1 00:00:00,834 --> 00:00:02,636 BAILIFF: All rise. 2 00:00:02,636 --> 00:00:04,404 [Gavel] 3 00:00:04,404 --> 00:00:06,390 The Honorable Chief Justice 4 00:00:06,390 --> 00:00:09,610 and the Associate Justices of the Supreme Court of California. 5 00:00:09,610 --> 00:00:12,120 Hear ye, hear ye, hear ye. 6 00:00:12,120 --> 00:00:14,114 The Honorable Supreme Court sitting en banc 7 00:00:14,114 --> 00:00:16,514 is now in session. 8 00:00:18,552 --> 00:00:20,870 Please be seated. 9 00:00:20,870 --> 00:00:22,556 CHIEF JUSTICE GUERRERO: Good morning. 10 00:00:22,556 --> 00:00:25,492 Welcome to Oral Argument for the California Supreme Court. 11 00:00:25,492 --> 00:00:26,927 The clerk may call the calendar, please. 12 00:00:26,927 --> 00:00:28,195 COURT CLERK: Good morning. 13 00:00:28,195 --> 00:00:29,630 The Supreme Court of California 14 00:00:29,630 --> 00:00:31,164 hearing Oral Arguments in San Francisco on Thursday, 15 00:00:31,164 --> 00:00:35,364 May 7, 2026, at 9:00 a. m. Case No. S287786, 16 00:00:36,770 --> 00:00:38,839 the People, Plaintiff and Respondent v. 17 00:00:38,839 --> 00:00:41,575 Joel SanMiguel, Defendant and Appellant. 18 00:00:41,575 --> 00:00:44,575 For Appellant, Mr. Matthew Alger. 19 00:00:44,778 --> 00:00:46,547 MATTHEW ALGER: Here. 20 00:00:46,547 --> 00:00:48,115 COURT CLERK: For Respondent, Ms. Blythe J. Leszkay. 21 00:00:48,115 --> 00:00:50,115 BLYTHE LESZKAY: Ready. 22 00:00:50,284 --> 00:00:52,519 COURT CLERK: Case No. S28724, 23 00:00:52,519 --> 00:00:55,589 Conservatorship of the Person of E. A., 24 00:00:55,589 --> 00:00:57,791 Public Guardian of Contra Costa County, 25 00:00:57,791 --> 00:00:59,126 Plaintiff and Respondent v. 26 00:00:59,126 --> 00:01:00,794 E. A., Defendant and Appellant. 27 00:01:00,794 --> 00:01:03,530 For Appellant, Mr. Brian C. McComas. 28 00:01:03,530 --> 00:01:05,299 BRIAN McCOMAS: Good morning and ready. 29 00:01:05,299 --> 00:01:07,768 COURT CLERK: For Respondent, Ms. Andrea L. Russi. 30 00:01:07,768 --> 00:01:09,102 ANDREA RUSSI: Good morning, ready. 31 00:01:09,102 --> 00:01:11,471 COURT CLERK: Case No. S283172, 32 00:01:11,471 --> 00:01:15,375 In re Thomas John Spielbauer on Discipline. 33 00:01:15,375 --> 00:01:18,975 For Petitioner, Mr. Glen L. Moss. 34 00:01:23,183 --> 00:01:27,383 They were here must a minute ago. 35 00:01:28,155 --> 00:01:29,923 For Amicus Curiae, 36 00:01:29,923 --> 00:01:31,658 Lawyers' Mutual Insurance Company, Mr. John B. Sprangers. 37 00:01:31,658 --> 00:01:35,258 We're looking for them right now. 38 00:01:35,963 --> 00:01:38,131 For Respondent, Ms. Rachel Grunberg. 39 00:01:38,131 --> 00:01:40,131 RACHEL GRUNBERG: Ready. 40 00:01:40,234 --> 00:01:42,169 CHIEF JUSTICE GUERRERO: Thank you. 41 00:01:42,169 --> 00:01:45,973 Calling the first matter, the People v. Mr. SanMiguel. 42 00:01:45,973 --> 00:01:47,641 On this case, 43 00:01:47,641 --> 00:01:49,376 the Court is pleased to be joined by Justice Egerton 44 00:01:49,376 --> 00:01:53,547 from the Second District Court of Appeal. 45 00:01:53,547 --> 00:01:55,616 MATTHEW ALGER: Good morning. 46 00:01:55,616 --> 00:02:01,160 I'm Matthew Alger, Counsel for the Appellant Joel SanMiguel. 47 00:02:01,221 --> 00:02:03,290 May it please the Court. 48 00:02:03,290 --> 00:02:08,128 This case is here before the Court this morning 49 00:02:08,128 --> 00:02:11,231 because the trial court failed to follow 50 00:02:11,231 --> 00:02:14,831 the explanation requirement of subdivision (g)(2) 51 00:02:18,710 --> 00:02:21,671 of Code of Civil Procedure, Section 231.7. 52 00:02:22,176 --> 00:02:24,845 When I refer to subdivisions, I will of course 53 00:02:24,845 --> 00:02:29,645 be referring to Code of Civil Procedure, Section 231.7. 54 00:02:29,950 --> 00:02:32,350 That's why we're here. 55 00:02:32,719 --> 00:02:37,900 I'm here because the point I'd like to make 56 00:02:37,900 --> 00:02:40,690 is that the explanation requirement matters. 57 00:02:41,695 --> 00:02:43,897 You wouldn't think I'd have to say that 58 00:02:43,897 --> 00:02:46,990 because it's in the statute, 59 00:02:46,990 --> 00:02:49,269 but it didn't matter to the Court of Appeal 60 00:02:49,269 --> 00:02:52,372 because the Court of Appeal said it could be disregarded -- 61 00:02:52,372 --> 00:02:54,308 or at least the majority did. 62 00:02:54,308 --> 00:02:56,743 It didn't matter to the trial court, 63 00:02:56,743 --> 00:02:59,513 or at least it didn't matter to the trial court's ruling, 64 00:02:59,513 --> 00:03:01,381 because it wasn't considered. 65 00:03:01,381 --> 00:03:04,551 It's not even clear that the trial court was aware of it. 66 00:03:04,551 --> 00:03:07,200 And it doesn't matter to Respondent 67 00:03:07,200 --> 00:03:09,756 because Respondent says you can bypass 68 00:03:09,756 --> 00:03:11,756 the explanation requirement. 69 00:03:12,960 --> 00:03:16,296 Now, how does the explanation requirement matter? 70 00:03:16,296 --> 00:03:18,980 Why does it matter? 71 00:03:18,980 --> 00:03:23,498 Because it is a means of evaluating a reason 72 00:03:25,906 --> 00:03:27,774 for a peremptory challenge 73 00:03:27,774 --> 00:03:30,477 that has historically been associated 74 00:03:30,477 --> 00:03:34,770 with improper discrimination in jury selection. 75 00:03:36,316 --> 00:03:43,516 It is a means by which the trial court obtains the information 76 00:03:43,557 --> 00:03:46,193 that the Legislature deemed necessary 77 00:03:46,193 --> 00:03:50,297 for the court to exercise informed discretion 78 00:03:50,297 --> 00:03:53,867 when it considers such a reason. 79 00:03:53,867 --> 00:03:59,267 And that's evident from the intent of the statute 80 00:03:59,706 --> 00:04:02,706 that's expressed in Assembly Bill 3070, 81 00:04:03,410 --> 00:04:09,410 which is to rid jury selection of improper discrimination, not 82 00:04:09,983 --> 00:04:12,983 only purposeful discrimination but discrimination 83 00:04:14,688 --> 00:04:18,888 that is based upon stereotypes - stereotypes 84 00:04:19,493 --> 00:04:22,329 that have resulted in injustice. 85 00:04:22,329 --> 00:04:24,598 JUSTICE KRUGER: Counsel, can I ask you a question? 86 00:04:24,598 --> 00:04:26,300 MATTHEW ALGER: Certainly. 87 00:04:26,300 --> 00:04:28,335 JUSTICE KRUGER: One of the things that I think 88 00:04:28,335 --> 00:04:31,935 is challenging about interpreting subdivision (g)(2) 89 00:04:33,674 --> 00:04:38,245 of the statute is that it covers different kinds of behaviors, 90 00:04:38,245 --> 00:04:41,845 demeanors, and inferences from those things; 91 00:04:43,383 --> 00:04:45,352 so for example, 92 00:04:45,352 --> 00:04:49,356 failure to make eye contact with an observed behavior. 93 00:04:49,356 --> 00:04:51,325 And an inference you might - one inference 94 00:04:51,325 --> 00:04:53,794 you might draw from that failure to make eye contact 95 00:04:53,794 --> 00:04:56,463 might be this juror isn't paying intention. 96 00:04:56,463 --> 00:05:01,134 That's an inference about not behavior as such 97 00:05:01,134 --> 00:05:03,300 but about that person's -- 98 00:05:03,300 --> 00:05:06,640 and sort of how that person is performing the role. 99 00:05:06,640 --> 00:05:08,909 And I guess I'd like to understand from you 100 00:05:08,909 --> 00:05:10,777 whether you think 101 00:05:10,777 --> 00:05:14,114 that the explanation requirement applies the say 102 00:05:14,114 --> 00:05:18,914 way across all of these different behaviors and 103 00:05:19,686 --> 00:05:23,790 demeanors that are specified in the statute. 104 00:05:23,790 --> 00:05:27,127 In other words does a person - it's one thing to explain, 105 00:05:27,127 --> 00:05:28,695 "I'm inferring from the fact 106 00:05:28,695 --> 00:05:30,564 that this juror is playing on her phone 107 00:05:30,564 --> 00:05:34,764 while you're instructing the demurrer," or whatever, 108 00:05:35,200 --> 00:05:37,437 "I'm inferring that this person isn't paying attention 109 00:05:37,437 --> 00:05:38,972 to courtroom proceedings." 110 00:05:38,972 --> 00:05:40,841 That's one kind of explanation. 111 00:05:40,841 --> 00:05:43,777 Another kind of explanation would be, 112 00:05:43,777 --> 00:05:47,447 "I think that it is important for jurors to pay attention 113 00:05:47,447 --> 00:05:50,484 because it is going to be the People's burden 114 00:05:50,484 --> 00:05:52,386 to prove the case, 115 00:05:52,386 --> 00:05:55,455 and I want jurors who are listening to the evidence." 116 00:05:55,455 --> 00:05:57,291 Which, or both, 117 00:05:57,291 --> 00:06:00,527 of those things do you think the statute requires? 118 00:06:00,527 --> 00:06:04,970 MATTHEW ALGER: Well, the statute is broad, yes. 119 00:06:04,970 --> 00:06:10,697 It applies to all of the reasons identified in subdivision (g)(1) 120 00:06:11,939 --> 00:06:15,576 because as Justice Cody said in her dissent in this case, 121 00:06:15,576 --> 00:06:19,379 the lawyer needs to be able to make a connection 122 00:06:19,379 --> 00:06:21,810 between the reasons 123 00:06:21,810 --> 00:06:23,450 that are specified in this particular case. 124 00:06:23,450 --> 00:06:25,185 And if he's unable to, 125 00:06:25,185 --> 00:06:29,985 or she, unable to articulate why it matters, 126 00:06:31,558 --> 00:06:36,630 then that raises a reason to doubt that the reason 127 00:06:36,630 --> 00:06:40,501 for the challenge is actually based upon 128 00:06:40,501 --> 00:06:43,904 something other than perhaps stereotypes that result in- 129 00:06:43,904 --> 00:06:45,672 JUSTICE KRUGER: Is there a category? 130 00:06:45,672 --> 00:06:48,375 I mean, you're familiar with the examples 131 00:06:48,375 --> 00:06:52,246 that are raised in the briefing of behaviors 132 00:06:52,246 --> 00:06:54,214 that are sort of so egregious 133 00:06:54,214 --> 00:06:57,170 that they kind of require no further elaboration about 134 00:06:57,170 --> 00:07:01,788 why they would be undesirable for a sitting juror - 135 00:07:01,788 --> 00:07:06,326 so things like failing to pay any attention at all 136 00:07:06,326 --> 00:07:10,764 when the judge is speaking and giving instructions to folks 137 00:07:10,764 --> 00:07:12,633 who are sitting in the courtroom, 138 00:07:12,633 --> 00:07:17,638 things like making rude gestures in a particular way. 139 00:07:17,638 --> 00:07:19,640 I guess I'm wondering would you agree 140 00:07:19,640 --> 00:07:21,808 that there is some category - it might be a very small category - 141 00:07:21,808 --> 00:07:23,808 but some category 142 00:07:23,810 --> 00:07:27,414 where it doesn't really require further explanation to know 143 00:07:27,414 --> 00:07:29,814 why a particular litigant, 144 00:07:30,484 --> 00:07:32,519 whether the prosecution or the defense, 145 00:07:32,519 --> 00:07:37,570 would not consider this person to be an appropriate person 146 00:07:37,570 --> 00:07:38,859 to perform jury service. 147 00:07:38,859 --> 00:07:41,328 Sure, I think the Attorney General's example where 148 00:07:41,328 --> 00:07:47,328 a prospective juror gives the prosecutor a rude hand gesture, 149 00:07:48,936 --> 00:07:52,339 I mean that's- JUSTICE CORRIGAN: How about 150 00:07:52,339 --> 00:07:55,909 if the juror gets into the jury box. 151 00:07:55,909 --> 00:07:57,811 It's great, everything's fine; 152 00:07:57,811 --> 00:08:02,850 and they promptly fall asleep and they're just asleep. 153 00:08:02,850 --> 00:08:06,190 Does the prosecutor or the defense counsel have to say, 154 00:08:06,190 --> 00:08:08,190 "You know, Judge, 155 00:08:08,550 --> 00:08:10,123 I excuse that juror because they went to sleep in the jury box, 156 00:08:10,123 --> 00:08:13,694 and we'd only been in session for a half hour"? 157 00:08:13,694 --> 00:08:17,998 Is it required that they say, "Your Honor, it seems to me 158 00:08:17,998 --> 00:08:22,198 that an attentive juror is particularly required. 159 00:08:22,302 --> 00:08:25,472 And if the juror is not willing to stay awake 160 00:08:25,472 --> 00:08:27,374 throughout the proceedings, 161 00:08:27,374 --> 00:08:30,177 that might have an impact on their ability 162 00:08:30,177 --> 00:08:32,577 to adjudicate the case." 163 00:08:32,813 --> 00:08:36,517 I'm just trying to figure out where the outer real limits are. 164 00:08:36,517 --> 00:08:38,385 It is required. 165 00:08:38,385 --> 00:08:39,720 JUSTICE CORRIGAN: It is? MATTHEW ALGER: It is. 166 00:08:39,720 --> 00:08:41,720 JUSTICE CORRIGAN: Okay. 167 00:08:41,722 --> 00:08:44,570 MATTHEW ALGER: Because it is very broad, no doubt about that. 168 00:08:44,570 --> 00:08:50,570 But it is required because this is not an afterthought 169 00:08:50,898 --> 00:08:53,166 that we've put into the statute. 170 00:08:53,166 --> 00:08:55,102 It needs to - we've put it in there 171 00:08:55,102 --> 00:08:58,939 so that it could cover all kinds of scenarios 172 00:08:58,939 --> 00:09:02,342 where you may not have a legitimate reason - 173 00:09:02,342 --> 00:09:05,479 where you have a pretext for discrimination; 174 00:09:05,479 --> 00:09:09,790 or it's just based upon stereotypes 175 00:09:09,983 --> 00:09:15,983 that have resulted in the unjust treatment of prospective jurors, 176 00:09:16,356 --> 00:09:21,662 like an assumption that a juror is inattentive merely 177 00:09:21,662 --> 00:09:24,231 because he's not maintaining eye contact 178 00:09:24,231 --> 00:09:26,800 when that may just be a cultural difference. 179 00:09:26,800 --> 00:09:28,402 JUSTICE KRUGER: But that - it seems to me 180 00:09:28,402 --> 00:09:30,804 that that particular example, that's the reason 181 00:09:30,804 --> 00:09:32,673 the confirmation requirement is there. 182 00:09:32,673 --> 00:09:37,277 The judge has to confirm that the behavior is occurring. 183 00:09:37,277 --> 00:09:38,946 But it seems like a separate question 184 00:09:38,946 --> 00:09:40,547 whether or not then explaining, 185 00:09:40,547 --> 00:09:42,583 "And the reason why attentiveness is important 186 00:09:42,583 --> 00:09:46,119 is because jurors have to pay attention to do their job," 187 00:09:46,119 --> 00:09:48,519 really helps us understand 188 00:09:48,755 --> 00:09:52,955 whether impermissible discrimination has played a role 189 00:09:53,760 --> 00:09:57,531 in the decision with respect to that juror or not. 190 00:09:57,531 --> 00:10:01,768 I guess I'm curious to know what you think 191 00:10:01,768 --> 00:10:04,370 that additional kind of formal explanation of 192 00:10:04,370 --> 00:10:06,139 why attentiveness matters in general 193 00:10:06,139 --> 00:10:10,878 or why making rude gestures or whatever matters in general 194 00:10:10,878 --> 00:10:13,814 helps to illuminate that kind of fundamental question 195 00:10:13,814 --> 00:10:16,216 that the statute lays out for us. 196 00:10:16,216 --> 00:10:19,152 MATTHEW ALGER: Well, rude gestures, 197 00:10:19,152 --> 00:10:20,787 that's kind of a distraction 198 00:10:20,787 --> 00:10:22,823 because it didn't happen in this case; 199 00:10:22,823 --> 00:10:25,592 and we're dealing with the explanation requirement, 200 00:10:25,592 --> 00:10:26,960 not the confirmation requirement. 201 00:10:26,960 --> 00:10:28,395 JUSTICE KRUGER: Right, 202 00:10:28,395 --> 00:10:30,300 but of course the explanation requirement 203 00:10:30,300 --> 00:10:31,899 and whatever rule we're writing here 204 00:10:31,899 --> 00:10:36,270 is going to apply to a wide range of scenarios, 205 00:10:36,270 --> 00:10:40,470 not just concerning explanations that involve attentiveness 206 00:10:40,774 --> 00:10:43,210 but including the rude gesture scenario. 207 00:10:43,210 --> 00:10:45,145 So I think we need to be able to understand 208 00:10:45,145 --> 00:10:48,148 how the explanation requirement works in general 209 00:10:48,148 --> 00:10:51,748 across this range. MATTHEW ALGER: Sure, 210 00:10:51,885 --> 00:10:55,856 the trial judge can evaluate the reason on its face 211 00:10:55,856 --> 00:11:00,127 and see if it makes sense but can also evaluate 212 00:11:00,127 --> 00:11:03,727 how the attorney gives that explanation, 213 00:11:05,980 --> 00:11:09,236 whether he believes - whether the court believes 214 00:11:09,236 --> 00:11:11,972 that it's sincere for one thing. 215 00:11:11,972 --> 00:11:16,772 So like I said, it wasn't an afterthought; 216 00:11:18,178 --> 00:11:22,783 and if it's not given effect, it's meaningless. 217 00:11:22,783 --> 00:11:25,352 So it does need to be followed. 218 00:11:25,352 --> 00:11:27,352 Subdivision (g)(2) 219 00:11:28,188 --> 00:11:32,988 prescribes the means by which a reason -- 220 00:11:33,527 --> 00:11:35,863 and it's historically been associated 221 00:11:35,863 --> 00:11:40,663 with improper discrimination is absolved of a presumption 222 00:11:42,503 --> 00:11:45,405 that it is founded upon. 223 00:11:45,405 --> 00:11:47,140 JUSTICE LIU: Counsel, isn't it the case 224 00:11:47,140 --> 00:11:50,740 that the Legislature expressly thought about 225 00:11:53,213 --> 00:11:55,213 the inattentive scenario? 226 00:11:55,215 --> 00:11:57,217 I mean, it says right here in subdivision (g)(1)(A), 227 00:11:57,217 --> 00:11:59,190 right, "inattentive." 228 00:11:59,190 --> 00:12:00,287 MATTHEW ALGER: Yes. 229 00:12:00,287 --> 00:12:02,189 JUSTICE LIU: And nonetheless still requires 230 00:12:02,189 --> 00:12:06,260 the explanation requirement, having considered that scenario. 231 00:12:06,260 --> 00:12:08,295 MATTHEW ALGER: Yes, that shows 232 00:12:08,295 --> 00:12:11,398 that the Legislature intended the explanation requirement 233 00:12:11,398 --> 00:12:15,702 to apply to something that seems as simple- 234 00:12:15,702 --> 00:12:17,604 JUSTICE LIU: So even though it may seem obvious, 235 00:12:17,604 --> 00:12:19,273 the explanation requirement 236 00:12:19,273 --> 00:12:20,874 does apply because the Legislature said 237 00:12:20,874 --> 00:12:23,477 so straightforwardly in the statute. 238 00:12:23,477 --> 00:12:27,281 That's right. And in a similar bill, AB 37, 239 00:12:27,281 --> 00:12:31,481 it was adopted because of studies showing 240 00:12:33,187 --> 00:12:37,987 that stereotypes, such as lack of eye contact, 241 00:12:38,192 --> 00:12:41,895 do not necessarily mean someone's a bad juror. 242 00:12:41,895 --> 00:12:46,695 It's based upon stereotypes and differences in culture. 243 00:12:47,835 --> 00:12:52,639 The Legislature basically said that this is a new era. 244 00:12:52,639 --> 00:12:56,839 And when it comes to possible discrimination, 245 00:12:57,644 --> 00:13:00,380 we are no longer going to accept reasons 246 00:13:00,380 --> 00:13:02,850 for a peremptory challenge that are based 247 00:13:02,850 --> 00:13:05,250 upon hunches and behaviors 248 00:13:06,453 --> 00:13:09,556 that previously were accepted as valid 249 00:13:09,556 --> 00:13:13,694 because studies have shown they are not valid 250 00:13:13,694 --> 00:13:16,730 and they will result in injustice. 251 00:13:16,730 --> 00:13:19,990 CHIEF JUSTICE GUERRERO: What if the consequence of finding 252 00:13:19,990 --> 00:13:21,301 that a specific reason as invalid? 253 00:13:21,301 --> 00:13:25,472 If you take the inattentiveness as an example, 254 00:13:25,472 --> 00:13:29,476 then your position is that inattentiveness cannot 255 00:13:29,476 --> 00:13:34,147 then be relied upon to justify the strike, correct? 256 00:13:34,147 --> 00:13:37,417 MATTHEW ALGER: It can be relied upon if it's confirmed 257 00:13:37,417 --> 00:13:39,987 and if an explanation is given that satisfies- 258 00:13:39,987 --> 00:13:42,222 CHIEF JUSTICE GUERRERO: But if the explanation requirement 259 00:13:42,222 --> 00:13:46,527 isn't met, then the inattentiveness cannot be relied 260 00:13:46,527 --> 00:13:48,929 upon to justify the strike. 261 00:13:48,929 --> 00:13:50,998 But what about other reasons? 262 00:13:50,998 --> 00:13:53,800 Do you agree that other reasons that are proffered 263 00:13:53,800 --> 00:13:56,170 and other circumstances can still be relied 264 00:13:56,170 --> 00:13:59,840 upon to determine whether the strike is unlawful? 265 00:13:59,840 --> 00:14:02,709 Not if you don't meet the explanation requirement. 266 00:14:02,709 --> 00:14:04,444 Both the confirmation 267 00:14:04,444 --> 00:14:08,150 and the explanation requirement must be met. 268 00:14:08,150 --> 00:14:10,717 It says in subdivision (g)(2) 269 00:14:10,717 --> 00:14:12,619 unless you meet these requirements, 270 00:14:12,619 --> 00:14:15,222 these reasons are presumed invalid. 271 00:14:15,222 --> 00:14:17,257 That means that is the way 272 00:14:17,257 --> 00:14:19,726 in which they're absolved of the presumption of invalidity. 273 00:14:19,726 --> 00:14:23,263 And if they're not absolved of it by that means, 274 00:14:23,263 --> 00:14:26,863 as recognized in the Caparrotta case, 275 00:14:27,201 --> 00:14:31,338 you haven't established by operation of law 276 00:14:31,338 --> 00:14:34,208 that a reason for a peremptory challenge is based 277 00:14:34,208 --> 00:14:36,208 upon improper discrimination. 278 00:14:38,110 --> 00:14:43,951 And if you then go to a totality of the circumstances analysis, 279 00:14:43,951 --> 00:14:45,886 there is no way 280 00:14:45,886 --> 00:14:49,957 that an objectively reasonable juror could conclude 281 00:14:49,957 --> 00:14:57,157 that in this case race was not a factor in the exercise 282 00:14:57,197 --> 00:14:59,233 of the peremptory challenge. 283 00:14:59,233 --> 00:15:01,401 JUSTICE GROBAN: And following up on the Chief's question, 284 00:15:01,401 --> 00:15:03,737 you think that applies to even the confirmation? 285 00:15:03,737 --> 00:15:08,108 So imagine a situation where a lawyer says, 286 00:15:08,108 --> 00:15:09,810 "I want to strike this juror; 287 00:15:09,810 --> 00:15:12,613 she was sleeping the entire time, 288 00:15:12,613 --> 00:15:17,417 and the one time she woke up she looked at her phone," 289 00:15:17,417 --> 00:15:19,520 and then goes on and explains, 290 00:15:19,520 --> 00:15:21,588 "I think this is a problem for this case. 291 00:15:21,588 --> 00:15:25,788 It shows inattention; it's a complicated case." 292 00:15:26,590 --> 00:15:32,659 And the judge says, "You're right, she did sleep a lot. 293 00:15:32,900 --> 00:15:34,968 I confess I didn't see her on her phone. 294 00:15:34,968 --> 00:15:37,938 I can't confirm that; I was looking at notes a lot. 295 00:15:37,938 --> 00:15:40,374 I'm unable to confirm that part of it; 296 00:15:40,374 --> 00:15:42,643 but I did see she was sleeping, 297 00:15:42,643 --> 00:15:44,711 and I understand your concern there." 298 00:15:44,711 --> 00:15:48,148 Your position is because both bases weren't confirmed, 299 00:15:48,148 --> 00:15:50,117 it's still invalid? 300 00:15:50,117 --> 00:15:52,117 It's still invalid? 301 00:15:52,486 --> 00:15:55,322 MATTHEW ALGER: I don't know that I would go that far; 302 00:15:55,322 --> 00:15:57,157 I haven't given it thought. 303 00:15:57,157 --> 00:15:59,159 But I would think you have a sufficient basis 304 00:15:59,159 --> 00:16:02,496 for a finding of inattention based 305 00:16:02,496 --> 00:16:06,660 upon only one of the observed behaviors. 306 00:16:06,660 --> 00:16:07,734 JUSTICE GROBAN: But that's a - I'm hearing a different answer 307 00:16:07,734 --> 00:16:09,636 than you gave to the Chief, 308 00:16:09,636 --> 00:16:11,371 so I just want to make sure I understand your position. 309 00:16:11,371 --> 00:16:14,308 Because the Chief was asking you, fine, 310 00:16:14,308 --> 00:16:17,211 if there's one basis that can't be confirmed 311 00:16:17,211 --> 00:16:18,812 or wasn't explained, 312 00:16:18,812 --> 00:16:20,547 we understand that can be relied on. 313 00:16:20,547 --> 00:16:24,551 But you can still go on and rely on other bases 314 00:16:24,551 --> 00:16:26,386 that were both confirmed and explained. 315 00:16:26,386 --> 00:16:28,210 And I understand you to be saying, 316 00:16:28,210 --> 00:16:31,621 "In some situations, yes, you can." 317 00:16:31,992 --> 00:16:33,760 MATTHEW ALGER: Perhaps, perhaps, 318 00:16:33,760 --> 00:16:37,197 I don't know that I can definitively answer 319 00:16:37,197 --> 00:16:39,566 that question the way - 320 00:16:39,566 --> 00:16:41,768 if you give a literal meaning to the statute, 321 00:16:41,768 --> 00:16:45,368 both would have to be confirmed. 322 00:16:45,639 --> 00:16:48,709 And then you'd have to say why, 323 00:16:48,709 --> 00:16:53,480 at least as a whole and in aggregate, they matter. 324 00:16:53,480 --> 00:16:58,880 And I'm not second-guessing the wisdom of the Legislature; 325 00:17:01,922 --> 00:17:03,290 that's their prerogative. 326 00:17:03,290 --> 00:17:04,992 JUSTICE EVANS: Counsel, 327 00:17:04,992 --> 00:17:06,994 I wanted to turn your attention for a moment 328 00:17:06,994 --> 00:17:11,465 to the difference in language of the statute between subdivisions 329 00:17:11,465 --> 00:17:13,465 (e) and (g)(2). 