BAILIFF: All rise.
[Gavel]
The Honorable Chief Justice
and the Associate Justices of the Supreme Court of California.
Hear ye, hear ye, hear ye.
The Honorable Supreme Court sitting en banc
is now in session.
Please be seated.
CHIEF JUSTICE GUERRERO: Good morning.
Welcome to Oral Argument for the California Supreme Court.
The clerk may call the calendar, please.
COURT CLERK: Good morning.
The Supreme Court of California
hearing Oral Arguments in San Francisco on Thursday,
May 7, 2026, at 9:00 a. m. Case No. S287786,
the People, Plaintiff and Respondent v.
Joel SanMiguel, Defendant and Appellant.
For Appellant, Mr. Matthew Alger.
MATTHEW ALGER: Here.
COURT CLERK: For Respondent, Ms. Blythe J. Leszkay.
BLYTHE LESZKAY: Ready.
COURT CLERK: Case No. S28724,
Conservatorship of the Person of E. A.,
Public Guardian of Contra Costa County,
Plaintiff and Respondent v.
E. A., Defendant and Appellant.
For Appellant, Mr. Brian C. McComas.
BRIAN McCOMAS: Good morning and ready.
COURT CLERK: For Respondent, Ms. Andrea L. Russi.
ANDREA RUSSI: Good morning, ready.
COURT CLERK: Case No. S283172,
In re Thomas John Spielbauer on Discipline.
For Petitioner, Mr. Glen L. Moss.
They were here must a minute ago.
For Amicus Curiae,
Lawyers' Mutual Insurance Company, Mr. John B. Sprangers.
We're looking for them right now.
For Respondent, Ms. Rachel Grunberg.
RACHEL GRUNBERG: Ready.
CHIEF JUSTICE GUERRERO: Thank you.
Calling the first matter, the People v. Mr. SanMiguel.
On this case,
the Court is pleased to be joined by Justice Egerton
from the Second District Court of Appeal.
MATTHEW ALGER: Good morning.
I'm Matthew Alger, Counsel for the Appellant Joel SanMiguel.
May it please the Court.
This case is here before the Court this morning
because the trial court failed to follow
the explanation requirement of subdivision (g)(2)
of Code of Civil Procedure, Section 231.7.
When I refer to subdivisions, I will of course
be referring to Code of Civil Procedure, Section 231.7.
That's why we're here.
I'm here because the point I'd like to make
is that the explanation requirement matters.
You wouldn't think I'd have to say that
because it's in the statute,
but it didn't matter to the Court of Appeal
because the Court of Appeal said it could be disregarded --
or at least the majority did.
It didn't matter to the trial court,
or at least it didn't matter to the trial court's ruling,
because it wasn't considered.
It's not even clear that the trial court was aware of it.
And it doesn't matter to Respondent
because Respondent says you can bypass
the explanation requirement.
Now, how does the explanation requirement matter?
Why does it matter?
Because it is a means of evaluating a reason
for a peremptory challenge
that has historically been associated
with improper discrimination in jury selection.
It is a means by which the trial court obtains the information
that the Legislature deemed necessary
for the court to exercise informed discretion
when it considers such a reason.
And that's evident from the intent of the statute
that's expressed in Assembly Bill 3070,
which is to rid jury selection of improper discrimination, not
only purposeful discrimination but discrimination
that is based upon stereotypes - stereotypes
that have resulted in injustice.
JUSTICE KRUGER: Counsel, can I ask you a question?
MATTHEW ALGER: Certainly.
JUSTICE KRUGER: One of the things that I think
is challenging about interpreting subdivision (g)(2)
of the statute is that it covers different kinds of behaviors,
demeanors, and inferences from those things;
so for example,
failure to make eye contact with an observed behavior.
And an inference you might - one inference
you might draw from that failure to make eye contact
might be this juror isn't paying intention.
That's an inference about not behavior as such
but about that person's --
and sort of how that person is performing the role.
And I guess I'd like to understand from you
whether you think
that the explanation requirement applies the say
way across all of these different behaviors and
demeanors that are specified in the statute.
In other words does a person - it's one thing to explain,
"I'm inferring from the fact
that this juror is playing on her phone
while you're instructing the demurrer," or whatever,
"I'm inferring that this person isn't paying attention
to courtroom proceedings."
