.

[36:33] If a reason under subdivision (e)

[36:38] fails, it necessarily has to fail under (d).

[36:42] JUSTICE EVANS: Counsel, I want to ask -

[36:44] so I understand you to concede the presumption of invalidity

[36:48] was not overcome here.

[36:50] So then you say we move to the totality, right?

[36:52] BLYTHE LESZKAY: Yes.

[36:54] JUSTICE EVANS: Okay, help me understand what the role

[36:55] of a reviewing court is.

[36:57] I don't know how a reviewing court is supposed

[37:00] to look at this or fix the problem

[37:03] because how are we to determine what impact the invalid reason,

[37:09] or the presumptively invalid reason,

[37:11] had on the trial court's ultimate determination?

[37:14] BLYTHE LESZKAY: Every case is going to be really

[37:16] fact-determinative on a case-by-case analysis.

[37:20] And that's kind of the difficulty and the beauty

[37:23] of the totality of circumstances type of analysis.

[37:26] It provides flexibility to the court,

[37:30] and it also allows for a whole variety

[37:34] of circumstances that arise.

[37:36] CHIEF JUSTICE GUERRERO: But does the reviewing court defer

[37:38] to any of - what does the reviewing court do?

[37:41] Do they conduct a totality of the analysis itself?

[37:45] BLYTHE LESZKAY: It is a de novo review generally on review

[37:48] under the statute,

[37:50] and so the reviewing court would look at the subdivision (g)

[37:53] reason in this case.

[37:55] You would say that the confirmation was met.

[37:58] But in our view,

[38:00] the explanation requirement was not;

[38:02] and so it is technically not - it is not a valid reason.

[38:08] It is presumptively invalid.

[38:09] However, we do have circumstances here

[38:12] that suggest that it was exercised in good faith.

[38:16] For example,

[38:18] the fact that there was a specific behavior

[38:22] - so the juror was engaged in that the prosecutor noticed.

[38:25] And the prosecutor did explain why it stood out to him,

[38:28] because the juror was behaving differently

[38:30] from the other jurors.

[38:32] So we actually do have somewhat of an explanation here

[38:34] as to the prosecutor's thinking.

[38:36] Those facts can be assessed under the totality

[38:39] of the circumstances,

[38:41] even if we've maintained the presumption of invalidity.

[38:44] And so the reason in the whole

[38:47] would weigh in the negative balance

[38:50] because the presumption of invalidity

[38:52] has not been overcome,

[38:54] so it necessarily has to weigh in the negative.

[38:55] But because of the way

[38:58] that the reason was described in the record

[39:00] and the information that we do have,

[39:05] and because specifically the juror's behavior in this case

[39:09] goes to the basic requirements of a juror,

[39:14] we can analyze and say that, yes,

[39:17] it would weigh on the negative side of the scale

[39:19] but it wouldn't weigh particularly heavily.

[39:22] And then we have additional reasons

[39:25] that would weigh on the other side of the scale

[39:27] that are perfectly valid reasons under subdivision (d).

[39:30] And the Court could do the entire subdivision (d)

[39:33] analysis and go through those factors,

[39:34] as we did in the brief.

[39:36] JUSTICE EGERTON: Ms. Leszkay,

[39:38] could the trial court and the reviewing court

[39:40] look at the (d)(3) factors here?

[39:43] Factor one,

[39:45] was the defendant a member of the same group as the jury, yes.

[39:48] Factors two and three,

[39:50] however, was the member not a member of that group

[39:51] - the victim was Latino.

[39:54] All of the percipient witnesses were Latinx, male or female.

[39:59] Two of the six officers,

[40:01] including Zamora who seemed to be most heavily involved,

[40:04] have Hispanic surnames;

[40:06] and two of the three scientific techs have Hispanic surnames.

[40:10] Is that something the Court could properly consider?

[40:13] BLYTHE LESZKAY: Under subdivision (d)(3)

[40:16] analysis, all of those things would be factors

[40:17] to consider in addition to the way

[40:20] that the reason was described in the record,

[40:22] in addition to other reasons

[40:24] that were proffered by the prosecutor.

[40:27] In this case,

[40:29] that the juror gave reasons that were brief

[40:31] and that the victim - there was another Hispanic juror

[40:37] and that the prosecutor preferred other jurors

[40:41] in the next group of six.

[40:43] And so those are all valid reasons.

[40:45] And when you look at the totality of all of the reasons

[40:49] that the prosecutor gave,

[40:51] you can make an evaluation of

[40:53] whether an objectively reasonable person would consider

[40:56] race a factor in the challenge.

[40:58] And because you can make that analysis,

[41:01] we believe that it's appropriate to do so.

[41:04] Our interpretation is really

[41:06] the most straightforward reading of the statute.

[41:08] It's consistent with the language, the structure,

[41:12] and the Legislature's intent.

[41:14] It prevents absurd results,

[41:17] and Appellant doesn't disagree that it prevents -

[41:23] or that his interpretation results in potential absurdities

[41:28] but says that is unfortunate.

[41:30] We consider that to be an unreasonable reading

[41:33] of the statute, and especially in a statute like this

[41:36] where automatic reversal is the result.

[41:39] That is a drastic result

[41:41] that the Legislature didn't intend for something less

[41:44] than a finding under subdivision (d)

[41:48] that an objectively reasonable person would view race

[41:49] as a factor in the challenge.

[41:54] To apply the statute as broadly as possible,

[41:56] which is the Legislature's intent,

[41:58] it's important that the totality of the analysis

[42:00] under subdivision (d)

[42:02] be applied whenever possible with an eye

[42:04] towards eliminating bias in jury selection.

[42:07] And that's the most appropriate means

[42:09] of accomplishing the Legislature's goal.

[42:11] The purpose of the statute is to eliminate bias

[42:13] in jury selection, not to make sure

[42:16] that the court is looking at every appropriate time

[42:18] or that better explanations in general are met

[42:22] or that the court and counsel

[42:25] are paying attention to the specific details of the statute

[42:29] and what it requires.

[42:31] The overall question is really

[42:36] to best effectuate the Legislature's purpose,

[42:39] every challenge should be evaluated under subdivision (d).

[42:43] And we ask the Court to affirm. Thank you.

[42:45] CHIEF JUSTICE GUERRERO: Thank you.

[42:57] MATTHEW ALGER: Let me start out by addressing

[43:00] this idea of absurdity.

[43:06] It is not absurd to require the trial court

[43:12] to pay attention to what's going on,

[43:15] to require prosecutors and defense counsel

[43:19] to be aware of the law and to follow it.

[43:24] If any absurdity results from the examples cited

[43:28] by Respondent, it's not a result of the statute;

[43:34] it's a result of the incompetence of counsel

[43:38] and the failure of the trial court to do its job.

[43:44] JUSTICE GROBAN: What do you mean by "incompetence"?

[43:46] I'm thinking of a situation

[43:48] in which you have 60 prospective jurors in the courtroom.

[43:54] They're not even all sitting in the box.

[43:56] And the assertion is Juror No. 57

[44:01] sitting in the fourth row was - the lawyer says,

[44:07] "I could see her furtively glancing at her cell phone."

[44:13] The judge says, "A lot was going on; I just can't confirm that."

[44:18] That's incompetence?

[44:20] MATTHEW ALGER: (Laughing) Well,

[44:23] it is the judge's obligation to pay attention

[44:26] to what's going on.

[44:28] It's counsel's obligation to pay attention to what's going on

[44:33] and to be informed of the law on this subject.

[44:39] That's what I was more or less referring to.

[44:43] For instance in this case,

[44:45] the prosecutor did not appear to be familiar with

[44:49] the provisions of Code of Civil Procedure for Section 231.7

[44:53] and an obligation to know that law.

[44:57] And when you're going to exercise a challenge,

[45:05] obviously it's going to be when the jurors are in the box.

[45:08] Or if you have a 6-pack method

[45:10] when you've got - what - 18 people up front,

[45:14] you don't necessarily have to observe

[45:16] everyone in the audience.

[45:18] But what I just heard from Respondent

[45:25] is that the court doesn't have to follow the law.

[45:28] I mean, that's basically what it comes down to -

[45:32] that the court doesn't have to follow

[45:34] the explanation requirement

[45:37] because it can just go on to the totality

[45:41] of the circumstances analysis. But as I said before, the court

[45:45] doesn't even get there unless it satisfies subdivision (g)(2).

[45:53] And given that the reasons identified in subdivision (g)(1)

[46:00] have been associated with discrimination historically,

[46:05] then if that confirmation and explanation

[46:10] requirement is not satisfied,

[46:13] then it's established that the reason given is discriminatory.

[46:19] CHIEF JUSTICE GUERRERO: I'm not sure that

[46:21] that is an accurate description of counsel's argument,

[46:25] that they're suggesting the court not follow the law.

[46:27] That's just a differing interpretation

[46:29] of what the law is.

[46:31] MATTHEW ALGER: Well, no,

[46:32] I mean look what we have here in this case.

[46:34] The court didn't follow the explanation requirement.

[46:38] And Respondent is saying that doesn't matter.

[46:41] Well, that would mean the court doesn't have to follow

[46:44] the explanation requirement.

[46:46] JUSTICE CORRIGAN: Well, Counsel, I think it's a matter of degree.

[46:48] Suppose behavior is that Juror No. 4

[46:52] lit up a cigarette and in the process set Juror No. 3 on fire.

[46:58] [Laughter]

[46:59] Would we say that the challenge fails

[47:03] because the lawyer didn't say,

[47:06] "You know, I just think setting another juror

[47:08] on fire might be a problem during the course

[47:10] of this ten-week trial, Judge."

[47:12] I mean, are we going to be so formulaic

[47:17] that we can't rely - now, I'm agreeing with you

[47:24] that I have intentionally chosen a reductio ad absurdum argument.

[47:30] But the question is whether it is - whether you are arguing

[47:35] for a standard that is so formulaic

[47:39] that in its absence logic and reason have no role.

[47:44] MATTHEW ALGER: As I said,

[47:45] the standard has very broad application

[47:48] because it was intended to cover a whole variety of situations.

[47:54] And perhaps it could have been drafted differently;

[47:58] but it wasn't, and so it needs to be applied literally.

[48:04] And there will be reasons or occasions

[48:08] when it's applied and it's obvious

[48:11] that the reason is not discriminatory given

[48:16] what happened;

[48:18] but the explanation is required to be given, and then you go on.

[48:21] It's not a big deal except that the Legislature required it.

[48:28] Let me address subdivision (e) versus subdivision (g)(2).

[48:38] Subdivision (e) does have a requirement

[48:43] that it be shown by clear

[48:45] and convincing evidence

[48:46] that an objectively reasonable person would view

[48:48] the rationale as unrelated to a prospective juror's race.

[48:53] Well, subdivision (g)(2)

[48:57] doesn't have that because it's not necessary.

[48:59] It's been established by the failure to satisfy that test

[49:04] that you have an invalid reason,

[49:06] and the reason it's invalid is

[49:08] because it's improperly discriminatory.

[49:14] And you don't need that; you don't even need to go there.

[49:17] And my point today

[49:21] is that you don't even get to a totality

[49:26] of the circumstances analysis;

[49:30] you don't even - you can't get there unless

[49:33] you satisfy both requirements of subdivision (g)(2).

[49:42] You can't bypass one of them and just say,

[49:45] "Oh, under the totality of the circumstances,

[49:48] the strike is fine." And that's what happened here.

[49:51] So with that,

[49:53] unless the Court has some questions, I will submit it.

[49:56] CHIEF JUSTICE GUERRERO: Thank you.

[49:58] The Court thanks both parties for your arguments here today.

[49:59] The matter is submitted. Calling the next matter,

[50:11] Conservatorship of the Person of E. A.

[50:14] On this case,

[50:18] the Court is pleased to welcome Justice Delaney

[50:20] from the Fourth District Court of Appeal.

[50:38] BRIAN McCOMAS: Thank you, Chief Justice,

[50:40] and the Associate Justices of this Court.