330 00:17:13,600 --> 00:17:15,569 Subdivision (e) 331 00:17:15,569 --> 00:17:18,105 of course says that the peremptory is invalid, 332 00:17:18,105 --> 00:17:22,305 whereas (g)(2) says the reason is invalid. 333 00:17:22,643 --> 00:17:24,645 Did the Legislature intend anything different? 334 00:17:24,645 --> 00:17:26,280 How do you interpret the different language 335 00:17:26,280 --> 00:17:28,680 in those two sections? 336 00:17:31,785 --> 00:17:35,822 MATTHEW ALGER: Well, I mean in subdivision (g)(2) 337 00:17:35,822 --> 00:17:37,691 if you find that - go straight to the fact 338 00:17:37,691 --> 00:17:40,160 that - straight to an analysis of 339 00:17:40,160 --> 00:17:43,997 whether racism was a factor in the challenge, 340 00:17:43,997 --> 00:17:46,400 then obviously that takes care of that. 341 00:17:46,400 --> 00:17:51,200 That either eliminates the presumption or confirms it. 342 00:17:53,874 --> 00:17:56,274 In the subdivision (g)(2) 343 00:17:56,677 --> 00:17:58,378 analysis, you just have two different levels - 344 00:17:58,378 --> 00:18:00,581 first the reason and then the factor. 345 00:18:00,581 --> 00:18:03,750 And as to Caparrotta, the court noted if you find 346 00:18:03,750 --> 00:18:07,221 that a reason for a peremptory challenge 347 00:18:07,221 --> 00:18:10,390 is discriminatory by operation of the presumption, 348 00:18:10,390 --> 00:18:14,528 well then a factor necessarily is - it necessarily was a factor 349 00:18:14,528 --> 00:18:16,363 in the use of the peremptory challenge. 350 00:18:16,363 --> 00:18:21,168 So I don't think it matters a whole lot. 351 00:18:21,168 --> 00:18:22,903 JUSTICE EVANS: So you don't think the Legislature intended 352 00:18:22,903 --> 00:18:25,172 any difference in the different language 353 00:18:25,172 --> 00:18:26,907 in those two provisions? 354 00:18:26,907 --> 00:18:28,275 MATTHEW ALGER: Different procedures. 355 00:18:28,275 --> 00:18:30,444 JUSTICE EVANS: Different procedures, but... 356 00:18:30,444 --> 00:18:32,746 MATTHEW ALGER: Yes, yes, I mean you could conceivably go from 357 00:18:32,746 --> 00:18:37,840 (g)(2) to the (d)(1) totality of the circumstances analysis, 358 00:18:37,840 --> 00:18:39,786 but the end result is dictated by the failure 359 00:18:39,786 --> 00:18:42,786 to satisfy the (g)(2) standard. 360 00:18:43,156 --> 00:18:44,558 JUSTICE EGERTON: Mr. Alger, going back for a moment 361 00:18:44,558 --> 00:18:46,426 to the explanation requirement, 362 00:18:46,426 --> 00:18:48,328 one of the things the prosecutor said here 363 00:18:48,328 --> 00:18:51,198 was that the juror had reentered the courtroom 364 00:18:51,198 --> 00:18:53,200 when the jurors were supposed to remain in the hall 365 00:18:53,200 --> 00:18:56,136 and therefore he wasn't following 366 00:18:56,136 --> 00:18:59,173 the court's instructions. If we can assume for a moment 367 00:18:59,173 --> 00:19:01,775 that the ability and willingness 368 00:19:01,775 --> 00:19:04,545 to follow the court's instructions, whether it's, 369 00:19:04,545 --> 00:19:06,280 "If the defendant does not testify, 370 00:19:06,280 --> 00:19:08,215 you may not consider that," or whether it's, 371 00:19:08,215 --> 00:19:10,250 "Please wait in the hall 372 00:19:10,250 --> 00:19:13,420 until you're called back in by the court or the bailiff," 373 00:19:13,420 --> 00:19:17,491 is it a sufficient explanation in terms of what matters 374 00:19:17,491 --> 00:19:22,896 to the case to be tried for the lawyer simply to say, 375 00:19:22,896 --> 00:19:24,765 "The juror seems to be unable 376 00:19:24,765 --> 00:19:26,567 or unwilling to follow the court's instructions"? 377 00:19:26,567 --> 00:19:29,360 Isn't it in every criminal case important 378 00:19:29,360 --> 00:19:30,838 that the juror be willing 379 00:19:30,838 --> 00:19:32,806 and able to follow the court's instructions? 380 00:19:32,806 --> 00:19:35,509 MATTHEW ALGER: Of course but again, 381 00:19:35,509 --> 00:19:40,514 as I said, this was intended to have broad application 382 00:19:40,514 --> 00:19:43,250 so that it would apply to reasons 383 00:19:43,250 --> 00:19:46,420 that obviously make a difference and to reasons 384 00:19:46,420 --> 00:19:49,356 that may not make a difference 385 00:19:49,356 --> 00:19:53,627 and to a determination of the sincerity of those reasons 386 00:19:53,627 --> 00:19:56,530 and whether they're based upon stereotypes. 387 00:19:56,530 --> 00:19:59,166 So it's intended to have broad application. 388 00:19:59,166 --> 00:20:01,101 And in this case, 389 00:20:01,101 --> 00:20:05,472 the fact that the juror walked back into the courtroom 390 00:20:05,472 --> 00:20:09,900 during a break was not contrary to any 391 00:20:09,900 --> 00:20:11,409 of the court's instructions. 392 00:20:13,780 --> 00:20:15,849 I mean, he's not required to pay attention 393 00:20:15,849 --> 00:20:19,786 to what the other jurors are doing during a break, 394 00:20:19,786 --> 00:20:22,322 and that was offered as a reason as well. 395 00:20:22,322 --> 00:20:23,924 So if anything in this case, 396 00:20:23,924 --> 00:20:26,793 that militates in favor of a conclusion 397 00:20:26,793 --> 00:20:30,597 that the prosecutor's reasons were a pretext 398 00:20:30,597 --> 00:20:32,766 and were not legitimate. 399 00:20:32,766 --> 00:20:37,371 But in any event, my point this morning 400 00:20:37,371 --> 00:20:43,371 is that if the Legislature had intended that means other 401 00:20:45,112 --> 00:20:48,112 than confirmation and an explanation 402 00:20:48,148 --> 00:20:52,348 could be used to rid a presumption 403 00:20:54,288 --> 00:20:59,880 of discrimination based upon a subdivision (g)(1) reason, 404 00:21:00,894 --> 00:21:04,494 it could rid it, the presumption, 405 00:21:04,865 --> 00:21:07,434 they would have said you could use other reasons. 406 00:21:07,434 --> 00:21:13,307 They didn't do that, and it's not really at issue here 407 00:21:13,307 --> 00:21:19,307 because the court never even got to the explanation requirement. 408 00:21:19,780 --> 00:21:22,149 You can't even get to the totality 409 00:21:22,149 --> 00:21:24,549 of the circumstances analysis 410 00:21:24,818 --> 00:21:27,855 unless you satisfy both the confirmation 411 00:21:27,855 --> 00:21:29,723 and the explanation. 412 00:21:29,723 --> 00:21:32,326 And when you don't have an explanation, 413 00:21:32,326 --> 00:21:34,695 when the trial court doesn't have an explanation, 414 00:21:34,695 --> 00:21:37,297 it doesn't have the information 415 00:21:37,297 --> 00:21:39,933 that the Legislature intended it to have 416 00:21:39,933 --> 00:21:43,437 for the exercise of informed discretion, 417 00:21:43,437 --> 00:21:48,175 the trial court cannot exercise the informed discretion 418 00:21:48,175 --> 00:21:50,575 envisioned by the Legislature. 419 00:21:50,744 --> 00:21:52,613 And that's what we have here, 420 00:21:52,613 --> 00:21:55,820 and that's why the trial court did 421 00:21:55,820 --> 00:21:58,820 not properly overrule the objection 422 00:22:00,587 --> 00:22:02,689 to the peremptory challenge to S. M. 423 00:22:02,689 --> 00:22:04,910 CHIEF JUSTICE GUERRERO: Would you like to reserve the balance 424 00:22:04,910 --> 00:22:05,920 of your ten minutes? 425 00:22:05,920 --> 00:22:08,920 MATTHEW ALGER: Yes, thank you. 426 00:22:14,701 --> 00:22:16,103 BLYTHE LESZKAY: Good morning, Your Honors. 427 00:22:16,103 --> 00:22:18,500 May it please the Court. 428 00:22:18,500 --> 00:22:21,141 Deputy Attorney General Blythe Leszkay for Respondent. 429 00:22:21,141 --> 00:22:24,778 Demeanor-based reasons are unique in jury selection 430 00:22:24,778 --> 00:22:28,150 in that they often reflect a legitimate concern 431 00:22:28,150 --> 00:22:30,217 about a juror's behavior. 432 00:22:30,217 --> 00:22:32,617 But they are subjective 433 00:22:32,719 --> 00:22:36,356 and often invisible on a cold record; 434 00:22:36,356 --> 00:22:41,562 and that makes them especially ripe for unconscious bias, 435 00:22:41,562 --> 00:22:44,562 pretext, and even outright falsification. 436 00:22:44,965 --> 00:22:48,836 The Legislature recognized this as an historical association 437 00:22:48,836 --> 00:22:50,804 with improper discrimination 438 00:22:50,804 --> 00:22:55,209 and set those reasons aside for special consideration 439 00:22:55,209 --> 00:22:57,209 under subdivision (g) 440 00:22:58,278 --> 00:23:02,382 and stated that these reasons are now presumptively invalid 441 00:23:02,382 --> 00:23:05,285 and require confirmation and explanation. 442 00:23:05,285 --> 00:23:08,285 And the confirmation/explanation requirements 443 00:23:09,122 --> 00:23:13,727 are specifically designed to combat the unique problem 444 00:23:13,727 --> 00:23:15,727 with demeanor-based reasons, 445 00:23:16,630 --> 00:23:20,200 which is to ensure that there is some information on the record 446 00:23:20,200 --> 00:23:22,936 that can be evaluated to determine 447 00:23:22,936 --> 00:23:27,207 whether or not the reason was exercised in good faith 448 00:23:27,207 --> 00:23:30,807 and beyond just the reason itself. 449 00:23:31,378 --> 00:23:34,470 And that's important because under Batson, 450 00:23:34,470 --> 00:23:35,916 the opposite was true. 451 00:23:35,916 --> 00:23:40,521 Under Batson, a reason was presumed to be valid. 452 00:23:40,521 --> 00:23:43,590 And when demeanor-based reasons were given, 453 00:23:43,590 --> 00:23:47,694 they were generally assumed to support the challenge. 454 00:23:47,694 --> 00:23:49,694 Now, subdivision (g) 455 00:23:50,430 --> 00:23:53,233 flips both of those presumptions and assumptions 456 00:23:53,233 --> 00:23:57,237 and requires that certain information be put on the record 457 00:23:57,237 --> 00:24:01,375 so that demeanor-based reasons can be evaluated 458 00:24:01,375 --> 00:24:03,775 in a meaningful way. 459 00:24:04,678 --> 00:24:07,447 The information is important and it's meaningful, 460 00:24:07,447 --> 00:24:10,447 but it is not outcome-determinative. 461 00:24:10,450 --> 00:24:12,619 And that's because subdivision (g) 462 00:24:12,619 --> 00:24:14,521 doesn't answer the ultimate question 463 00:24:14,521 --> 00:24:18,910 that the Legislature wanted every peremptory challenge 464 00:24:18,910 --> 00:24:20,127 to be evaluated for bias, 465 00:24:20,127 --> 00:24:23,597 which is would an objectively reasonable person consider race 466 00:24:23,597 --> 00:24:27,601 or other characteristics a factor in the challenge. 467 00:24:27,601 --> 00:24:29,503 And that is the key question 468 00:24:29,503 --> 00:24:35,475 that must be answered in every case where this arises. 469 00:24:35,475 --> 00:24:37,475 And subdivision (e) 470 00:24:38,579 --> 00:24:39,847 explicitly answers that question. 471 00:24:39,847 --> 00:24:41,847 Subdivision (d) 472 00:24:41,949 --> 00:24:42,983 explicitly answers that question. 473 00:24:42,983 --> 00:24:44,983 But subdivision (g) 474 00:24:45,219 --> 00:24:46,520 does not; it doesn't ask that question, 475 00:24:46,520 --> 00:24:48,255 and it doesn't answer it. 476 00:24:48,255 --> 00:24:50,390 It simply provides additional information 477 00:24:50,390 --> 00:24:54,394 for the court to be able to evaluate the demeanor 478 00:24:54,394 --> 00:24:56,897 that is given as a reason, 479 00:24:56,897 --> 00:25:00,367 along with all of the other reasons and circumstances 480 00:25:00,367 --> 00:25:03,737 that are applicable in the case. 481 00:25:03,737 --> 00:25:05,272 JUSTICE KRUGER: So what does it mean to say 482 00:25:05,272 --> 00:25:07,700 that the presumption of invalidity 483 00:25:07,700 --> 00:25:09,977 has not been overcome under subdivision (g)? 484 00:25:09,977 --> 00:25:12,120 What's the effect of that? 485 00:25:12,120 --> 00:25:13,780 BLYTHE LESZKAY: So the effect would be 486 00:25:13,780 --> 00:25:17,317 that the presumption of invalidity remains, 487 00:25:17,317 --> 00:25:22,990 and the reason is now considered in the negative weight 488 00:25:22,990 --> 00:25:26,226 and under the totality of the circumstances analysis. 489 00:25:26,226 --> 00:25:29,796 So because it remains presumptively invalid, 490 00:25:29,796 --> 00:25:32,366 it would weigh against a challenge ultimately; 491 00:25:32,366 --> 00:25:34,201 but there may be, 492 00:25:34,201 --> 00:25:37,204 depending on the other facts and circumstances, 493 00:25:37,204 --> 00:25:39,907 would still potentially be outweighed in a totality 494 00:25:39,907 --> 00:25:43,944 of the circumstances analysis under subdivision (d) 495 00:25:43,944 --> 00:25:45,846 when the question is, 496 00:25:45,846 --> 00:25:48,649 "Would an objectively reasonable person view race 497 00:25:48,649 --> 00:25:50,384 as a factor in the challenge?" 498 00:25:50,384 --> 00:25:51,952 JUSTICE LIU: Could I ask about that? 499 00:25:51,952 --> 00:25:53,554 We have that scenario here, 500 00:25:53,554 --> 00:25:55,422 where there are multiple reasons given. 501 00:25:55,422 --> 00:25:57,291 And it's not uncommon; 502 00:25:57,291 --> 00:25:59,960 we see lots of cases with multiple reasons given. 503 00:25:59,960 --> 00:26:06,560 So your contention is that if one of the reasons given 504 00:26:07,434 --> 00:26:10,904 is invalid because the presumption of invalidity 505 00:26:10,904 --> 00:26:15,943 has not been rebutted, that just goes into the weighing 506 00:26:15,943 --> 00:26:19,543 of all the other possible reasons. 507 00:26:21,181 --> 00:26:24,181 Why is that? I mean, 508 00:26:24,718 --> 00:26:29,590 if you have an improper reason that's already been given, 509 00:26:29,590 --> 00:26:33,427 why would an objective observer look at that 510 00:26:33,427 --> 00:26:36,427 and say, "Hm," you know? 511 00:26:39,132 --> 00:26:42,369 BLYTHE LESZKAY: "Presumptively invalid" under subdivision (g) 512 00:26:42,369 --> 00:26:44,304 does not mean biased. 513 00:26:44,304 --> 00:26:50,304 It cannot because a reason can be - the requirements 514 00:26:50,511 --> 00:26:53,413 of subdivision (g) can be met, 515 00:26:53,413 --> 00:26:56,490 but the explanation could potentially reveal 516 00:26:56,490 --> 00:26:57,784 bias in the reasons. 517 00:26:57,784 --> 00:26:59,786 JUSTICE EVANS: But didn't the Legislature call 518 00:26:59,786 --> 00:27:03,657 out these specific examples because of history 519 00:27:03,657 --> 00:27:05,659 and because there was a belief 520 00:27:05,659 --> 00:27:10,230 that there was an unacceptable risk of the taint of bias? 521 00:27:10,230 --> 00:27:12,132 BLYTHE LESZKAY: Yes, and that is 522 00:27:12,132 --> 00:27:14,468 why that they are considered presumptively invalid 523 00:27:14,468 --> 00:27:18,372 in the first place because we recognize 524 00:27:18,372 --> 00:27:20,240 - the Legislature has recognized the problem, 525 00:27:20,240 --> 00:27:23,644 potentially, with these kinds of reasons 526 00:27:23,644 --> 00:27:27,244 that they have room for pretext 527 00:27:30,617 --> 00:27:33,220 or unconscious bias basically behind them, right? 528 00:27:33,220 --> 00:27:35,255 Because we don't know. 529 00:27:35,255 --> 00:27:38,158 If somebody simply says that a juror was being inattentive, 530 00:27:38,158 --> 00:27:41,695 if the juror is actually being inattentive that is a quality 531 00:27:41,695 --> 00:27:45,399 that is legitimately considered undesirable in a juror. 532 00:27:45,399 --> 00:27:50,237 But saying a juror is inattentive leaves a lot of room 533 00:27:50,237 --> 00:27:53,640 open for either unconscious bias or pretext 534 00:27:53,640 --> 00:27:56,143 or other - or even falsification. 535 00:27:56,143 --> 00:27:59,379 JUSTICE LIU: So if the presumption of invalidity 536 00:27:59,379 --> 00:28:01,379 is not rebutted, 537 00:28:02,149 --> 00:28:07,254 why wouldn't the inference be that it is discriminatory? 538 00:28:07,254 --> 00:28:10,524 Because the Legislature says right in the statute, 539 00:28:10,524 --> 00:28:13,524 "The following reasons," including inattentiveness, 540 00:28:13,727 --> 00:28:15,629 "have historically been associated 541 00:28:15,629 --> 00:28:17,264 with improper discrimination." 542 00:28:17,264 --> 00:28:19,733 That's the whole point of the statute. 543 00:28:19,733 --> 00:28:21,602 In other words, 544 00:28:21,602 --> 00:28:23,670 when the presumption of invalidity hasn't been rebutted, 545 00:28:23,670 --> 00:28:26,206 there's a strong inference of discrimination. 546 00:28:26,206 --> 00:28:28,542 Isn't that the whole point of the statute? 547 00:28:28,542 --> 00:28:30,377 BLYTHE LESZKAY: The whole point of the statute 548 00:28:30,377 --> 00:28:34,448 is to prevent bias from being exercised in the use 549 00:28:34,448 --> 00:28:36,416 of peremptory challenges. 550 00:28:36,416 --> 00:28:38,318 With the demeanor-based reasons, 551 00:28:38,318 --> 00:28:42,489 the presumption of invalidity under subdivision (g) 552 00:28:42,489 --> 00:28:44,124 suggests that that is possible, right? 553 00:28:44,124 --> 00:28:46,930 Historically, there's an association; 554 00:28:46,930 --> 00:28:49,630 and we understand that that is still a possibility. 555 00:28:49,630 --> 00:28:52,733 And so through the confirmation and explanation requirements, 556 00:28:52,733 --> 00:28:54,535 we're going to require certain information 557 00:28:54,535 --> 00:28:57,471 to be put on the record that can -- 558 00:28:57,471 --> 00:29:01,800 traditionally this is what has helped us to decipher 559 00:29:01,800 --> 00:29:03,410 whether the demeanor-based reason is in fact 560 00:29:03,410 --> 00:29:07,347 exercised in good faith. Without that information, 561 00:29:07,347 --> 00:29:12,586 there may still be other information in the record -- 562 00:29:12,586 --> 00:29:16,186 the other circumstances under subdivision (d)(3), 563 00:29:16,323 --> 00:29:18,225 the other reasons that are given, the way 564 00:29:18,225 --> 00:29:21,828 that even the demeanor-based reasons is exercised. 565 00:29:21,828 --> 00:29:25,432 So there is a difference between if somebody saying 566 00:29:25,432 --> 00:29:27,768 that this juror was being inattentive or, 567 00:29:27,768 --> 00:29:29,803 for example in this case, 568 00:29:29,803 --> 00:29:32,873 where we have specific behaviors that the juror was engaged in 569 00:29:32,873 --> 00:29:37,110 that are described on the record and are confirmed. 570 00:29:37,110 --> 00:29:40,714 And so we can - we can - that gives us more information 571 00:29:40,714 --> 00:29:44,785 to be able to analyze the substance of the reason 572 00:29:44,785 --> 00:29:47,487 and to determine whether or not there is in fact 573 00:29:47,487 --> 00:29:50,357 still that historical association or whether or not 574 00:29:50,357 --> 00:29:54,557 that historical association has now been severed. 575 00:29:54,795 --> 00:29:57,965 The reason is now valid, and we can move - 576 00:29:57,965 --> 00:29:59,900 and it can be weighed as any other valid reason- 577 00:29:59,900 --> 00:30:02,503 JUSTICE LIU: I guess, so you're asking us - well, 578 00:30:02,503 --> 00:30:04,371 you're saying that there could be a scenario 579 00:30:04,371 --> 00:30:09,409 in which the strike is deemed proper even though 580 00:30:09,409 --> 00:30:13,780 an invalid reason was one of the reasons supplied, correct? 581 00:30:13,780 --> 00:30:16,984 A presumptively invalid reason under subdivision (g). 582 00:30:16,984 --> 00:30:19,887 JUSTICE LIU: No, not presumptively invalid - invalid 583 00:30:19,887 --> 00:30:22,389 because the presumption has not been rebutted. 584 00:30:22,389 --> 00:30:25,759 BLYTHE LESZKAY: It's our interpretation because 585 00:30:25,759 --> 00:30:29,359 the subdivision says, "presumptively invalid unless" 586 00:30:30,430 --> 00:30:33,467 that when those two requirements are not met 587 00:30:33,467 --> 00:30:37,670 that the reason remains presumptively invalid 588 00:30:37,171 --> 00:30:43,171 and can then move into an analysis under subdivision (d). 589 00:30:45,512 --> 00:30:48,749 And if we look at the example of a failure in the confirmation, 590 00:30:48,749 --> 00:30:50,884 we can understand a little bit better why this is. 591 00:30:50,884 --> 00:30:52,884 Because the confirmation - 592 00:30:53,387 --> 00:30:57,570 if a judge has simply missed what happened, 593 00:30:57,570 --> 00:30:59,457 that doesn't indicate bias. 594 00:31:01,595 --> 00:31:04,595 The reason under subdivision (g) 595 00:31:04,898 --> 00:31:06,633 would remain presumptively invalid 596 00:31:06,633 --> 00:31:08,669 because the confirmation requirement was not met, 597 00:31:08,669 --> 00:31:12,472 but that doesn't necessarily mean that the reason is biased. 598 00:31:12,472 --> 00:31:15,542 We would give that a different kind of weight 599 00:31:15,542 --> 00:31:18,579 if the judge simply doesn't happen to notice 600 00:31:18,579 --> 00:31:21,949 versus if the judge was looking and says, 601 00:31:21,949 --> 00:31:23,684 "No, that didn't happen." 602 00:31:23,684 --> 00:31:25,419 Those are two very different scenarios, and under- 603 00:31:25,419 --> 00:31:27,621 JUSTICE GROBAN: And on your point about different 604 00:31:27,621 --> 00:31:30,624 kind of weight, the second scenario, 605 00:31:30,624 --> 00:31:36,624 so if three reasons were given and the first one 606 00:31:37,130 --> 00:31:40,133 the judge says, "Oh, that's very troubling to me. 607 00:31:40,133 --> 00:31:42,135 I did not see that happen at all. 608 00:31:42,135 --> 00:31:44,535 That's a concerning basis." 609 00:31:45,172 --> 00:31:48,375 But then there are two other bases provided 610 00:31:48,375 --> 00:31:51,478 in which the judge said, "Yeah, I did see them. 611 00:31:51,478 --> 00:31:55,678 I understand your concern. I confirm them. 612 00:31:56,183 --> 00:31:58,180 They're a problem." 613 00:31:58,180 --> 00:32:00,587 As part of the totality of circumstances analysis, 614 00:32:00,587 --> 00:32:04,391 can the judge go on and say, "It's still a totality. 615 00:32:04,391 --> 00:32:07,561 I'm still going to weigh quite heavily the fact 616 00:32:07,561 --> 00:32:11,131 that the first reason you gave is something 617 00:32:11,131 --> 00:32:13,133 I didn't observe at all. 618 00:32:13,133 --> 00:32:18,338 And I am so troubled by it that in the totality analysis, 619 00:32:18,338 --> 00:32:24,244 I'm going to - even though reasons two and three are valid, 620 00:32:24,244 --> 00:32:28,982 I'm so troubled by what I perceive on issue one 621 00:32:28,982 --> 00:32:31,952 that I'm going to deem the strike invalid." 622 00:32:31,952 --> 00:32:33,520 Is that appropriate? 623 00:32:33,520 --> 00:32:35,520 Absolutely, and 624 00:32:35,522 --> 00:32:38,125 because ultimately what the Court is asking in that scenario 625 00:32:38,125 --> 00:32:40,761 is would an objectively reasonable person consider 626 00:32:40,761 --> 00:32:42,863 race a factor in the challenge. 627 00:32:42,863 --> 00:32:48,602 And if the failure to confirm or the failure to explain is such 628 00:32:48,602 --> 00:32:52,873 that it suggests that this is a really problematic reason 629 00:32:52,873 --> 00:32:56,343 and we have not eliminated the historical association 630 00:32:56,343 --> 00:32:59,980 with improper discrimination, and so that still remains. 631 00:32:59,980 --> 00:33:01,682 And when we look at the totality 632 00:33:01,682 --> 00:33:03,717 none of these other circumstances 633 00:33:03,717 --> 00:33:05,686 are sufficient to outweigh that, 634 00:33:05,686 --> 00:33:08,689 then certainly that's the end of the challenge. 635 00:33:08,689 --> 00:33:10,123 JUSTICE LIU: I guess I'm just puzzled 636 00:33:10,123 --> 00:33:12,250 by the notion of weighing here 637 00:33:12,250 --> 00:33:16,697 when the Legislature has made very clear that -- 638 00:33:16,697 --> 00:33:18,432 you can call it a presumption of invalidity, 639 00:33:18,432 --> 00:33:20,200 or I think of it as invalidity - 640 00:33:20,200 --> 00:33:24,505 but the point is it hasn't been rebutted. 641 00:33:24,505 --> 00:33:28,141 If my teenage child came home late one night and I said, 642 00:33:28,141 --> 00:33:33,130 "Why," and they gave three reasons - I went to the store, 643 00:33:33,130 --> 00:33:35,480 I was studying with a friend, 644 00:33:35,480 --> 00:33:39,520 I was at the library - and one of those was not substantiated, 645 00:33:39,520 --> 00:33:43,900 would I say that that explanation as a totality 646 00:33:43,900 --> 00:33:46,760 holds water because two of them were and one of them wasn't? 647 00:33:46,760 --> 00:33:49,930 BLYTHE LESZKAY: Potentially, I guess it would depend on 648 00:33:49,930 --> 00:33:52,232 why that third reason wasn't substantiated. 