That's one kind of explanation.
Another kind of explanation would be,
"I think that it is important for jurors to pay attention
because it is going to be the People's burden
to prove the case,
and I want jurors who are listening to the evidence."
Which, or both,
of those things do you think the statute requires?
MATTHEW ALGER: Well, the statute is broad, yes.
It applies to all of the reasons identified in subdivision (g)(1)
because as Justice Cody said in her dissent in this case,
the lawyer needs to be able to make a connection
between the reasons
that are specified in this particular case.
And if he's unable to,
or she, unable to articulate why it matters,
then that raises a reason to doubt that the reason
for the challenge is actually based upon
something other than perhaps stereotypes that result in-
JUSTICE KRUGER: Is there a category?
I mean, you're familiar with the examples
that are raised in the briefing of behaviors
that are sort of so egregious
that they kind of require no further elaboration about
why they would be undesirable for a sitting juror -
so things like failing to pay any attention at all
when the judge is speaking and giving instructions to folks
who are sitting in the courtroom,
things like making rude gestures in a particular way.
I guess I'm wondering would you agree
that there is some category - it might be a very small category -
but some category
where it doesn't really require further explanation to know
why a particular litigant,
whether the prosecution or the defense,
would not consider this person to be an appropriate person
to perform jury service.
Sure, I think the Attorney General's example where
a prospective juror gives the prosecutor a rude hand gesture,
I mean that's- JUSTICE CORRIGAN: How about
if the juror gets into the jury box.
It's great, everything's fine;
and they promptly fall asleep and they're just asleep.
Does the prosecutor or the defense counsel have to say,
"You know, Judge,
I excuse that juror because they went to sleep in the jury box,
and we'd only been in session for a half hour"?
Is it required that they say, "Your Honor, it seems to me
that an attentive juror is particularly required.
And if the juror is not willing to stay awake
throughout the proceedings,
that might have an impact on their ability
to adjudicate the case."
I'm just trying to figure out where the outer real limits are.
It is required.
JUSTICE CORRIGAN: It is? MATTHEW ALGER: It is.
JUSTICE CORRIGAN: Okay.
MATTHEW ALGER: Because it is very broad, no doubt about that.
But it is required because this is not an afterthought
that we've put into the statute.
It needs to - we've put it in there
so that it could cover all kinds of scenarios
where you may not have a legitimate reason -
where you have a pretext for discrimination;
or it's just based upon stereotypes
that have resulted in the unjust treatment of prospective jurors,
like an assumption that a juror is inattentive merely
because he's not maintaining eye contact
when that may just be a cultural difference.
JUSTICE KRUGER: But that - it seems to me
that that particular example, that's the reason
the confirmation requirement is there.
The judge has to confirm that the behavior is occurring.
But it seems like a separate question
whether or not then explaining,
"And the reason why attentiveness is important
is because jurors have to pay attention to do their job,"
really helps us understand
whether impermissible discrimination has played a role
in the decision with respect to that juror or not.
I guess I'm curious to know what you think
that additional kind of formal explanation of
why attentiveness matters in general
or why making rude gestures or whatever matters in general
helps to illuminate that kind of fundamental question
that the statute lays out for us.
MATTHEW ALGER: Well, rude gestures,
that's kind of a distraction
because it didn't happen in this case;
and we're dealing with the explanation requirement,
not the confirmation requirement.
JUSTICE KRUGER: Right,
but of course the explanation requirement
and whatever rule we're writing here
is going to apply to a wide range of scenarios,
not just concerning explanations that involve attentiveness
but including the rude gesture scenario.
So I think we need to be able to understand
how the explanation requirement works in general
across this range. MATTHEW ALGER: Sure,
the trial judge can evaluate the reason on its face
and see if it makes sense but can also evaluate
how the attorney gives that explanation,
whether he believes - whether the court believes
that it's sincere for one thing.
So like I said, it wasn't an afterthought;
and if it's not given effect, it's meaningless.
So it does need to be followed.
Subdivision (g)(2)
prescribes the means by which a reason --
and it's historically been associated
with improper discrimination is absolved of a presumption
that it is founded upon.