[50:43] If it pleases everyone,

[50:45] Brian McComas on behalf of Appellant E. A.

[50:47] Freedom is openly on trial in any civil commitment proceeding;

[50:54] and at the same time,

[50:55] a trial is needed for a committed person

[50:58] to obtain their freedom.

[51:00] And here's the crux of the problem underlying the issue

[51:04] that the Court considers today.

[51:06] Whether the conserved person must demonstrate prejudice

[51:10] when there's a 362-day delay in the initiation of trial,

[51:15] resulting in a violation of due process and equal protection.

[51:20] And no prejudice analysis can quantify

[51:24] how the denial of freedom harms an individual

[51:29] when the commitment period effectively lapses,

[51:33] and the functional denial of due process

[51:36] is what occurred in this case.

[51:38] No trials occurred between the date of the demand - December 2,

[51:43] 2022 - and the resolution of the case, November 28, 2023.

[51:49] JUSTICE EVANS: Counsel, how do we think about the fact

[51:52] that the purpose of the conservatorship

[51:55] is to provide necessary treatment?

[51:58] How do we factor that into any prejudice analysis

[52:03] or thinking about any remedy?

[52:04] BRIAN McCOMAS: The purpose is treatment,

[52:06] and the purpose is also swiftness.

[52:08] The institutionalization combined with treatment

[52:13] at times can be competing goals.

[52:16] But the treatment factor must be considered in the test

[52:19] I'm going to get to when we talk about

[52:22] whether excessive delays in bringing a person to court over

[52:25] and over again is actually serving the treatment purpose.

[52:29] And here, over one dozen continuances were granted

[52:33] over my client's objections.

[52:36] Seven motions to dismiss

[52:38] were denied over my client's objections.

[52:42] Two petitions for appointment were stacked upon one another

[52:46] in what appears to be a practice and pattern in that county.

[52:50] And one petition wasn't even adjudicated.

[52:53] JUSTICE KRUGER: Can I ask you what is the remedy

[52:57] that you are seeking for the alleged due process violation

[53:01] with respect to the 2022 petition?

[53:06] I understand that your clients accepted the conservatorship

[53:10] for the following year,

[53:16] and you're appealing from that judgment.

[53:20] What is the appropriate remedy if we were to decide

[53:23] that a due process violation occurred on a previous petition?

[53:28] BRIAN McCOMAS: And I believe the appeal included

[53:30] both in the carve-out that was made on the last day.

[53:32] They wanted to preserve the speedy trial

[53:34] and due process rights as to the petition

[53:36] that was never adjudicated.

[53:38] But to answer Your Honor's question,

[53:40] we would ask for a dismissal.

[53:42] And I know that sounds like a Pyrrhic victory.

[53:44] JUSTICE KRUGER: A dismissal of what?

[53:45] BRIAN McCOMAS: Of that old petition.

[53:47] JUSTICE KRUGER: Of the 2022?

[53:48] BRIAN McCOMAS: Yes.

[53:49] JUSTICE KRUGER: Okay, so you are not suggesting

[53:51] that there's any connection between the 2022

[53:53] and the 2023 -- that resolution?

[53:57] I understand that there have since been

[53:58] even more developments in the matter.

[54:01] But you're agreeing that the 2023 outcome remains in place,

[54:08] and you would ask for a retroactive dismissal

[54:10] of the 2022 petition even though it's since been superseded?

[54:14] BRIAN McCOMAS: Well not necessarily, Your Honor.

[54:17] The stacking question I guess would be implicated by this.

[54:21] Does an invalid petition that violates a commitment period

[54:25] - does that taint a later commitment petition

[54:29] that's stacked on top of that? At this point,

[54:31] as Your Honor knows,

[54:33] my client is not in the conservatorship anymore.

[54:35] And we did our best to get this up in front of the courts

[54:39] at a time when a remedy might have been more palpable for her.

[54:44] But I think if we focus on

[54:46] how could this have been remedied in time

[54:48] when it mattered and we look at the 2022 petition,

[54:52] because that is when this would have mattered,

[54:54] we would have started with dismissal.

[54:56] But there are lesser remedies. There's remedies like release.

[54:59] There's remedies like less-restrictive placement.

[55:04] And this was never a question,

[55:06] but my client might have had remedies like restoring some

[55:09] of her rights and taking away some of the special-

[55:11] CHIEF JUSTICE GUERRERO: Why would a writ not be a better

[55:15] path to pursue for this type of relief that you're requesting?

[55:20] Well, if they're having trouble getting into a courtroom

[55:23] and then they file a habeas petition,

[55:26] this goes to the same department that's already overburdened.

[55:30] And habeas is generally a slower remedy than demand for trial

[55:33] that is set out with 10-15 days in Section 5350,

[55:38] I don't think that's really an efficient way

[55:40] for them to get to a trial.

[55:44] The other question I think that's interesting here

[55:46] too is the delay of the trial is so long here

[55:50] that other aspects of the statute

[55:52] are essentially nullified.

[55:54] So if there was a timely trial,

[55:57] my client might have been able to seek rehearing

[55:59] in a timely fashion.

[56:01] If there was findings as to disabilities or placement,

[56:03] my client might have been able to file a motion

[56:06] for reconsideration of those issues.

[56:09] But since there's just a petition hanging out in ether,

[56:13] there's no real ability for her to implement any

[56:15] of the other rights that are tied into the LPS Act.

[56:17] JUSTICE DELANEY: Mr. McComas? BRIAN McCOMAS: Yes?

[56:19] JUSTICE DELANEY: Let me take you back to the question

[56:21] the Chief Justice asked you about the writ.

[56:22] Are you suggesting then

[56:24] that the trial court - you're expecting the trial court

[56:26] in this scenario, or a scenario like this,

[56:28] to treat the petition for writ of habeas corpus

[56:31] in the same manner they're treating the request for trial?

[56:33] Do you not think it would garner more attention

[56:36] and more expediency addressing some of the issues

[56:38] that you're raising?

[56:40] BRIAN McCOMAS: I don't think it would

[56:42] because we're setting trials on a monthly basis,

[56:44] making demands every month.

[56:46] I file a habeas petition; maybe I get an informal reply,

[56:50] maybe I get an order to show cause.

[56:51] I do a return; I do a denial.

[56:53] We're not doing this in 30 days.

[56:55] They're coming to court every 30 days.

[56:57] Moving to dismiss,

[56:59] asserting my client's rights as frequently as possible,

[57:00] is really the only way of effectively asserting

[57:03] those rights under the LPS.

[57:04] JUSTICE EVANS: Counsel, just to follow up the writ series

[57:08] of events that you just articulated, is that based on

[57:10] actual experience; or are you speculating?

[57:13] BRIAN McCOMAS: That is based on my writ experience.

[57:14] It can be expedited.

[57:16] A judge can issue an order to show cause right away.

[57:19] But the Respondent usually has their own due process rights

[57:21] that usually at least require a filing of a return

[57:24] and a denial of the allegations.

[57:28] But just to get back to sort of where I wanted to start this,

[57:33] the question of treatment that you started with,

[57:36] Justice Evans, is a complicated factor

[57:41] that cannot be quantified in an analysis of harmless error.

[57:45] It cannot be quantified in an analysis of an impairment

[57:48] of the evidence to be introduced at trial,

[57:51] and nor can the types of enduring attachments

[57:56] of a normal life that we take away from the conserved person

[57:59] be analyzed in a prejudice-styled analysis

[58:02] from the Barker/Camacho cases.

[58:05] And I think when we get to it,

[58:08] I have a test that does sort of fit the LPS Act better.

[58:14] But I think we have to keep this in mind

[58:17] when we're thinking about an Act that's created to protect

[58:20] the most hyper-marginalized people in our society.

[58:23] JUSTICE EVANS: So are you saying we

[58:25] shouldn't be thinking about treatment

[58:27] and any prejudice analysis?

[58:28] But is it appropriate to think about treatment

[58:30] in terms of remedy?

[58:31] BRIAN McCOMAS: Yes, absolutely.

[58:33] JUSTICE EVANS: Okay.

[58:34] BRIAN McCOMAS: I also think it's appropriate

[58:35] to think of treatment in terms of

[58:37] whether the due process violation has occurred,

[58:40] and I want us to get to that.

[58:44] I think one thing that would be very helpful in this field

[58:48] is an opinion from this Court just saying

[58:52] that Section 5350 is backed by due process.

[58:55] If you look at the cases we've discussed,

[58:57] there is not a clear statement of that.

[59:00] There's not a clear statement, as far as I can tell,

[59:02] in this Court's precedent of that.

[59:04] And that type of promise,

[59:06] that type of delivery to the lower courts,

[59:09] in itself provides greater protections.

[59:12] And we know this has to be true

[59:14] because Section 5350 has created liberty interests.

[59:17] Those liberty interests protect against bodily restraint,

[59:21] which is at the core of the due process protections.

[59:25] And we know that Section 5350

[59:27] is trying to guarantee conserved people trial

[59:30] in a meaningful manner at a meaningful time.

[59:33] And so due process must apply if the statute is violated,

[59:37] perhaps not just by one day;

[59:40] perhaps it has to be more extreme.

[59:42] But without that type of backing by the Court,

[59:46] we will see longer delays.

[59:51] I look to Justice Corrigan and her Opinion in John L.

[59:55] when we talk about what type of test

[59:57] I'd like to see applied here which is the private interest,

[1:00:02] the risk of erroneous deprivation,

[1:00:04] the government interest,

[1:00:06] and where I think this addresses Justice Evans'

[1:00:08] concerns about treatment of the dignity interest

[1:00:11] of the conserved person. And when we look at that,

[1:00:14] we can see that the private interest is usually

[1:00:16] at its maximum - that commitment is much like incarceration

[1:00:21] in terms of the rights we're depriving of the person.

[1:00:25] And we know that timely trials increase accuracy

[1:00:28] in terms of verifying the allegations

[1:00:30] in the commitment petition.

[1:00:32] And we know the government really doesn't have

[1:00:34] an interest in delay in these cases because

[1:00:37] the LPS Act sets out a series of timelines that are swift.

[1:00:42] And at the end of the day,

[1:00:44] delay is a violation of the dignity interest.

[1:00:49] It is not recognizing the committed person

[1:00:53] as a person with preferences, preferably probably

[1:00:56] not to come back to court over and over again.

[1:01:00] And so if we do recognize that due process applies,

[1:01:04] then the question is, well, what process is due.

[1:01:07] And the process that is due

[1:01:09] does have to balance medical objectives

[1:01:12] but also swift legal proceedings.

[1:01:16] And this is where the prejudice analysis from Camacho and Barker

[1:01:20] can't quite quantify the issues.

[1:01:23] And it's hard for me to even think of

[1:01:27] how we describe prejudice in terms of the social death

[1:01:33] we impose on a conserved person.

[1:01:37] How do we measure what it feels like not

[1:01:40] to be treated as an equal, fully participating

[1:01:43] and a responsible member of our society?

[1:01:45] CHIEF JUSTICE GUERRERO: What if there is no dispute

[1:01:47] about the grave disability of that individual

[1:01:49] at any time in the proceeding?

[1:01:53] BRIAN McCOMAS: In terms of no dispute,

[1:01:54] there still could be other issues, Your Honor.

[1:01:56] And less restrictive placement might be the most important one

[1:02:00] for somebody, moving closer to their home and their loved ones.

[1:02:04] There could be a dispute perhaps - perhaps not a dispute,

[1:02:09] but there could be an issue about

[1:02:10] whether there's a third party

[1:02:12] who might want to provide shelter, clothing,

[1:02:16] and care for these people.

[1:02:18] JUSTICE EVANS: Did any of those negotiations

[1:02:19] occur during this lengthy process - efforts

[1:02:22] to ask for less restrictive placement

[1:02:24] or any other accommodations in light of the delay?

[1:02:27] BRIAN McCOMAS: There is not a record of that below

[1:02:30] until the November 28th date.