649 00:33:52,232 --> 00:33:55,335 Is it simply because nobody else was there to substantiate, 650 00:33:55,335 --> 00:33:57,171 but you believe your child 651 00:33:57,171 --> 00:34:00,407 because they have a history of being truthful; 652 00:34:00,407 --> 00:34:03,243 and these other reasons are explained, 653 00:34:03,243 --> 00:34:05,913 and we have corroboration or- 654 00:34:05,913 --> 00:34:07,314 JUSTICE LIU: Well apart from the scenario 655 00:34:07,314 --> 00:34:08,549 that I think you've come back to a couple of times 656 00:34:08,549 --> 00:34:10,384 now about not noticing, 657 00:34:10,384 --> 00:34:12,419 which is the trial court not paying attention - 658 00:34:12,419 --> 00:34:15,322 which we don't normally think of in the sense of 659 00:34:15,322 --> 00:34:18,559 if the trial court doesn't confirm it, 660 00:34:18,559 --> 00:34:22,829 that's just - I mean, I don't know that many transcripts 661 00:34:22,829 --> 00:34:24,998 where the trial judge says, 662 00:34:24,998 --> 00:34:30,470 "Oh, sorry, I wasn't paying attention; I didn't see that." 663 00:34:30,470 --> 00:34:33,340 Well, jury selection is a dynamic process. 664 00:34:33,340 --> 00:34:36,810 It is the most dynamic point of a jury trial, 665 00:34:36,810 --> 00:34:39,313 and there are a lot of moving parts. 666 00:34:39,313 --> 00:34:42,913 It is a highly fact-dependent determination, 667 00:34:44,351 --> 00:34:46,520 and really no two cases are alike. 668 00:34:46,520 --> 00:34:49,823 And the trial courts really need a workable standard 669 00:34:49,823 --> 00:34:53,930 and something - a flexible standard like the totality 670 00:34:53,930 --> 00:34:56,693 of the circumstances analysis really provides 671 00:34:56,897 --> 00:35:02,297 how courts see the ability to evaluate peremptory challenges. 672 00:35:04,872 --> 00:35:07,207 And a bright-line rule, 673 00:35:07,207 --> 00:35:11,712 like Appellant is suggesting, especially for just one reason, 674 00:35:11,712 --> 00:35:15,312 a demeanor-based reason, when subdivision (g) 675 00:35:16,283 --> 00:35:19,520 does not call for a conclusive determination. 676 00:35:19,520 --> 00:35:25,652 And one of the best ways to see how subdivision (g) 677 00:35:26,460 --> 00:35:28,996 works in the statute is to compare it with subdivision (e) 678 00:35:28,996 --> 00:35:32,933 because they're very different. Even though they both look at 679 00:35:32,933 --> 00:35:37,133 and consider presumptively invalid reasons, subdivision (e) 680 00:35:38,939 --> 00:35:40,874 states that the peremptory challenge in its entirety 681 00:35:40,874 --> 00:35:42,843 is presumptively invalid. 682 00:35:42,843 --> 00:35:45,946 And in order to give meaning to the different language 683 00:35:45,946 --> 00:35:50,684 in subdivision (g), which only applies to a reason, 684 00:35:50,684 --> 00:35:53,200 they would have to be interpreted differently. 685 00:35:53,200 --> 00:35:55,200 Additionally, subdivision (e) 686 00:35:55,923 --> 00:35:58,125 addresses particularly pernicious reasons. 687 00:35:58,125 --> 00:36:01,161 These are inherently problematic kinds of reasons, 688 00:36:01,161 --> 00:36:04,231 things that are pretextual or biased on their face. 689 00:36:04,231 --> 00:36:06,800 We're talking about what a juror was wearing 690 00:36:06,800 --> 00:36:09,436 or the fact that they speak in an accent 691 00:36:09,436 --> 00:36:11,805 or know a different language. 692 00:36:11,805 --> 00:36:13,674 These are inherently problematic in a way 693 00:36:13,674 --> 00:36:16,760 that demeanor-based reasons are not. 694 00:36:16,760 --> 00:36:18,476 And additionally, subdivision (e) 695 00:36:18,979 --> 00:36:20,814 contains - it incorporates 696 00:36:20,814 --> 00:36:24,585 the objectively reasonable person standard from (d). 697 00:36:24,585 --> 00:36:26,386 It asks the same question, 698 00:36:26,386 --> 00:36:28,622 except it does so under a heightened burden, 699 00:36:28,622 --> 00:36:30,624 the clear and convincing standard. 700 00:36:30,624 --> 00:36:33,927 So it's asking the same question under a heightened standard. 701 00:36:33,927 --> 00:36:37,527 If a reason under subdivision (e) 702 00:36:38,498 --> 00:36:42,402 fails, it necessarily has to fail under (d). 703 00:36:42,402 --> 00:36:44,471 JUSTICE EVANS: Counsel, I want to ask - 704 00:36:44,471 --> 00:36:48,609 so I understand you to concede the presumption of invalidity 705 00:36:48,609 --> 00:36:50,344 was not overcome here. 706 00:36:50,344 --> 00:36:52,613 So then you say we move to the totality, right? 707 00:36:52,613 --> 00:36:54,481 BLYTHE LESZKAY: Yes. 708 00:36:54,481 --> 00:36:55,949 JUSTICE EVANS: Okay, help me understand what the role 709 00:36:55,949 --> 00:36:57,718 of a reviewing court is. 710 00:36:57,718 --> 00:37:00,530 I don't know how a reviewing court is supposed 711 00:37:00,530 --> 00:37:03,557 to look at this or fix the problem 712 00:37:03,557 --> 00:37:09,530 because how are we to determine what impact the invalid reason, 713 00:37:09,530 --> 00:37:11,431 or the presumptively invalid reason, 714 00:37:11,431 --> 00:37:14,902 had on the trial court's ultimate determination? 715 00:37:14,902 --> 00:37:16,737 BLYTHE LESZKAY: Every case is going to be really 716 00:37:16,737 --> 00:37:19,737 fact-determinative on a case-by-case analysis. 717 00:37:20,274 --> 00:37:23,110 And that's kind of the difficulty and the beauty 718 00:37:23,110 --> 00:37:26,947 of the totality of circumstances type of analysis. 719 00:37:26,947 --> 00:37:30,217 It provides flexibility to the court, 720 00:37:30,217 --> 00:37:34,188 and it also allows for a whole variety 721 00:37:34,188 --> 00:37:36,256 of circumstances that arise. 722 00:37:36,256 --> 00:37:38,659 CHIEF JUSTICE GUERRERO: But does the reviewing court defer 723 00:37:38,659 --> 00:37:41,328 to any of - what does the reviewing court do? 724 00:37:41,328 --> 00:37:45,650 Do they conduct a totality of the analysis itself? 725 00:37:45,650 --> 00:37:48,680 BLYTHE LESZKAY: It is a de novo review generally on review 726 00:37:48,680 --> 00:37:50,680 under the statute, 727 00:37:50,700 --> 00:37:53,974 and so the reviewing court would look at the subdivision (g) 728 00:37:53,974 --> 00:37:55,776 reason in this case. 729 00:37:55,776 --> 00:37:58,846 You would say that the confirmation was met. 730 00:37:58,846 --> 00:38:00,447 But in our view, 731 00:38:00,447 --> 00:38:02,783 the explanation requirement was not; 732 00:38:02,783 --> 00:38:08,210 and so it is technically not - it is not a valid reason. 733 00:38:08,210 --> 00:38:09,723 It is presumptively invalid. 734 00:38:09,723 --> 00:38:12,759 However, we do have circumstances here 735 00:38:12,759 --> 00:38:16,864 that suggest that it was exercised in good faith. 736 00:38:16,864 --> 00:38:18,599 For example, 737 00:38:18,599 --> 00:38:22,436 the fact that there was a specific behavior 738 00:38:22,436 --> 00:38:25,672 - so the juror was engaged in that the prosecutor noticed. 739 00:38:25,672 --> 00:38:28,575 And the prosecutor did explain why it stood out to him, 740 00:38:28,575 --> 00:38:30,377 because the juror was behaving differently 741 00:38:30,377 --> 00:38:32,279 from the other jurors. 742 00:38:32,279 --> 00:38:34,915 So we actually do have somewhat of an explanation here 743 00:38:34,915 --> 00:38:36,750 as to the prosecutor's thinking. 744 00:38:36,750 --> 00:38:39,987 Those facts can be assessed under the totality 745 00:38:39,987 --> 00:38:41,889 of the circumstances, 746 00:38:41,889 --> 00:38:44,324 even if we've maintained the presumption of invalidity. 747 00:38:44,324 --> 00:38:47,761 And so the reason in the whole 748 00:38:47,761 --> 00:38:50,430 would weigh in the negative balance 749 00:38:50,430 --> 00:38:52,232 because the presumption of invalidity 750 00:38:52,232 --> 00:38:54,100 has not been overcome, 751 00:38:54,100 --> 00:38:55,569 so it necessarily has to weigh in the negative. 752 00:38:55,569 --> 00:38:58,710 But because of the way 753 00:38:58,710 --> 00:39:00,908 that the reason was described in the record 754 00:39:00,908 --> 00:39:05,108 and the information that we do have, 755 00:39:05,546 --> 00:39:09,816 and because specifically the juror's behavior in this case 756 00:39:09,816 --> 00:39:14,254 goes to the basic requirements of a juror, 757 00:39:14,254 --> 00:39:17,558 we can analyze and say that, yes, 758 00:39:17,558 --> 00:39:19,593 it would weigh on the negative side of the scale 759 00:39:19,593 --> 00:39:22,563 but it wouldn't weigh particularly heavily. 760 00:39:22,563 --> 00:39:25,165 And then we have additional reasons 761 00:39:25,165 --> 00:39:27,334 that would weigh on the other side of the scale 762 00:39:27,334 --> 00:39:30,137 that are perfectly valid reasons under subdivision (d). 763 00:39:30,137 --> 00:39:33,307 And the Court could do the entire subdivision (d) 764 00:39:33,307 --> 00:39:34,474 analysis and go through those factors, 765 00:39:34,474 --> 00:39:36,243 as we did in the brief. 766 00:39:36,243 --> 00:39:38,110 JUSTICE EGERTON: Ms. Leszkay, 767 00:39:38,110 --> 00:39:40,147 could the trial court and the reviewing court 768 00:39:40,147 --> 00:39:43,617 look at the (d)(3) factors here? 769 00:39:43,617 --> 00:39:45,617 Factor one, 770 00:39:45,652 --> 00:39:48,222 was the defendant a member of the same group as the jury, yes. 771 00:39:48,222 --> 00:39:50,570 Factors two and three, 772 00:39:50,570 --> 00:39:51,758 however, was the member not a member of that group 773 00:39:51,758 --> 00:39:54,158 - the victim was Latino. 774 00:39:54,428 --> 00:39:59,333 All of the percipient witnesses were Latinx, male or female. 775 00:39:59,333 --> 00:40:01,335 Two of the six officers, 776 00:40:01,335 --> 00:40:04,505 including Zamora who seemed to be most heavily involved, 777 00:40:04,505 --> 00:40:06,505 have Hispanic surnames; 778 00:40:06,540 --> 00:40:10,878 and two of the three scientific techs have Hispanic surnames. 779 00:40:10,878 --> 00:40:13,347 Is that something the Court could properly consider? 780 00:40:13,347 --> 00:40:16,116 BLYTHE LESZKAY: Under subdivision (d)(3) 781 00:40:16,116 --> 00:40:17,684 analysis, all of those things would be factors 782 00:40:17,684 --> 00:40:20,387 to consider in addition to the way 783 00:40:20,387 --> 00:40:22,256 that the reason was described in the record, 784 00:40:22,256 --> 00:40:24,240 in addition to other reasons 785 00:40:24,240 --> 00:40:27,394 that were proffered by the prosecutor. 786 00:40:27,394 --> 00:40:29,129 In this case, 787 00:40:29,129 --> 00:40:31,398 that the juror gave reasons that were brief 788 00:40:31,398 --> 00:40:37,398 and that the victim - there was another Hispanic juror 789 00:40:37,471 --> 00:40:41,141 and that the prosecutor preferred other jurors 790 00:40:41,141 --> 00:40:43,243 in the next group of six. 791 00:40:43,243 --> 00:40:45,646 And so those are all valid reasons. 792 00:40:45,646 --> 00:40:49,149 And when you look at the totality of all of the reasons 793 00:40:49,149 --> 00:40:51,418 that the prosecutor gave, 794 00:40:51,418 --> 00:40:53,654 you can make an evaluation of 795 00:40:53,654 --> 00:40:56,757 whether an objectively reasonable person would consider 796 00:40:56,757 --> 00:40:58,625 race a factor in the challenge. 797 00:40:58,625 --> 00:41:01,962 And because you can make that analysis, 798 00:41:01,962 --> 00:41:04,565 we believe that it's appropriate to do so. 799 00:41:04,565 --> 00:41:06,300 Our interpretation is really 800 00:41:06,300 --> 00:41:08,936 the most straightforward reading of the statute. 801 00:41:08,936 --> 00:41:12,172 It's consistent with the language, the structure, 802 00:41:12,172 --> 00:41:14,572 and the Legislature's intent. 803 00:41:14,675 --> 00:41:17,750 It prevents absurd results, 804 00:41:17,177 --> 00:41:21,377 and Appellant doesn't disagree that it prevents - 805 00:41:23,483 --> 00:41:28,283 or that his interpretation results in potential absurdities 806 00:41:28,388 --> 00:41:30,691 but says that is unfortunate. 807 00:41:30,691 --> 00:41:33,600 We consider that to be an unreasonable reading 808 00:41:33,600 --> 00:41:36,230 of the statute, and especially in a statute like this 809 00:41:36,230 --> 00:41:39,499 where automatic reversal is the result. 810 00:41:39,499 --> 00:41:41,368 That is a drastic result 811 00:41:41,368 --> 00:41:44,370 that the Legislature didn't intend for something less 812 00:41:44,370 --> 00:41:47,637 than a finding under subdivision (d) 813 00:41:48,242 --> 00:41:49,676 that an objectively reasonable person would view race 814 00:41:49,676 --> 00:41:53,276 as a factor in the challenge. 815 00:41:54,470 --> 00:41:56,383 To apply the statute as broadly as possible, 816 00:41:56,383 --> 00:41:58,252 which is the Legislature's intent, 817 00:41:58,252 --> 00:42:00,721 it's important that the totality of the analysis 818 00:42:00,721 --> 00:42:02,721 under subdivision (d) 819 00:42:02,956 --> 00:42:04,658 be applied whenever possible with an eye 820 00:42:04,658 --> 00:42:07,427 towards eliminating bias in jury selection. 821 00:42:07,427 --> 00:42:09,196 And that's the most appropriate means 822 00:42:09,196 --> 00:42:11,732 of accomplishing the Legislature's goal. 823 00:42:11,732 --> 00:42:13,800 The purpose of the statute is to eliminate bias 824 00:42:13,800 --> 00:42:16,770 in jury selection, not to make sure 825 00:42:16,770 --> 00:42:18,605 that the court is looking at every appropriate time 826 00:42:18,605 --> 00:42:22,809 or that better explanations in general are met 827 00:42:22,809 --> 00:42:25,579 or that the court and counsel 828 00:42:25,579 --> 00:42:29,349 are paying attention to the specific details of the statute 829 00:42:29,349 --> 00:42:31,518 and what it requires. 830 00:42:31,518 --> 00:42:34,518 The overall question is really 831 00:42:36,990 --> 00:42:39,226 to best effectuate the Legislature's purpose, 832 00:42:39,226 --> 00:42:43,330 every challenge should be evaluated under subdivision (d). 833 00:42:43,330 --> 00:42:45,199 And we ask the Court to affirm. Thank you. 834 00:42:45,199 --> 00:42:48,199 CHIEF JUSTICE GUERRERO: Thank you. 835 00:42:57,978 --> 00:43:00,180 MATTHEW ALGER: Let me start out by addressing 836 00:43:00,180 --> 00:43:02,580 this idea of absurdity. 837 00:43:06,386 --> 00:43:11,786 It is not absurd to require the trial court 838 00:43:12,292 --> 00:43:15,162 to pay attention to what's going on, 839 00:43:15,162 --> 00:43:18,762 to require prosecutors and defense counsel 840 00:43:19,800 --> 00:43:24,371 to be aware of the law and to follow it. 841 00:43:24,371 --> 00:43:28,842 If any absurdity results from the examples cited 842 00:43:28,842 --> 00:43:34,242 by Respondent, it's not a result of the statute; 843 00:43:34,648 --> 00:43:38,485 it's a result of the incompetence of counsel 844 00:43:38,485 --> 00:43:44,958 and the failure of the trial court to do its job. 845 00:43:44,958 --> 00:43:46,527 JUSTICE GROBAN: What do you mean by "incompetence"? 846 00:43:46,527 --> 00:43:48,395 I'm thinking of a situation 847 00:43:48,395 --> 00:43:53,795 in which you have 60 prospective jurors in the courtroom. 848 00:43:54,670 --> 00:43:56,236 They're not even all sitting in the box. 849 00:43:56,236 --> 00:43:59,836 And the assertion is Juror No. 57 850 00:44:01,775 --> 00:44:07,614 sitting in the fourth row was - the lawyer says, 851 00:44:07,614 --> 00:44:13,487 "I could see her furtively glancing at her cell phone." 852 00:44:13,487 --> 00:44:18,559 The judge says, "A lot was going on; I just can't confirm that." 853 00:44:18,559 --> 00:44:20,194 That's incompetence? 854 00:44:20,194 --> 00:44:22,594 MATTHEW ALGER: (Laughing) Well, 855 00:44:23,330 --> 00:44:26,700 it is the judge's obligation to pay attention 856 00:44:26,700 --> 00:44:28,702 to what's going on. 857 00:44:28,702 --> 00:44:33,600 It's counsel's obligation to pay attention to what's going on 858 00:44:33,600 --> 00:44:39,600 and to be informed of the law on this subject. 859 00:44:39,346 --> 00:44:43,951 That's what I was more or less referring to. 860 00:44:43,951 --> 00:44:45,752 For instance in this case, 861 00:44:45,752 --> 00:44:49,523 the prosecutor did not appear to be familiar with 862 00:44:49,523 --> 00:44:53,427 the provisions of Code of Civil Procedure for Section 231.7 863 00:44:53,427 --> 00:44:57,627 and an obligation to know that law. 864 00:44:57,798 --> 00:45:02,598 And when you're going to exercise a challenge, 865 00:45:05,239 --> 00:45:08,108 obviously it's going to be when the jurors are in the box. 866 00:45:08,108 --> 00:45:10,511 Or if you have a 6-pack method 867 00:45:10,511 --> 00:45:14,381 when you've got - what - 18 people up front, 868 00:45:14,381 --> 00:45:16,250 you don't necessarily have to observe 869 00:45:16,250 --> 00:45:18,218 everyone in the audience. 870 00:45:18,218 --> 00:45:22,418 But what I just heard from Respondent 871 00:45:25,920 --> 00:45:28,262 is that the court doesn't have to follow the law. 872 00:45:28,262 --> 00:45:32,633 I mean, that's basically what it comes down to - 873 00:45:32,633 --> 00:45:34,601 that the court doesn't have to follow 874 00:45:34,601 --> 00:45:36,601 the explanation requirement 875 00:45:37,370 --> 00:45:41,410 because it can just go on to the totality 876 00:45:41,410 --> 00:45:45,412 of the circumstances analysis. But as I said before, the court 877 00:45:45,412 --> 00:45:50,812 doesn't even get there unless it satisfies subdivision (g)(2). 878 00:45:53,320 --> 00:45:58,720 And given that the reasons identified in subdivision (g)(1) 879 00:46:00,928 --> 00:46:04,528 have been associated with discrimination historically, 880 00:46:05,599 --> 00:46:09,199 then if that confirmation and explanation 881 00:46:10,604 --> 00:46:13,400 requirement is not satisfied, 882 00:46:13,807 --> 00:46:19,207 then it's established that the reason given is discriminatory. 883 00:46:19,580 --> 00:46:21,315 CHIEF JUSTICE GUERRERO: I'm not sure that 884 00:46:21,315 --> 00:46:25,586 that is an accurate description of counsel's argument, 885 00:46:25,586 --> 00:46:27,287 that they're suggesting the court not follow the law. 886 00:46:27,287 --> 00:46:29,890 That's just a differing interpretation 887 00:46:29,890 --> 00:46:31,291 of what the law is. 888 00:46:31,291 --> 00:46:32,960 MATTHEW ALGER: Well, no, 889 00:46:32,960 --> 00:46:34,828 I mean look what we have here in this case. 890 00:46:34,828 --> 00:46:38,298 The court didn't follow the explanation requirement. 891 00:46:38,298 --> 00:46:41,602 And Respondent is saying that doesn't matter. 892 00:46:41,602 --> 00:46:44,104 Well, that would mean the court doesn't have to follow 893 00:46:44,104 --> 00:46:46,104 the explanation requirement. 894 00:46:46,273 --> 00:46:48,208 JUSTICE CORRIGAN: Well, Counsel, I think it's a matter of degree. 895 00:46:48,208 --> 00:46:51,808 Suppose behavior is that Juror No. 4 896 00:46:52,513 --> 00:46:58,352 lit up a cigarette and in the process set Juror No. 3 on fire. 897 00:46:58,352 --> 00:46:59,953 [Laughter] 898 00:46:59,953 --> 00:47:03,857 Would we say that the challenge fails 899 00:47:03,857 --> 00:47:06,460 because the lawyer didn't say, 900 00:47:06,460 --> 00:47:08,629 "You know, I just think setting another juror 901 00:47:08,629 --> 00:47:10,631 on fire might be a problem during the course 902 00:47:10,631 --> 00:47:12,866 of this ten-week trial, Judge." 903 00:47:12,866 --> 00:47:17,171 I mean, are we going to be so formulaic 904 00:47:17,171 --> 00:47:23,171 that we can't rely - now, I'm agreeing with you 905 00:47:24,478 --> 00:47:30,830 that I have intentionally chosen a reductio ad absurdum argument. 906 00:47:30,830 --> 00:47:35,222 But the question is whether it is - whether you are arguing 907 00:47:35,222 --> 00:47:39,590 for a standard that is so formulaic 908 00:47:39,590 --> 00:47:44,364 that in its absence logic and reason have no role. 909 00:47:44,364 --> 00:47:45,999 MATTHEW ALGER: As I said, 910 00:47:45,999 --> 00:47:48,435 the standard has very broad application 911 00:47:48,435 --> 00:47:54,708 because it was intended to cover a whole variety of situations. 912 00:47:54,708 --> 00:47:58,846 And perhaps it could have been drafted differently; 913 00:47:58,846 --> 00:48:04,510 but it wasn't, and so it needs to be applied literally. 914 00:48:04,510 --> 00:48:08,251 And there will be reasons or occasions 915 00:48:08,388 --> 00:48:11,325 when it's applied and it's obvious 916 00:48:11,325 --> 00:48:15,525 that the reason is not discriminatory given 917 00:48:16,163 --> 00:48:18,163 what happened; 918 00:48:18,165 --> 00:48:21,935 but the explanation is required to be given, and then you go on. 919 00:48:21,935 --> 00:48:28,535 It's not a big deal except that the Legislature required it. 920 00:48:28,909 --> 00:48:33,709 Let me address subdivision (e) versus subdivision (g)(2). 921 00:48:38,685 --> 00:48:42,285 Subdivision (e) does have a requirement 922 00:48:43,924 --> 00:48:45,259 that it be shown by clear 923 00:48:45,259 --> 00:48:46,827 and convincing evidence 924 00:48:46,827 --> 00:48:48,829 that an objectively reasonable person would view 925 00:48:48,829 --> 00:48:53,867 the rationale as unrelated to a prospective juror's race. 926 00:48:53,867 --> 00:48:55,867 Well, subdivision (g)(2) 927 00:48:57,700 --> 00:48:59,706 doesn't have that because it's not necessary. 928 00:48:59,706 --> 00:49:04,144 It's been established by the failure to satisfy that test 929 00:49:04,144 --> 00:49:06,213 that you have an invalid reason, 930 00:49:06,213 --> 00:49:08,480 and the reason it's invalid is 931 00:49:08,480 --> 00:49:10,448 because it's improperly discriminatory. 932 00:49:14,540 --> 00:49:17,691 And you don't need that; you don't even need to go there. 933 00:49:17,691 --> 00:49:20,910 And my point today 934 00:49:21,528 --> 00:49:26,533 is that you don't even get to a totality 935 00:49:26,533 --> 00:49:28,933 of the circumstances analysis; 936 00:49:30,300 --> 00:49:33,874 you don't even - you can't get there unless 937 00:49:33,874 --> 00:49:38,740 you satisfy both requirements of subdivision (g)(2). 938 00:49:42,349 --> 00:49:45,319 You can't bypass one of them and just say, 939 00:49:45,319 --> 00:49:48,989 "Oh, under the totality of the circumstances, 940 00:49:48,989 --> 00:49:51,925 the strike is fine." And that's what happened here. 941 00:49:51,925 --> 00:49:53,894 So with that, 942 00:49:53,894 --> 00:49:56,864 unless the Court has some questions, I will submit it. 943 00:49:56,864 --> 00:49:58,699 CHIEF JUSTICE GUERRERO: Thank you. 944 00:49:58,699 --> 00:49:59,967 The Court thanks both parties for your arguments here today. 945 00:49:59,967 --> 00:50:04,767 The matter is submitted. Calling the next matter, 946 00:50:11,378 --> 00:50:14,114 Conservatorship of the Person of E. A. 947 00:50:14,114 --> 00:50:16,114 On this case, 948 00:50:18,180 --> 00:50:20,320 the Court is pleased to welcome Justice Delaney 949 00:50:20,320 --> 00:50:24,520 from the Fourth District Court of Appeal. 950 00:50:38,305 --> 00:50:40,307 BRIAN McCOMAS: Thank you, Chief Justice, 951 00:50:40,307 --> 00:50:43,710 and the Associate Justices of this Court. 952 00:50:43,710 --> 00:50:45,412 If it pleases everyone, 953 00:50:45,412 --> 00:50:47,414 Brian McComas on behalf of Appellant E. A. 954 00:50:47,414 --> 00:50:53,414 Freedom is openly on trial in any civil commitment proceeding; 955 00:50:54,154 --> 00:50:55,956 and at the same time, 956 00:50:55,956 --> 00:50:58,325 a trial is needed for a committed person 957 00:50:58,325 --> 00:51:00,294 to obtain their freedom. 958 00:51:00,294 --> 00:51:04,131 And here's the crux of the problem underlying the issue 959 00:51:04,131 --> 00:51:06,600 that the Court considers today. 960 00:51:06,600 --> 00:51:10,504 Whether the conserved person must demonstrate prejudice 961 00:51:10,504 --> 00:51:15,342 when there's a 362-day delay in the initiation of trial, 962 00:51:15,342 --> 00:51:20,347 resulting in a violation of due process and equal protection. 963 00:51:20,347 --> 00:51:23,947 And no prejudice analysis can quantify 964 00:51:24,451 --> 00:51:29,251 how the denial of freedom harms an individual 965 00:51:29,423 --> 00:51:33,230 when the commitment period effectively lapses, 966 00:51:33,126 --> 00:51:36,129 and the functional denial of due process 967 00:51:36,129 --> 00:51:38,465 is what occurred in this case. 968 00:51:38,465 --> 00:51:43,537 No trials occurred between the date of the demand - December 2, 969 00:51:43,537 --> 00:51:48,337 2022 - and the resolution of the case, November 28, 2023. 