JUSTICE LIU: Counsel, isn't it the case
that the Legislature expressly thought about
the inattentive scenario?
I mean, it says right here in subdivision (g)(1)(A),
right, "inattentive."
MATTHEW ALGER: Yes.
JUSTICE LIU: And nonetheless still requires
the explanation requirement, having considered that scenario.
MATTHEW ALGER: Yes, that shows
that the Legislature intended the explanation requirement
to apply to something that seems as simple-
JUSTICE LIU: So even though it may seem obvious,
the explanation requirement
does apply because the Legislature said
so straightforwardly in the statute.
That's right. And in a similar bill, AB 37,
it was adopted because of studies showing
that stereotypes, such as lack of eye contact,
do not necessarily mean someone's a bad juror.
It's based upon stereotypes and differences in culture.
The Legislature basically said that this is a new era.
And when it comes to possible discrimination,
we are no longer going to accept reasons
for a peremptory challenge that are based
upon hunches and behaviors
that previously were accepted as valid
because studies have shown they are not valid
and they will result in injustice.
CHIEF JUSTICE GUERRERO: What if the consequence of finding
that a specific reason as invalid?
If you take the inattentiveness as an example,
then your position is that inattentiveness cannot
then be relied upon to justify the strike, correct?
MATTHEW ALGER: It can be relied upon if it's confirmed
and if an explanation is given that satisfies-
CHIEF JUSTICE GUERRERO: But if the explanation requirement
isn't met, then the inattentiveness cannot be relied
upon to justify the strike.
But what about other reasons?
Do you agree that other reasons that are proffered
and other circumstances can still be relied
upon to determine whether the strike is unlawful?
Not if you don't meet the explanation requirement.
Both the confirmation
and the explanation requirement must be met.
It says in subdivision (g)(2)
unless you meet these requirements,
these reasons are presumed invalid.
That means that is the way
in which they're absolved of the presumption of invalidity.
And if they're not absolved of it by that means,
as recognized in the Caparrotta case,
you haven't established by operation of law
that a reason for a peremptory challenge is based
upon improper discrimination.
And if you then go to a totality of the circumstances analysis,
there is no way
that an objectively reasonable juror could conclude
that in this case race was not a factor in the exercise
of the peremptory challenge.
JUSTICE GROBAN: And following up on the Chief's question,
you think that applies to even the confirmation?
So imagine a situation where a lawyer says,
"I want to strike this juror;
she was sleeping the entire time,
and the one time she woke up she looked at her phone,"
and then goes on and explains,
"I think this is a problem for this case.
It shows inattention; it's a complicated case."
And the judge says, "You're right, she did sleep a lot.
I confess I didn't see her on her phone.
I can't confirm that; I was looking at notes a lot.
I'm unable to confirm that part of it;
but I did see she was sleeping,
and I understand your concern there."
Your position is because both bases weren't confirmed,
it's still invalid?
It's still invalid?
MATTHEW ALGER: I don't know that I would go that far;
I haven't given it thought.
But I would think you have a sufficient basis
for a finding of inattention based
upon only one of the observed behaviors.
JUSTICE GROBAN: But that's a - I'm hearing a different answer
than you gave to the Chief,
so I just want to make sure I understand your position.
Because the Chief was asking you, fine,
if there's one basis that can't be confirmed
or wasn't explained,
we understand that can be relied on.
But you can still go on and rely on other bases
that were both confirmed and explained.
And I understand you to be saying,
"In some situations, yes, you can."
MATTHEW ALGER: Perhaps, perhaps,
I don't know that I can definitively answer
that question the way -
if you give a literal meaning to the statute,
both would have to be confirmed.
And then you'd have to say why,
at least as a whole and in aggregate, they matter.
And I'm not second-guessing the wisdom of the Legislature;
that's their prerogative.
JUSTICE EVANS: Counsel,
I wanted to turn your attention for a moment
to the difference in language of the statute between subdivisions
(e) and (g)(2).
Subdivision (e)
of course says that the peremptory is invalid,
whereas (g)(2) says the reason is invalid.
Did the Legislature intend anything different?
How do you interpret the different language
in those two sections?