[1:02:33] But I think that really gets to

[1:02:35] why the right to jury trial is so important, right?

[1:02:38] It's the anchor that holds the government

[1:02:41] to the promises of the Constitution.

[1:02:43] It is the way that a person who feels

[1:02:46] they're not being treated correctly,

[1:02:48] maybe even not in a dignified manner, can be heard.

[1:02:52] And maybe even if they're just frustrated, have that exhausted.

[1:02:57] But without that demand,

[1:02:59] there is no negotiation on these lesser things.

[1:03:02] And that's why I think a test

[1:03:04] that really evaluates the dignitary interests

[1:03:06] would incorporate more oral participation

[1:03:09] from the conservatee

[1:03:11] and potentially foster greater resolution.

[1:03:13] Because if there is - this is a case where it's not contested.

[1:03:18] Grave disability is not contested,

[1:03:20] and we really should be getting to the other issues

[1:03:23] that are creating the contest in the courtroom.

[1:03:26] JUSTICE GROBAN: I just want to make sure I understand.

[1:03:29] I understand you to be saying that the continuances in

[1:03:34] and of themselves in the process of kind of going back

[1:03:37] and forth to court and the delay,

[1:03:39] that that in and of itself is disruptive to treatment.

[1:03:44] I have some sense of what you mean;

[1:03:45] but to the extent I'm understanding you correctly,

[1:03:47] can you elaborate a little bit? BRIAN McCOMAS: Yes, I mean,

[1:03:51] there is only a record of three appearances

[1:03:54] by my client at these hearings.

[1:03:56] But there are records of attempts to get her remotely.

[1:03:59] There is records of how these appearances interfere

[1:04:03] with family visits,

[1:04:05] and all of which is not conducive to stability,

[1:04:08] which is what the conservatee ideally would need

[1:04:12] in a regimented treatment

[1:04:14] that is only supposed to last one year.

[1:04:18] The other aspect in the case law I think

[1:04:20] that the Court can really help us out with

[1:04:21] is this question of prejudice

[1:04:24] is really not fully developed in a way that I think is coherent.

[1:04:29] If we look at James M., which is the first case

[1:04:32] to address a violation of Section 5350,

[1:04:35] a nominal violation of 11 days or something,

[1:04:39] it just says no prejudice.

[1:04:41] And as we go down the line,

[1:04:43] we actually have the case of Jose B.

[1:04:46] where it does the factor test from John L.

[1:04:49] and then just throws in no prejudice.

[1:04:51] And if we go further, we go to T. B.

[1:04:55] where it assumes the Camacho test;

[1:04:57] but it also recognizes the parties in the brief

[1:05:00] whether Camacho applies.

[1:05:02] And so I think we really need some kind of guidance

[1:05:06] on what is the test,

[1:05:07] particularly in light of the most recent decision, A. H.,

[1:05:09] which does do the full test under Barker

[1:05:14] and recognizes that this decision is pending

[1:05:17] before this Court.

[1:05:24] And I think the other issue

[1:05:26] that the Court needs to consider here

[1:05:28] is that the Barker test is ill-suited

[1:05:30] for questions or remedies.

[1:05:33] It recognizes that in the Barker Opinion,

[1:05:36] and it also is recognized in footnote 5 of Camacho.

[1:05:40] But the John L.

[1:05:42] test actually is built for incorporating potential remedies

[1:05:46] by looking at the conservatee's dignitary interests

[1:05:50] - what is the reason they're demanding trial,

[1:05:52] what is the reason

[1:05:54] that promoting their oral participation.

[1:06:01] And I think that it's a better test for that reason.

[1:06:04] Very briefly wanted to just discuss equal protection.

[1:06:10] We recognize that going on 100 years now,

[1:06:13] civil commitments are not entitled to the same rights as

[1:06:16] in criminal cases.

[1:06:17] But I don't think that the question is necessarily

[1:06:21] of superior versus inferior as to rights.

[1:06:23] It's a question of uniqueness.

[1:06:25] And LPS Act is very unique with to a history of California.

[1:06:31] And the California Constitution also has a unique place

[1:06:35] in this decision.

[1:06:36] And so what I'd ask the Court to do is to look at

[1:06:40] how there's not adequate justifications

[1:06:42] to graft procedures from SVP proceedings into LPS proceedings

[1:06:49] because LPS proceedings must go quickly.

[1:06:51] There's no reasonable basis to adopt a test

[1:06:53] that permits indefinite delay for a commitment period

[1:06:57] that doesn't exist.

[1:06:59] LPS people do not necessarily pose a danger to society,

[1:07:02] so there's not a justification for holding them

[1:07:04] in prison-like facilities for as long as necessary

[1:07:07] to reduce that danger.

[1:07:09] And LPS defendants face stigmatization

[1:07:12] for no moral blame or weakness of their own.

[1:07:15] And again, in this function it is of treatment

[1:07:18] in the swiftest manner possible.

[1:07:20] And so there really are no similarities

[1:07:22] between SVP proceedings and LPS proceedings

[1:07:26] that would justify using the Camacho case here.

[1:07:29] And so we would argue it is an unequal application of the law.

[1:07:36] CHIEF JUSTICE GUERRERO: What two groups are you comparing?

[1:07:38] You said the SVP and the LPS?

[1:07:40] BRIAN McCOMAS: Yes. CHIEF JUSTICE GUERRERO: Okay.

[1:07:47] BRIAN McCOMAS: And I think

[1:07:49] that you could look at also the Camacho Opinion to the extent

[1:07:51] that that provides a test of what type of test should apply.

[1:07:56] There's a discussion on that too.

[1:07:57] We appreciate the consideration.

[1:08:00] But if you do that type of test even,

[1:08:04] it doesn't really make a ton of sense in the LPS context.

[1:08:08] CHIEF JUSTICE GUERRERO: I guess I'm - can I just go back?

[1:08:09] I'm not clear on the equal protection argument

[1:08:11] that you're asserting.

[1:08:14] Are you asserting the two groups are treated

[1:08:16] similarly or differently?

[1:08:18] BRIAN McCOMAS: I would be asserting

[1:08:20] that it's unfairly treating them similarly

[1:08:23] if you graph on these tests from SVP proceedings to LPS.

[1:08:27] It gets a little bit of an inverse there.

[1:08:32] And if you look at it though, you can see why.

[1:08:34] Because in Camacho,

[1:08:36] Your Honor recognized that there is incentive to delay,

[1:08:41] to manipulate the system.

[1:08:43] But there would be no such incentive in LPS proceedings.

[1:08:46] And Your Honor also recognized there's no fixed point

[1:08:50] in the process where a trial must occur.

[1:08:52] To the contrary,

[1:08:54] in LPS proceedings there is a fixed point

[1:08:55] both by statute within the commitment period --

[1:08:59] or within the 10 and 15 days and the entire commitment period.

[1:09:04] Your Honor did recognize

[1:09:06] that delay causes anxiety in both types of proceedings.

[1:09:08] But it's not just anxiety;

[1:09:10] it's contrary to the purpose of LPS Act proceeding,

[1:09:14] which is to provide treatment

[1:09:16] and ideally get them out of the commitment.

[1:09:19] And we can definitely say in an LPS Act proceeding,

[1:09:22] unlike an SVP proceeding,

[1:09:25] that we know how long is too long

[1:09:30] because Section 5362 and Section 5361

[1:09:32] say commitment terminates at one year.

[1:09:35] And we know that a trial that doesn't occur within

[1:09:38] that is too long.

[1:09:40] And I would say the same is true for a trial

[1:09:43] that effectively lapses that commitment period.

[1:09:49] I do want to just touch on what I think is a true point --

[1:09:56] that the California Constitution on appeal

[1:09:58] requires a finding of miscarriage of justice

[1:10:00] for a reversal if my remedy is as to the 2022 petition

[1:10:05] and that miscarriage of justice

[1:10:07] is typically framed as prejudice.

[1:10:09] I do think the court can separate that

[1:10:11] for what lower courts need to do to apply a due process test

[1:10:15] on motions to dismiss. But in my unique context,

[1:10:19] I wanted to address why my client was harmed;

[1:10:21] and I'll just start with the fact that this is

[1:10:23] the longest reported delay to trial in an LPS case.

[1:10:28] That delay was so long that we eventually

[1:10:31] waived the right to jury trial, that my client

[1:10:34] couldn't get a trial like the defendant in A. H. --

[1:10:37] or the committed person in A. H.

[1:10:39] And during that time,

[1:10:42] my client was essentially prevented

[1:10:43] from receiving the less-secure

[1:10:45] or the less-restrictive placement

[1:10:47] that apparently they were seeking the whole time

[1:10:50] and were entitled to upon agreement.

[1:10:52] They were prevented from petitioning for rehearing.

[1:10:55] They were prevented from petitioning for reconsideration.

[1:10:58] They were denied access to multiple hearings;

[1:11:01] denied oral participation in the case;

[1:11:04] increased anxiety and concern; ongoing stigmatization;

[1:11:08] and I have to admit, even for me,

[1:11:11] constant confusion over the process,

[1:11:13] which is antithetical to treatment.

[1:11:16] At base we find the oppressive stacking of petitions a practice

[1:11:20] that essentially could eliminate the right to jury trial.

[1:11:25] The practice of ratifying

[1:11:27] can also eliminate the right to jury trial.

[1:11:30] So what we need is an interpretation of the statutes

[1:11:34] that enforces that right

[1:11:36] and does so with the backing of due process.

[1:11:39] And at base,

[1:11:41] how can the State provide shelter, food, care,

[1:11:44] clothing, safety,

[1:11:46] if the State cannot even provide timely trials?

[1:11:49] And we can't delegate LPS proceedings

[1:11:54] as sort of the judicial banishment for the crestfallen.

[1:11:57] It can't be that they're so deprioritized

[1:12:01] that the LPS Act becomes a dead letter.

[1:12:05] So we can't sanction this pattern of stacking,

[1:12:08] and we have to bring forth an interpretation of due process

[1:12:12] that aligns with some idea of therapeutic jurisprudence.

[1:12:16] And so I ask that the standard this Court selects recognizes

[1:12:21] persons with mental illness

[1:12:23] are the most vulnerable in our society.

[1:12:26] And if we don't incorporate a standard

[1:12:28] that protects their rights,

[1:12:30] they will just continue to suffer those vulnerabilities

[1:12:33] in the courtroom.

[1:12:35] So specifically what I'm asking is dismissal.

[1:12:39] Alternatively, remand with the application of John L.

[1:12:43] in the lower court or remand for greater evaluation

[1:12:48] of the equal protection rights we discussed.

[1:12:50] And I will sit for a moment. Thank you.

[1:12:52] CHIEF JUSTICE GUERRERO: Thank you.

[1:13:01] ANDREA RUSSI: May it please the Court.

[1:13:03] Andrea Russi on behalf of the Contra Costa Public Guardian.

[1:13:08] There is no question that there was a lengthy

[1:13:10] and unfortunate delay in Appellant's

[1:13:13] conservatorship trial.

[1:13:16] But even if the trial court erred in failing

[1:13:21] to sufficiently make good cause findings for the continuances

[1:13:26] or in denying Appellant's motions to dismiss,

[1:13:30] Appellant still must demonstrate prejudice.

[1:13:35] Appellant argues that in a case with a lengthy delay prejudice

[1:13:41] should be presumed,

[1:13:43] and the Court should apply the test from Matthews and John L.

[1:13:47] that doesn't have a prejudice requirement.

[1:13:50] We disagree and believe that the proper framework

[1:13:53] to evaluate a due process violation in a trial delay

[1:13:57] is the four-factor test from Barker v. Wingo

[1:14:00] that this Court applied in Camacho.

[1:14:04] As this Court noted in Camacho,

[1:14:06] the factors considered in Mathews

[1:14:09] are all matters already addressed and

[1:14:11] with somewhat greater specificity

[1:14:14] by the Barker factors.

[1:14:16] The Mathews test is better suited to questions

[1:14:19] about the adequacy of procedures in government decision-making.