970 00:51:49,176 --> 00:51:52,913 JUSTICE EVANS: Counsel, how do we think about the fact 971 00:51:52,913 --> 00:51:55,382 that the purpose of the conservatorship 972 00:51:55,382 --> 00:51:58,180 is to provide necessary treatment? 973 00:51:58,180 --> 00:52:03,230 How do we factor that into any prejudice analysis 974 00:52:03,230 --> 00:52:04,725 or thinking about any remedy? 975 00:52:04,725 --> 00:52:06,293 BRIAN McCOMAS: The purpose is treatment, 976 00:52:06,293 --> 00:52:08,829 and the purpose is also swiftness. 977 00:52:08,829 --> 00:52:11,829 The institutionalization combined with treatment 978 00:52:13,367 --> 00:52:16,436 at times can be competing goals. 979 00:52:16,436 --> 00:52:19,973 But the treatment factor must be considered in the test 980 00:52:19,973 --> 00:52:22,276 I'm going to get to when we talk about 981 00:52:22,276 --> 00:52:25,479 whether excessive delays in bringing a person to court over 982 00:52:25,479 --> 00:52:29,750 and over again is actually serving the treatment purpose. 983 00:52:29,750 --> 00:52:33,787 And here, over one dozen continuances were granted 984 00:52:33,787 --> 00:52:36,187 over my client's objections. 985 00:52:36,456 --> 00:52:38,659 Seven motions to dismiss 986 00:52:38,659 --> 00:52:42,229 were denied over my client's objections. 987 00:52:42,229 --> 00:52:46,967 Two petitions for appointment were stacked upon one another 988 00:52:46,967 --> 00:52:50,537 in what appears to be a practice and pattern in that county. 989 00:52:50,537 --> 00:52:53,640 And one petition wasn't even adjudicated. 990 00:52:53,640 --> 00:52:57,144 JUSTICE KRUGER: Can I ask you what is the remedy 991 00:52:57,144 --> 00:53:01,782 that you are seeking for the alleged due process violation 992 00:53:01,782 --> 00:53:04,782 with respect to the 2022 petition? 993 00:53:06,587 --> 00:53:10,958 I understand that your clients accepted the conservatorship 994 00:53:10,958 --> 00:53:13,358 for the following year, 995 00:53:16,330 --> 00:53:19,930 and you're appealing from that judgment. 996 00:53:20,330 --> 00:53:23,704 What is the appropriate remedy if we were to decide 997 00:53:23,704 --> 00:53:28,509 that a due process violation occurred on a previous petition? 998 00:53:28,509 --> 00:53:30,444 BRIAN McCOMAS: And I believe the appeal included 999 00:53:30,444 --> 00:53:32,546 both in the carve-out that was made on the last day. 1000 00:53:32,546 --> 00:53:34,281 They wanted to preserve the speedy trial 1001 00:53:34,281 --> 00:53:36,383 and due process rights as to the petition 1002 00:53:36,383 --> 00:53:38,118 that was never adjudicated. 1003 00:53:38,118 --> 00:53:40,888 But to answer Your Honor's question, 1004 00:53:40,888 --> 00:53:42,656 we would ask for a dismissal. 1005 00:53:42,656 --> 00:53:44,291 And I know that sounds like a Pyrrhic victory. 1006 00:53:44,291 --> 00:53:45,959 JUSTICE KRUGER: A dismissal of what? 1007 00:53:45,959 --> 00:53:47,194 BRIAN McCOMAS: Of that old petition. 1008 00:53:47,194 --> 00:53:48,495 JUSTICE KRUGER: Of the 2022? 1009 00:53:48,495 --> 00:53:49,930 BRIAN McCOMAS: Yes. 1010 00:53:49,930 --> 00:53:51,665 JUSTICE KRUGER: Okay, so you are not suggesting 1011 00:53:51,665 --> 00:53:53,934 that there's any connection between the 2022 1012 00:53:53,934 --> 00:53:56,934 and the 2023 -- that resolution? 1013 00:53:57,204 --> 00:53:58,872 I understand that there have since been 1014 00:53:58,872 --> 00:54:01,942 even more developments in the matter. 1015 00:54:01,942 --> 00:54:07,342 But you're agreeing that the 2023 outcome remains in place, 1016 00:54:08,182 --> 00:54:10,284 and you would ask for a retroactive dismissal 1017 00:54:10,284 --> 00:54:14,540 of the 2022 petition even though it's since been superseded? 1018 00:54:14,540 --> 00:54:17,891 BRIAN McCOMAS: Well not necessarily, Your Honor. 1019 00:54:17,891 --> 00:54:21,361 The stacking question I guess would be implicated by this. 1020 00:54:21,361 --> 00:54:25,699 Does an invalid petition that violates a commitment period 1021 00:54:25,699 --> 00:54:29,200 - does that taint a later commitment petition 1022 00:54:29,200 --> 00:54:31,672 that's stacked on top of that? At this point, 1023 00:54:31,672 --> 00:54:33,407 as Your Honor knows, 1024 00:54:33,407 --> 00:54:35,475 my client is not in the conservatorship anymore. 1025 00:54:35,475 --> 00:54:39,813 And we did our best to get this up in front of the courts 1026 00:54:39,813 --> 00:54:44,251 at a time when a remedy might have been more palpable for her. 1027 00:54:44,251 --> 00:54:46,353 But I think if we focus on 1028 00:54:46,353 --> 00:54:48,956 how could this have been remedied in time 1029 00:54:48,956 --> 00:54:52,392 when it mattered and we look at the 2022 petition, 1030 00:54:52,392 --> 00:54:54,661 because that is when this would have mattered, 1031 00:54:54,661 --> 00:54:56,563 we would have started with dismissal. 1032 00:54:56,563 --> 00:54:59,900 But there are lesser remedies. There's remedies like release. 1033 00:54:59,900 --> 00:55:02,900 There's remedies like less-restrictive placement. 1034 00:55:04,104 --> 00:55:06,106 And this was never a question, 1035 00:55:06,106 --> 00:55:09,243 but my client might have had remedies like restoring some 1036 00:55:09,243 --> 00:55:11,745 of her rights and taking away some of the special- 1037 00:55:11,745 --> 00:55:15,782 CHIEF JUSTICE GUERRERO: Why would a writ not be a better 1038 00:55:15,782 --> 00:55:20,200 path to pursue for this type of relief that you're requesting? 1039 00:55:20,200 --> 00:55:23,824 Well, if they're having trouble getting into a courtroom 1040 00:55:23,824 --> 00:55:26,360 and then they file a habeas petition, 1041 00:55:26,360 --> 00:55:30,197 this goes to the same department that's already overburdened. 1042 00:55:30,197 --> 00:55:33,800 And habeas is generally a slower remedy than demand for trial 1043 00:55:33,800 --> 00:55:38,380 that is set out with 10-15 days in Section 5350, 1044 00:55:38,380 --> 00:55:40,307 I don't think that's really an efficient way 1045 00:55:40,307 --> 00:55:44,178 for them to get to a trial. 1046 00:55:44,178 --> 00:55:46,446 The other question I think that's interesting here 1047 00:55:46,446 --> 00:55:50,484 too is the delay of the trial is so long here 1048 00:55:50,484 --> 00:55:52,853 that other aspects of the statute 1049 00:55:52,853 --> 00:55:54,853 are essentially nullified. 1050 00:55:54,855 --> 00:55:57,240 So if there was a timely trial, 1051 00:55:57,240 --> 00:55:59,359 my client might have been able to seek rehearing 1052 00:55:59,359 --> 00:56:01,261 in a timely fashion. 1053 00:56:01,261 --> 00:56:03,931 If there was findings as to disabilities or placement, 1054 00:56:03,931 --> 00:56:06,400 my client might have been able to file a motion 1055 00:56:06,400 --> 00:56:09,269 for reconsideration of those issues. 1056 00:56:09,269 --> 00:56:13,730 But since there's just a petition hanging out in ether, 1057 00:56:13,730 --> 00:56:15,642 there's no real ability for her to implement any 1058 00:56:15,642 --> 00:56:17,678 of the other rights that are tied into the LPS Act. 1059 00:56:17,678 --> 00:56:19,546 JUSTICE DELANEY: Mr. McComas? BRIAN McCOMAS: Yes? 1060 00:56:19,546 --> 00:56:21,281 JUSTICE DELANEY: Let me take you back to the question 1061 00:56:21,281 --> 00:56:22,749 the Chief Justice asked you about the writ. 1062 00:56:22,749 --> 00:56:24,585 Are you suggesting then 1063 00:56:24,585 --> 00:56:26,286 that the trial court - you're expecting the trial court 1064 00:56:26,286 --> 00:56:28,355 in this scenario, or a scenario like this, 1065 00:56:28,355 --> 00:56:31,525 to treat the petition for writ of habeas corpus 1066 00:56:31,525 --> 00:56:33,794 in the same manner they're treating the request for trial? 1067 00:56:33,794 --> 00:56:36,363 Do you not think it would garner more attention 1068 00:56:36,363 --> 00:56:38,866 and more expediency addressing some of the issues 1069 00:56:38,866 --> 00:56:40,467 that you're raising? 1070 00:56:40,467 --> 00:56:42,336 BRIAN McCOMAS: I don't think it would 1071 00:56:42,336 --> 00:56:44,705 because we're setting trials on a monthly basis, 1072 00:56:44,705 --> 00:56:46,707 making demands every month. 1073 00:56:46,707 --> 00:56:50,177 I file a habeas petition; maybe I get an informal reply, 1074 00:56:50,177 --> 00:56:51,678 maybe I get an order to show cause. 1075 00:56:51,678 --> 00:56:53,347 I do a return; I do a denial. 1076 00:56:53,347 --> 00:56:55,349 We're not doing this in 30 days. 1077 00:56:55,349 --> 00:56:57,317 They're coming to court every 30 days. 1078 00:56:57,317 --> 00:56:59,119 Moving to dismiss, 1079 00:56:59,119 --> 00:57:00,888 asserting my client's rights as frequently as possible, 1080 00:57:00,888 --> 00:57:03,900 is really the only way of effectively asserting 1081 00:57:03,900 --> 00:57:04,758 those rights under the LPS. 1082 00:57:04,758 --> 00:57:08,128 JUSTICE EVANS: Counsel, just to follow up the writ series 1083 00:57:08,128 --> 00:57:10,564 of events that you just articulated, is that based on 1084 00:57:10,564 --> 00:57:13,367 actual experience; or are you speculating? 1085 00:57:13,367 --> 00:57:14,968 BRIAN McCOMAS: That is based on my writ experience. 1086 00:57:14,968 --> 00:57:16,904 It can be expedited. 1087 00:57:16,904 --> 00:57:19,239 A judge can issue an order to show cause right away. 1088 00:57:19,239 --> 00:57:21,508 But the Respondent usually has their own due process rights 1089 00:57:21,508 --> 00:57:24,411 that usually at least require a filing of a return 1090 00:57:24,411 --> 00:57:28,110 and a denial of the allegations. 1091 00:57:28,182 --> 00:57:33,820 But just to get back to sort of where I wanted to start this, 1092 00:57:33,820 --> 00:57:36,723 the question of treatment that you started with, 1093 00:57:36,723 --> 00:57:40,323 Justice Evans, is a complicated factor 1094 00:57:41,328 --> 00:57:45,132 that cannot be quantified in an analysis of harmless error. 1095 00:57:45,132 --> 00:57:48,902 It cannot be quantified in an analysis of an impairment 1096 00:57:48,902 --> 00:57:51,138 of the evidence to be introduced at trial, 1097 00:57:51,138 --> 00:57:55,938 and nor can the types of enduring attachments 1098 00:57:56,276 --> 00:57:59,780 of a normal life that we take away from the conserved person 1099 00:57:59,780 --> 00:58:02,983 be analyzed in a prejudice-styled analysis 1100 00:58:02,983 --> 00:58:05,452 from the Barker/Camacho cases. 1101 00:58:05,452 --> 00:58:08,488 And I think when we get to it, 1102 00:58:08,488 --> 00:58:14,628 I have a test that does sort of fit the LPS Act better. 1103 00:58:14,628 --> 00:58:17,397 But I think we have to keep this in mind 1104 00:58:17,397 --> 00:58:20,968 when we're thinking about an Act that's created to protect 1105 00:58:20,968 --> 00:58:23,704 the most hyper-marginalized people in our society. 1106 00:58:23,704 --> 00:58:25,339 JUSTICE EVANS: So are you saying we 1107 00:58:25,339 --> 00:58:27,400 shouldn't be thinking about treatment 1108 00:58:27,400 --> 00:58:28,809 and any prejudice analysis? 1109 00:58:28,809 --> 00:58:30,244 But is it appropriate to think about treatment 1110 00:58:30,244 --> 00:58:31,879 in terms of remedy? 1111 00:58:31,879 --> 00:58:33,146 BRIAN McCOMAS: Yes, absolutely. 1112 00:58:33,146 --> 00:58:34,414 JUSTICE EVANS: Okay. 1113 00:58:34,414 --> 00:58:35,549 BRIAN McCOMAS: I also think it's appropriate 1114 00:58:35,549 --> 00:58:37,150 to think of treatment in terms of 1115 00:58:37,150 --> 00:58:40,387 whether the due process violation has occurred, 1116 00:58:40,387 --> 00:58:44,191 and I want us to get to that. 1117 00:58:44,191 --> 00:58:48,829 I think one thing that would be very helpful in this field 1118 00:58:48,829 --> 00:58:52,990 is an opinion from this Court just saying 1119 00:58:52,990 --> 00:58:55,869 that Section 5350 is backed by due process. 1120 00:58:55,869 --> 00:58:57,905 If you look at the cases we've discussed, 1121 00:58:57,905 --> 00:59:00,674 there is not a clear statement of that. 1122 00:59:00,674 --> 00:59:02,476 There's not a clear statement, as far as I can tell, 1123 00:59:02,476 --> 00:59:04,645 in this Court's precedent of that. 1124 00:59:04,645 --> 00:59:06,413 And that type of promise, 1125 00:59:06,413 --> 00:59:09,490 that type of delivery to the lower courts, 1126 00:59:09,490 --> 00:59:12,190 in itself provides greater protections. 1127 00:59:12,190 --> 00:59:14,210 And we know this has to be true 1128 00:59:14,210 --> 00:59:17,621 because Section 5350 has created liberty interests. 1129 00:59:17,925 --> 00:59:21,628 Those liberty interests protect against bodily restraint, 1130 00:59:21,628 --> 00:59:25,980 which is at the core of the due process protections. 1131 00:59:25,980 --> 00:59:27,167 And we know that Section 5350 1132 00:59:27,167 --> 00:59:30,437 is trying to guarantee conserved people trial 1133 00:59:30,437 --> 00:59:33,307 in a meaningful manner at a meaningful time. 1134 00:59:33,307 --> 00:59:37,611 And so due process must apply if the statute is violated, 1135 00:59:37,611 --> 00:59:40,247 perhaps not just by one day; 1136 00:59:40,247 --> 00:59:42,449 perhaps it has to be more extreme. 1137 00:59:42,449 --> 00:59:46,420 But without that type of backing by the Court, 1138 00:59:46,420 --> 00:59:49,420 we will see longer delays. 1139 00:59:51,358 --> 00:59:55,620 I look to Justice Corrigan and her Opinion in John L. 1140 00:59:55,620 --> 00:59:57,970 when we talk about what type of test 1141 00:59:57,970 --> 01:00:02,536 I'd like to see applied here which is the private interest, 1142 01:00:02,536 --> 01:00:04,671 the risk of erroneous deprivation, 1143 01:00:04,671 --> 01:00:06,540 the government interest, 1144 01:00:06,540 --> 01:00:08,375 and where I think this addresses Justice Evans' 1145 01:00:08,375 --> 01:00:11,178 concerns about treatment of the dignity interest 1146 01:00:11,178 --> 01:00:14,681 of the conserved person. And when we look at that, 1147 01:00:14,681 --> 01:00:16,650 we can see that the private interest is usually 1148 01:00:16,650 --> 01:00:21,889 at its maximum - that commitment is much like incarceration 1149 01:00:21,889 --> 01:00:25,592 in terms of the rights we're depriving of the person. 1150 01:00:25,592 --> 01:00:28,929 And we know that timely trials increase accuracy 1151 01:00:28,929 --> 01:00:30,697 in terms of verifying the allegations 1152 01:00:30,697 --> 01:00:32,766 in the commitment petition. 1153 01:00:32,766 --> 01:00:34,535 And we know the government really doesn't have 1154 01:00:34,535 --> 01:00:37,704 an interest in delay in these cases because 1155 01:00:37,704 --> 01:00:42,276 the LPS Act sets out a series of timelines that are swift. 1156 01:00:42,276 --> 01:00:44,478 And at the end of the day, 1157 01:00:44,478 --> 01:00:49,278 delay is a violation of the dignity interest. 1158 01:00:49,483 --> 01:00:53,530 It is not recognizing the committed person 1159 01:00:53,530 --> 01:00:56,356 as a person with preferences, preferably probably 1160 01:00:56,356 --> 01:01:00,394 not to come back to court over and over again. 1161 01:01:00,394 --> 01:01:04,198 And so if we do recognize that due process applies, 1162 01:01:04,198 --> 01:01:07,701 then the question is, well, what process is due. 1163 01:01:07,701 --> 01:01:09,403 And the process that is due 1164 01:01:09,403 --> 01:01:12,673 does have to balance medical objectives 1165 01:01:12,673 --> 01:01:15,673 but also swift legal proceedings. 1166 01:01:16,710 --> 01:01:20,848 And this is where the prejudice analysis from Camacho and Barker 1167 01:01:20,848 --> 01:01:23,150 can't quite quantify the issues. 1168 01:01:23,150 --> 01:01:27,988 And it's hard for me to even think of 1169 01:01:27,988 --> 01:01:33,227 how we describe prejudice in terms of the social death 1170 01:01:33,227 --> 01:01:36,827 we impose on a conserved person. 1171 01:01:37,970 --> 01:01:40,133 How do we measure what it feels like not 1172 01:01:40,133 --> 01:01:43,470 to be treated as an equal, fully participating 1173 01:01:43,470 --> 01:01:45,372 and a responsible member of our society? 1174 01:01:45,372 --> 01:01:47,174 CHIEF JUSTICE GUERRERO: What if there is no dispute 1175 01:01:47,174 --> 01:01:49,910 about the grave disability of that individual 1176 01:01:49,910 --> 01:01:53,460 at any time in the proceeding? 1177 01:01:53,460 --> 01:01:54,882 BRIAN McCOMAS: In terms of no dispute, 1178 01:01:54,882 --> 01:01:56,917 there still could be other issues, Your Honor. 1179 01:01:56,917 --> 01:02:00,587 And less restrictive placement might be the most important one 1180 01:02:00,587 --> 01:02:04,424 for somebody, moving closer to their home and their loved ones. 1181 01:02:04,424 --> 01:02:09,620 There could be a dispute perhaps - perhaps not a dispute, 1182 01:02:09,620 --> 01:02:10,998 but there could be an issue about 1183 01:02:10,998 --> 01:02:12,933 whether there's a third party 1184 01:02:12,933 --> 01:02:16,370 who might want to provide shelter, clothing, 1185 01:02:16,370 --> 01:02:18,500 and care for these people. 1186 01:02:18,500 --> 01:02:19,773 JUSTICE EVANS: Did any of those negotiations 1187 01:02:19,773 --> 01:02:22,576 occur during this lengthy process - efforts 1188 01:02:22,576 --> 01:02:24,645 to ask for less restrictive placement 1189 01:02:24,645 --> 01:02:27,948 or any other accommodations in light of the delay? 1190 01:02:27,948 --> 01:02:30,350 BRIAN McCOMAS: There is not a record of that below 1191 01:02:30,350 --> 01:02:33,120 until the November 28th date. 1192 01:02:33,120 --> 01:02:35,556 But I think that really gets to 1193 01:02:35,556 --> 01:02:38,659 why the right to jury trial is so important, right? 1194 01:02:38,659 --> 01:02:41,428 It's the anchor that holds the government 1195 01:02:41,428 --> 01:02:43,797 to the promises of the Constitution. 1196 01:02:43,797 --> 01:02:46,266 It is the way that a person who feels 1197 01:02:46,266 --> 01:02:48,468 they're not being treated correctly, 1198 01:02:48,468 --> 01:02:52,272 maybe even not in a dignified manner, can be heard. 1199 01:02:52,272 --> 01:02:57,311 And maybe even if they're just frustrated, have that exhausted. 1200 01:02:57,311 --> 01:02:59,413 But without that demand, 1201 01:02:59,413 --> 01:03:02,416 there is no negotiation on these lesser things. 1202 01:03:02,416 --> 01:03:04,184 And that's why I think a test 1203 01:03:04,184 --> 01:03:06,587 that really evaluates the dignitary interests 1204 01:03:06,587 --> 01:03:09,456 would incorporate more oral participation 1205 01:03:09,456 --> 01:03:11,225 from the conservatee 1206 01:03:11,225 --> 01:03:13,527 and potentially foster greater resolution. 1207 01:03:13,527 --> 01:03:18,650 Because if there is - this is a case where it's not contested. 1208 01:03:18,650 --> 01:03:20,434 Grave disability is not contested, 1209 01:03:20,434 --> 01:03:23,303 and we really should be getting to the other issues 1210 01:03:23,303 --> 01:03:26,874 that are creating the contest in the courtroom. 1211 01:03:26,874 --> 01:03:29,877 JUSTICE GROBAN: I just want to make sure I understand. 1212 01:03:29,877 --> 01:03:34,715 I understand you to be saying that the continuances in 1213 01:03:34,715 --> 01:03:37,317 and of themselves in the process of kind of going back 1214 01:03:37,317 --> 01:03:39,553 and forth to court and the delay, 1215 01:03:39,553 --> 01:03:44,157 that that in and of itself is disruptive to treatment. 1216 01:03:44,157 --> 01:03:45,993 I have some sense of what you mean; 1217 01:03:45,993 --> 01:03:47,761 but to the extent I'm understanding you correctly, 1218 01:03:47,761 --> 01:03:51,498 can you elaborate a little bit? BRIAN McCOMAS: Yes, I mean, 1219 01:03:51,498 --> 01:03:54,568 there is only a record of three appearances 1220 01:03:54,568 --> 01:03:56,470 by my client at these hearings. 1221 01:03:56,470 --> 01:03:59,473 But there are records of attempts to get her remotely. 1222 01:03:59,473 --> 01:04:03,844 There is records of how these appearances interfere 1223 01:04:03,844 --> 01:04:05,612 with family visits, 1224 01:04:05,612 --> 01:04:08,949 and all of which is not conducive to stability, 1225 01:04:08,949 --> 01:04:12,753 which is what the conservatee ideally would need 1226 01:04:12,753 --> 01:04:14,488 in a regimented treatment 1227 01:04:14,488 --> 01:04:18,580 that is only supposed to last one year. 1228 01:04:18,580 --> 01:04:20,160 The other aspect in the case law I think 1229 01:04:20,160 --> 01:04:21,795 that the Court can really help us out with 1230 01:04:21,795 --> 01:04:24,431 is this question of prejudice 1231 01:04:24,431 --> 01:04:29,269 is really not fully developed in a way that I think is coherent. 1232 01:04:29,269 --> 01:04:32,239 If we look at James M., which is the first case 1233 01:04:32,239 --> 01:04:35,309 to address a violation of Section 5350, 1234 01:04:35,309 --> 01:04:39,379 a nominal violation of 11 days or something, 1235 01:04:39,379 --> 01:04:41,582 it just says no prejudice. 1236 01:04:41,582 --> 01:04:43,650 And as we go down the line, 1237 01:04:43,650 --> 01:04:46,220 we actually have the case of Jose B. 1238 01:04:46,220 --> 01:04:49,423 where it does the factor test from John L. 1239 01:04:49,423 --> 01:04:51,859 and then just throws in no prejudice. 1240 01:04:51,859 --> 01:04:55,229 And if we go further, we go to T. B. 1241 01:04:55,229 --> 01:04:57,731 where it assumes the Camacho test; 1242 01:04:57,731 --> 01:05:00,100 but it also recognizes the parties in the brief 1243 01:05:00,100 --> 01:05:02,100 whether Camacho applies. 1244 01:05:02,269 --> 01:05:06,390 And so I think we really need some kind of guidance 1245 01:05:06,390 --> 01:05:07,941 on what is the test, 1246 01:05:07,941 --> 01:05:09,743 particularly in light of the most recent decision, A. H., 1247 01:05:09,743 --> 01:05:14,448 which does do the full test under Barker 1248 01:05:14,448 --> 01:05:17,117 and recognizes that this decision is pending 1249 01:05:17,117 --> 01:05:19,117 before this Court. 1250 01:05:24,458 --> 01:05:26,126 And I think the other issue 1251 01:05:26,126 --> 01:05:28,395 that the Court needs to consider here 1252 01:05:28,395 --> 01:05:30,864 is that the Barker test is ill-suited 1253 01:05:30,864 --> 01:05:33,133 for questions or remedies. 1254 01:05:33,133 --> 01:05:36,136 It recognizes that in the Barker Opinion, 1255 01:05:36,136 --> 01:05:40,174 and it also is recognized in footnote 5 of Camacho. 1256 01:05:40,174 --> 01:05:42,142 But the John L. 1257 01:05:42,142 --> 01:05:46,280 test actually is built for incorporating potential remedies 1258 01:05:46,280 --> 01:05:50,117 by looking at the conservatee's dignitary interests 1259 01:05:50,117 --> 01:05:52,986 - what is the reason they're demanding trial, 1260 01:05:52,986 --> 01:05:54,721 what is the reason 1261 01:05:54,721 --> 01:05:57,721 that promoting their oral participation. 1262 01:06:01,228 --> 01:06:04,765 And I think that it's a better test for that reason. 1263 01:06:04,765 --> 01:06:09,565 Very briefly wanted to just discuss equal protection. 1264 01:06:10,504 --> 01:06:13,607 We recognize that going on 100 years now, 1265 01:06:13,607 --> 01:06:16,900 civil commitments are not entitled to the same rights as 1266 01:06:16,900 --> 01:06:17,845 in criminal cases. 1267 01:06:17,845 --> 01:06:21,648 But I don't think that the question is necessarily 1268 01:06:21,648 --> 01:06:23,984 of superior versus inferior as to rights. 1269 01:06:23,984 --> 01:06:25,986 It's a question of uniqueness. 1270 01:06:25,986 --> 01:06:31,124 And LPS Act is very unique with to a history of California. 1271 01:06:31,124 --> 01:06:35,280 And the California Constitution also has a unique place 1272 01:06:35,280 --> 01:06:36,930 in this decision. 1273 01:06:36,930 --> 01:06:40,834 And so what I'd ask the Court to do is to look at 1274 01:06:40,834 --> 01:06:42,836 how there's not adequate justifications 1275 01:06:42,836 --> 01:06:48,236 to graft procedures from SVP proceedings into LPS proceedings 1276 01:06:49,420 --> 01:06:51,979 because LPS proceedings must go quickly. 1277 01:06:51,979 --> 01:06:53,881 There's no reasonable basis to adopt a test 1278 01:06:53,881 --> 01:06:57,117 that permits indefinite delay for a commitment period 1279 01:06:57,117 --> 01:06:59,117 that doesn't exist. 1280 01:06:59,119 --> 01:07:02,389 LPS people do not necessarily pose a danger to society, 1281 01:07:02,389 --> 01:07:04,958 so there's not a justification for holding them 1282 01:07:04,958 --> 01:07:07,928 in prison-like facilities for as long as necessary 1283 01:07:07,928 --> 01:07:09,663 to reduce that danger. 1284 01:07:09,663 --> 01:07:12,432 And LPS defendants face stigmatization 1285 01:07:12,432 --> 01:07:15,636 for no moral blame or weakness of their own. 1286 01:07:15,636 --> 01:07:18,539 And again, in this function it is of treatment 1287 01:07:18,539 --> 01:07:20,440 in the swiftest manner possible. 