MATTHEW ALGER: Well, I mean in subdivision (g)(2)
if you find that - go straight to the fact
that - straight to an analysis of
whether racism was a factor in the challenge,
then obviously that takes care of that.
That either eliminates the presumption or confirms it.
In the subdivision (g)(2)
analysis, you just have two different levels -
first the reason and then the factor.
And as to Caparrotta, the court noted if you find
that a reason for a peremptory challenge
is discriminatory by operation of the presumption,
well then a factor necessarily is - it necessarily was a factor
in the use of the peremptory challenge.
So I don't think it matters a whole lot.
JUSTICE EVANS: So you don't think the Legislature intended
any difference in the different language
in those two provisions?
MATTHEW ALGER: Different procedures.
JUSTICE EVANS: Different procedures, but...
MATTHEW ALGER: Yes, yes, I mean you could conceivably go from
(g)(2) to the (d)(1) totality of the circumstances analysis,
but the end result is dictated by the failure
to satisfy the (g)(2) standard.
JUSTICE EGERTON: Mr. Alger, going back for a moment
to the explanation requirement,
one of the things the prosecutor said here
was that the juror had reentered the courtroom
when the jurors were supposed to remain in the hall
and therefore he wasn't following
the court's instructions. If we can assume for a moment
that the ability and willingness
to follow the court's instructions, whether it's,
"If the defendant does not testify,
you may not consider that," or whether it's,
"Please wait in the hall
until you're called back in by the court or the bailiff,"
is it a sufficient explanation in terms of what matters
to the case to be tried for the lawyer simply to say,
"The juror seems to be unable
or unwilling to follow the court's instructions"?
Isn't it in every criminal case important
that the juror be willing
and able to follow the court's instructions?
MATTHEW ALGER: Of course but again,
as I said, this was intended to have broad application
so that it would apply to reasons
that obviously make a difference and to reasons
that may not make a difference
and to a determination of the sincerity of those reasons
and whether they're based upon stereotypes.
So it's intended to have broad application.
And in this case,
the fact that the juror walked back into the courtroom
during a break was not contrary to any
of the court's instructions.
I mean, he's not required to pay attention
to what the other jurors are doing during a break,
and that was offered as a reason as well.
So if anything in this case,
that militates in favor of a conclusion
that the prosecutor's reasons were a pretext
and were not legitimate.
But in any event, my point this morning
is that if the Legislature had intended that means other
than confirmation and an explanation
could be used to rid a presumption
of discrimination based upon a subdivision (g)(1) reason,
it could rid it, the presumption,
they would have said you could use other reasons.
They didn't do that, and it's not really at issue here
because the court never even got to the explanation requirement.
You can't even get to the totality
of the circumstances analysis
unless you satisfy both the confirmation
and the explanation.
And when you don't have an explanation,
when the trial court doesn't have an explanation,
it doesn't have the information
that the Legislature intended it to have
for the exercise of informed discretion,
the trial court cannot exercise the informed discretion
envisioned by the Legislature.
And that's what we have here,
and that's why the trial court did
not properly overrule the objection
to the peremptory challenge to S. M.
CHIEF JUSTICE GUERRERO: Would you like to reserve the balance
of your ten minutes?
MATTHEW ALGER: Yes, thank you.
BLYTHE LESZKAY: Good morning, Your Honors.
May it please the Court.
Deputy Attorney General Blythe Leszkay for Respondent.
Demeanor-based reasons are unique in jury selection
in that they often reflect a legitimate concern
about a juror's behavior.
But they are subjective
and often invisible on a cold record;
and that makes them especially ripe for unconscious bias,
pretext, and even outright falsification.
The Legislature recognized this as an historical association
with improper discrimination
and set those reasons aside for special consideration
under subdivision (g)
and stated that these reasons are now presumptively invalid
and require confirmation and explanation.
And the confirmation/explanation requirements
are specifically designed to combat the unique problem
with demeanor-based reasons,
which is to ensure that there is some information on the record
that can be evaluated to determine
whether or not the reason was exercised in good faith
and beyond just the reason itself.
And that's important because under Batson,
the opposite was true.
Under Batson, a reason was presumed to be valid.
And when demeanor-based reasons were given,
they were generally assumed to support the challenge.