[1:14:25] As both the United States Supreme Court

[1:14:27] and this Court have recognized,

[1:14:28] the right to a speedy trial

[1:14:30] is a more vague concept than other procedural rights;

[1:14:35] and it's hard to quantify how long is too long for a delay.

[1:14:41] JUSTICE CORRIGAN: Well, that's kind of why we have judges,

[1:14:42] right? ANDREA RUSSI: Correct.

[1:14:44] JUSTICE CORRIGAN: Because they're supposed to take

[1:14:45] all those things into account. What I worry about, Counsel,

[1:14:49] is the way the standard you suggest applies

[1:14:55] it could be argued that even

[1:14:57] though the trial was delayed to the 360th day, oh well,

[1:15:06] the court found that there was indeed evidence

[1:15:09] of grave disability so what the heck?

[1:15:13] What the heck, we didn't follow the statute;

[1:15:16] and there weren't really very good reasons for not doing that,

[1:15:20] but close enough because clearly there's a mental issue here.

[1:15:27] How do we structure a standard

[1:15:33] that doesn't support that kind of kind of

[1:15:37] "what the heck" evaluation of error?

[1:15:41] Because the "what the heck" standard

[1:15:42] really doesn't do it for me.

[1:15:45] ANDREA RUSSI: I think that adopting the Barker standard

[1:15:49] with a consideration of prejudice

[1:15:52] allows for consideration of the conservatee's dignity interests.

[1:16:01] And it goes beyond just looking at

[1:16:05] whether there was prejudice from the trial delay.

[1:16:10] And admittedly, that is something

[1:16:11] that's difficult to prove in a case like this

[1:16:14] where she was found gravely disabled in 2020,

[1:16:18] in 2021, and again-

[1:16:20] JUSTICE EVANS: Well, can there ever be prejudice

[1:16:22] if the person is subsequently found gravely disabled?

[1:16:24] I think if we are just considering prejudice

[1:16:29] in the delay of trial, that might be difficult.

[1:16:32] But the Barker test allows for consideration

[1:16:34] of the other aspects of prejudice including the impact

[1:16:40] of the pretrial confinement, stigma, anxiety,

[1:16:44] and concern - all in addition to the prejudice

[1:16:48] to the trial itself.

[1:16:50] JUSTICE KRUGER: Can I ask you whether the prejudice inquiry

[1:16:53] in your view is appropriately considered only as one

[1:16:57] of several Barker/Camacho factors,

[1:17:00] or is there also a prejudice inquiry

[1:17:02] that informs the appropriate remedy

[1:17:05] if a court were to determine that a proposed conservatee's

[1:17:10] due process rights were violated?

[1:17:12] in other words, if we have a situation

[1:17:15] where an individual is concededly gravely disabled

[1:17:19] throughout the period in question,

[1:17:22] would the prejudice or lack thereof

[1:17:27] that they suffered by virtue

[1:17:29] of not having a trial on one of the intermediate reappointments

[1:17:33] of the conservator affect

[1:17:37] whether or not some sort of adjustment,

[1:17:42] retroactive or otherwise to their conservatorship,

[1:17:46] is an appropriate remedy? ANDREA RUSSI: I think

[1:17:50] that that is - that can be a consideration.

[1:17:54] And I think the posture of by the time

[1:18:00] the case gets to the Court of Appeal,

[1:18:02] the posture below

[1:18:04] may have changed which makes it difficult

[1:18:07] to determine what the appropriate remedy is.

[1:18:11] For the conservatee, I think evaluating the prejudice

[1:18:17] and whether or not that should have necessitated

[1:18:22] dismissal goes to both what the remedy is for the conservatee

[1:18:26] and what has happened in other cases of finding

[1:18:31] that the trial court abused its discretion by

[1:18:35] not dismissing the case due to prejudice.

[1:18:40] But again, it's difficult because in this case

[1:18:45] that petition is already over; she is no longer a conservatee.

[1:18:55] So it appears that Appellant's

[1:18:58] primary concern is that the Barker test doesn't allow

[1:19:02] for protection of a conservatee's dignity interests

[1:19:08] and that it's next to impossible

[1:19:10] for the conservatee to prove prejudice.

[1:19:14] As I said, I think the dignity interests can be evaluated;

[1:19:18] and we saw that most recently in a case out

[1:19:24] of the First District, Conservatorship of A. H,

[1:19:26] where the court found that the conservatee's

[1:19:32] trial rights were not prejudiced but still found prejudice

[1:19:37] because the conservatee had suffered anxiety and concern.

[1:19:42] In that case,

[1:19:44] the conservatee had never been found gravely disabled before,

[1:19:46] had never been part of the conservatorship process.

[1:19:51] And so the court there looked at the factors

[1:19:54] that were involved and ultimately found

[1:19:56] that the petition should be dismissed in that case

[1:20:00] due to the types of concerns

[1:20:02] that Appellant is raising - the stigma

[1:20:05] and the impact of the confinement on the conservatee.

[1:20:12] To Appellant's argument that it's impossible

[1:20:15] to show prejudice, in Conservatorship of T. B.

[1:20:22] there was 171 delay; and the court found no prejudice.

[1:20:28] In Jose B., there was 137-day delay,

[1:20:31] and the court found no prejudice.

[1:20:34] But I think based on the decision in A. H.,

[1:20:39] it is possible to find prejudice.

[1:20:41] And I think that the benefit of that decision

[1:20:48] is the court found

[1:20:50] that the trial court had abused its discretion

[1:20:54] in the substantial delay.

[1:20:56] And I think that that sends a message to the trial court

[1:21:00] that even though the language in the statute

[1:21:04] doesn't identify - that's the discretion with the trial court,

[1:21:09] but under Rule 3.1332,

[1:21:13] the trial court needs to make good cause findings.

[1:21:18] And I think that those findings were

[1:21:21] not adequately articulated in that case.

[1:21:24] And so that is sort of the role of the appellate process --

[1:21:28] is to provide guidance to the trial courts

[1:21:30] that perhaps even

[1:21:32] though the trial court has vested discretion

[1:21:34] with the trial court under Section 5350,

[1:21:37] that the court needs to provide reasons

[1:21:46] for either finding good cause to continue

[1:21:50] or for denying motions to dismiss in these cases.

[1:21:55] JUSTICE DELANEY: Can you discuss the potential impact

[1:21:58] of a petition for writ in the trial court,

[1:22:01] as we discussed with your friend on the other side;

[1:22:04] and include in that the practicalities

[1:22:06] that he addressed on

[1:22:08] whether that would be a viable option in a case like this?

[1:22:11] ANDREA RUSSI: We believe it would be a viable option

[1:22:13] in a case like this.

[1:22:16] I am not aware of a situation where a writ has been filed

[1:22:23] and it hasn't been handled in a timely fashion.

[1:22:27] So I do believe that in a case like this one

[1:22:31] that writ relief would be addressed,

[1:22:32] and that would also get the matter presumably

[1:22:35] to the Court of Appeal more quickly.

[1:22:39] I recognize that we have a factual situation here

[1:22:45] where we had a very overburdened court system that was having

[1:22:49] difficulty handling the volume of LPS trials.

[1:22:53] But I don't think there's any reason

[1:22:56] to believe that a writ would not be addressed by the trial court.

[1:23:01] JUSTICE GROBAN: But the Court of Appeal

[1:23:03] of course has original jurisdiction on habeas matters,

[1:23:06] which I guess is certainly an option.

[1:23:09] You lose any factfinding of the trial court though.

[1:23:12] ANDREA RUSSI: Yes, that is an option.

[1:23:13] I mean, I think in a scenario such as this,

[1:23:16] it probably would be to the conservatee's benefit

[1:23:19] to start in the trial court; but that is also a possibility.

[1:23:30] If there aren't additional questions on due process,

[1:23:34] I will briefly touch on equal protection.

[1:23:39] So basically, Appellant has not properly made

[1:23:45] or preserved an equal protection argument.

[1:23:48] It wasn't raised in the trial court.

[1:23:50] It wasn't raised in the Court of Appeal.

[1:23:52] It's not addressed in the Court of Appeal decision,

[1:23:55] and it wasn't adequately briefed in the Petition for Review.

[1:23:59] So we don't believe that it's proper -

[1:24:03] that there's enough basis to address it here,

[1:24:07] especially because the Public Guardian hasn't had

[1:24:10] an opportunity to address what the State's interests are

[1:24:14] in an equal protection type claim.

[1:24:21] If the Court has no additional questions, I will submit.

[1:24:24] CHIEF JUSTICE GUERRERO: There don't appear to be any, thank you.

[1:24:26] ANDREA RUSSI: Thank you.

[1:24:36] BRIAN McCOMAS: Briefly,

[1:24:38] I just want to start on the question of a writ.

[1:24:41] What we're asking these public defenders to do

[1:24:47] is come to court repeatedly for multiple clients

[1:24:51] on the same calendar. And if you read the record here,

[1:24:54] at the start of each hearing they're calling four

[1:24:56] or five cases; all can't find a courtroom,

[1:24:59] usually represented by one or two people.

[1:25:02] And we're now asking them not just to come to court

[1:25:04] every master child calendar, but to set up motions to dismiss;

[1:25:09] to exhaust habeas petitions in the lower courts;

[1:25:13] keep coming to court in the meantime

[1:25:14] and demanding your right to trial;

[1:25:16] now litigate this up to the Court of Appeal

[1:25:19] and ultimately to this Court

[1:25:21] within a one-year commitment time frame.

[1:25:24] This is not a viable remedy.

[1:25:26] And the way the writ is used in other parts of the LPS Act

[1:25:30] is with most extreme situations, on like a 14-day hold

[1:25:34] when there's like an unlawful basis to hold someone,

[1:25:36] something so fundamental that they shouldn't even (inaudible).

[1:25:40] And these types of motions to dismiss,

[1:25:42] I'm not sure you'll ever get to that

[1:25:44] or be able to make a better record without going to court,

[1:25:48] filing your papers,

[1:25:49] explaining what my client's been doing this last month,

[1:25:51] why this is interfering with treatment.

[1:25:54] So I don't think a writ is really the way forward here.

[1:25:57] What I think the way forward

[1:25:59] is an interpretation from this Court

[1:26:00] that reinforces the rights to due process,

[1:26:03] in fact backing Section 5350. JUSTICE EVANS: And, Counsel,

[1:26:07] how do we determine when the due process violation occurs?

[1:26:11] How much delay is it - a day, 30 days, 6 months, 9 months?

[1:26:16] BRIAN McCOMAS: Well, I don't think it would be --

[1:26:18] I can straight face tell you it would be a day.

[1:26:21] You might start your record softly.

[1:26:24] Certainly if you're appearing before the same judge

[1:26:26] and you understand the burdens of your court,

[1:26:29] I don't think you're objecting vehemently every time.

[1:26:32] You do want to obviously state the rule;

[1:26:36] and all parties need to comply with the rule,

[1:26:38] both the 5-day demand,

[1:26:40] continuous 15-days only not 30 days

[1:26:42] as was occurring in this case. There becomes a point though

[1:26:47] where that's why these factor tests matter.

[1:26:51] And the reason why we think the John L.

[1:26:53] factor test matters and does better

[1:26:56] is the question of remedy.

[1:26:58] It actually gets to that and puts everyone in the room,

[1:27:02] has everyone talking,

[1:27:04] including the conservatee who needs to be there.

[1:27:07] Mind you, my client wasn't there all of but three times.

[1:27:10] A continuance is guaranteed in that situation.

[1:27:13] They can't go to trial; she's not in the courtroom.

[1:27:16] Everyone's there under the factor test,

[1:27:19] and particularly the dignitary interests

[1:27:21] where the government official has to hear the conservatee.

[1:27:26] I think that could resolve many situations

[1:27:29] that aren't based necessarily just on grave disability

[1:27:32] but on something, a preference that this person wants.

[1:27:36] And it could be as simple as a contract,

[1:27:38] maybe a cell phone contract.