1288 01:07:20,440 --> 01:07:22,643 And so there really are no similarities 1289 01:07:22,643 --> 01:07:26,243 between SVP proceedings and LPS proceedings 1290 01:07:26,847 --> 01:07:29,516 that would justify using the Camacho case here. 1291 01:07:29,516 --> 01:07:36,356 And so we would argue it is an unequal application of the law. 1292 01:07:36,356 --> 01:07:38,250 CHIEF JUSTICE GUERRERO: What two groups are you comparing? 1293 01:07:38,250 --> 01:07:40,794 You said the SVP and the LPS? 1294 01:07:40,794 --> 01:07:44,994 BRIAN McCOMAS: Yes. CHIEF JUSTICE GUERRERO: Okay. 1295 01:07:47,340 --> 01:07:49,690 BRIAN McCOMAS: And I think 1296 01:07:49,690 --> 01:07:51,171 that you could look at also the Camacho Opinion to the extent 1297 01:07:51,171 --> 01:07:56,343 that that provides a test of what type of test should apply. 1298 01:07:56,343 --> 01:07:57,811 There's a discussion on that too. 1299 01:07:57,811 --> 01:08:00,211 We appreciate the consideration. 1300 01:08:00,881 --> 01:08:04,251 But if you do that type of test even, 1301 01:08:04,251 --> 01:08:08,155 it doesn't really make a ton of sense in the LPS context. 1302 01:08:08,155 --> 01:08:09,990 CHIEF JUSTICE GUERRERO: I guess I'm - can I just go back? 1303 01:08:09,990 --> 01:08:11,859 I'm not clear on the equal protection argument 1304 01:08:11,859 --> 01:08:13,859 that you're asserting. 1305 01:08:14,161 --> 01:08:16,430 Are you asserting the two groups are treated 1306 01:08:16,430 --> 01:08:18,430 similarly or differently? 1307 01:08:18,832 --> 01:08:20,601 BRIAN McCOMAS: I would be asserting 1308 01:08:20,601 --> 01:08:23,303 that it's unfairly treating them similarly 1309 01:08:23,303 --> 01:08:27,908 if you graph on these tests from SVP proceedings to LPS. 1310 01:08:27,908 --> 01:08:32,279 It gets a little bit of an inverse there. 1311 01:08:32,279 --> 01:08:34,882 And if you look at it though, you can see why. 1312 01:08:34,882 --> 01:08:36,882 Because in Camacho, 1313 01:08:36,984 --> 01:08:41,588 Your Honor recognized that there is incentive to delay, 1314 01:08:41,588 --> 01:08:43,590 to manipulate the system. 1315 01:08:43,590 --> 01:08:46,894 But there would be no such incentive in LPS proceedings. 1316 01:08:46,894 --> 01:08:50,297 And Your Honor also recognized there's no fixed point 1317 01:08:50,297 --> 01:08:52,799 in the process where a trial must occur. 1318 01:08:52,799 --> 01:08:54,340 To the contrary, 1319 01:08:54,340 --> 01:08:55,736 in LPS proceedings there is a fixed point 1320 01:08:55,736 --> 01:08:59,339 both by statute within the commitment period -- 1321 01:08:59,339 --> 01:09:04,545 or within the 10 and 15 days and the entire commitment period. 1322 01:09:04,545 --> 01:09:06,547 Your Honor did recognize 1323 01:09:06,547 --> 01:09:08,415 that delay causes anxiety in both types of proceedings. 1324 01:09:08,415 --> 01:09:10,751 But it's not just anxiety; 1325 01:09:10,751 --> 01:09:14,288 it's contrary to the purpose of LPS Act proceeding, 1326 01:09:14,288 --> 01:09:16,156 which is to provide treatment 1327 01:09:16,156 --> 01:09:19,626 and ideally get them out of the commitment. 1328 01:09:19,626 --> 01:09:22,229 And we can definitely say in an LPS Act proceeding, 1329 01:09:22,229 --> 01:09:24,629 unlike an SVP proceeding, 1330 01:09:25,666 --> 01:09:30,700 that we know how long is too long 1331 01:09:30,700 --> 01:09:32,470 because Section 5362 and Section 5361 1332 01:09:32,739 --> 01:09:35,776 say commitment terminates at one year. 1333 01:09:35,776 --> 01:09:38,478 And we know that a trial that doesn't occur within 1334 01:09:38,478 --> 01:09:40,681 that is too long. 1335 01:09:40,681 --> 01:09:43,617 And I would say the same is true for a trial 1336 01:09:43,617 --> 01:09:47,217 that effectively lapses that commitment period. 1337 01:09:49,223 --> 01:09:56,396 I do want to just touch on what I think is a true point -- 1338 01:09:56,396 --> 01:09:58,498 that the California Constitution on appeal 1339 01:09:58,498 --> 01:10:00,934 requires a finding of miscarriage of justice 1340 01:10:00,934 --> 01:10:05,506 for a reversal if my remedy is as to the 2022 petition 1341 01:10:05,506 --> 01:10:07,140 and that miscarriage of justice 1342 01:10:07,140 --> 01:10:09,209 is typically framed as prejudice. 1343 01:10:09,209 --> 01:10:11,912 I do think the court can separate that 1344 01:10:11,912 --> 01:10:15,916 for what lower courts need to do to apply a due process test 1345 01:10:15,916 --> 01:10:19,152 on motions to dismiss. But in my unique context, 1346 01:10:19,152 --> 01:10:21,989 I wanted to address why my client was harmed; 1347 01:10:21,989 --> 01:10:23,924 and I'll just start with the fact that this is 1348 01:10:23,924 --> 01:10:28,595 the longest reported delay to trial in an LPS case. 1349 01:10:28,595 --> 01:10:31,532 That delay was so long that we eventually 1350 01:10:31,532 --> 01:10:34,100 waived the right to jury trial, that my client 1351 01:10:34,100 --> 01:10:37,538 couldn't get a trial like the defendant in A. H. -- 1352 01:10:37,538 --> 01:10:39,720 or the committed person in A. H. 1353 01:10:39,720 --> 01:10:41,472 And during that time, 1354 01:10:42,109 --> 01:10:43,844 my client was essentially prevented 1355 01:10:43,844 --> 01:10:45,979 from receiving the less-secure 1356 01:10:45,979 --> 01:10:47,915 or the less-restrictive placement 1357 01:10:47,915 --> 01:10:50,830 that apparently they were seeking the whole time 1358 01:10:50,830 --> 01:10:52,853 and were entitled to upon agreement. 1359 01:10:52,853 --> 01:10:55,589 They were prevented from petitioning for rehearing. 1360 01:10:55,589 --> 01:10:58,525 They were prevented from petitioning for reconsideration. 1361 01:10:58,525 --> 01:11:01,428 They were denied access to multiple hearings; 1362 01:11:01,428 --> 01:11:04,970 denied oral participation in the case; 1363 01:11:04,970 --> 01:11:07,697 increased anxiety and concern; ongoing stigmatization; 1364 01:11:08,769 --> 01:11:11,405 and I have to admit, even for me, 1365 01:11:11,405 --> 01:11:13,807 constant confusion over the process, 1366 01:11:13,807 --> 01:11:16,577 which is antithetical to treatment. 1367 01:11:16,577 --> 01:11:20,781 At base we find the oppressive stacking of petitions a practice 1368 01:11:20,781 --> 01:11:25,519 that essentially could eliminate the right to jury trial. 1369 01:11:25,519 --> 01:11:27,421 The practice of ratifying 1370 01:11:27,421 --> 01:11:30,424 can also eliminate the right to jury trial. 1371 01:11:30,424 --> 01:11:34,940 So what we need is an interpretation of the statutes 1372 01:11:34,940 --> 01:11:36,494 that enforces that right 1373 01:11:36,530 --> 01:11:39,967 and does so with the backing of due process. 1374 01:11:39,967 --> 01:11:41,802 And at base, 1375 01:11:41,802 --> 01:11:44,271 how can the State provide shelter, food, care, 1376 01:11:44,271 --> 01:11:46,139 clothing, safety, 1377 01:11:46,139 --> 01:11:49,420 if the State cannot even provide timely trials? 1378 01:11:49,420 --> 01:11:52,642 And we can't delegate LPS proceedings 1379 01:11:54,648 --> 01:11:57,951 as sort of the judicial banishment for the crestfallen. 1380 01:11:57,951 --> 01:12:01,488 It can't be that they're so deprioritized 1381 01:12:01,488 --> 01:12:05,250 that the LPS Act becomes a dead letter. 1382 01:12:05,250 --> 01:12:08,262 So we can't sanction this pattern of stacking, 1383 01:12:08,262 --> 01:12:12,599 and we have to bring forth an interpretation of due process 1384 01:12:12,599 --> 01:12:16,737 that aligns with some idea of therapeutic jurisprudence. 1385 01:12:16,737 --> 01:12:21,975 And so I ask that the standard this Court selects recognizes 1386 01:12:21,975 --> 01:12:23,610 persons with mental illness 1387 01:12:23,610 --> 01:12:26,346 are the most vulnerable in our society. 1388 01:12:26,346 --> 01:12:28,682 And if we don't incorporate a standard 1389 01:12:28,682 --> 01:12:30,784 that protects their rights, 1390 01:12:30,784 --> 01:12:33,520 they will just continue to suffer those vulnerabilities 1391 01:12:33,520 --> 01:12:35,289 in the courtroom. 1392 01:12:35,289 --> 01:12:39,426 So specifically what I'm asking is dismissal. 1393 01:12:39,426 --> 01:12:43,230 Alternatively, remand with the application of John L. 1394 01:12:43,230 --> 01:12:48,101 in the lower court or remand for greater evaluation 1395 01:12:48,101 --> 01:12:50,370 of the equal protection rights we discussed. 1396 01:12:50,370 --> 01:12:52,306 And I will sit for a moment. Thank you. 1397 01:12:52,306 --> 01:12:55,306 CHIEF JUSTICE GUERRERO: Thank you. 1398 01:13:01,849 --> 01:13:03,917 ANDREA RUSSI: May it please the Court. 1399 01:13:03,917 --> 01:13:08,188 Andrea Russi on behalf of the Contra Costa Public Guardian. 1400 01:13:08,188 --> 01:13:10,824 There is no question that there was a lengthy 1401 01:13:10,824 --> 01:13:13,160 and unfortunate delay in Appellant's 1402 01:13:13,160 --> 01:13:15,160 conservatorship trial. 1403 01:13:16,663 --> 01:13:21,168 But even if the trial court erred in failing 1404 01:13:21,168 --> 01:13:26,390 to sufficiently make good cause findings for the continuances 1405 01:13:26,390 --> 01:13:30,239 or in denying Appellant's motions to dismiss, 1406 01:13:30,344 --> 01:13:33,344 Appellant still must demonstrate prejudice. 1407 01:13:35,148 --> 01:13:41,388 Appellant argues that in a case with a lengthy delay prejudice 1408 01:13:41,388 --> 01:13:43,388 should be presumed, 1409 01:13:43,457 --> 01:13:47,270 and the Court should apply the test from Matthews and John L. 1410 01:13:47,270 --> 01:13:50,264 that doesn't have a prejudice requirement. 1411 01:13:50,264 --> 01:13:53,467 We disagree and believe that the proper framework 1412 01:13:53,467 --> 01:13:57,337 to evaluate a due process violation in a trial delay 1413 01:13:57,337 --> 01:14:00,730 is the four-factor test from Barker v. Wingo 1414 01:14:00,730 --> 01:14:03,673 that this Court applied in Camacho. 1415 01:14:04,378 --> 01:14:06,513 As this Court noted in Camacho, 1416 01:14:06,513 --> 01:14:09,490 the factors considered in Mathews 1417 01:14:09,490 --> 01:14:11,752 are all matters already addressed and 1418 01:14:11,752 --> 01:14:14,152 with somewhat greater specificity 1419 01:14:14,388 --> 01:14:16,490 by the Barker factors. 1420 01:14:16,490 --> 01:14:19,393 The Mathews test is better suited to questions 1421 01:14:19,393 --> 01:14:24,193 about the adequacy of procedures in government decision-making. 1422 01:14:25,132 --> 01:14:27,134 As both the United States Supreme Court 1423 01:14:27,134 --> 01:14:28,969 and this Court have recognized, 1424 01:14:28,969 --> 01:14:30,971 the right to a speedy trial 1425 01:14:30,971 --> 01:14:35,609 is a more vague concept than other procedural rights; 1426 01:14:35,609 --> 01:14:41,810 and it's hard to quantify how long is too long for a delay. 1427 01:14:41,810 --> 01:14:42,683 JUSTICE CORRIGAN: Well, that's kind of why we have judges, 1428 01:14:42,683 --> 01:14:44,318 right? ANDREA RUSSI: Correct. 1429 01:14:44,318 --> 01:14:45,853 JUSTICE CORRIGAN: Because they're supposed to take 1430 01:14:45,853 --> 01:14:49,223 all those things into account. What I worry about, Counsel, 1431 01:14:49,223 --> 01:14:54,230 is the way the standard you suggest applies 1432 01:14:55,896 --> 01:14:57,798 it could be argued that even 1433 01:14:57,798 --> 01:15:04,398 though the trial was delayed to the 360th day, oh well, 1434 01:15:06,807 --> 01:15:09,843 the court found that there was indeed evidence 1435 01:15:09,843 --> 01:15:13,647 of grave disability so what the heck? 1436 01:15:13,647 --> 01:15:16,683 What the heck, we didn't follow the statute; 1437 01:15:16,683 --> 01:15:20,988 and there weren't really very good reasons for not doing that, 1438 01:15:20,988 --> 01:15:26,988 but close enough because clearly there's a mental issue here. 1439 01:15:27,528 --> 01:15:31,128 How do we structure a standard 1440 01:15:33,600 --> 01:15:37,504 that doesn't support that kind of kind of 1441 01:15:37,504 --> 01:15:41,104 "what the heck" evaluation of error? 1442 01:15:41,141 --> 01:15:42,643 Because the "what the heck" standard 1443 01:15:42,643 --> 01:15:45,450 really doesn't do it for me. 1444 01:15:45,450 --> 01:15:49,850 ANDREA RUSSI: I think that adopting the Barker standard 1445 01:15:49,850 --> 01:15:52,319 with a consideration of prejudice 1446 01:15:52,319 --> 01:15:57,119 allows for consideration of the conservatee's dignity interests. 1447 01:16:01,428 --> 01:16:05,199 And it goes beyond just looking at 1448 01:16:05,199 --> 01:16:09,999 whether there was prejudice from the trial delay. 1449 01:16:10,300 --> 01:16:11,905 And admittedly, that is something 1450 01:16:11,905 --> 01:16:14,708 that's difficult to prove in a case like this 1451 01:16:14,708 --> 01:16:18,579 where she was found gravely disabled in 2020, 1452 01:16:18,579 --> 01:16:20,247 in 2021, and again- 1453 01:16:20,247 --> 01:16:22,149 JUSTICE EVANS: Well, can there ever be prejudice 1454 01:16:22,149 --> 01:16:24,685 if the person is subsequently found gravely disabled? 1455 01:16:24,685 --> 01:16:29,890 I think if we are just considering prejudice 1456 01:16:29,890 --> 01:16:32,259 in the delay of trial, that might be difficult. 1457 01:16:32,259 --> 01:16:34,862 But the Barker test allows for consideration 1458 01:16:34,862 --> 01:16:40,262 of the other aspects of prejudice including the impact 1459 01:16:40,667 --> 01:16:44,267 of the pretrial confinement, stigma, anxiety, 1460 01:16:44,905 --> 01:16:48,308 and concern - all in addition to the prejudice 1461 01:16:48,308 --> 01:16:50,344 to the trial itself. 1462 01:16:50,344 --> 01:16:53,981 JUSTICE KRUGER: Can I ask you whether the prejudice inquiry 1463 01:16:53,981 --> 01:16:57,417 in your view is appropriately considered only as one 1464 01:16:57,417 --> 01:17:00,417 of several Barker/Camacho factors, 1465 01:17:00,587 --> 01:17:02,756 or is there also a prejudice inquiry 1466 01:17:02,756 --> 01:17:05,626 that informs the appropriate remedy 1467 01:17:05,626 --> 01:17:10,970 if a court were to determine that a proposed conservatee's 1468 01:17:10,970 --> 01:17:12,566 due process rights were violated? 1469 01:17:12,566 --> 01:17:15,769 in other words, if we have a situation 1470 01:17:15,769 --> 01:17:19,206 where an individual is concededly gravely disabled 1471 01:17:19,206 --> 01:17:22,206 throughout the period in question, 1472 01:17:22,910 --> 01:17:26,510 would the prejudice or lack thereof 1473 01:17:27,614 --> 01:17:29,616 that they suffered by virtue 1474 01:17:29,616 --> 01:17:33,687 of not having a trial on one of the intermediate reappointments 1475 01:17:33,687 --> 01:17:36,870 of the conservator affect 1476 01:17:37,991 --> 01:17:42,191 whether or not some sort of adjustment, 1477 01:17:42,362 --> 01:17:45,962 retroactive or otherwise to their conservatorship, 1478 01:17:46,990 --> 01:17:50,704 is an appropriate remedy? ANDREA RUSSI: I think 1479 01:17:50,704 --> 01:17:54,775 that that is - that can be a consideration. 1480 01:17:54,775 --> 01:18:00,175 And I think the posture of by the time 1481 01:18:00,948 --> 01:18:02,516 the case gets to the Court of Appeal, 1482 01:18:02,516 --> 01:18:04,117 the posture below 1483 01:18:04,117 --> 01:18:07,154 may have changed which makes it difficult 1484 01:18:07,154 --> 01:18:11,354 to determine what the appropriate remedy is. 1485 01:18:11,692 --> 01:18:16,492 For the conservatee, I think evaluating the prejudice 1486 01:18:17,764 --> 01:18:22,564 and whether or not that should have necessitated 1487 01:18:22,703 --> 01:18:26,974 dismissal goes to both what the remedy is for the conservatee 1488 01:18:26,974 --> 01:18:31,545 and what has happened in other cases of finding 1489 01:18:31,545 --> 01:18:35,949 that the trial court abused its discretion by 1490 01:18:35,949 --> 01:18:40,149 not dismissing the case due to prejudice. 1491 01:18:40,787 --> 01:18:45,587 But again, it's difficult because in this case 1492 01:18:45,626 --> 01:18:52,226 that petition is already over; she is no longer a conservatee. 1493 01:18:55,202 --> 01:18:58,202 So it appears that Appellant's 1494 01:18:58,305 --> 01:19:02,209 primary concern is that the Barker test doesn't allow 1495 01:19:02,209 --> 01:19:06,409 for protection of a conservatee's dignity interests 1496 01:19:08,448 --> 01:19:10,551 and that it's next to impossible 1497 01:19:10,551 --> 01:19:14,151 for the conservatee to prove prejudice. 1498 01:19:14,254 --> 01:19:18,580 As I said, I think the dignity interests can be evaluated; 1499 01:19:18,580 --> 01:19:24,580 and we saw that most recently in a case out 1500 01:19:24,398 --> 01:19:26,867 of the First District, Conservatorship of A. H, 1501 01:19:26,867 --> 01:19:31,670 where the court found that the conservatee's 1502 01:19:32,973 --> 01:19:37,277 trial rights were not prejudiced but still found prejudice 1503 01:19:37,277 --> 01:19:42,770 because the conservatee had suffered anxiety and concern. 1504 01:19:42,115 --> 01:19:44,115 In that case, 1505 01:19:44,184 --> 01:19:46,720 the conservatee had never been found gravely disabled before, 1506 01:19:46,720 --> 01:19:51,458 had never been part of the conservatorship process. 1507 01:19:51,458 --> 01:19:54,610 And so the court there looked at the factors 1508 01:19:54,610 --> 01:19:56,897 that were involved and ultimately found 1509 01:19:56,897 --> 01:20:00,534 that the petition should be dismissed in that case 1510 01:20:00,534 --> 01:20:02,669 due to the types of concerns 1511 01:20:02,669 --> 01:20:05,472 that Appellant is raising - the stigma 1512 01:20:05,472 --> 01:20:10,872 and the impact of the confinement on the conservatee. 1513 01:20:12,746 --> 01:20:15,480 To Appellant's argument that it's impossible 1514 01:20:15,480 --> 01:20:19,848 to show prejudice, in Conservatorship of T. B. 1515 01:20:22,456 --> 01:20:27,856 there was 171 delay; and the court found no prejudice. 1516 01:20:28,128 --> 01:20:31,698 In Jose B., there was 137-day delay, 1517 01:20:31,698 --> 01:20:34,568 and the court found no prejudice. 1518 01:20:34,568 --> 01:20:39,206 But I think based on the decision in A. H., 1519 01:20:39,206 --> 01:20:41,742 it is possible to find prejudice. 1520 01:20:41,742 --> 01:20:47,142 And I think that the benefit of that decision 1521 01:20:48,348 --> 01:20:50,184 is the court found 1522 01:20:50,184 --> 01:20:54,321 that the trial court had abused its discretion 1523 01:20:54,321 --> 01:20:56,323 in the substantial delay. 1524 01:20:56,323 --> 01:21:00,930 And I think that that sends a message to the trial court 1525 01:21:00,930 --> 01:21:04,364 that even though the language in the statute 1526 01:21:04,364 --> 01:21:09,937 doesn't identify - that's the discretion with the trial court, 1527 01:21:09,937 --> 01:21:11,937 but under Rule 3.1332, 1528 01:21:13,907 --> 01:21:18,780 the trial court needs to make good cause findings. 1529 01:21:18,780 --> 01:21:21,248 And I think that those findings were 1530 01:21:21,248 --> 01:21:24,218 not adequately articulated in that case. 1531 01:21:24,218 --> 01:21:28,922 And so that is sort of the role of the appellate process -- 1532 01:21:28,922 --> 01:21:30,991 is to provide guidance to the trial courts 1533 01:21:30,991 --> 01:21:32,793 that perhaps even 1534 01:21:32,793 --> 01:21:34,828 though the trial court has vested discretion 1535 01:21:34,828 --> 01:21:37,898 with the trial court under Section 5350, 1536 01:21:37,898 --> 01:21:42,980 that the court needs to provide reasons 1537 01:21:46,240 --> 01:21:50,440 for either finding good cause to continue 1538 01:21:50,577 --> 01:21:55,415 or for denying motions to dismiss in these cases. 1539 01:21:55,415 --> 01:21:58,552 JUSTICE DELANEY: Can you discuss the potential impact 1540 01:21:58,552 --> 01:22:01,722 of a petition for writ in the trial court, 1541 01:22:01,722 --> 01:22:04,491 as we discussed with your friend on the other side; 1542 01:22:04,491 --> 01:22:06,627 and include in that the practicalities 1543 01:22:06,627 --> 01:22:08,662 that he addressed on 1544 01:22:08,662 --> 01:22:11,980 whether that would be a viable option in a case like this? 1545 01:22:11,980 --> 01:22:13,433 ANDREA RUSSI: We believe it would be a viable option 1546 01:22:13,433 --> 01:22:16,433 in a case like this. 1547 01:22:16,937 --> 01:22:23,100 I am not aware of a situation where a writ has been filed 1548 01:22:23,100 --> 01:22:27,181 and it hasn't been handled in a timely fashion. 1549 01:22:27,181 --> 01:22:31,510 So I do believe that in a case like this one 1550 01:22:31,510 --> 01:22:32,953 that writ relief would be addressed, 1551 01:22:32,953 --> 01:22:35,556 and that would also get the matter presumably 1552 01:22:35,556 --> 01:22:39,226 to the Court of Appeal more quickly. 1553 01:22:39,226 --> 01:22:44,626 I recognize that we have a factual situation here 1554 01:22:45,265 --> 01:22:49,102 where we had a very overburdened court system that was having 1555 01:22:49,102 --> 01:22:53,302 difficulty handling the volume of LPS trials. 1556 01:22:53,707 --> 01:22:56,677 But I don't think there's any reason 1557 01:22:56,677 --> 01:23:01,215 to believe that a writ would not be addressed by the trial court. 1558 01:23:01,215 --> 01:23:03,116 JUSTICE GROBAN: But the Court of Appeal 1559 01:23:03,116 --> 01:23:06,190 of course has original jurisdiction on habeas matters, 1560 01:23:06,190 --> 01:23:09,220 which I guess is certainly an option. 1561 01:23:09,220 --> 01:23:12,192 You lose any factfinding of the trial court though. 1562 01:23:12,192 --> 01:23:13,927 ANDREA RUSSI: Yes, that is an option. 1563 01:23:13,927 --> 01:23:16,964 I mean, I think in a scenario such as this, 1564 01:23:16,964 --> 01:23:19,499 it probably would be to the conservatee's benefit 1565 01:23:19,499 --> 01:23:26,699 to start in the trial court; but that is also a possibility. 1566 01:23:30,711 --> 01:23:34,982 If there aren't additional questions on due process, 1567 01:23:34,982 --> 01:23:39,182 I will briefly touch on equal protection. 1568 01:23:39,853 --> 01:23:44,530 So basically, Appellant has not properly made 1569 01:23:45,826 --> 01:23:48,128 or preserved an equal protection argument. 1570 01:23:48,128 --> 01:23:50,163 It wasn't raised in the trial court. 1571 01:23:50,163 --> 01:23:52,299 It wasn't raised in the Court of Appeal. 1572 01:23:52,299 --> 01:23:55,469 It's not addressed in the Court of Appeal decision, 1573 01:23:55,469 --> 01:23:59,439 and it wasn't adequately briefed in the Petition for Review. 1574 01:23:59,439 --> 01:24:03,639 So we don't believe that it's proper - 1575 01:24:03,810 --> 01:24:07,848 that there's enough basis to address it here, 1576 01:24:07,848 --> 01:24:10,170 especially because the Public Guardian hasn't had 1577 01:24:10,170 --> 01:24:14,821 an opportunity to address what the State's interests are 1578 01:24:14,821 --> 01:24:18,421 in an equal protection type claim. 1579 01:24:21,228 --> 01:24:24,965 If the Court has no additional questions, I will submit. 1580 01:24:24,965 --> 01:24:26,767 CHIEF JUSTICE GUERRERO: There don't appear to be any, thank you. 1581 01:24:26,767 --> 01:24:29,167 ANDREA RUSSI: Thank you. 1582 01:24:36,877 --> 01:24:38,712 BRIAN McCOMAS: Briefly, 1583 01:24:38,712 --> 01:24:41,815 I just want to start on the question of a writ. 1584 01:24:41,815 --> 01:24:46,615 What we're asking these public defenders to do 1585 01:24:47,187 --> 01:24:51,580 is come to court repeatedly for multiple clients 1586 01:24:51,580 --> 01:24:54,428 on the same calendar. And if you read the record here, 1587 01:24:54,428 --> 01:24:56,697 at the start of each hearing they're calling four 1588 01:24:56,697 --> 01:24:59,900 or five cases; all can't find a courtroom, 1589 01:24:59,900 --> 01:25:02,469 usually represented by one or two people. 1590 01:25:02,469 --> 01:25:04,972 And we're now asking them not just to come to court 1591 01:25:04,972 --> 01:25:09,610 every master child calendar, but to set up motions to dismiss; 1592 01:25:09,610 --> 01:25:13,146 to exhaust habeas petitions in the lower courts; 1593 01:25:13,146 --> 01:25:14,648 keep coming to court in the meantime 1594 01:25:14,648 --> 01:25:16,416 and demanding your right to trial; 1595 01:25:16,416 --> 01:25:19,820 now litigate this up to the Court of Appeal 1596 01:25:19,820 --> 01:25:21,755 and ultimately to this Court 1597 01:25:21,755 --> 01:25:24,191 within a one-year commitment time frame. 1598 01:25:24,191 --> 01:25:26,527 This is not a viable remedy. 