Now, subdivision (g)
flips both of those presumptions and assumptions
and requires that certain information be put on the record
so that demeanor-based reasons can be evaluated
in a meaningful way.
The information is important and it's meaningful,
but it is not outcome-determinative.
And that's because subdivision (g)
doesn't answer the ultimate question
that the Legislature wanted every peremptory challenge
to be evaluated for bias,
which is would an objectively reasonable person consider race
or other characteristics a factor in the challenge.
And that is the key question
that must be answered in every case where this arises.
And subdivision (e)
explicitly answers that question.
Subdivision (d)
explicitly answers that question.
But subdivision (g)
does not; it doesn't ask that question,
and it doesn't answer it.
It simply provides additional information
for the court to be able to evaluate the demeanor
that is given as a reason,
along with all of the other reasons and circumstances
that are applicable in the case.
JUSTICE KRUGER: So what does it mean to say
that the presumption of invalidity
has not been overcome under subdivision (g)?
What's the effect of that?
BLYTHE LESZKAY: So the effect would be
that the presumption of invalidity remains,
and the reason is now considered in the negative weight
and under the totality of the circumstances analysis.
So because it remains presumptively invalid,
it would weigh against a challenge ultimately;
but there may be,
depending on the other facts and circumstances,
would still potentially be outweighed in a totality
of the circumstances analysis under subdivision (d)
when the question is,
"Would an objectively reasonable person view race
as a factor in the challenge?"
JUSTICE LIU: Could I ask about that?
We have that scenario here,
where there are multiple reasons given.
And it's not uncommon;
we see lots of cases with multiple reasons given.
So your contention is that if one of the reasons given
is invalid because the presumption of invalidity
has not been rebutted, that just goes into the weighing
of all the other possible reasons.
Why is that? I mean,
if you have an improper reason that's already been given,
why would an objective observer look at that
and say, "Hm," you know?
BLYTHE LESZKAY: "Presumptively invalid" under subdivision (g)
does not mean biased.
It cannot because a reason can be - the requirements
of subdivision (g) can be met,
but the explanation could potentially reveal
bias in the reasons.
JUSTICE EVANS: But didn't the Legislature call
out these specific examples because of history
and because there was a belief
that there was an unacceptable risk of the taint of bias?
BLYTHE LESZKAY: Yes, and that is
why that they are considered presumptively invalid
in the first place because we recognize
- the Legislature has recognized the problem,
potentially, with these kinds of reasons
that they have room for pretext
or unconscious bias basically behind them, right?
Because we don't know.
If somebody simply says that a juror was being inattentive,
if the juror is actually being inattentive that is a quality
that is legitimately considered undesirable in a juror.
But saying a juror is inattentive leaves a lot of room
open for either unconscious bias or pretext
or other - or even falsification.
JUSTICE LIU: So if the presumption of invalidity
is not rebutted,
why wouldn't the inference be that it is discriminatory?
Because the Legislature says right in the statute,
"The following reasons," including inattentiveness,
"have historically been associated
with improper discrimination."
That's the whole point of the statute.
In other words,
when the presumption of invalidity hasn't been rebutted,
there's a strong inference of discrimination.
Isn't that the whole point of the statute?
BLYTHE LESZKAY: The whole point of the statute
is to prevent bias from being exercised in the use
of peremptory challenges.
With the demeanor-based reasons,
the presumption of invalidity under subdivision (g)
suggests that that is possible, right?
Historically, there's an association;
and we understand that that is still a possibility.
And so through the confirmation and explanation requirements,
we're going to require certain information
to be put on the record that can --
traditionally this is what has helped us to decipher
whether the demeanor-based reason is in fact
exercised in good faith. Without that information,
there may still be other information in the record --
the other circumstances under subdivision (d)(3),
the other reasons that are given, the way
that even the demeanor-based reasons is exercised.
So there is a difference between if somebody saying
that this juror was being inattentive or,
for example in this case,
where we have specific behaviors that the juror was engaged in
that are described on the record and are confirmed.
And so we can - we can - that gives us more information
to be able to analyze the substance of the reason
and to determine whether or not there is in fact
still that historical association or whether or not
that historical association has now been severed.