[1:27:41] And that's why the Barker factors just do

[1:27:44] not work in this situation -

[1:27:46] because they are created to evaluate

[1:27:48] whether evidence has disappeared,

[1:27:51] witnesses' memories have vanished.

[1:27:55] They do have three layers of pretrial incarceration,

[1:28:01] anxiety, and then this impairment of the defense.

[1:28:06] But that again isn't really crafted

[1:28:09] as well as the John L. test.

[1:28:13] And another just more basic reason to go with the John L.

[1:28:15] test is it's derived from the California Constitution

[1:28:18] which this Court is here to interpret,

[1:28:20] has unique flexibility in line with the LPS Act for people

[1:28:26] who are the most vulnerable in our society.

[1:28:29] In fact,

[1:28:31] the Barker test is derived from the Sixth Amendment.

[1:28:32] And what we're talking about here

[1:28:34] is due process from the Fifth Amendment but here in Article I,

[1:28:37] section 7 of the California Constitution.

[1:28:42] And just the last part I want to touch on

[1:28:43] is Conservatorship of A. H. in E. A.

[1:28:47] My client's name appears in the Opinion of A. H.

[1:28:53] because they were appearing on the same docket

[1:28:54] over and over again.

[1:28:56] How my client can have further delay but not dismissal,

[1:29:02] but A. H. can get dismissal with less delay, less anxiety,

[1:29:09] it shows that the Barker test is inconsistent

[1:29:15] and not created for this situation.

[1:29:19] Also, I mean if you just look at the two opinions, E. H.

[1:29:24] is about four times longer than my client's three-page opinion.

[1:29:26] And so the Barker test doesn't require us

[1:29:28] to really Idealist Guide into the conservatee's

[1:29:32] dignitary interests.

[1:29:34] It doesn't require us to dig into the government interests.

[1:29:37] It doesn't require us to dig into

[1:29:39] how much delay are we causing or risk of erroneous deprivation.

[1:29:44] And I'm not picking this test

[1:29:46] because it always favors the conservatee.

[1:29:49] I genuinely think

[1:29:51] that this test will function better in the trial courts,

[1:29:55] lead to greater resolution,

[1:29:57] and preserve the right to timely trial

[1:29:59] that's necessary to hold the government to the promises

[1:30:01] of the Constitution.

[1:30:03] And I'm going to submit on that.

[1:30:04] Thank you, all.

[1:30:05] CHIEF JUSTICE GUERRERO: Thank you to both parties

[1:30:07] for your arguments here today. The matter is submitted.

[1:30:17] Calling the next matter, In Re Mr. Spielbauer.

[1:30:26] On this case,

[1:30:28] the Court is pleased to welcome Justice Castillo

[1:30:30] from the Fourth District Court of Appeal.

[1:31:10] Whenever you're ready.

[1:31:12] RACHEL GRUNBERG: Okay, thank you.

[1:31:13] Good morning, Your Honors.

[1:31:15] Rachel Grunberg on behalf of the Office of Chief Trial Counsel

[1:31:18] for the State Bar of California. May it please the Court.

[1:31:22] We're here today to reaffirm a well-settled principle,

[1:31:26] one deeply rooted in this Court's

[1:31:28] attorney disciplinary jurisprudence.

[1:31:31] And that is that a disciplinary restitution order is a remedial

[1:31:36] and prophylactic tool aimed at protecting the public,

[1:31:40] maintaining integrity and confidence

[1:31:42] in the legal profession,

[1:31:43] and rehabilitating unethical attorneys.

[1:31:46] Its purpose is accountability, deterrence, and reformation.

[1:31:51] It is not a damages award; and it is not civil debt collection.

[1:31:56] This Court's cases in Brookman, Galardi,

[1:32:00] Morse, Coppock, Sorensen,

[1:32:02] and more have broadly favored restitution

[1:32:05] when it serves the purposes of discipline.

[1:32:08] And this Court has made clear

[1:32:10] that restitution is not limited by

[1:32:13] whether or not the victim is a client,

[1:32:15] whether or not the victim has a parallel remedy in tort,

[1:32:18] or whether or not the victim - excuse me -

[1:32:22] whether or not the attorney personally profited

[1:32:24] off of the wrongdoing.

[1:32:26] It is not even limited to misconduct

[1:32:28] that occurs during the practice of law.

[1:32:30] The touchstone, as articulated by this Court, is simple.

[1:32:35] Will a restitution order promote public protection

[1:32:38] and encourage attorneys to act honestly and with integrity?

[1:32:43] And if the answer is,

[1:32:45] "Yes," this Court has not hesitated to order restitution.

[1:32:48] As this Court expressly said in Bach v.

[1:32:50] State Bar, restitution in the licensing context

[1:32:54] operates independent of any remedy

[1:32:58] that an aggrieved party may pursue in any other form.

[1:33:02] Now, the Review Department's published opinion in this case

[1:33:05] directly conflicts with these longstanding principles

[1:33:09] and categorically bars restitution

[1:33:12] in cases involving tort-based damages to nonclients.

[1:33:16] It strips the State Bar Court of discretion

[1:33:19] to utilize this important and remedial tool,

[1:33:22] and it thereby serves to undermine public protection.

[1:33:26] And I think Exhibit A is Mr. Spielbauer himself.

[1:33:30] Mr. Spielbauer's case demonstrates exactly

[1:33:32] why restitution should remain available

[1:33:35] in cases involving nonclients,

[1:33:38] even where the victim has a remedy in tort.

[1:33:41] Mr. Spielbauer committed fraud.

[1:33:44] He submitted a knowingly false and wildly-inflated

[1:33:48] payoff demand in a real estate transaction,

[1:33:50] where he inflated the amount of the payoff demand

[1:33:53] by more than 37 times the actual amount due.

[1:33:57] He then failed to take even the most basic or reasonable steps

[1:34:01] to explain or justify the amount,

[1:34:04] forcing the sellers to cancel a pending sale

[1:34:07] and sue to clear title. He then repeatedly

[1:34:10] and needlessly prolonged the litigation violating

[1:34:14] discovery orders,

[1:34:16] advancing shifting and baseless legal theories,

[1:34:19] and filing a false declaration with the court.

[1:34:21] He even filed a lis pendens on the property

[1:34:25] after losing a trial,

[1:34:27] which caused the property owners to have to litigate

[1:34:30] that further and have that removed.

[1:34:34] Now, the Superior Court awarded substantial compensatory

[1:34:38] and punitive damages; and those awards were affirmed on appeal.

[1:34:44] Mr. Spielbauer then spent years trying

[1:34:45] to discharge the fraud judgment in bankruptcy,

[1:34:49] which required the property owner

[1:34:51] to file an adversarial action to preserve the debt.

[1:34:54] And even now, nearly a decade later

[1:34:57] after clear finding of intentional fraud

[1:35:01] and a final and enforceable Superior Court judgment

[1:35:05] and a nondischargeability order,

[1:35:07] Mr. Spielbauer continues to deny wrongdoing.

[1:35:10] He refuses to accept responsibility

[1:35:13] and has not paid a single cent towards satisfaction

[1:35:17] of this judgment. His persistent defiance,

[1:35:20] his refusal to acknowledge or take any steps whatsoever

[1:35:23] to remedy the harm he caused,

[1:35:26] is exactly the type of unrepentant recidivism-risk

[1:35:31] conduct for which disciplinary restitution is essential.

[1:35:35] JUSTICE KRUGER: Can I ask you, recognizing the distinction

[1:35:38] that Sorensen draws between restitution

[1:35:41] that is appropriate in this context

[1:35:44] for purposes of rehabilitation

[1:35:47] of a disciplined attorney and compensation

[1:35:52] for a civil wrong of the sort

[1:35:54] that properly occurs in our courtrooms

[1:35:58] and outside the disciplinary context,

[1:36:01] are there any

[1:36:03] - how do we determine what the correct dollar amount is

[1:36:06] of restitution in a case

[1:36:09] in which there is a civil judgment outstanding?

[1:36:12] Do you have a view as to

[1:36:14] whether or not an appropriate disciplinary restitution amount

[1:36:17] is always going to encompass the entirety

[1:36:21] of that outstanding civil judgment

[1:36:23] if its based on the same conduct underlying

[1:36:25] disciplinary proceeding?

[1:36:27] If not, are there any guidelines or limitations

[1:36:31] that you would propose?

[1:36:33] RACHEL GRUNBERG: Okay, well first of all,

[1:36:35] Your Honor, the civil court and civil proceedings

[1:36:39] are focused on making the victim whole;

[1:36:41] and that's not necessarily the purpose

[1:36:44] of disciplinary proceedings.

[1:36:45] Disciplinary proceedings are focused

[1:36:47] on these primary purposes of discipline - again,

[1:36:50] protecting the public, rehabilitating the respondent,

[1:36:53] deterring future wrongdoing,

[1:36:55] and ensuring confidence in the legal profession.

[1:36:58] So those are the primary goals;

[1:37:00] and while compensation to the victim

[1:37:02] might be an incidental outcome, it is not the primary focus.

[1:37:06] So want to start with sort of that as our basic threshold.

[1:37:12] As to how to,

[1:37:14] I guess, fashion or calculate the amount of restitution,

[1:37:19] I think the standards

[1:37:20] for attorney disciplinary sanctions - Standard 1.4,

[1:37:23] which is standards

[1:37:25] that are adopted by the Board of Trustees

[1:37:26] - give us some guidance. Standard 1.4(a)

[1:37:32] says that a condition of restitution

[1:37:34] can include specific restitution,

[1:37:37] which is where in this case

[1:37:39] a court would fashion an amount in the first instance;

[1:37:43] or it can require satisfaction of a judgment.

[1:37:47] And I think let's talk first

[1:37:49] about the satisfaction of the judgment.

[1:37:53] A judgment represents a final finding judicial determination;

[1:37:59] and attorneys are officers of the court,

[1:38:02] and so they have different responsibilities

[1:38:04] than lay persons.

[1:38:06] Allowing them to simply walk away from their nose --

[1:38:11] essentially is what Mr. Spielbauer did here --

[1:38:14] at that judgment and stand here defying

[1:38:18] that he's done anything wrong or that he has to pay it,

[1:38:20] I think, sends the wrong message to the public.

[1:38:23] And so pointing to that judgment and saying,

[1:38:26] "Pay that judgment," not necessarily

[1:38:28] because of the judgment itself

[1:38:30] but the obligation underlying that judgment suits the purpose

[1:38:35] of the discipline. Now here,

[1:38:39] we didn't ask this Court to order the entire judgment.

[1:38:43] So I think it is appropriate in certain circumstances

[1:38:46] to look at the judgment and say, "Pay some or all of it."

[1:38:50] I think that's an appropriate situation.

[1:38:53] But again, I think that it's not limited

[1:38:55] to an outstanding judgment.

[1:38:57] I think the State Bar Court can, and does all the time in fact,

[1:39:00] order restitution in the first instance.

[1:39:03] In misappropriation cases, in breach of fiduciary cases,

[1:39:08] in return of unknown fee cases, they take testimony;

[1:39:12] they review documents; they review bank records;

[1:39:14] sometimes we have forensic experts;

[1:39:16] they determine witness credibility;

[1:39:19] and they determine in the first instance

[1:39:22] what an appropriate amount of restitution would be.

[1:39:27] So I think that those are both acceptable ways

[1:39:29] of fashioning restitution.

[1:39:32] JUSTICE KRUGER: I guess I'm interested in particular

[1:39:34] in the first scenario that you outline in your answer

[1:39:40] that I understand to be

[1:39:42] that the appropriate amount of restitution

[1:39:44] may not always be precisely the same as the amount

[1:39:46] of the civil judgment.

[1:39:49] The amount that's necessary to rehabilitate the attorney

[1:39:51] in your view could encompass partial payment

[1:39:54] or some payment of that outstanding obligation, right?

[1:39:58] RACHEL GRUNBERG: Well here when we made that request,

[1:40:01] we were trying to align our request with Sorensen,

[1:40:03] which are specific out-of-pocket financial losses.