1599 01:25:26,527 --> 01:25:30,264 And the way the writ is used in other parts of the LPS Act 1600 01:25:30,264 --> 01:25:34,100 is with most extreme situations, on like a 14-day hold 1601 01:25:34,100 --> 01:25:36,570 when there's like an unlawful basis to hold someone, 1602 01:25:36,570 --> 01:25:40,474 something so fundamental that they shouldn't even (inaudible). 1603 01:25:40,474 --> 01:25:42,409 And these types of motions to dismiss, 1604 01:25:42,409 --> 01:25:44,678 I'm not sure you'll ever get to that 1605 01:25:44,678 --> 01:25:48,148 or be able to make a better record without going to court, 1606 01:25:48,148 --> 01:25:49,917 filing your papers, 1607 01:25:49,917 --> 01:25:51,518 explaining what my client's been doing this last month, 1608 01:25:51,518 --> 01:25:54,354 why this is interfering with treatment. 1609 01:25:54,354 --> 01:25:57,558 So I don't think a writ is really the way forward here. 1610 01:25:57,558 --> 01:25:59,159 What I think the way forward 1611 01:25:59,159 --> 01:26:00,861 is an interpretation from this Court 1612 01:26:00,861 --> 01:26:03,330 that reinforces the rights to due process, 1613 01:26:03,330 --> 01:26:07,334 in fact backing Section 5350. JUSTICE EVANS: And, Counsel, 1614 01:26:07,334 --> 01:26:11,538 how do we determine when the due process violation occurs? 1615 01:26:11,538 --> 01:26:16,376 How much delay is it - a day, 30 days, 6 months, 9 months? 1616 01:26:16,376 --> 01:26:18,345 BRIAN McCOMAS: Well, I don't think it would be -- 1617 01:26:18,345 --> 01:26:21,348 I can straight face tell you it would be a day. 1618 01:26:21,348 --> 01:26:24,618 You might start your record softly. 1619 01:26:24,618 --> 01:26:26,420 Certainly if you're appearing before the same judge 1620 01:26:26,420 --> 01:26:29,890 and you understand the burdens of your court, 1621 01:26:29,890 --> 01:26:32,960 I don't think you're objecting vehemently every time. 1622 01:26:32,960 --> 01:26:36,196 You do want to obviously state the rule; 1623 01:26:36,196 --> 01:26:38,265 and all parties need to comply with the rule, 1624 01:26:38,265 --> 01:26:40,100 both the 5-day demand, 1625 01:26:40,100 --> 01:26:42,836 continuous 15-days only not 30 days 1626 01:26:42,836 --> 01:26:47,741 as was occurring in this case. There becomes a point though 1627 01:26:47,741 --> 01:26:51,144 where that's why these factor tests matter. 1628 01:26:51,144 --> 01:26:53,447 And the reason why we think the John L. 1629 01:26:53,447 --> 01:26:56,617 factor test matters and does better 1630 01:26:56,617 --> 01:26:58,519 is the question of remedy. 1631 01:26:58,519 --> 01:27:02,956 It actually gets to that and puts everyone in the room, 1632 01:27:02,956 --> 01:27:04,825 has everyone talking, 1633 01:27:04,825 --> 01:27:07,940 including the conservatee who needs to be there. 1634 01:27:07,940 --> 01:27:10,631 Mind you, my client wasn't there all of but three times. 1635 01:27:10,631 --> 01:27:13,700 A continuance is guaranteed in that situation. 1636 01:27:13,700 --> 01:27:16,737 They can't go to trial; she's not in the courtroom. 1637 01:27:16,737 --> 01:27:19,406 Everyone's there under the factor test, 1638 01:27:19,406 --> 01:27:21,775 and particularly the dignitary interests 1639 01:27:21,775 --> 01:27:26,246 where the government official has to hear the conservatee. 1640 01:27:26,246 --> 01:27:29,483 I think that could resolve many situations 1641 01:27:29,483 --> 01:27:32,586 that aren't based necessarily just on grave disability 1642 01:27:32,586 --> 01:27:36,223 but on something, a preference that this person wants. 1643 01:27:36,223 --> 01:27:38,659 And it could be as simple as a contract, 1644 01:27:38,659 --> 01:27:41,659 maybe a cell phone contract. 1645 01:27:41,862 --> 01:27:44,498 And that's why the Barker factors just do 1646 01:27:44,498 --> 01:27:46,990 not work in this situation - 1647 01:27:46,990 --> 01:27:48,435 because they are created to evaluate 1648 01:27:48,435 --> 01:27:50,835 whether evidence has disappeared, 1649 01:27:51,405 --> 01:27:53,805 witnesses' memories have vanished. 1650 01:27:55,209 --> 01:28:00,900 They do have three layers of pretrial incarceration, 1651 01:28:01,248 --> 01:28:06,480 anxiety, and then this impairment of the defense. 1652 01:28:06,220 --> 01:28:09,356 But that again isn't really crafted 1653 01:28:09,356 --> 01:28:13,527 as well as the John L. test. 1654 01:28:13,527 --> 01:28:15,596 And another just more basic reason to go with the John L. 1655 01:28:15,596 --> 01:28:18,532 test is it's derived from the California Constitution 1656 01:28:18,532 --> 01:28:20,767 which this Court is here to interpret, 1657 01:28:20,767 --> 01:28:26,807 has unique flexibility in line with the LPS Act for people 1658 01:28:26,807 --> 01:28:29,710 who are the most vulnerable in our society. 1659 01:28:29,710 --> 01:28:31,178 In fact, 1660 01:28:31,178 --> 01:28:32,779 the Barker test is derived from the Sixth Amendment. 1661 01:28:32,779 --> 01:28:34,815 And what we're talking about here 1662 01:28:34,815 --> 01:28:37,918 is due process from the Fifth Amendment but here in Article I, 1663 01:28:37,918 --> 01:28:40,918 section 7 of the California Constitution. 1664 01:28:42,890 --> 01:28:43,857 And just the last part I want to touch on 1665 01:28:43,857 --> 01:28:47,940 is Conservatorship of A. H. in E. A. 1666 01:28:47,940 --> 01:28:53,660 My client's name appears in the Opinion of A. H. 1667 01:28:53,660 --> 01:28:54,334 because they were appearing on the same docket 1668 01:28:54,334 --> 01:28:56,637 over and over again. 1669 01:28:56,637 --> 01:29:02,637 How my client can have further delay but not dismissal, 1670 01:29:02,776 --> 01:29:09,376 but A. H. can get dismissal with less delay, less anxiety, 1671 01:29:09,983 --> 01:29:14,783 it shows that the Barker test is inconsistent 1672 01:29:15,189 --> 01:29:18,789 and not created for this situation. 1673 01:29:19,760 --> 01:29:24,665 Also, I mean if you just look at the two opinions, E. H. 1674 01:29:24,665 --> 01:29:26,533 is about four times longer than my client's three-page opinion. 1675 01:29:26,533 --> 01:29:28,936 And so the Barker test doesn't require us 1676 01:29:28,936 --> 01:29:32,706 to really Idealist Guide into the conservatee's 1677 01:29:32,706 --> 01:29:34,706 dignitary interests. 1678 01:29:34,741 --> 01:29:37,444 It doesn't require us to dig into the government interests. 1679 01:29:37,444 --> 01:29:39,479 It doesn't require us to dig into 1680 01:29:39,479 --> 01:29:44,251 how much delay are we causing or risk of erroneous deprivation. 1681 01:29:44,251 --> 01:29:46,253 And I'm not picking this test 1682 01:29:46,253 --> 01:29:49,690 because it always favors the conservatee. 1683 01:29:49,690 --> 01:29:51,690 I genuinely think 1684 01:29:51,692 --> 01:29:55,262 that this test will function better in the trial courts, 1685 01:29:55,262 --> 01:29:57,300 lead to greater resolution, 1686 01:29:57,300 --> 01:29:59,199 and preserve the right to timely trial 1687 01:29:59,199 --> 01:30:01,668 that's necessary to hold the government to the promises 1688 01:30:01,668 --> 01:30:03,303 of the Constitution. 1689 01:30:03,303 --> 01:30:04,438 And I'm going to submit on that. 1690 01:30:04,438 --> 01:30:05,973 Thank you, all. 1691 01:30:05,973 --> 01:30:07,374 CHIEF JUSTICE GUERRERO: Thank you to both parties 1692 01:30:07,374 --> 01:30:12,774 for your arguments here today. The matter is submitted. 1693 01:30:17,951 --> 01:30:22,751 Calling the next matter, In Re Mr. Spielbauer. 1694 01:30:26,660 --> 01:30:28,529 On this case, 1695 01:30:28,529 --> 01:30:30,264 the Court is pleased to welcome Justice Castillo 1696 01:30:30,264 --> 01:30:34,464 from the Fourth District Court of Appeal. 1697 01:31:10,737 --> 01:31:12,500 Whenever you're ready. 1698 01:31:12,500 --> 01:31:13,907 RACHEL GRUNBERG: Okay, thank you. 1699 01:31:13,907 --> 01:31:15,943 Good morning, Your Honors. 1700 01:31:15,943 --> 01:31:18,478 Rachel Grunberg on behalf of the Office of Chief Trial Counsel 1701 01:31:18,478 --> 01:31:22,850 for the State Bar of California. May it please the Court. 1702 01:31:22,850 --> 01:31:26,687 We're here today to reaffirm a well-settled principle, 1703 01:31:26,687 --> 01:31:28,789 one deeply rooted in this Court's 1704 01:31:28,789 --> 01:31:30,789 attorney disciplinary jurisprudence. 1705 01:31:31,458 --> 01:31:36,290 And that is that a disciplinary restitution order is a remedial 1706 01:31:36,290 --> 01:31:40,300 and prophylactic tool aimed at protecting the public, 1707 01:31:40,300 --> 01:31:42,202 maintaining integrity and confidence 1708 01:31:42,202 --> 01:31:43,904 in the legal profession, 1709 01:31:43,904 --> 01:31:46,304 and rehabilitating unethical attorneys. 1710 01:31:46,573 --> 01:31:50,773 Its purpose is accountability, deterrence, and reformation. 1711 01:31:51,478 --> 01:31:56,583 It is not a damages award; and it is not civil debt collection. 1712 01:31:56,583 --> 01:32:00,200 This Court's cases in Brookman, Galardi, 1713 01:32:00,200 --> 01:32:02,200 Morse, Coppock, Sorensen, 1714 01:32:02,550 --> 01:32:05,459 and more have broadly favored restitution 1715 01:32:05,459 --> 01:32:08,428 when it serves the purposes of discipline. 1716 01:32:08,428 --> 01:32:10,697 And this Court has made clear 1717 01:32:10,697 --> 01:32:13,100 that restitution is not limited by 1718 01:32:13,100 --> 01:32:15,702 whether or not the victim is a client, 1719 01:32:15,702 --> 01:32:18,939 whether or not the victim has a parallel remedy in tort, 1720 01:32:18,939 --> 01:32:22,309 or whether or not the victim - excuse me - 1721 01:32:22,309 --> 01:32:24,745 whether or not the attorney personally profited 1722 01:32:24,745 --> 01:32:26,413 off of the wrongdoing. 1723 01:32:26,413 --> 01:32:28,115 It is not even limited to misconduct 1724 01:32:28,115 --> 01:32:30,984 that occurs during the practice of law. 1725 01:32:30,984 --> 01:32:35,255 The touchstone, as articulated by this Court, is simple. 1726 01:32:35,255 --> 01:32:38,425 Will a restitution order promote public protection 1727 01:32:38,425 --> 01:32:43,397 and encourage attorneys to act honestly and with integrity? 1728 01:32:43,397 --> 01:32:45,365 And if the answer is, 1729 01:32:45,365 --> 01:32:48,702 "Yes," this Court has not hesitated to order restitution. 1730 01:32:48,702 --> 01:32:50,971 As this Court expressly said in Bach v. 1731 01:32:50,971 --> 01:32:54,708 State Bar, restitution in the licensing context 1732 01:32:54,708 --> 01:32:57,708 operates independent of any remedy 1733 01:32:58,450 --> 01:33:02,416 that an aggrieved party may pursue in any other form. 1734 01:33:02,416 --> 01:33:05,552 Now, the Review Department's published opinion in this case 1735 01:33:05,552 --> 01:33:09,152 directly conflicts with these longstanding principles 1736 01:33:09,489 --> 01:33:11,889 and categorically bars restitution 1737 01:33:12,192 --> 01:33:16,263 in cases involving tort-based damages to nonclients. 1738 01:33:16,263 --> 01:33:19,499 It strips the State Bar Court of discretion 1739 01:33:19,499 --> 01:33:22,970 to utilize this important and remedial tool, 1740 01:33:22,970 --> 01:33:26,540 and it thereby serves to undermine public protection. 1741 01:33:26,540 --> 01:33:30,430 And I think Exhibit A is Mr. Spielbauer himself. 1742 01:33:30,430 --> 01:33:32,513 Mr. Spielbauer's case demonstrates exactly 1743 01:33:32,513 --> 01:33:35,513 why restitution should remain available 1744 01:33:35,749 --> 01:33:38,149 in cases involving nonclients, 1745 01:33:38,252 --> 01:33:41,488 even where the victim has a remedy in tort. 1746 01:33:41,488 --> 01:33:43,888 Mr. Spielbauer committed fraud. 1747 01:33:44,925 --> 01:33:48,128 He submitted a knowingly false and wildly-inflated 1748 01:33:48,128 --> 01:33:50,864 payoff demand in a real estate transaction, 1749 01:33:50,864 --> 01:33:53,000 where he inflated the amount of the payoff demand 1750 01:33:53,000 --> 01:33:57,171 by more than 37 times the actual amount due. 1751 01:33:57,171 --> 01:34:01,642 He then failed to take even the most basic or reasonable steps 1752 01:34:01,642 --> 01:34:04,478 to explain or justify the amount, 1753 01:34:04,478 --> 01:34:07,247 forcing the sellers to cancel a pending sale 1754 01:34:07,247 --> 01:34:10,951 and sue to clear title. He then repeatedly 1755 01:34:10,951 --> 01:34:14,421 and needlessly prolonged the litigation violating 1756 01:34:14,421 --> 01:34:16,256 discovery orders, 1757 01:34:16,256 --> 01:34:19,920 advancing shifting and baseless legal theories, 1758 01:34:19,920 --> 01:34:21,962 and filing a false declaration with the court. 1759 01:34:21,962 --> 01:34:25,866 He even filed a lis pendens on the property 1760 01:34:25,866 --> 01:34:27,801 after losing a trial, 1761 01:34:27,801 --> 01:34:30,938 which caused the property owners to have to litigate 1762 01:34:30,938 --> 01:34:34,538 that further and have that removed. 1763 01:34:34,875 --> 01:34:38,178 Now, the Superior Court awarded substantial compensatory 1764 01:34:38,178 --> 01:34:44,178 and punitive damages; and those awards were affirmed on appeal. 1765 01:34:44,218 --> 01:34:45,986 Mr. Spielbauer then spent years trying 1766 01:34:45,986 --> 01:34:49,289 to discharge the fraud judgment in bankruptcy, 1767 01:34:49,289 --> 01:34:51,225 which required the property owner 1768 01:34:51,225 --> 01:34:54,628 to file an adversarial action to preserve the debt. 1769 01:34:54,628 --> 01:34:57,464 And even now, nearly a decade later 1770 01:34:57,464 --> 01:35:01,640 after clear finding of intentional fraud 1771 01:35:01,635 --> 01:35:05,372 and a final and enforceable Superior Court judgment 1772 01:35:05,372 --> 01:35:07,674 and a nondischargeability order, 1773 01:35:07,674 --> 01:35:10,878 Mr. Spielbauer continues to deny wrongdoing. 1774 01:35:10,878 --> 01:35:13,480 He refuses to accept responsibility 1775 01:35:13,480 --> 01:35:17,500 and has not paid a single cent towards satisfaction 1776 01:35:17,500 --> 01:35:20,554 of this judgment. His persistent defiance, 1777 01:35:20,554 --> 01:35:23,790 his refusal to acknowledge or take any steps whatsoever 1778 01:35:23,790 --> 01:35:26,159 to remedy the harm he caused, 1779 01:35:26,159 --> 01:35:30,359 is exactly the type of unrepentant recidivism-risk 1780 01:35:31,164 --> 01:35:35,680 conduct for which disciplinary restitution is essential. 1781 01:35:35,680 --> 01:35:38,500 JUSTICE KRUGER: Can I ask you, recognizing the distinction 1782 01:35:38,500 --> 01:35:41,500 that Sorensen draws between restitution 1783 01:35:41,808 --> 01:35:44,811 that is appropriate in this context 1784 01:35:44,811 --> 01:35:47,211 for purposes of rehabilitation 1785 01:35:47,614 --> 01:35:51,214 of a disciplined attorney and compensation 1786 01:35:52,190 --> 01:35:54,870 for a civil wrong of the sort 1787 01:35:54,870 --> 01:35:57,687 that properly occurs in our courtrooms 1788 01:35:58,759 --> 01:36:01,328 and outside the disciplinary context, 1789 01:36:01,328 --> 01:36:03,297 are there any 1790 01:36:03,297 --> 01:36:06,533 - how do we determine what the correct dollar amount is 1791 01:36:06,533 --> 01:36:09,136 of restitution in a case 1792 01:36:09,136 --> 01:36:12,806 in which there is a civil judgment outstanding? 1793 01:36:12,806 --> 01:36:14,842 Do you have a view as to 1794 01:36:14,842 --> 01:36:17,878 whether or not an appropriate disciplinary restitution amount 1795 01:36:17,878 --> 01:36:21,215 is always going to encompass the entirety 1796 01:36:21,215 --> 01:36:23,500 of that outstanding civil judgment 1797 01:36:23,500 --> 01:36:25,986 if its based on the same conduct underlying 1798 01:36:25,986 --> 01:36:27,855 disciplinary proceeding? 1799 01:36:27,855 --> 01:36:31,992 If not, are there any guidelines or limitations 1800 01:36:31,992 --> 01:36:33,794 that you would propose? 1801 01:36:33,794 --> 01:36:35,696 RACHEL GRUNBERG: Okay, well first of all, 1802 01:36:35,696 --> 01:36:39,990 Your Honor, the civil court and civil proceedings 1803 01:36:39,990 --> 01:36:41,568 are focused on making the victim whole; 1804 01:36:41,568 --> 01:36:44,104 and that's not necessarily the purpose 1805 01:36:44,104 --> 01:36:45,706 of disciplinary proceedings. 1806 01:36:45,706 --> 01:36:47,574 Disciplinary proceedings are focused 1807 01:36:47,574 --> 01:36:50,477 on these primary purposes of discipline - again, 1808 01:36:50,477 --> 01:36:53,614 protecting the public, rehabilitating the respondent, 1809 01:36:53,614 --> 01:36:55,614 deterring future wrongdoing, 1810 01:36:55,682 --> 01:36:58,619 and ensuring confidence in the legal profession. 1811 01:36:58,619 --> 01:37:00,587 So those are the primary goals; 1812 01:37:00,587 --> 01:37:02,689 and while compensation to the victim 1813 01:37:02,689 --> 01:37:06,590 might be an incidental outcome, it is not the primary focus. 1814 01:37:06,590 --> 01:37:12,650 So want to start with sort of that as our basic threshold. 1815 01:37:12,650 --> 01:37:14,670 As to how to, 1816 01:37:14,670 --> 01:37:19,390 I guess, fashion or calculate the amount of restitution, 1817 01:37:19,390 --> 01:37:20,874 I think the standards 1818 01:37:20,874 --> 01:37:23,310 for attorney disciplinary sanctions - Standard 1.4, 1819 01:37:23,310 --> 01:37:25,450 which is standards 1820 01:37:25,450 --> 01:37:26,747 that are adopted by the Board of Trustees 1821 01:37:26,747 --> 01:37:30,347 - give us some guidance. Standard 1.4(a) 1822 01:37:32,886 --> 01:37:34,521 says that a condition of restitution 1823 01:37:34,521 --> 01:37:36,921 can include specific restitution, 1824 01:37:37,591 --> 01:37:39,493 which is where in this case 1825 01:37:39,493 --> 01:37:43,130 a court would fashion an amount in the first instance; 1826 01:37:43,130 --> 01:37:47,534 or it can require satisfaction of a judgment. 1827 01:37:47,534 --> 01:37:49,636 And I think let's talk first 1828 01:37:49,636 --> 01:37:53,236 about the satisfaction of the judgment. 1829 01:37:53,907 --> 01:37:58,707 A judgment represents a final finding judicial determination; 1830 01:37:59,947 --> 01:38:02,749 and attorneys are officers of the court, 1831 01:38:02,749 --> 01:38:04,685 and so they have different responsibilities 1832 01:38:04,685 --> 01:38:06,685 than lay persons. 1833 01:38:06,887 --> 01:38:11,358 Allowing them to simply walk away from their nose -- 1834 01:38:11,358 --> 01:38:14,161 essentially is what Mr. Spielbauer did here -- 1835 01:38:14,161 --> 01:38:18,650 at that judgment and stand here defying 1836 01:38:18,650 --> 01:38:20,868 that he's done anything wrong or that he has to pay it, 1837 01:38:20,868 --> 01:38:23,737 I think, sends the wrong message to the public. 1838 01:38:23,737 --> 01:38:26,540 And so pointing to that judgment and saying, 1839 01:38:26,540 --> 01:38:28,475 "Pay that judgment," not necessarily 1840 01:38:28,475 --> 01:38:30,511 because of the judgment itself 1841 01:38:30,511 --> 01:38:35,749 but the obligation underlying that judgment suits the purpose 1842 01:38:35,749 --> 01:38:38,749 of the discipline. Now here, 1843 01:38:39,419 --> 01:38:43,190 we didn't ask this Court to order the entire judgment. 1844 01:38:43,190 --> 01:38:46,426 So I think it is appropriate in certain circumstances 1845 01:38:46,426 --> 01:38:50,364 to look at the judgment and say, "Pay some or all of it." 1846 01:38:50,364 --> 01:38:53,300 I think that's an appropriate situation. 1847 01:38:53,300 --> 01:38:55,702 But again, I think that it's not limited 1848 01:38:55,702 --> 01:38:57,738 to an outstanding judgment. 1849 01:38:57,738 --> 01:39:00,741 I think the State Bar Court can, and does all the time in fact, 1850 01:39:00,741 --> 01:39:03,677 order restitution in the first instance. 1851 01:39:03,677 --> 01:39:08,148 In misappropriation cases, in breach of fiduciary cases, 1852 01:39:08,148 --> 01:39:12,186 in return of unknown fee cases, they take testimony; 1853 01:39:12,186 --> 01:39:14,688 they review documents; they review bank records; 1854 01:39:14,688 --> 01:39:16,857 sometimes we have forensic experts; 1855 01:39:16,857 --> 01:39:19,257 they determine witness credibility; 1856 01:39:19,760 --> 01:39:22,829 and they determine in the first instance 1857 01:39:22,829 --> 01:39:27,670 what an appropriate amount of restitution would be. 1858 01:39:27,670 --> 01:39:29,870 So I think that those are both acceptable ways 1859 01:39:29,870 --> 01:39:31,870 of fashioning restitution. 1860 01:39:32,539 --> 01:39:34,441 JUSTICE KRUGER: I guess I'm interested in particular 1861 01:39:34,441 --> 01:39:40,280 in the first scenario that you outline in your answer 1862 01:39:40,280 --> 01:39:42,490 that I understand to be 1863 01:39:42,490 --> 01:39:44,184 that the appropriate amount of restitution 1864 01:39:44,184 --> 01:39:46,787 may not always be precisely the same as the amount 1865 01:39:46,787 --> 01:39:49,187 of the civil judgment. 1866 01:39:49,389 --> 01:39:51,892 The amount that's necessary to rehabilitate the attorney 1867 01:39:51,892 --> 01:39:54,862 in your view could encompass partial payment 1868 01:39:54,862 --> 01:39:58,932 or some payment of that outstanding obligation, right? 1869 01:39:58,932 --> 01:40:01,100 RACHEL GRUNBERG: Well here when we made that request, 1870 01:40:01,100 --> 01:40:03,971 we were trying to align our request with Sorensen, 1871 01:40:03,971 --> 01:40:07,571 which are specific out-of-pocket financial losses. 1872 01:40:09,109 --> 01:40:12,546 So that's why we've asked in our restitution request 1873 01:40:12,546 --> 01:40:15,649 for just the compensatory portion of the award. 1874 01:40:15,649 --> 01:40:17,951 But I think it would be 1875 01:40:17,951 --> 01:40:21,722 and could be appropriate to just point to the entire judgment 1876 01:40:21,722 --> 01:40:24,458 and say, "Pay the entire judgment." 1877 01:40:24,458 --> 01:40:26,393 That's also acceptable. 1878 01:40:26,393 --> 01:40:28,896 I think the whole point of why we're here today 1879 01:40:28,896 --> 01:40:32,332 is we want to return discretion to the State Bar Court. 1880 01:40:32,332 --> 01:40:35,636 The published opinion in this case 1881 01:40:35,636 --> 01:40:39,139 takes discretion away from the State Bar Court 1882 01:40:39,139 --> 01:40:42,609 and an entire class of cases and says, 1883 01:40:42,609 --> 01:40:44,344 "We are never, ever, 1884 01:40:44,344 --> 01:40:47,944 ever going to even consider restitution 1885 01:40:49,616 --> 01:40:53,587 if the case involves a nonclient and they have a remedy in tort." 1886 01:40:53,587 --> 01:40:55,455 And we think that that's wrong, 1887 01:40:55,455 --> 01:40:57,824 and that's inconsistent with this Court's decision. 1888 01:40:57,824 --> 01:41:01,828 We're simply asking that that categorial bar be removed 1889 01:41:01,828 --> 01:41:05,320 and that the State Bar Court be allowed in the first instance 1890 01:41:05,320 --> 01:41:07,935 to exercise discretion and determine 1891 01:41:07,935 --> 01:41:11,638 if restitution is even appropriate in a given case. 1892 01:41:11,638 --> 01:41:14,241 JUSTICE EVANS: Counsel - down here at the end. 1893 01:41:14,241 --> 01:41:17,841 Good morning. RACHEL GRUNBERG: Oh, sorry. 1894 01:41:18,450 --> 01:41:19,847 JUSTICE EVANS: Notwithstanding 1895 01:41:19,847 --> 01:41:21,582 that you're not taking the full amount of the civil judgment, 1896 01:41:21,582 --> 01:41:24,551 that you're limiting the request to specific 1897 01:41:24,551 --> 01:41:26,551 out-of-pocket financial losses, 1898 01:41:27,387 --> 01:41:30,490 the hearing judge expressed a concern about the impact 1899 01:41:30,490 --> 01:41:35,950 on Mr. Spielbauer's ability to pay that amount prior 1900 01:41:35,950 --> 01:41:37,831 to returning to the active practice of law. 1901 01:41:37,831 --> 01:41:39,900 In Galardi, we expressed a similar concern. 1902 01:41:39,900 --> 01:41:41,902 And in Morse and other cases, 1903 01:41:41,902 --> 01:41:46,540 we fashioned a sort of more flexible way to pay the amount. 1904 01:41:46,540 --> 01:41:48,809 Is that something that we should consider doing here 1905 01:41:48,809 --> 01:41:52,346 should we agree that restitution is appropriate in this case? 1906 01:41:52,346 --> 01:41:54,140 RACHEL GRUNBERG: I don't think that would be appropriate 1907 01:41:54,140 --> 01:41:55,782 in this case, Your Honor, 1908 01:41:55,782 --> 01:41:58,485 because here the debt has been determined 1909 01:41:58,485 --> 01:42:00,870 to be nondischargeable. 