The reason is now valid, and we can move -
and it can be weighed as any other valid reason-
JUSTICE LIU: I guess, so you're asking us - well,
you're saying that there could be a scenario
in which the strike is deemed proper even though
an invalid reason was one of the reasons supplied, correct?
A presumptively invalid reason under subdivision (g).
JUSTICE LIU: No, not presumptively invalid - invalid
because the presumption has not been rebutted.
BLYTHE LESZKAY: It's our interpretation because
the subdivision says, "presumptively invalid unless"
that when those two requirements are not met
that the reason remains presumptively invalid
and can then move into an analysis under subdivision (d).
And if we look at the example of a failure in the confirmation,
we can understand a little bit better why this is.
Because the confirmation -
if a judge has simply missed what happened,
that doesn't indicate bias.
The reason under subdivision (g)
would remain presumptively invalid
because the confirmation requirement was not met,
but that doesn't necessarily mean that the reason is biased.
We would give that a different kind of weight
if the judge simply doesn't happen to notice
versus if the judge was looking and says,
"No, that didn't happen."
Those are two very different scenarios, and under-
JUSTICE GROBAN: And on your point about different
kind of weight, the second scenario,
so if three reasons were given and the first one
the judge says, "Oh, that's very troubling to me.
I did not see that happen at all.
That's a concerning basis."
But then there are two other bases provided
in which the judge said, "Yeah, I did see them.
I understand your concern. I confirm them.
They're a problem."
As part of the totality of circumstances analysis,
can the judge go on and say, "It's still a totality.
I'm still going to weigh quite heavily the fact
that the first reason you gave is something
I didn't observe at all.
And I am so troubled by it that in the totality analysis,
I'm going to - even though reasons two and three are valid,
I'm so troubled by what I perceive on issue one
that I'm going to deem the strike invalid."
Is that appropriate?
Absolutely, and
because ultimately what the Court is asking in that scenario
is would an objectively reasonable person consider
race a factor in the challenge.
And if the failure to confirm or the failure to explain is such
that it suggests that this is a really problematic reason
and we have not eliminated the historical association
with improper discrimination, and so that still remains.
And when we look at the totality
none of these other circumstances
are sufficient to outweigh that,
then certainly that's the end of the challenge.
JUSTICE LIU: I guess I'm just puzzled
by the notion of weighing here
when the Legislature has made very clear that --
you can call it a presumption of invalidity,
or I think of it as invalidity -
but the point is it hasn't been rebutted.
If my teenage child came home late one night and I said,
"Why," and they gave three reasons - I went to the store,
I was studying with a friend,
I was at the library - and one of those was not substantiated,
would I say that that explanation as a totality
holds water because two of them were and one of them wasn't?
BLYTHE LESZKAY: Potentially, I guess it would depend on
why that third reason wasn't substantiated.
Is it simply because nobody else was there to substantiate,
but you believe your child
because they have a history of being truthful;
and these other reasons are explained,
and we have corroboration or-
JUSTICE LIU: Well apart from the scenario
that I think you've come back to a couple of times
now about not noticing,
which is the trial court not paying attention -
which we don't normally think of in the sense of
if the trial court doesn't confirm it,
that's just - I mean, I don't know that many transcripts
where the trial judge says,
"Oh, sorry, I wasn't paying attention; I didn't see that."
Well, jury selection is a dynamic process.
It is the most dynamic point of a jury trial,
and there are a lot of moving parts.
It is a highly fact-dependent determination,
and really no two cases are alike.
And the trial courts really need a workable standard
and something - a flexible standard like the totality
of the circumstances analysis really provides
how courts see the ability to evaluate peremptory challenges.
And a bright-line rule,
like Appellant is suggesting, especially for just one reason,
a demeanor-based reason, when subdivision (g)
does not call for a conclusive determination.
And one of the best ways to see how subdivision (g)
works in the statute is to compare it with subdivision (e)
because they're very different. Even though they both look at
and consider presumptively invalid reasons, subdivision (e)
states that the peremptory challenge in its entirety
is presumptively invalid.
And in order to give meaning to the different language
in subdivision (g), which only applies to a reason,
they would have to be interpreted differently.
Additionally, subdivision (e)
addresses particularly pernicious reasons.