[1:40:09] So that's why we've asked in our restitution request

[1:40:12] for just the compensatory portion of the award.

[1:40:15] But I think it would be

[1:40:17] and could be appropriate to just point to the entire judgment

[1:40:21] and say, "Pay the entire judgment."

[1:40:24] That's also acceptable.

[1:40:26] I think the whole point of why we're here today

[1:40:28] is we want to return discretion to the State Bar Court.

[1:40:32] The published opinion in this case

[1:40:35] takes discretion away from the State Bar Court

[1:40:39] and an entire class of cases and says,

[1:40:42] "We are never, ever,

[1:40:44] ever going to even consider restitution

[1:40:49] if the case involves a nonclient and they have a remedy in tort."

[1:40:53] And we think that that's wrong,

[1:40:55] and that's inconsistent with this Court's decision.

[1:40:57] We're simply asking that that categorial bar be removed

[1:41:01] and that the State Bar Court be allowed in the first instance

[1:41:05] to exercise discretion and determine

[1:41:07] if restitution is even appropriate in a given case.

[1:41:11] JUSTICE EVANS: Counsel - down here at the end.

[1:41:14] Good morning. RACHEL GRUNBERG: Oh, sorry.

[1:41:18] JUSTICE EVANS: Notwithstanding

[1:41:19] that you're not taking the full amount of the civil judgment,

[1:41:21] that you're limiting the request to specific

[1:41:24] out-of-pocket financial losses,

[1:41:27] the hearing judge expressed a concern about the impact

[1:41:30] on Mr. Spielbauer's ability to pay that amount prior

[1:41:35] to returning to the active practice of law.

[1:41:37] In Galardi, we expressed a similar concern.

[1:41:39] And in Morse and other cases,

[1:41:41] we fashioned a sort of more flexible way to pay the amount.

[1:41:46] Is that something that we should consider doing here

[1:41:48] should we agree that restitution is appropriate in this case?

[1:41:52] RACHEL GRUNBERG: I don't think that would be appropriate

[1:41:54] in this case, Your Honor,

[1:41:55] because here the debt has been determined

[1:41:58] to be nondischargeable.

[1:42:00] In Galardi, there was a bankruptcy;

[1:42:01] and I think there was some concern over exactly

[1:42:05] what those bankruptcy orders said.

[1:42:06] And so there was concern about the ability to pay.

[1:42:10] But here, Mr. Spielbauer has made no showing whatsoever

[1:42:16] that he cannot pay.

[1:42:17] In the disciplinary proceeding,

[1:42:19] it would have been his burden to demonstrate

[1:42:23] that he is financially insolvent

[1:42:26] or somehow this would be a financial hardship.

[1:42:28] He presented no evidence whatsoever.

[1:42:31] And in fact,

[1:42:33] the civil court records in this proceeding show

[1:42:35] the exact opposite.

[1:42:36] The civil court specifically found

[1:42:38] that Mr. Spielbauer was evasive

[1:42:40] and deceptive about his inability to pay

[1:42:43] during the punitive damages phase

[1:42:45] and that he withheld complete documentation

[1:42:48] about his financial wherewithal

[1:42:50] and that he had more assets than he claimed.

[1:42:53] Notably, it pointed to his mother's

[1:42:55] trust assets totaling approximately $2.5 million,

[1:42:59] which the court found Mr. Spielbauer disclaimed

[1:43:01] when it suited him and that he used as he wanted.

[1:43:05] So I don't think there's any evidence in this record

[1:43:09] to demonstrate here that he's insolvent.

[1:43:11] And again,

[1:43:13] the debt was determined to be nondischargeable.

[1:43:14] JUSTICE EVANS: My question is really

[1:43:16] whether there should be -- should we agree with you

[1:43:20] that a restitution order is appropriate

[1:43:22] whether there should be the ability

[1:43:25] to negotiate a payment plan.

[1:43:27] For example, we did that in Morse and some other cases.

[1:43:30] RACHEL GRUNBERG: Right, I think

[1:43:32] where there are concerns about the ability to pay,

[1:43:35] this Court has exercised flexibility, creativity,

[1:43:39] innovation in sort of fashioning that restitution order in a way

[1:43:46] that allows the respondent to pay it without being punitive.

[1:43:50] So for instance, it could be paid over the course

[1:43:54] of the probation period in installments.

[1:43:56] There are other cases

[1:43:58] in which this Court has said pay this in the first 90 days,

[1:44:00] the first year, of a probation period.

[1:44:04] But in cases like this

[1:44:06] where an attorney remained indifferent,

[1:44:09] intransigent, defiant, I think the (inaudible)

[1:44:14] requirement were they're required to pay it upfront

[1:44:17] before they're allowed to return to the active practice of law

[1:44:21] following their suspension is the appropriate sanction here.

[1:44:26] And that sends the right message to the public

[1:44:29] that in this case

[1:44:31] Mr. Spielbauer is going to have to take demonstrable,

[1:44:35] concrete steps to demonstrate that he's making amends

[1:44:41] and that he's going to be held accountable

[1:44:44] before he's allowed to practice law again.

[1:44:46] I think this Court has said in cases like Menna and Glass

[1:44:49] that actions speak louder than words;

[1:44:52] and payment is that objective demonstrable action

[1:44:57] that shows the public and the victim that he's making amends.

[1:45:01] And I think that that's why this is a discipline here.

[1:45:06] I want to talk briefly about the fact

[1:45:08] that Mr. Spielbauer claims that the judgment has expired.

[1:45:12] Not so, this is just another baseless argument

[1:45:15] that demonstrates his indifference.

[1:45:17] Under CCP Section 337.5,

[1:45:21] creditor can bring an independent action

[1:45:23] on the judgment 10 years from finality of the judgment.

[1:45:27] And this Court took judicial notice

[1:45:29] of the entire civil court appellate record,

[1:45:32] which shows that finality occurred

[1:45:34] when the remittitur issued on August 18, 2016,

[1:45:37] which means that William LLC still has

[1:45:41] at least until August 18th of this year to renew the judgment.

[1:45:45] But even if the judgment was not expired,

[1:45:48] attorneys again are considered officers of the court;

[1:45:51] and their responsibilities, as I said, differ from lay persons.

[1:45:54] And so therefore their obligation to pay here

[1:45:59] is not just based on the legal obligation

[1:46:02] but a moral obligation, particularly here again

[1:46:05] where the debt has been determined

[1:46:06] to be nondischargeable. I also want to express

[1:46:16] that we are not asking for restitution to be applied

[1:46:20] in a talismanic fashion. We're not asking

[1:46:23] that restitution be applied in every case.

[1:46:25] We're simply asking

[1:46:26] that the State Bar Court be allowed

[1:46:29] to exercise discretion on a case-by-case basis based

[1:46:32] on the specific facts, the nature of the misconduct,

[1:46:35] the attorney's attitude and spirit of earnestness,

[1:46:38] the impact on the public,

[1:46:40] and the public protection goals that I announced earlier.

[1:46:44] And removing that categorical bar

[1:46:46] will allow the State Bar Court to determine

[1:46:49] in appropriate cases

[1:46:51] whether restitution is a remedial tool

[1:46:54] that is going to help rehabilitate the errant attorney

[1:46:58] and preserve confidence in the profession.

[1:47:01] And so for that reason,

[1:47:03] we are asking that Mr. Spielbauer pay restitution

[1:47:05] in the amount of the compensatory damages,

[1:47:08] attorney fees and costs, which total $536,726.49

[1:47:13] to William LLC, plus interest.

[1:47:16] We think this restitution requirement is

[1:47:18] consistent with Sorensen v. State Bar

[1:47:20] and the larger framework of cases

[1:47:22] out there on restitution in disciplinary matters.

[1:47:26] And again, I want to focus on the fact

[1:47:28] that restitution here is not about civil compensation.

[1:47:31] It's about accountability.

[1:47:33] And Mr. Spielbauer's intentional fraud

[1:47:35] and ongoing indifference warrant an order

[1:47:37] that requires him to confront in concrete terms the harm

[1:47:41] he has caused before he's able to return

[1:47:43] to the active practice of law.

[1:47:45] This is squarely within this Court's precedent

[1:47:48] and it's regulatory mission and duty

[1:47:50] to protect the public and profession.

[1:47:52] And unless the Court has any other questions,

[1:47:55] I will reserve the rest of my time.

[1:47:56] CHIEF JUSTICE GUERRERO: Thank you.

[1:48:11] GLEN MOSS: I'm Glen L. Moss.

[1:48:13] I represent Thomas Spielbauer in this matter.

[1:48:17] The argument is being divided between myself and the Amicus.

[1:48:21] Just so the Court understands,

[1:48:24] Amicus will basically be dealing with the case law and arguments

[1:48:28] of the State Bar that were in the briefs.

[1:48:33] And so any questions about that

[1:48:34] should be directed to the Amicus.

[1:48:37] My role is basically to answer questions

[1:48:41] and deal with the trial court transcript,

[1:48:45] which the Court on its own motion took judicial notice of,

[1:48:49] and also the public policy issues

[1:48:52] that are discussed in my brief.

[1:48:55] In the event I don't use all my time,

[1:48:57] I'd delegate whatever I haven't used to Amicus

[1:49:01] to give him a little extra time. In particular,

[1:49:06] the first - although the State Bar deems it frivolous,

[1:49:10] we believe that the fact

[1:49:12] that the Legislature has passed enforcement of judgment acts

[1:49:18] to limit enforcement for 10 years

[1:49:21] and also provided for exceptions for judgments

[1:49:26] that are enforceable more than that 10 years,

[1:49:30] and that means something.

[1:49:32] And that we urge this Court to pay attention to

[1:49:36] and follow the views of the Legislature

[1:49:41] to limit the enforcement of judgments.

[1:49:44] This is not like Shylock,

[1:49:47] where the State Bar can get its pound of flesh

[1:49:51] just because it thinks it's worthwhile.

[1:49:55] In this case,

[1:49:57] the Legislature has put limits on the scope

[1:50:01] of enforcements of judgments.

[1:50:04] The bankruptcy procedure helps clarify and show

[1:50:09] whether or not a given person --

[1:50:12] whether he's a lawyer, a real estate broker, a doctor,

[1:50:15] or whoever - all citizens in California

[1:50:19] are entitled to the benefits of both the bankruptcy laws

[1:50:23] and the enforcement of judgment law.

[1:50:26] In the bankruptcy procedure there were substantial hearings,

[1:50:32] substantial procedures,

[1:50:35] to verify whether or not Mr. Spielbauer did

[1:50:38] or did not have any ability to pay anything on this judgment.

[1:50:43] After a full adversary trial, it was concluded by the court

[1:50:49] that he did not have the ability to pay.

[1:50:52] The argument that he didn't show that is just nonsense.

[1:50:58] That's what we have bankruptcy courts for.

[1:51:00] They showed he did not have the ability to pay.

[1:51:02] So what the Bar is asking for

[1:51:05] is essentially an order of disbarment and a pound of flesh,

[1:51:09] where the trial court transcript,

[1:51:11] as the Court knows from taking judicial notice

[1:51:16] of that transcript,

[1:51:18] shows that there were no actual dollar loss by the Plaintiffs.

[1:51:24] His main damages were he was a consultant,

[1:51:28] and he was not able to do as much consulting

[1:51:32] because he was in trial or in deposition

[1:51:36] or otherwise dealing with litigation.

[1:51:38] And we submit that's a substantial difference

[1:51:43] than what you had before. In this case,

[1:51:49] restitution should be of any benefits that the Defendant got,

[1:51:57] not the losses to the Plaintiff,

[1:52:00] which is what the damages were awarded.

[1:52:05] As an example,

[1:52:07] when you look at their transcript for November 14th,

[1:52:12] where the court was discussing Mr. Spielbauer's effort to try

[1:52:19] and get discovery on the attorney fee issue,

[1:52:22] the court denied any discovery on the ground

[1:52:24] that what is the law that would make it (inaudible).