1910 01:42:00,870 --> 01:42:01,955 In Galardi, there was a bankruptcy; 1911 01:42:01,955 --> 01:42:05,250 and I think there was some concern over exactly 1912 01:42:05,250 --> 01:42:06,994 what those bankruptcy orders said. 1913 01:42:06,994 --> 01:42:10,697 And so there was concern about the ability to pay. 1914 01:42:10,697 --> 01:42:16,690 But here, Mr. Spielbauer has made no showing whatsoever 1915 01:42:16,690 --> 01:42:17,604 that he cannot pay. 1916 01:42:17,604 --> 01:42:19,406 In the disciplinary proceeding, 1917 01:42:19,406 --> 01:42:23,777 it would have been his burden to demonstrate 1918 01:42:23,777 --> 01:42:26,747 that he is financially insolvent 1919 01:42:26,747 --> 01:42:28,982 or somehow this would be a financial hardship. 1920 01:42:28,982 --> 01:42:31,752 He presented no evidence whatsoever. 1921 01:42:31,752 --> 01:42:33,487 And in fact, 1922 01:42:33,487 --> 01:42:35,422 the civil court records in this proceeding show 1923 01:42:35,422 --> 01:42:36,990 the exact opposite. 1924 01:42:36,990 --> 01:42:38,926 The civil court specifically found 1925 01:42:38,926 --> 01:42:40,727 that Mr. Spielbauer was evasive 1926 01:42:40,727 --> 01:42:43,960 and deceptive about his inability to pay 1927 01:42:43,960 --> 01:42:45,832 during the punitive damages phase 1928 01:42:45,832 --> 01:42:48,168 and that he withheld complete documentation 1929 01:42:48,168 --> 01:42:50,204 about his financial wherewithal 1930 01:42:50,204 --> 01:42:53,307 and that he had more assets than he claimed. 1931 01:42:53,307 --> 01:42:55,420 Notably, it pointed to his mother's 1932 01:42:55,420 --> 01:42:58,420 trust assets totaling approximately $2.5 million, 1933 01:42:59,460 --> 01:43:01,648 which the court found Mr. Spielbauer disclaimed 1934 01:43:01,648 --> 01:43:05,452 when it suited him and that he used as he wanted. 1935 01:43:05,452 --> 01:43:09,890 So I don't think there's any evidence in this record 1936 01:43:09,890 --> 01:43:11,391 to demonstrate here that he's insolvent. 1937 01:43:11,391 --> 01:43:13,126 And again, 1938 01:43:13,126 --> 01:43:14,995 the debt was determined to be nondischargeable. 1939 01:43:14,995 --> 01:43:16,830 JUSTICE EVANS: My question is really 1940 01:43:16,830 --> 01:43:20,330 whether there should be -- should we agree with you 1941 01:43:20,330 --> 01:43:22,503 that a restitution order is appropriate 1942 01:43:22,503 --> 01:43:25,506 whether there should be the ability 1943 01:43:25,506 --> 01:43:27,908 to negotiate a payment plan. 1944 01:43:27,908 --> 01:43:30,344 For example, we did that in Morse and some other cases. 1945 01:43:30,344 --> 01:43:32,179 RACHEL GRUNBERG: Right, I think 1946 01:43:32,179 --> 01:43:35,215 where there are concerns about the ability to pay, 1947 01:43:35,215 --> 01:43:38,815 this Court has exercised flexibility, creativity, 1948 01:43:39,520 --> 01:43:46,120 innovation in sort of fashioning that restitution order in a way 1949 01:43:46,159 --> 01:43:50,297 that allows the respondent to pay it without being punitive. 1950 01:43:50,297 --> 01:43:54,100 So for instance, it could be paid over the course 1951 01:43:54,100 --> 01:43:56,503 of the probation period in installments. 1952 01:43:56,503 --> 01:43:58,539 There are other cases 1953 01:43:58,539 --> 01:44:00,240 in which this Court has said pay this in the first 90 days, 1954 01:44:00,240 --> 01:44:04,311 the first year, of a probation period. 1955 01:44:04,311 --> 01:44:06,130 But in cases like this 1956 01:44:06,130 --> 01:44:09,130 where an attorney remained indifferent, 1957 01:44:09,650 --> 01:44:13,250 intransigent, defiant, I think the (inaudible) 1958 01:44:14,221 --> 01:44:17,900 requirement were they're required to pay it upfront 1959 01:44:17,900 --> 01:44:21,228 before they're allowed to return to the active practice of law 1960 01:44:21,228 --> 01:44:26,280 following their suspension is the appropriate sanction here. 1961 01:44:26,300 --> 01:44:29,503 And that sends the right message to the public 1962 01:44:29,503 --> 01:44:31,903 that in this case 1963 01:44:31,972 --> 01:44:35,309 Mr. Spielbauer is going to have to take demonstrable, 1964 01:44:35,309 --> 01:44:40,109 concrete steps to demonstrate that he's making amends 1965 01:44:41,815 --> 01:44:44,840 and that he's going to be held accountable 1966 01:44:44,840 --> 01:44:46,553 before he's allowed to practice law again. 1967 01:44:46,553 --> 01:44:49,523 I think this Court has said in cases like Menna and Glass 1968 01:44:49,523 --> 01:44:52,659 that actions speak louder than words; 1969 01:44:52,659 --> 01:44:56,859 and payment is that objective demonstrable action 1970 01:44:57,564 --> 01:45:01,602 that shows the public and the victim that he's making amends. 1971 01:45:01,602 --> 01:45:06,139 And I think that that's why this is a discipline here. 1972 01:45:06,139 --> 01:45:08,141 I want to talk briefly about the fact 1973 01:45:08,141 --> 01:45:12,446 that Mr. Spielbauer claims that the judgment has expired. 1974 01:45:12,446 --> 01:45:15,315 Not so, this is just another baseless argument 1975 01:45:15,315 --> 01:45:17,715 that demonstrates his indifference. 1976 01:45:17,718 --> 01:45:19,718 Under CCP Section 337.5, 1977 01:45:21,388 --> 01:45:23,857 creditor can bring an independent action 1978 01:45:23,857 --> 01:45:27,628 on the judgment 10 years from finality of the judgment. 1979 01:45:27,628 --> 01:45:29,429 And this Court took judicial notice 1980 01:45:29,429 --> 01:45:32,299 of the entire civil court appellate record, 1981 01:45:32,299 --> 01:45:34,134 which shows that finality occurred 1982 01:45:34,134 --> 01:45:37,734 when the remittitur issued on August 18, 2016, 1983 01:45:37,971 --> 01:45:41,108 which means that William LLC still has 1984 01:45:41,108 --> 01:45:45,479 at least until August 18th of this year to renew the judgment. 1985 01:45:45,479 --> 01:45:48,849 But even if the judgment was not expired, 1986 01:45:48,849 --> 01:45:51,485 attorneys again are considered officers of the court; 1987 01:45:51,485 --> 01:45:54,888 and their responsibilities, as I said, differ from lay persons. 1988 01:45:54,888 --> 01:45:59,688 And so therefore their obligation to pay here 1989 01:45:59,960 --> 01:46:02,950 is not just based on the legal obligation 1990 01:46:02,950 --> 01:46:05,332 but a moral obligation, particularly here again 1991 01:46:05,332 --> 01:46:06,767 where the debt has been determined 1992 01:46:06,767 --> 01:46:11,567 to be nondischargeable. I also want to express 1993 01:46:16,443 --> 01:46:20,147 that we are not asking for restitution to be applied 1994 01:46:20,147 --> 01:46:23,183 in a talismanic fashion. We're not asking 1995 01:46:23,183 --> 01:46:25,319 that restitution be applied in every case. 1996 01:46:25,319 --> 01:46:26,887 We're simply asking 1997 01:46:26,887 --> 01:46:29,220 that the State Bar Court be allowed 1998 01:46:29,220 --> 01:46:32,893 to exercise discretion on a case-by-case basis based 1999 01:46:32,893 --> 01:46:35,629 on the specific facts, the nature of the misconduct, 2000 01:46:35,629 --> 01:46:38,732 the attorney's attitude and spirit of earnestness, 2001 01:46:38,732 --> 01:46:40,701 the impact on the public, 2002 01:46:40,701 --> 01:46:44,338 and the public protection goals that I announced earlier. 2003 01:46:44,338 --> 01:46:46,707 And removing that categorical bar 2004 01:46:46,707 --> 01:46:49,409 will allow the State Bar Court to determine 2005 01:46:49,409 --> 01:46:51,440 in appropriate cases 2006 01:46:51,440 --> 01:46:54,644 whether restitution is a remedial tool 2007 01:46:54,681 --> 01:46:58,519 that is going to help rehabilitate the errant attorney 2008 01:46:58,519 --> 01:47:01,321 and preserve confidence in the profession. 2009 01:47:01,321 --> 01:47:03,190 And so for that reason, 2010 01:47:03,190 --> 01:47:05,826 we are asking that Mr. Spielbauer pay restitution 2011 01:47:05,826 --> 01:47:08,295 in the amount of the compensatory damages, 2012 01:47:08,295 --> 01:47:11,895 attorney fees and costs, which total $536,726.49 2013 01:47:13,467 --> 01:47:16,467 to William LLC, plus interest. 2014 01:47:16,670 --> 01:47:18,438 We think this restitution requirement is 2015 01:47:18,438 --> 01:47:20,807 consistent with Sorensen v. State Bar 2016 01:47:20,807 --> 01:47:22,543 and the larger framework of cases 2017 01:47:22,543 --> 01:47:26,213 out there on restitution in disciplinary matters. 2018 01:47:26,213 --> 01:47:28,115 And again, I want to focus on the fact 2019 01:47:28,115 --> 01:47:31,151 that restitution here is not about civil compensation. 2020 01:47:31,151 --> 01:47:33,151 It's about accountability. 2021 01:47:33,587 --> 01:47:35,455 And Mr. Spielbauer's intentional fraud 2022 01:47:35,455 --> 01:47:37,925 and ongoing indifference warrant an order 2023 01:47:37,925 --> 01:47:41,495 that requires him to confront in concrete terms the harm 2024 01:47:41,495 --> 01:47:43,730 he has caused before he's able to return 2025 01:47:43,730 --> 01:47:45,732 to the active practice of law. 2026 01:47:45,732 --> 01:47:48,502 This is squarely within this Court's precedent 2027 01:47:48,502 --> 01:47:50,337 and it's regulatory mission and duty 2028 01:47:50,337 --> 01:47:52,272 to protect the public and profession. 2029 01:47:52,272 --> 01:47:55,420 And unless the Court has any other questions, 2030 01:47:55,420 --> 01:47:56,777 I will reserve the rest of my time. 2031 01:47:56,777 --> 01:47:59,777 CHIEF JUSTICE GUERRERO: Thank you. 2032 01:48:11,859 --> 01:48:13,627 GLEN MOSS: I'm Glen L. Moss. 2033 01:48:13,627 --> 01:48:17,731 I represent Thomas Spielbauer in this matter. 2034 01:48:17,731 --> 01:48:21,935 The argument is being divided between myself and the Amicus. 2035 01:48:21,935 --> 01:48:24,710 Just so the Court understands, 2036 01:48:24,710 --> 01:48:28,675 Amicus will basically be dealing with the case law and arguments 2037 01:48:28,675 --> 01:48:33,460 of the State Bar that were in the briefs. 2038 01:48:33,460 --> 01:48:34,715 And so any questions about that 2039 01:48:34,715 --> 01:48:37,384 should be directed to the Amicus. 2040 01:48:37,384 --> 01:48:41,210 My role is basically to answer questions 2041 01:48:41,210 --> 01:48:45,221 and deal with the trial court transcript, 2042 01:48:45,726 --> 01:48:49,696 which the Court on its own motion took judicial notice of, 2043 01:48:49,696 --> 01:48:52,633 and also the public policy issues 2044 01:48:52,633 --> 01:48:55,636 that are discussed in my brief. 2045 01:48:55,636 --> 01:48:57,437 In the event I don't use all my time, 2046 01:48:57,437 --> 01:49:01,875 I'd delegate whatever I haven't used to Amicus 2047 01:49:01,875 --> 01:49:06,113 to give him a little extra time. In particular, 2048 01:49:06,113 --> 01:49:10,830 the first - although the State Bar deems it frivolous, 2049 01:49:10,830 --> 01:49:12,619 we believe that the fact 2050 01:49:12,619 --> 01:49:18,190 that the Legislature has passed enforcement of judgment acts 2051 01:49:18,792 --> 01:49:21,792 to limit enforcement for 10 years 2052 01:49:21,962 --> 01:49:26,162 and also provided for exceptions for judgments 2053 01:49:26,633 --> 01:49:30,204 that are enforceable more than that 10 years, 2054 01:49:30,204 --> 01:49:32,604 and that means something. 2055 01:49:32,873 --> 01:49:36,844 And that we urge this Court to pay attention to 2056 01:49:36,844 --> 01:49:41,440 and follow the views of the Legislature 2057 01:49:41,615 --> 01:49:44,384 to limit the enforcement of judgments. 2058 01:49:44,384 --> 01:49:47,384 This is not like Shylock, 2059 01:49:47,688 --> 01:49:51,391 where the State Bar can get its pound of flesh 2060 01:49:51,391 --> 01:49:54,991 just because it thinks it's worthwhile. 2061 01:49:55,429 --> 01:49:57,429 In this case, 2062 01:49:57,998 --> 01:50:01,768 the Legislature has put limits on the scope 2063 01:50:01,768 --> 01:50:04,168 of enforcements of judgments. 2064 01:50:04,171 --> 01:50:08,371 The bankruptcy procedure helps clarify and show 2065 01:50:09,776 --> 01:50:12,679 whether or not a given person -- 2066 01:50:12,679 --> 01:50:15,916 whether he's a lawyer, a real estate broker, a doctor, 2067 01:50:15,916 --> 01:50:19,520 or whoever - all citizens in California 2068 01:50:19,520 --> 01:50:23,357 are entitled to the benefits of both the bankruptcy laws 2069 01:50:23,357 --> 01:50:26,660 and the enforcement of judgment law. 2070 01:50:26,660 --> 01:50:31,460 In the bankruptcy procedure there were substantial hearings, 2071 01:50:32,599 --> 01:50:34,599 substantial procedures, 2072 01:50:35,350 --> 01:50:38,205 to verify whether or not Mr. Spielbauer did 2073 01:50:38,205 --> 01:50:43,577 or did not have any ability to pay anything on this judgment. 2074 01:50:43,577 --> 01:50:49,750 After a full adversary trial, it was concluded by the court 2075 01:50:49,750 --> 01:50:52,186 that he did not have the ability to pay. 2076 01:50:52,186 --> 01:50:58,910 The argument that he didn't show that is just nonsense. 2077 01:50:58,910 --> 01:51:00,260 That's what we have bankruptcy courts for. 2078 01:51:00,260 --> 01:51:02,930 They showed he did not have the ability to pay. 2079 01:51:02,930 --> 01:51:05,320 So what the Bar is asking for 2080 01:51:05,320 --> 01:51:09,603 is essentially an order of disbarment and a pound of flesh, 2081 01:51:09,603 --> 01:51:11,939 where the trial court transcript, 2082 01:51:11,939 --> 01:51:16,760 as the Court knows from taking judicial notice 2083 01:51:16,760 --> 01:51:18,760 of that transcript, 2084 01:51:18,378 --> 01:51:24,651 shows that there were no actual dollar loss by the Plaintiffs. 2085 01:51:24,651 --> 01:51:28,322 His main damages were he was a consultant, 2086 01:51:28,322 --> 01:51:32,259 and he was not able to do as much consulting 2087 01:51:32,259 --> 01:51:36,960 because he was in trial or in deposition 2088 01:51:36,960 --> 01:51:38,999 or otherwise dealing with litigation. 2089 01:51:38,999 --> 01:51:43,360 And we submit that's a substantial difference 2090 01:51:43,360 --> 01:51:47,836 than what you had before. In this case, 2091 01:51:49,743 --> 01:51:55,743 restitution should be of any benefits that the Defendant got, 2092 01:51:57,618 --> 01:52:00,554 not the losses to the Plaintiff, 2093 01:52:00,554 --> 01:52:04,754 which is what the damages were awarded. 2094 01:52:05,359 --> 01:52:07,294 As an example, 2095 01:52:07,294 --> 01:52:12,694 when you look at their transcript for November 14th, 2096 01:52:12,966 --> 01:52:18,966 where the court was discussing Mr. Spielbauer's effort to try 2097 01:52:19,206 --> 01:52:22,276 and get discovery on the attorney fee issue, 2098 01:52:22,276 --> 01:52:24,978 the court denied any discovery on the ground 2099 01:52:24,978 --> 01:52:29,283 that what is the law that would make it (inaudible). 2100 01:52:29,283 --> 01:52:31,180 There's lots of laws 2101 01:52:31,180 --> 01:52:32,619 that says attorney fees can be awarded even 2102 01:52:32,619 --> 01:52:35,255 if they're not paid or incurred. 2103 01:52:35,255 --> 01:52:38,580 That indicated the view of the trial court 2104 01:52:38,580 --> 01:52:42,858 and why Mr. Spielbauer's efforts to have discovery 2105 01:52:42,863 --> 01:52:47,630 on the attorney fee issue were denied. 2106 01:52:47,100 --> 01:52:48,802 In other words, 2107 01:52:48,802 --> 01:52:50,671 he wasn't even allowed to get discovery as to 2108 01:52:50,671 --> 01:52:54,308 whether there was any obligation to pay the fees 2109 01:52:54,308 --> 01:52:56,577 or whether or not they were reasonable. 2110 01:52:56,577 --> 01:52:58,612 I pointed out in my brief 2111 01:52:58,612 --> 01:53:02,883 that's very contrary to the views when other professions, 2112 01:53:02,883 --> 01:53:04,651 like medical doctors, 2113 01:53:04,651 --> 01:53:07,387 submit bills and they have to actually show 2114 01:53:07,387 --> 01:53:10,757 that they're reasonable and that they're paid. 2115 01:53:10,757 --> 01:53:13,393 We submit attorneys shouldn't be held 2116 01:53:13,393 --> 01:53:17,564 to a substantially higher standard than doctors 2117 01:53:17,564 --> 01:53:21,535 or other professionals that also have a duty of good faith 2118 01:53:21,535 --> 01:53:28,135 and are trying to help have good confidence with the public. 2119 01:53:30,911 --> 01:53:32,911 The Bar, again, 2120 01:53:32,946 --> 01:53:39,720 is trying not to get restitution for the benefit of the public 2121 01:53:39,720 --> 01:53:43,320 but rather to punish Mr. Spielbauer. 2122 01:53:43,423 --> 01:53:47,127 The fact that his mother may or may not have money 2123 01:53:47,127 --> 01:53:50,464 is his mother's money, not his money. 2124 01:53:50,464 --> 01:53:56,670 He has no ability to compel his mother to give him money. 2125 01:53:56,670 --> 01:53:58,672 In fact, his mother passed away; 2126 01:53:58,672 --> 01:54:05,272 so he can't - that's just an unfair and ridiculous argument, 2127 01:54:08,916 --> 01:54:11,752 which was rejected by the bankruptcy court. 2128 01:54:11,752 --> 01:54:13,921 If in fact there was any ability to get any 2129 01:54:13,921 --> 01:54:15,689 of his mother's money, 2130 01:54:15,689 --> 01:54:17,691 the bankruptcy court had the power to order 2131 01:54:17,691 --> 01:54:19,691 that money distributed. 2132 01:54:19,893 --> 01:54:21,762 CHIEF JUSTICE GUERRERO: The other side is arguing, however, 2133 01:54:21,762 --> 01:54:26,562 that Mr. Spielbauer did not provide sufficient evidence 2134 01:54:26,934 --> 01:54:28,902 to show an inability to pay 2135 01:54:28,902 --> 01:54:31,205 so that the Court should impose the amount. 2136 01:54:31,205 --> 01:54:33,807 And I guess I'll have the same question 2137 01:54:33,807 --> 01:54:36,910 we asked counsel on the other side. 2138 01:54:36,910 --> 01:54:39,580 Should this Court allow for the possibility 2139 01:54:39,580 --> 01:54:42,683 of giving Mr. Spielbauer another opportunity, 2140 01:54:42,683 --> 01:54:44,585 when he already has shown 2141 01:54:44,585 --> 01:54:47,487 that he's not able to present evidence of an inability 2142 01:54:47,487 --> 01:54:49,256 according to her argument; 2143 01:54:49,256 --> 01:54:52,359 or should we allow him to make another attempt 2144 01:54:52,359 --> 01:54:54,828 to show inability or to establish 2145 01:54:54,828 --> 01:54:56,563 that there should be some type of payment plan 2146 01:54:56,563 --> 01:54:59,320 if the amount of discipline is imposed? 2147 01:54:59,320 --> 01:55:00,868 GLEN MOSS: We suggest 2148 01:55:00,868 --> 01:55:03,737 that the Court should give collateral estoppel 2149 01:55:03,737 --> 01:55:06,273 to the bankruptcy court's findings 2150 01:55:06,273 --> 01:55:09,476 that he did not have the ability to pay. 2151 01:55:09,476 --> 01:55:13,380 Just like the trial court in the State Bar trial court 2152 01:55:13,380 --> 01:55:18,780 gave collateral estoppel effect to the adverse trial findings 2153 01:55:20,530 --> 01:55:24,324 in the San Jose Trial Court on the issue of 2154 01:55:24,324 --> 01:55:26,126 whether or not anyone had the ability to pay, 2155 01:55:26,126 --> 01:55:28,228 that's what we had the bankruptcy court for. 2156 01:55:28,228 --> 01:55:30,797 There was an adversary trial, 2157 01:55:30,797 --> 01:55:33,834 and there were findings he did not have that ability. 2158 01:55:33,834 --> 01:55:38,438 Those findings should be binding on the State Bar 2159 01:55:38,438 --> 01:55:42,638 and the trial court, as I said. 2160 01:55:42,643 --> 01:55:48,643 And I'm bringing up the idea of the collateral estoppel, 2161 01:55:49,416 --> 01:55:54,288 which put Mr. Spielbauer in the bad position that he did, 2162 01:55:54,288 --> 01:55:56,590 where the State Bar can argue 2163 01:55:56,590 --> 01:56:01,990 that the actual award was something like 30 or 50 times 2164 01:56:02,629 --> 01:56:06,733 more than what the State Bar - they found. 2165 01:56:06,733 --> 01:56:08,468 When you look at the transcript, 2166 01:56:08,468 --> 01:56:13,268 essentially he made no real effort to defend 2167 01:56:13,373 --> 01:56:15,373 his $269,000 demand; 2168 01:56:17,311 --> 01:56:22,349 and that was a strategic error on his part as a lawyer. 2169 01:56:22,349 --> 01:56:25,219 But the evidence that actually got introduced in 2170 01:56:25,219 --> 01:56:29,690 with the deed of trust showed that had he recognized 2171 01:56:29,690 --> 01:56:31,892 that the burden of proof was on him 2172 01:56:31,892 --> 01:56:34,761 instead of telling the judge the burden of proof was not on him 2173 01:56:34,761 --> 01:56:37,970 and not introducing the evidence, 2174 01:56:37,970 --> 01:56:39,166 it would have been a much closer case. 2175 01:56:39,166 --> 01:56:42,102 Because all the trial judge did was allow 2176 01:56:42,102 --> 01:56:44,238 principal and interest, which was the seven grand. 2177 01:56:44,238 --> 01:56:45,873 JUSTICE EVANS: Counsel, I'm- 2178 01:56:45,873 --> 01:56:47,307 GLEN MOSS: But in addition, paragraph 8 2179 01:56:47,307 --> 01:56:50,110 in the Deed of Trust, it was introduced into evidence 2180 01:56:50,110 --> 01:56:52,546 that the Court is taking judicial notice of, 2181 01:56:52,546 --> 01:56:54,581 allowed for award of attorney's fees. 2182 01:56:54,581 --> 01:56:56,950 Counsel... down here. GLEN MOSS: Oh, am I low? 2183 01:56:56,950 --> 01:56:58,318 JUSTICE EVANS: No, no, your fine. 2184 01:56:58,318 --> 01:57:00,220 Good morning. 2185 01:57:00,220 --> 01:57:02,589 I'm having a little trouble tracking your argument 2186 01:57:02,589 --> 01:57:04,525 about the bankruptcy court 2187 01:57:04,525 --> 01:57:08,328 because the bankruptcy court found that this debt -- 2188 01:57:08,328 --> 01:57:10,328 it was nondischargeable. 2189 01:57:10,497 --> 01:57:12,399 GLEN MOSS: Well, and then again it is nondischargeable. 2190 01:57:12,399 --> 01:57:15,369 But there also was the issue of 2191 01:57:15,369 --> 01:57:17,371 whether he had the ability to pay, 2192 01:57:17,371 --> 01:57:20,841 whether it was chargeable or not because if he had the money, 2193 01:57:20,841 --> 01:57:24,912 then the trustee would have got it. 2194 01:57:24,912 --> 01:57:26,780 In other words, 2195 01:57:26,780 --> 01:57:28,849 it still would have been distributed to the creditors 2196 01:57:28,849 --> 01:57:30,684 if it were there. 2197 01:57:30,684 --> 01:57:33,754 It's just because it wasn't there, 2198 01:57:33,754 --> 01:57:37,424 the creditor could go try and get it elsewhere. 2199 01:57:37,424 --> 01:57:40,861 But there was still a finding that it wasn't there; 2200 01:57:40,861 --> 01:57:42,429 otherwise, it would have been distributed. 2201 01:57:42,429 --> 01:57:44,298 JUSTICE EVANS: In 2017? 2202 01:57:44,298 --> 01:57:45,632 GLEN MOSS: Well, whenever the bankruptcy was. 2203 01:57:45,632 --> 01:57:47,467 I forgot when the bankruptcy was. 2204 01:57:47,467 --> 01:57:49,136 But it would have been distributed by the trustee 2205 01:57:49,136 --> 01:57:50,571 through the bankruptcy 2206 01:57:50,571 --> 01:57:52,372 because the trustee would have got a percentage. 2207 01:57:52,372 --> 01:57:54,341 I think it was 3% or whatever he could get. 2208 01:57:54,341 --> 01:57:56,276 CHIEF JUSTICE GUERRERO: Well, 2209 01:57:56,276 --> 01:57:57,444 isn't it possible the circumstances may have changed 2210 01:57:57,444 --> 01:57:59,179 during the interim period? 2211 01:57:59,179 --> 01:58:01,810 GLEN MOSS: Well, that's why it's nondischargeable. 2212 01:58:01,810 --> 01:58:03,717 And if the creditor wanted to try and go forward, 2213 01:58:03,717 --> 01:58:05,319 the creditor could. 2214 01:58:05,319 --> 01:58:07,221 But the creditor has elected not to go forward 2215 01:58:07,221 --> 01:58:11,491 because the creditor recognized the money's not there. 2216 01:58:11,491 --> 01:58:14,294 And since it's not there, 2217 01:58:14,294 --> 01:58:16,697 they don't want to waste more money on attorney's fees 2218 01:58:16,697 --> 01:58:19,970 chasing a nonexistent thing. 2219 01:58:22,102 --> 01:58:26,206 Instead, the State Bar is trying to serve the debt collector 2220 01:58:26,206 --> 01:58:30,100 for a creditor that recognizes there's nothing there. 2221 01:58:30,100 --> 01:58:34,515 And the State Bar is trying to get essentially money 2222 01:58:34,515 --> 01:58:38,952 that a trustee in bankruptcy wasn't able to get. 2223 01:58:38,952 --> 01:58:41,255 And in fact if necessary, 2224 01:58:41,255 --> 01:58:44,324 the creditor could even move to reopen the bankruptcy 2225 01:58:44,324 --> 01:58:47,194 if they thought there was something being hidden. 2226 01:58:47,194 --> 01:58:52,599 So all the State Bar is trying to do is take -- 2227 01:58:52,599 --> 01:58:54,668 do what the creditor should have done. 2228 01:58:54,668 --> 01:58:59,306 But the Deed of Trust showed that it was a much closer thing 2229 01:58:59,306 --> 01:59:01,141 because there were attorneys' fees; 2230 01:59:01,141 --> 01:59:03,541 there were adversary proceedings; 2231 01:59:03,944 --> 01:59:06,313 there was relief from stay motions. 