[1:52:29] There's lots of laws

[1:52:31] that says attorney fees can be awarded even

[1:52:32] if they're not paid or incurred.

[1:52:35] That indicated the view of the trial court

[1:52:38] and why Mr. Spielbauer's efforts to have discovery

[1:52:42] on the attorney fee issue were denied.

[1:52:47] In other words,

[1:52:48] he wasn't even allowed to get discovery as to

[1:52:50] whether there was any obligation to pay the fees

[1:52:54] or whether or not they were reasonable.

[1:52:56] I pointed out in my brief

[1:52:58] that's very contrary to the views when other professions,

[1:53:02] like medical doctors,

[1:53:04] submit bills and they have to actually show

[1:53:07] that they're reasonable and that they're paid.

[1:53:10] We submit attorneys shouldn't be held

[1:53:13] to a substantially higher standard than doctors

[1:53:17] or other professionals that also have a duty of good faith

[1:53:21] and are trying to help have good confidence with the public.

[1:53:30] The Bar, again,

[1:53:32] is trying not to get restitution for the benefit of the public

[1:53:39] but rather to punish Mr. Spielbauer.

[1:53:43] The fact that his mother may or may not have money

[1:53:47] is his mother's money, not his money.

[1:53:50] He has no ability to compel his mother to give him money.

[1:53:56] In fact, his mother passed away;

[1:53:58] so he can't - that's just an unfair and ridiculous argument,

[1:54:08] which was rejected by the bankruptcy court.

[1:54:11] If in fact there was any ability to get any

[1:54:13] of his mother's money,

[1:54:15] the bankruptcy court had the power to order

[1:54:17] that money distributed.

[1:54:19] CHIEF JUSTICE GUERRERO: The other side is arguing, however,

[1:54:21] that Mr. Spielbauer did not provide sufficient evidence

[1:54:26] to show an inability to pay

[1:54:28] so that the Court should impose the amount.

[1:54:31] And I guess I'll have the same question

[1:54:33] we asked counsel on the other side.

[1:54:36] Should this Court allow for the possibility

[1:54:39] of giving Mr. Spielbauer another opportunity,

[1:54:42] when he already has shown

[1:54:44] that he's not able to present evidence of an inability

[1:54:47] according to her argument;

[1:54:49] or should we allow him to make another attempt

[1:54:52] to show inability or to establish

[1:54:54] that there should be some type of payment plan

[1:54:56] if the amount of discipline is imposed?

[1:54:59] GLEN MOSS: We suggest

[1:55:00] that the Court should give collateral estoppel

[1:55:03] to the bankruptcy court's findings

[1:55:06] that he did not have the ability to pay.

[1:55:09] Just like the trial court in the State Bar trial court

[1:55:13] gave collateral estoppel effect to the adverse trial findings

[1:55:20] in the San Jose Trial Court on the issue of

[1:55:24] whether or not anyone had the ability to pay,

[1:55:26] that's what we had the bankruptcy court for.

[1:55:28] There was an adversary trial,

[1:55:30] and there were findings he did not have that ability.

[1:55:33] Those findings should be binding on the State Bar

[1:55:38] and the trial court, as I said.

[1:55:42] And I'm bringing up the idea of the collateral estoppel,

[1:55:49] which put Mr. Spielbauer in the bad position that he did,

[1:55:54] where the State Bar can argue

[1:55:56] that the actual award was something like 30 or 50 times

[1:56:02] more than what the State Bar - they found.

[1:56:06] When you look at the transcript,

[1:56:08] essentially he made no real effort to defend

[1:56:13] his $269,000 demand;

[1:56:17] and that was a strategic error on his part as a lawyer.

[1:56:22] But the evidence that actually got introduced in

[1:56:25] with the deed of trust showed that had he recognized

[1:56:29] that the burden of proof was on him

[1:56:31] instead of telling the judge the burden of proof was not on him

[1:56:34] and not introducing the evidence,

[1:56:37] it would have been a much closer case.

[1:56:39] Because all the trial judge did was allow

[1:56:42] principal and interest, which was the seven grand.

[1:56:44] JUSTICE EVANS: Counsel, I'm-

[1:56:45] GLEN MOSS: But in addition, paragraph 8

[1:56:47] in the Deed of Trust, it was introduced into evidence

[1:56:50] that the Court is taking judicial notice of,

[1:56:52] allowed for award of attorney's fees.

[1:56:54] Counsel... down here. GLEN MOSS: Oh, am I low?

[1:56:56] JUSTICE EVANS: No, no, your fine.

[1:56:58] Good morning.

[1:57:00] I'm having a little trouble tracking your argument

[1:57:02] about the bankruptcy court

[1:57:04] because the bankruptcy court found that this debt --

[1:57:08] it was nondischargeable.

[1:57:10] GLEN MOSS: Well, and then again it is nondischargeable.

[1:57:12] But there also was the issue of

[1:57:15] whether he had the ability to pay,

[1:57:17] whether it was chargeable or not because if he had the money,

[1:57:20] then the trustee would have got it.

[1:57:24] In other words,

[1:57:26] it still would have been distributed to the creditors

[1:57:28] if it were there.

[1:57:30] It's just because it wasn't there,

[1:57:33] the creditor could go try and get it elsewhere.

[1:57:37] But there was still a finding that it wasn't there;

[1:57:40] otherwise, it would have been distributed.

[1:57:42] JUSTICE EVANS: In 2017?

[1:57:44] GLEN MOSS: Well, whenever the bankruptcy was.

[1:57:45] I forgot when the bankruptcy was.

[1:57:47] But it would have been distributed by the trustee

[1:57:49] through the bankruptcy

[1:57:50] because the trustee would have got a percentage.

[1:57:52] I think it was 3% or whatever he could get.

[1:57:54] CHIEF JUSTICE GUERRERO: Well,

[1:57:56] isn't it possible the circumstances may have changed

[1:57:57] during the interim period?

[1:57:59] GLEN MOSS: Well, that's why it's nondischargeable.

[1:58:01] And if the creditor wanted to try and go forward,

[1:58:03] the creditor could.

[1:58:05] But the creditor has elected not to go forward

[1:58:07] because the creditor recognized the money's not there.

[1:58:11] And since it's not there,

[1:58:14] they don't want to waste more money on attorney's fees

[1:58:16] chasing a nonexistent thing.

[1:58:22] Instead, the State Bar is trying to serve the debt collector

[1:58:26] for a creditor that recognizes there's nothing there.

[1:58:30] And the State Bar is trying to get essentially money

[1:58:34] that a trustee in bankruptcy wasn't able to get.

[1:58:38] And in fact if necessary,

[1:58:41] the creditor could even move to reopen the bankruptcy

[1:58:44] if they thought there was something being hidden.

[1:58:47] So all the State Bar is trying to do is take --

[1:58:52] do what the creditor should have done.

[1:58:54] But the Deed of Trust showed that it was a much closer thing

[1:58:59] because there were attorneys' fees;

[1:59:01] there were adversary proceedings;

[1:59:03] there was relief from stay motions.

[1:59:06] All of that was done by Dennis in the bankruptcy court

[1:59:11] and were additions to the seven grand.

[1:59:16] Mr. Mitchell testified

[1:59:19] that he added over $60,000 to pay off the man

[1:59:26] on the Fifth Street property in the transcript.

[1:59:31] That money was recoverable.

[1:59:33] But Mr. Spielbauer unaccountably,

[1:59:36] and I don't know why, made no effort to defend in his demand.

[1:59:43] If you add -- paragraph 13 in the Deed of Trust

[1:59:46] allowed for appraisals.

[1:59:48] In the bankruptcy court there were appraisals.

[1:59:51] That's probably another $4,000 or $5,000.

[1:59:54] There was a bankruptcy rider.

[1:59:56] There was also a cross-collateralization clause,

[2:00:00] paragraph 23 in the Deed of Trust,

[2:00:03] which would have -

[2:00:05] which allowed Spielbauer to add $116,000

[2:00:09] on the Fifth Street property to the $7,000.

[2:00:13] When you add all that together,

[2:00:18] he still asked for more than he was entitled to.

[2:00:20] I'm not questioning that.

[2:00:23] But it was a lot closer deal.

[2:00:25] It probably was a difference between $200,000

[2:00:28] and $269,000 rather than the $7,000.

[2:00:32] I mean, why he didn't put on a defense God only knows.

[2:00:37] I have no -- I don't know.

[2:00:40] But to reverse the decisions of the Trial Department

[2:00:49] and the Review Department, they both concluded

[2:00:52] that this case did not justify restitution.

[2:00:56] And to allow the Bar to get a pound of flesh

[2:00:59] that the bankruptcy court concluded he wasn't entitled

[2:01:03] to just is unfair, inequitable,

[2:01:06] and does not promote the interest of justice

[2:01:10] or public confidence in the practice of law or lawyers.

[2:01:15] The conduct that Mr. Spielbauer did wrong

[2:01:18] of submitting an excessive payoff demand has nothing

[2:01:23] to do with the practice of law.

[2:01:25] It has to do with being a lender.

[2:01:27] Any lender that is - when they get a payoff request

[2:01:33] has a duty to submit an honest payoff demand.

[2:01:37] And that doesn't - and whether you're a lawyer, a doctor,

[2:01:41] or a baker or a tinker,

[2:01:43] whatever, you have a duty to submit an honest demand.

[2:01:48] And that is something that would happen any time.

[2:01:54] JUSTICE EVANS: Didn't Mr. Spielbauer act as an attorney

[2:01:57] when he represented Devine Blessings

[2:01:58] in the civil proceeding?

[2:02:00] GLEN MOSS: He was Devine Blessings,

[2:02:02] and the trial court didn't distinguish between the two

[2:02:05] and in fact rendered a judgment not against Devine Blessings

[2:02:09] but against Mr. Spielbauer as an individual.

[2:02:13] Devine Blessings--

[2:02:15] JUSTICE EVANS: But he was acting as an attorney in proceeding.

[2:02:17] What?

[2:02:19] JUSTICE EVANS: He was acting as an attorney in that proceeding.

[2:02:21] GLEN MOSS: Not - well, he was in pro per.

[2:02:24] I mean, he was acting as himself.

[2:02:28] As I say, Devine Blessings existed;

[2:02:30] but the judgment was against John Spielbauer

[2:02:34] not against Devine Blessings.

[2:02:36] So Devine Blessings really didn't have much of anything

[2:02:41] to do with the case.

[2:02:43] JUSTICE EVANS: Well if - we'll put that aside.

[2:02:46] How does your argument square with Galardi,

[2:02:48] where we said it didn't matter that the attorney there

[2:02:51] was not acting in his professional capacity?

[2:02:57] GLEN MOSS: I'll defer to Amicus on that

[2:03:01] because, as I said, they're the ones

[2:03:03] that are basically dealing with those issues.

[2:03:07] The (inaudible) was the trial transcripts

[2:03:12] and what I considered the public policy issues.

[2:03:16] I'm trying to promote confidence in the practice

[2:03:19] of law and attorneys,

[2:03:21] but also giving due consideration to the Legislature

[2:03:27] to put limits on the enforcements of judgments

[2:03:30] which limits should apply to all citizens in California.

[2:03:37] Those do have exceptions.

[2:03:40] For example, if there was a fiduciary -- if you were acting,

[2:03:43] for example, in Sorensen where an attorney was-

[2:03:46] CHIEF JUSTICE GUERRERO: I'm sorry, you've reached your time.

[2:03:48] So I wanted to make sure you saw that and were able to wrap up.

[2:03:52] Okay, I was just going to say Sorensen is an example of

[2:03:55] where the attorney should be held liable

[2:03:58] because he was clearly practicing law.

[2:04:00] He hired the court reporter for the deposition.

[2:04:04] That's totally unrelated to this.

[2:04:06] CHIEF JUSTICE GUERRERO: Thank you.

[2:04:07] GLEN MOSS: Okay, sorry for that over on my time.

[2:04:09] CHIEF JUSTICE GUERRERO: Thank you.