2232 01:59:06,313 --> 01:59:11,752 All of that was done by Dennis in the bankruptcy court 2233 01:59:11,752 --> 01:59:15,952 and were additions to the seven grand. 2234 01:59:16,657 --> 01:59:18,657 Mr. Mitchell testified 2235 01:59:19,359 --> 01:59:24,759 that he added over $60,000 to pay off the man 2236 01:59:26,330 --> 01:59:30,833 on the Fifth Street property in the transcript. 2237 01:59:31,939 --> 01:59:33,774 That money was recoverable. 2238 01:59:33,774 --> 01:59:36,109 But Mr. Spielbauer unaccountably, 2239 01:59:36,109 --> 01:59:43,183 and I don't know why, made no effort to defend in his demand. 2240 01:59:43,183 --> 01:59:46,520 If you add -- paragraph 13 in the Deed of Trust 2241 01:59:46,520 --> 01:59:48,288 allowed for appraisals. 2242 01:59:48,288 --> 01:59:51,258 In the bankruptcy court there were appraisals. 2243 01:59:51,258 --> 01:59:53,658 That's probably another $4,000 or $5,000. 2244 01:59:54,528 --> 01:59:56,563 There was a bankruptcy rider. 2245 01:59:56,563 --> 02:00:00,163 There was also a cross-collateralization clause, 2246 02:00:00,667 --> 02:00:03,170 paragraph 23 in the Deed of Trust, 2247 02:00:03,170 --> 02:00:05,170 which would have - 2248 02:00:05,172 --> 02:00:08,172 which allowed Spielbauer to add $116,000 2249 02:00:09,977 --> 02:00:13,747 on the Fifth Street property to the $7,000. 2250 02:00:13,747 --> 02:00:17,347 When you add all that together, 2251 02:00:18,652 --> 02:00:20,854 he still asked for more than he was entitled to. 2252 02:00:20,854 --> 02:00:23,254 I'm not questioning that. 2253 02:00:23,290 --> 02:00:25,192 But it was a lot closer deal. 2254 02:00:25,192 --> 02:00:28,462 It probably was a difference between $200,000 2255 02:00:28,462 --> 02:00:30,862 and $269,000 rather than the $7,000. 2256 02:00:32,132 --> 02:00:37,538 I mean, why he didn't put on a defense God only knows. 2257 02:00:37,538 --> 02:00:40,700 I have no -- I don't know. 2258 02:00:40,700 --> 02:00:45,407 But to reverse the decisions of the Trial Department 2259 02:00:49,783 --> 02:00:52,819 and the Review Department, they both concluded 2260 02:00:52,819 --> 02:00:56,723 that this case did not justify restitution. 2261 02:00:56,723 --> 02:00:59,626 And to allow the Bar to get a pound of flesh 2262 02:00:59,626 --> 02:01:03,130 that the bankruptcy court concluded he wasn't entitled 2263 02:01:03,130 --> 02:01:06,130 to just is unfair, inequitable, 2264 02:01:06,667 --> 02:01:10,103 and does not promote the interest of justice 2265 02:01:10,103 --> 02:01:15,175 or public confidence in the practice of law or lawyers. 2266 02:01:15,175 --> 02:01:18,712 The conduct that Mr. Spielbauer did wrong 2267 02:01:18,712 --> 02:01:23,250 of submitting an excessive payoff demand has nothing 2268 02:01:23,250 --> 02:01:25,185 to do with the practice of law. 2269 02:01:25,185 --> 02:01:27,870 It has to do with being a lender. 2270 02:01:27,870 --> 02:01:33,393 Any lender that is - when they get a payoff request 2271 02:01:33,393 --> 02:01:37,698 has a duty to submit an honest payoff demand. 2272 02:01:37,698 --> 02:01:41,401 And that doesn't - and whether you're a lawyer, a doctor, 2273 02:01:41,401 --> 02:01:43,937 or a baker or a tinker, 2274 02:01:43,937 --> 02:01:48,141 whatever, you have a duty to submit an honest demand. 2275 02:01:48,141 --> 02:01:53,541 And that is something that would happen any time. 2276 02:01:54,810 --> 02:01:57,170 JUSTICE EVANS: Didn't Mr. Spielbauer act as an attorney 2277 02:01:57,170 --> 02:01:58,485 when he represented Devine Blessings 2278 02:01:58,485 --> 02:02:00,854 in the civil proceeding? 2279 02:02:00,854 --> 02:02:02,823 GLEN MOSS: He was Devine Blessings, 2280 02:02:02,823 --> 02:02:05,959 and the trial court didn't distinguish between the two 2281 02:02:05,959 --> 02:02:09,663 and in fact rendered a judgment not against Devine Blessings 2282 02:02:09,663 --> 02:02:13,863 but against Mr. Spielbauer as an individual. 2283 02:02:13,901 --> 02:02:15,769 Devine Blessings-- 2284 02:02:15,769 --> 02:02:17,771 JUSTICE EVANS: But he was acting as an attorney in proceeding. 2285 02:02:17,771 --> 02:02:19,439 What? 2286 02:02:19,439 --> 02:02:21,175 JUSTICE EVANS: He was acting as an attorney in that proceeding. 2287 02:02:21,175 --> 02:02:24,778 GLEN MOSS: Not - well, he was in pro per. 2288 02:02:24,778 --> 02:02:28,810 I mean, he was acting as himself. 2289 02:02:28,810 --> 02:02:30,817 As I say, Devine Blessings existed; 2290 02:02:30,817 --> 02:02:34,121 but the judgment was against John Spielbauer 2291 02:02:34,121 --> 02:02:36,521 not against Devine Blessings. 2292 02:02:36,690 --> 02:02:41,495 So Devine Blessings really didn't have much of anything 2293 02:02:41,495 --> 02:02:43,363 to do with the case. 2294 02:02:43,363 --> 02:02:46,500 JUSTICE EVANS: Well if - we'll put that aside. 2295 02:02:46,500 --> 02:02:48,635 How does your argument square with Galardi, 2296 02:02:48,635 --> 02:02:51,438 where we said it didn't matter that the attorney there 2297 02:02:51,438 --> 02:02:55,638 was not acting in his professional capacity? 2298 02:02:57,100 --> 02:03:01,648 GLEN MOSS: I'll defer to Amicus on that 2299 02:03:01,648 --> 02:03:03,817 because, as I said, they're the ones 2300 02:03:03,817 --> 02:03:07,588 that are basically dealing with those issues. 2301 02:03:07,588 --> 02:03:11,188 The (inaudible) was the trial transcripts 2302 02:03:12,259 --> 02:03:16,363 and what I considered the public policy issues. 2303 02:03:16,363 --> 02:03:19,766 I'm trying to promote confidence in the practice 2304 02:03:19,766 --> 02:03:21,635 of law and attorneys, 2305 02:03:21,635 --> 02:03:26,435 but also giving due consideration to the Legislature 2306 02:03:27,508 --> 02:03:30,511 to put limits on the enforcements of judgments 2307 02:03:30,511 --> 02:03:35,911 which limits should apply to all citizens in California. 2308 02:03:37,918 --> 02:03:40,318 Those do have exceptions. 2309 02:03:40,420 --> 02:03:43,457 For example, if there was a fiduciary -- if you were acting, 2310 02:03:43,457 --> 02:03:46,293 for example, in Sorensen where an attorney was- 2311 02:03:46,293 --> 02:03:48,862 CHIEF JUSTICE GUERRERO: I'm sorry, you've reached your time. 2312 02:03:48,862 --> 02:03:52,990 So I wanted to make sure you saw that and were able to wrap up. 2313 02:03:52,990 --> 02:03:55,602 Okay, I was just going to say Sorensen is an example of 2314 02:03:55,602 --> 02:03:58,272 where the attorney should be held liable 2315 02:03:58,272 --> 02:04:00,507 because he was clearly practicing law. 2316 02:04:00,507 --> 02:04:04,110 He hired the court reporter for the deposition. 2317 02:04:04,110 --> 02:04:06,413 That's totally unrelated to this. 2318 02:04:06,413 --> 02:04:07,848 CHIEF JUSTICE GUERRERO: Thank you. 2319 02:04:07,848 --> 02:04:09,449 GLEN MOSS: Okay, sorry for that over on my time. 2320 02:04:09,449 --> 02:04:12,449 CHIEF JUSTICE GUERRERO: Thank you. 2321 02:04:24,865 --> 02:04:27,467 JOHN SPRANGERS: Good morning. May it please the Court. 2322 02:04:27,467 --> 02:04:29,269 John Sprangers 2323 02:04:29,269 --> 02:04:32,390 for Amicus Lawyers Mutual Insurance Company. 2324 02:04:32,390 --> 02:04:35,943 This case addresses whether tort damages and fees 2325 02:04:35,943 --> 02:04:39,313 may be awarded as a disciplinary restitution. 2326 02:04:39,313 --> 02:04:42,983 The answer this Court's precedents supplies is, "No." 2327 02:04:42,983 --> 02:04:45,752 Disciplinary restitution has generally meant 2328 02:04:45,752 --> 02:04:49,952 an attorney disgorging client or fiduciary funds, 2329 02:04:49,957 --> 02:04:51,992 and it has never before meant paying 2330 02:04:51,992 --> 02:04:55,896 a large tort damages and fees judgment consisting of money 2331 02:04:55,896 --> 02:04:58,296 the attorney never possessed. 2332 02:04:58,899 --> 02:05:01,869 Accepting the State Bar's position would erase the line 2333 02:05:01,869 --> 02:05:06,507 this Court drew between damages and restitution in Sorensen 2334 02:05:06,507 --> 02:05:08,907 and deprive disciplinary restitution 2335 02:05:09,176 --> 02:05:11,576 of any doctrinal coherence. 2336 02:05:12,312 --> 02:05:14,815 As we set forth in our Amicus Brief, 2337 02:05:14,815 --> 02:05:18,785 most of this Court's disciplinary restitution cases 2338 02:05:18,785 --> 02:05:22,489 have adhered to the settled civil law understanding 2339 02:05:22,489 --> 02:05:24,889 of restitution as disgorgement. 2340 02:05:25,325 --> 02:05:29,263 In the disciplinary context, that serves a few purposes. 2341 02:05:29,263 --> 02:05:31,565 One is public confidence. 2342 02:05:31,565 --> 02:05:35,869 Requiring attorneys to return money belonging to a client 2343 02:05:35,869 --> 02:05:39,390 or fiduciary is essential to public confidence 2344 02:05:39,390 --> 02:05:40,908 in the legal profession. 2345 02:05:40,908 --> 02:05:43,177 And so adhering to that definition of restitution 2346 02:05:43,177 --> 02:05:47,977 ensures that restitution serves a proper disciplinary purpose. 2347 02:05:49,283 --> 02:05:54,830 Another is that anchoring disciplinary restitution to that 2348 02:05:54,755 --> 02:05:56,957 settled common law understanding 2349 02:05:56,957 --> 02:06:01,128 prevents a drift into damages and debt collection of this case 2350 02:06:01,128 --> 02:06:04,698 that this Court has warned against in past cases. 2351 02:06:04,698 --> 02:06:07,801 And there are several reasons why awarding damages 2352 02:06:07,801 --> 02:06:11,400 is not appropriate in the context of discipline. 2353 02:06:11,400 --> 02:06:15,175 One is, simply put, that this Court's precedents 2354 02:06:15,175 --> 02:06:18,775 and the standards for professional discipline 2355 02:06:18,912 --> 02:06:23,712 define the power to issue a financial condition 2356 02:06:23,917 --> 02:06:25,652 as restitution; 2357 02:06:25,652 --> 02:06:28,522 and that simply has a settled understanding 2358 02:06:28,522 --> 02:06:30,290 that many of us have known 2359 02:06:30,290 --> 02:06:33,293 since we took remedies class in law school. 2360 02:06:33,293 --> 02:06:35,162 And importantly, 2361 02:06:35,162 --> 02:06:38,599 it's well-understood to be distinct from damages. 2362 02:06:38,599 --> 02:06:41,468 Another that this Court recognized in Sorensen 2363 02:06:41,468 --> 02:06:43,770 is that damages typically are not available 2364 02:06:43,770 --> 02:06:45,770 in administrative proceedings. 2365 02:06:46,573 --> 02:06:50,978 And a final reason is that many of this Court's cases 2366 02:06:50,978 --> 02:06:52,978 have instructed 2367 02:06:53,447 --> 02:06:55,847 that compensating private individuals - 2368 02:06:57,150 --> 02:07:00,721 individual victims is at least not a key aim 2369 02:07:00,721 --> 02:07:02,721 of disciplinary restitution. 2370 02:07:02,923 --> 02:07:07,461 JUSTICE EVANS: Counsel, in both Sorensen and Coppock, 2371 02:07:07,461 --> 02:07:09,763 we ordered payment of restitution even though 2372 02:07:09,763 --> 02:07:12,733 the attorneys had not received any funds from the client. 2373 02:07:12,733 --> 02:07:16,537 So how do you square that with your argument today? 2374 02:07:16,537 --> 02:07:20,140 JOHN SPRANGERS: So I think to understand Sorensen, 2375 02:07:20,140 --> 02:07:24,411 which is kind of the key case at issue here, 2376 02:07:24,411 --> 02:07:26,747 you'd have to look at the unique facts at issue, 2377 02:07:26,747 --> 02:07:30,350 which is how the Review Department understood the case. 2378 02:07:30,350 --> 02:07:33,620 And I think it's telling that in the 35 years 2379 02:07:33,620 --> 02:07:36,757 since Sorensen was handed down, to my knowledge 2380 02:07:36,757 --> 02:07:38,158 neither this Court nor the Review Department 2381 02:07:38,158 --> 02:07:40,327 has really extended its ruling. 2382 02:07:40,327 --> 02:07:44,131 And that's because I think Sorensen - the misconduct 2383 02:07:44,131 --> 02:07:46,800 at issue was essentially an attack on the functioning 2384 02:07:46,800 --> 02:07:49,200 of the court system. 2385 02:07:49,703 --> 02:07:52,940 There, essentially the court reporter was embroiled 2386 02:07:52,940 --> 02:07:55,475 in litigation based on a transaction 2387 02:07:55,475 --> 02:07:58,946 that has to play out smoothly dozens of times a day 2388 02:07:58,946 --> 02:08:01,849 for the court system to function. 2389 02:08:01,849 --> 02:08:05,219 And so protecting the court reporter from those expenses 2390 02:08:05,219 --> 02:08:06,920 protected the court system. 2391 02:08:06,920 --> 02:08:08,922 And that's a core disciplinary purpose 2392 02:08:08,922 --> 02:08:12,522 that's separate from compensating an individual. 2393 02:08:13,560 --> 02:08:15,529 And of course Sorensen is also distinct 2394 02:08:15,529 --> 02:08:19,132 in that it did not involve a damages award. 2395 02:08:19,132 --> 02:08:22,135 There was no tort damage at issue. 2396 02:08:22,135 --> 02:08:26,935 In Coppock, there was somewhat of a distinction 2397 02:08:27,941 --> 02:08:31,245 from the usual restitutionary fact pattern 2398 02:08:31,245 --> 02:08:33,814 in that the funds were ones 2399 02:08:33,814 --> 02:08:39,786 that the attorney's client had placed in a trust account 2400 02:08:39,786 --> 02:08:41,722 that the attorney had created. 2401 02:08:41,722 --> 02:08:45,459 But it's still much closer to traditional restitution 2402 02:08:45,459 --> 02:08:48,629 in that it involves disgorgement of funds 2403 02:08:48,629 --> 02:08:53,567 that the attorney had some control over in the attorney's 2404 02:08:53,567 --> 02:08:55,567 professional capacity. 2405 02:08:55,602 --> 02:08:58,505 And it's very different than ordering an attorney 2406 02:08:58,505 --> 02:09:03,305 to pay tort damages to a third-party business 2407 02:09:05,120 --> 02:09:08,749 that has some relation to professional misconduct 2408 02:09:08,749 --> 02:09:11,151 but in which the party's relationship really was 2409 02:09:11,151 --> 02:09:15,880 not defined by the practice of law. 2410 02:09:15,880 --> 02:09:17,124 I'd also like to talk about Morse, 2411 02:09:17,124 --> 02:09:21,795 which is the only case I'm aware of 2412 02:09:21,795 --> 02:09:25,395 where this Court has conditioned probation 2413 02:09:25,399 --> 02:09:28,999 on satisfaction of a civil judgment. 2414 02:09:29,236 --> 02:09:35,236 And I'd submit that Morse also involved extreme facts related 2415 02:09:37,744 --> 02:09:39,913 to a unique impact on public confidence 2416 02:09:39,913 --> 02:09:41,949 in the legal profession. 2417 02:09:41,949 --> 02:09:45,520 Morse involved this mass advertising campaign 2418 02:09:45,520 --> 02:09:48,520 that ensnared thousands of clients. 2419 02:09:48,589 --> 02:09:53,389 And even so, the restitution ordered in Morse 2420 02:09:53,427 --> 02:09:56,396 far more closely resembled traditional restitution 2421 02:09:56,396 --> 02:09:59,266 than what the State Bar proposes in this case. 2422 02:09:59,266 --> 02:10:01,666 It required disgorging profits. 2423 02:10:02,970 --> 02:10:06,907 Much of the award was literal cy prs restitution. 2424 02:10:06,907 --> 02:10:11,780 And the funds did not go to compensate an individual victim 2425 02:10:11,780 --> 02:10:14,615 but instead went to public entities. 2426 02:10:14,615 --> 02:10:16,717 So when we're viewing these past cases 2427 02:10:16,717 --> 02:10:19,419 that involve some type of deviation 2428 02:10:19,419 --> 02:10:22,856 from the settled understanding of restitution, 2429 02:10:22,856 --> 02:10:26,560 we see unique threats to the legal profession. 2430 02:10:26,560 --> 02:10:28,295 And even so, 2431 02:10:28,295 --> 02:10:30,797 those restitutionary orders did not deviate 2432 02:10:30,797 --> 02:10:32,833 from the settled understanding restitution 2433 02:10:32,833 --> 02:10:37,371 to the extent of the State Bar's proposal here. 2434 02:10:37,371 --> 02:10:39,371 In short, 2435 02:10:39,373 --> 02:10:44,278 the court retains many tools to police the sort of misconduct 2436 02:10:44,278 --> 02:10:46,246 at issue in this case. 2437 02:10:46,246 --> 02:10:50,500 But what the State Bar requests simply isn't restitution 2438 02:10:50,500 --> 02:10:53,650 as understood under this Court's precedents. 2439 02:10:53,854 --> 02:10:55,956 I'd also like to address the points 2440 02:10:55,956 --> 02:10:57,925 this Court made about Galardi, 2441 02:10:57,925 --> 02:11:02,125 which involved a payment to a co-venturers 2442 02:11:02,262 --> 02:11:04,198 in a real estate venture. 2443 02:11:04,198 --> 02:11:07,601 I think the distinction there is the attorney 2444 02:11:07,601 --> 02:11:11,201 owed fiduciary duties to those co-venturers. 2445 02:11:11,271 --> 02:11:15,475 And certainly this Court's cases have sort of equated 2446 02:11:15,475 --> 02:11:19,750 an attorney's responsibilities to its fiduciaries 2447 02:11:19,213 --> 02:11:22,616 with those to clients. So in a way, 2448 02:11:22,616 --> 02:11:25,319 that too did not represent nearly the departure 2449 02:11:25,319 --> 02:11:30,119 from traditional restitution that requiring a damages payment 2450 02:11:30,290 --> 02:11:33,827 to a third-party business would entail. 2451 02:11:33,827 --> 02:11:36,864 Now I'd like to talk a little bit about the State Bar's 2452 02:11:36,864 --> 02:11:39,264 proposed standard for restitution. 2453 02:11:41,869 --> 02:11:44,338 And I think it's interesting that the State Bar 2454 02:11:44,338 --> 02:11:48,538 has somewhat avoided defining the term "restitution." 2455 02:11:48,709 --> 02:11:52,579 It describes it more as by its purpose, 2456 02:11:52,579 --> 02:11:55,579 essentially as any compelled payment 2457 02:11:55,716 --> 02:11:58,418 it believes may protect the public 2458 02:11:58,418 --> 02:12:00,818 or deter attorney misconduct. 2459 02:12:01,989 --> 02:12:06,590 The problem is if deterrence and public protection 2460 02:12:06,590 --> 02:12:09,563 are the only constraints, then the term 2461 02:12:09,563 --> 02:12:12,799 "restitution" really has no doctrinal limit at all. 2462 02:12:12,799 --> 02:12:16,399 Yet Sorensen itself reaffirmed a line 2463 02:12:16,403 --> 02:12:18,803 between restitution and damages. 2464 02:12:20,174 --> 02:12:25,212 So as we've seen when discussing cases like Morse and Galardi, 2465 02:12:25,212 --> 02:12:27,748 the court's disciplinary authority allows 2466 02:12:27,748 --> 02:12:30,748 some flexibility in restitution doctrine; 2467 02:12:31,518 --> 02:12:35,989 but the State Bar's position removes any meaningful boundary 2468 02:12:35,989 --> 02:12:38,989 between restitution and compensatory sanctions. 2469 02:12:41,428 --> 02:12:44,640 And the State Bar itself admitted, well, 2470 02:12:44,640 --> 02:12:46,990 what sort of limitations 2471 02:12:46,990 --> 02:12:49,937 might exist on what constitutes a restitution 2472 02:12:49,937 --> 02:12:52,673 and in what amount, and it pointed to the fact 2473 02:12:52,673 --> 02:12:56,273 that the standards describe specific restitution. 2474 02:12:58,278 --> 02:13:01,281 That doesn't provide much of a limitation at all. 2475 02:13:01,281 --> 02:13:03,784 If "restitution" doesn't mean "restitution," 2476 02:13:03,784 --> 02:13:06,286 then this authority is somewhat unbounded, 2477 02:13:06,286 --> 02:13:08,686 which creates substantial uncertainty 2478 02:13:08,822 --> 02:13:11,222 for attorneys facing discipline. 2479 02:13:14,728 --> 02:13:16,728 So in summary, 2480 02:13:17,598 --> 02:13:21,798 this Court should reject the proposed restitution 2481 02:13:21,969 --> 02:13:25,439 by the State Bar as out of step with its precedents. 2482 02:13:25,439 --> 02:13:27,708 Doing so will preserve lines 2483 02:13:27,708 --> 02:13:31,245 this Court has drawn between damages and restitution, 2484 02:13:31,245 --> 02:13:36,450 punishment and rehabilitation, and protecting the public versus 2485 02:13:36,350 --> 02:13:38,350 primarily compensating individuals. 2486 02:13:39,920 --> 02:13:42,122 If there are no questions, I will submit. 2487 02:13:42,122 --> 02:13:45,122 CHIEF JUSTICE GUERRERO: Thank you. 2488 02:13:55,102 --> 02:13:57,437 RACHEL GRUNBERG: Your Honors, just a few points. 2489 02:13:57,437 --> 02:14:00,474 First of all, Morse is not the only case 2490 02:14:00,474 --> 02:14:04,945 where this Court has pointed to a judgment and said, "Pay it." 2491 02:14:04,945 --> 02:14:09,683 Larkin, Lipson, Morse - there are several cases out there 2492 02:14:09,683 --> 02:14:13,787 where this Court has pointed to an unpaid judgment 2493 02:14:13,787 --> 02:14:16,787 and ordered it in restitution. 2494 02:14:17,124 --> 02:14:20,327 So Morse is not the only example of that. 2495 02:14:20,327 --> 02:14:23,327 Second, this case involves fraud. 2496 02:14:23,363 --> 02:14:26,266 It involves fraud, and it involves misconduct 2497 02:14:26,266 --> 02:14:28,669 that occurred during the course and scope 2498 02:14:28,669 --> 02:14:30,237 of the practice of law. 2499 02:14:30,237 --> 02:14:33,941 And if you look at Exhibit No. 25 in the State Bar's record, 2500 02:14:33,941 --> 02:14:38,110 you'll see that during the initial discussions 2501 02:14:38,110 --> 02:14:40,247 about the inflated payoff demand, 2502 02:14:40,247 --> 02:14:44,447 Mr. Spielbauer's was submitting correspondence on Spielbauer 2503 02:14:44,551 --> 02:14:48,121 at Law letterhead signed "Thomas Spielbauer, Esquire." 2504 02:14:48,121 --> 02:14:51,291 He is holding himself out as an attorney. 2505 02:14:51,291 --> 02:14:54,995 He listed himself as "counsel of record" 2506 02:14:54,995 --> 02:14:57,970 in the Superior Court case, 2507 02:14:57,970 --> 02:15:01,100 and he submitted declarations to the Superior Court saying, 2508 02:15:01,100 --> 02:15:04,370 "I am counsel of record in this case." 2509 02:15:04,370 --> 02:15:08,509 So clearly his misconduct here did involve the practice of law; 2510 02:15:08,509 --> 02:15:10,544 although, as we've discussed, 2511 02:15:10,544 --> 02:15:14,147 I don't think that restitution is limited to that circumstance. 2512 02:15:14,147 --> 02:15:16,383 It clearly exists here. 2513 02:15:16,383 --> 02:15:18,418 And this discussion about 2514 02:15:18,418 --> 02:15:20,354 whether Mr. Spielbauer has the money to pay 2515 02:15:20,354 --> 02:15:22,550 or doesn't have the money to pay, 2516 02:15:22,550 --> 02:15:25,759 the reality is he has been an active member 2517 02:15:25,759 --> 02:15:28,295 of the State Bar counseling this entire time; 2518 02:15:28,295 --> 02:15:32,332 and he has not paid one cent towards satisfaction 2519 02:15:32,332 --> 02:15:35,502 of this judgment, not one cent. And why? 2520 02:15:35,502 --> 02:15:38,272 Because he doesn't believe he has to pay. 2521 02:15:38,272 --> 02:15:42,472 He doesn't believe that he's committed misconduct, 2522 02:15:42,609 --> 02:15:45,379 and he doesn't believe that he has to make amends for it. 2523 02:15:45,379 --> 02:15:47,748 As he stood through today, 2524 02:15:47,748 --> 02:15:49,950 they think they're still justified in submitting 2525 02:15:49,950 --> 02:15:52,350 that inflated payoff demand. 2526 02:15:54,121 --> 02:15:57,724 And that's exactly why a restitution requirement is 2527 02:15:57,724 --> 02:16:01,895 necessary here because it's going to force Mr. Spielbauer 2528 02:16:01,895 --> 02:16:05,766 to confront, in concrete terms, the harm that he has caused 2529 02:16:05,766 --> 02:16:07,968 because he has not yet confronted it. 2530 02:16:07,968 --> 02:16:12,339 The civil proceedings alone, the large compensatory judgment, 2531 02:16:12,339 --> 02:16:15,876 the punitive damages - they have not served to rehabilitate him. 2532 02:16:15,876 --> 02:16:20,848 They have not served to teach him that what he did was wrong, 2533 02:16:20,848 --> 02:16:24,170 and they have not served to hold him accountable. 2534 02:16:24,170 --> 02:16:26,520 And here, we're dealing with licensure. 2535 02:16:26,520 --> 02:16:29,590 And the license to practice law is a privilege. 2536 02:16:29,590 --> 02:16:31,758 And the message that we want to send to the public 2537 02:16:31,758 --> 02:16:35,662 is that attorneys are going to be held accountable. 2538 02:16:35,662 --> 02:16:37,564 So for that reason, 2539 02:16:37,564 --> 02:16:40,534 we ask that you impose the restitution requirement 2540 02:16:40,534 --> 02:16:44,370 as we requested and that he be required to pay it 2541 02:16:44,370 --> 02:16:49,900 before he's allowed to return to the active practice of law. 2542 02:16:49,900 --> 02:16:50,410 Unless the Court has any other questions, 2543 02:16:50,410 --> 02:16:52,646 I'm prepared to submit. 2544 02:16:52,646 --> 02:16:54,414 CHIEF JUSTICE GUERRERO: Thank you for your arguments here today. 2545 02:16:54,414 --> 02:16:57,718 The matter is submitted, and court is adjourned. 2546 02:16:57,718 --> 02:16:59,718 BAILIFF: All rise.