[2:04:24] JOHN SPRANGERS: Good morning. May it please the Court.

[2:04:27] John Sprangers

[2:04:29] for Amicus Lawyers Mutual Insurance Company.

[2:04:32] This case addresses whether tort damages and fees

[2:04:35] may be awarded as a disciplinary restitution.

[2:04:39] The answer this Court's precedents supplies is, "No."

[2:04:42] Disciplinary restitution has generally meant

[2:04:45] an attorney disgorging client or fiduciary funds,

[2:04:49] and it has never before meant paying

[2:04:51] a large tort damages and fees judgment consisting of money

[2:04:55] the attorney never possessed.

[2:04:58] Accepting the State Bar's position would erase the line

[2:05:01] this Court drew between damages and restitution in Sorensen

[2:05:06] and deprive disciplinary restitution

[2:05:09] of any doctrinal coherence.

[2:05:12] As we set forth in our Amicus Brief,

[2:05:14] most of this Court's disciplinary restitution cases

[2:05:18] have adhered to the settled civil law understanding

[2:05:22] of restitution as disgorgement.

[2:05:25] In the disciplinary context, that serves a few purposes.

[2:05:29] One is public confidence.

[2:05:31] Requiring attorneys to return money belonging to a client

[2:05:35] or fiduciary is essential to public confidence

[2:05:39] in the legal profession.

[2:05:40] And so adhering to that definition of restitution

[2:05:43] ensures that restitution serves a proper disciplinary purpose.

[2:05:49] Another is that anchoring disciplinary restitution to that

[2:05:54] settled common law understanding

[2:05:56] prevents a drift into damages and debt collection of this case

[2:06:01] that this Court has warned against in past cases.

[2:06:04] And there are several reasons why awarding damages

[2:06:07] is not appropriate in the context of discipline.

[2:06:11] One is, simply put, that this Court's precedents

[2:06:15] and the standards for professional discipline

[2:06:18] define the power to issue a financial condition

[2:06:23] as restitution;

[2:06:25] and that simply has a settled understanding

[2:06:28] that many of us have known

[2:06:30] since we took remedies class in law school.

[2:06:33] And importantly,

[2:06:35] it's well-understood to be distinct from damages.

[2:06:38] Another that this Court recognized in Sorensen

[2:06:41] is that damages typically are not available

[2:06:43] in administrative proceedings.

[2:06:46] And a final reason is that many of this Court's cases

[2:06:50] have instructed

[2:06:53] that compensating private individuals -

[2:06:57] individual victims is at least not a key aim

[2:07:00] of disciplinary restitution.

[2:07:02] JUSTICE EVANS: Counsel, in both Sorensen and Coppock,

[2:07:07] we ordered payment of restitution even though

[2:07:09] the attorneys had not received any funds from the client.

[2:07:12] So how do you square that with your argument today?

[2:07:16] JOHN SPRANGERS: So I think to understand Sorensen,

[2:07:20] which is kind of the key case at issue here,

[2:07:24] you'd have to look at the unique facts at issue,

[2:07:26] which is how the Review Department understood the case.

[2:07:30] And I think it's telling that in the 35 years

[2:07:33] since Sorensen was handed down, to my knowledge

[2:07:36] neither this Court nor the Review Department

[2:07:38] has really extended its ruling.

[2:07:40] And that's because I think Sorensen - the misconduct

[2:07:44] at issue was essentially an attack on the functioning

[2:07:46] of the court system.

[2:07:49] There, essentially the court reporter was embroiled

[2:07:52] in litigation based on a transaction

[2:07:55] that has to play out smoothly dozens of times a day

[2:07:58] for the court system to function.

[2:08:01] And so protecting the court reporter from those expenses

[2:08:05] protected the court system.

[2:08:06] And that's a core disciplinary purpose

[2:08:08] that's separate from compensating an individual.

[2:08:13] And of course Sorensen is also distinct

[2:08:15] in that it did not involve a damages award.

[2:08:19] There was no tort damage at issue.

[2:08:22] In Coppock, there was somewhat of a distinction

[2:08:27] from the usual restitutionary fact pattern

[2:08:31] in that the funds were ones

[2:08:33] that the attorney's client had placed in a trust account

[2:08:39] that the attorney had created.

[2:08:41] But it's still much closer to traditional restitution

[2:08:45] in that it involves disgorgement of funds

[2:08:48] that the attorney had some control over in the attorney's

[2:08:53] professional capacity.

[2:08:55] And it's very different than ordering an attorney

[2:08:58] to pay tort damages to a third-party business

[2:09:05] that has some relation to professional misconduct

[2:09:08] but in which the party's relationship really was

[2:09:11] not defined by the practice of law.

[2:09:15] I'd also like to talk about Morse,

[2:09:17] which is the only case I'm aware of

[2:09:21] where this Court has conditioned probation

[2:09:25] on satisfaction of a civil judgment.

[2:09:29] And I'd submit that Morse also involved extreme facts related

[2:09:37] to a unique impact on public confidence

[2:09:39] in the legal profession.

[2:09:41] Morse involved this mass advertising campaign

[2:09:45] that ensnared thousands of clients.

[2:09:48] And even so, the restitution ordered in Morse

[2:09:53] far more closely resembled traditional restitution

[2:09:56] than what the State Bar proposes in this case.

[2:09:59] It required disgorging profits.

[2:10:02] Much of the award was literal cy prs restitution.

[2:10:06] And the funds did not go to compensate an individual victim

[2:10:11] but instead went to public entities.

[2:10:14] So when we're viewing these past cases

[2:10:16] that involve some type of deviation

[2:10:19] from the settled understanding of restitution,

[2:10:22] we see unique threats to the legal profession.

[2:10:26] And even so,

[2:10:28] those restitutionary orders did not deviate

[2:10:30] from the settled understanding restitution

[2:10:32] to the extent of the State Bar's proposal here.

[2:10:37] In short,

[2:10:39] the court retains many tools to police the sort of misconduct

[2:10:44] at issue in this case.

[2:10:46] But what the State Bar requests simply isn't restitution

[2:10:50] as understood under this Court's precedents.

[2:10:53] I'd also like to address the points

[2:10:55] this Court made about Galardi,

[2:10:57] which involved a payment to a co-venturers

[2:11:02] in a real estate venture.

[2:11:04] I think the distinction there is the attorney

[2:11:07] owed fiduciary duties to those co-venturers.

[2:11:11] And certainly this Court's cases have sort of equated

[2:11:15] an attorney's responsibilities to its fiduciaries

[2:11:19] with those to clients. So in a way,

[2:11:22] that too did not represent nearly the departure

[2:11:25] from traditional restitution that requiring a damages payment

[2:11:30] to a third-party business would entail.

[2:11:33] Now I'd like to talk a little bit about the State Bar's

[2:11:36] proposed standard for restitution.

[2:11:41] And I think it's interesting that the State Bar

[2:11:44] has somewhat avoided defining the term "restitution."

[2:11:48] It describes it more as by its purpose,

[2:11:52] essentially as any compelled payment

[2:11:55] it believes may protect the public

[2:11:58] or deter attorney misconduct.

[2:12:01] The problem is if deterrence and public protection

[2:12:06] are the only constraints, then the term

[2:12:09] "restitution" really has no doctrinal limit at all.

[2:12:12] Yet Sorensen itself reaffirmed a line

[2:12:16] between restitution and damages.

[2:12:20] So as we've seen when discussing cases like Morse and Galardi,

[2:12:25] the court's disciplinary authority allows

[2:12:27] some flexibility in restitution doctrine;

[2:12:31] but the State Bar's position removes any meaningful boundary

[2:12:35] between restitution and compensatory sanctions.

[2:12:41] And the State Bar itself admitted, well,

[2:12:44] what sort of limitations

[2:12:46] might exist on what constitutes a restitution

[2:12:49] and in what amount, and it pointed to the fact

[2:12:52] that the standards describe specific restitution.

[2:12:58] That doesn't provide much of a limitation at all.

[2:13:01] If "restitution" doesn't mean "restitution,"

[2:13:03] then this authority is somewhat unbounded,

[2:13:06] which creates substantial uncertainty

[2:13:08] for attorneys facing discipline.

[2:13:14] So in summary,

[2:13:17] this Court should reject the proposed restitution

[2:13:21] by the State Bar as out of step with its precedents.

[2:13:25] Doing so will preserve lines

[2:13:27] this Court has drawn between damages and restitution,

[2:13:31] punishment and rehabilitation, and protecting the public versus

[2:13:36] primarily compensating individuals.

[2:13:39] If there are no questions, I will submit.

[2:13:42] CHIEF JUSTICE GUERRERO: Thank you.

[2:13:55] RACHEL GRUNBERG: Your Honors, just a few points.

[2:13:57] First of all, Morse is not the only case

[2:14:00] where this Court has pointed to a judgment and said, "Pay it."

[2:14:04] Larkin, Lipson, Morse - there are several cases out there

[2:14:09] where this Court has pointed to an unpaid judgment

[2:14:13] and ordered it in restitution.

[2:14:17] So Morse is not the only example of that.

[2:14:20] Second, this case involves fraud.

[2:14:23] It involves fraud, and it involves misconduct

[2:14:26] that occurred during the course and scope

[2:14:28] of the practice of law.

[2:14:30] And if you look at Exhibit No. 25 in the State Bar's record,

[2:14:33] you'll see that during the initial discussions

[2:14:38] about the inflated payoff demand,

[2:14:40] Mr. Spielbauer's was submitting correspondence on Spielbauer

[2:14:44] at Law letterhead signed "Thomas Spielbauer, Esquire."

[2:14:48] He is holding himself out as an attorney.

[2:14:51] He listed himself as "counsel of record"

[2:14:54] in the Superior Court case,

[2:14:57] and he submitted declarations to the Superior Court saying,

[2:15:01] "I am counsel of record in this case."

[2:15:04] So clearly his misconduct here did involve the practice of law;

[2:15:08] although, as we've discussed,

[2:15:10] I don't think that restitution is limited to that circumstance.

[2:15:14] It clearly exists here.

[2:15:16] And this discussion about

[2:15:18] whether Mr. Spielbauer has the money to pay

[2:15:20] or doesn't have the money to pay,

[2:15:22] the reality is he has been an active member

[2:15:25] of the State Bar counseling this entire time;

[2:15:28] and he has not paid one cent towards satisfaction

[2:15:32] of this judgment, not one cent. And why?

[2:15:35] Because he doesn't believe he has to pay.

[2:15:38] He doesn't believe that he's committed misconduct,

[2:15:42] and he doesn't believe that he has to make amends for it.

[2:15:45] As he stood through today,

[2:15:47] they think they're still justified in submitting

[2:15:49] that inflated payoff demand.

[2:15:54] And that's exactly why a restitution requirement is

[2:15:57] necessary here because it's going to force Mr. Spielbauer

[2:16:01] to confront, in concrete terms, the harm that he has caused

[2:16:05] because he has not yet confronted it.

[2:16:07] The civil proceedings alone, the large compensatory judgment,

[2:16:12] the punitive damages - they have not served to rehabilitate him.

[2:16:15] They have not served to teach him that what he did was wrong,

[2:16:20] and they have not served to hold him accountable.

[2:16:24] And here, we're dealing with licensure.

[2:16:26] And the license to practice law is a privilege.

[2:16:29] And the message that we want to send to the public

[2:16:31] is that attorneys are going to be held accountable.

[2:16:35] So for that reason,

[2:16:37] we ask that you impose the restitution requirement

[2:16:40] as we requested and that he be required to pay it

[2:16:44] before he's allowed to return to the active practice of law.

[2:16:49] Unless the Court has any other questions,

[2:16:50] I'm prepared to submit.

[2:16:52] CHIEF JUSTICE GUERRERO: Thank you for your arguments here today.

[2:16:54] The matter is submitted, and court is adjourned.

[2:16:57] BAILIFF: All rise.

Supreme Court Oral Argument 2026-05 -07

Agenda

Transcript