These are inherently problematic kinds of reasons,
things that are pretextual or biased on their face.
We're talking about what a juror was wearing
or the fact that they speak in an accent
or know a different language.
These are inherently problematic in a way
that demeanor-based reasons are not.
And additionally, subdivision (e)
contains - it incorporates
the objectively reasonable person standard from (d).
It asks the same question,
except it does so under a heightened burden,
the clear and convincing standard.
So it's asking the same question under a heightened standard.
If a reason under subdivision (e)
fails, it necessarily has to fail under (d).
JUSTICE EVANS: Counsel, I want to ask -
so I understand you to concede the presumption of invalidity
was not overcome here.
So then you say we move to the totality, right?
BLYTHE LESZKAY: Yes.
JUSTICE EVANS: Okay, help me understand what the role
of a reviewing court is.
I don't know how a reviewing court is supposed
to look at this or fix the problem
because how are we to determine what impact the invalid reason,
or the presumptively invalid reason,
had on the trial court's ultimate determination?
BLYTHE LESZKAY: Every case is going to be really
fact-determinative on a case-by-case analysis.
And that's kind of the difficulty and the beauty
of the totality of circumstances type of analysis.
It provides flexibility to the court,
and it also allows for a whole variety
of circumstances that arise.
CHIEF JUSTICE GUERRERO: But does the reviewing court defer
to any of - what does the reviewing court do?
Do they conduct a totality of the analysis itself?
BLYTHE LESZKAY: It is a de novo review generally on review
under the statute,
and so the reviewing court would look at the subdivision (g)
reason in this case.
You would say that the confirmation was met.
But in our view,
the explanation requirement was not;
and so it is technically not - it is not a valid reason.
It is presumptively invalid.
However, we do have circumstances here
that suggest that it was exercised in good faith.
For example,
the fact that there was a specific behavior
- so the juror was engaged in that the prosecutor noticed.
And the prosecutor did explain why it stood out to him,
because the juror was behaving differently
from the other jurors.
So we actually do have somewhat of an explanation here
as to the prosecutor's thinking.
Those facts can be assessed under the totality
of the circumstances,
even if we've maintained the presumption of invalidity.
And so the reason in the whole
would weigh in the negative balance
because the presumption of invalidity
has not been overcome,
so it necessarily has to weigh in the negative.
But because of the way
that the reason was described in the record
and the information that we do have,
and because specifically the juror's behavior in this case
goes to the basic requirements of a juror,
we can analyze and say that, yes,
it would weigh on the negative side of the scale
but it wouldn't weigh particularly heavily.
And then we have additional reasons
that would weigh on the other side of the scale
that are perfectly valid reasons under subdivision (d).
And the Court could do the entire subdivision (d)
analysis and go through those factors,
as we did in the brief.
JUSTICE EGERTON: Ms. Leszkay,
could the trial court and the reviewing court
look at the (d)(3) factors here?
Factor one,
was the defendant a member of the same group as the jury, yes.
Factors two and three,
however, was the member not a member of that group
- the victim was Latino.
All of the percipient witnesses were Latinx, male or female.
Two of the six officers,
including Zamora who seemed to be most heavily involved,
have Hispanic surnames;
and two of the three scientific techs have Hispanic surnames.
Is that something the Court could properly consider?
BLYTHE LESZKAY: Under subdivision (d)(3)
analysis, all of those things would be factors
to consider in addition to the way
that the reason was described in the record,
in addition to other reasons
that were proffered by the prosecutor.
In this case,
that the juror gave reasons that were brief
and that the victim - there was another Hispanic juror
and that the prosecutor preferred other jurors
in the next group of six.
And so those are all valid reasons.
And when you look at the totality of all of the reasons
that the prosecutor gave,
you can make an evaluation of
whether an objectively reasonable person would consider
race a factor in the challenge.
And because you can make that analysis,
we believe that it's appropriate to do so.
Our interpretation is really
the most straightforward reading of the statute.
It's consistent with the language, the structure,
and the Legislature's intent.
It prevents absurd results,
and Appellant doesn't disagree that it prevents -
or that his interpretation results in potential absurdities
but says that is unfortunate.
We consider that to be an unreasonable reading
of the statute, and especially in a statute like this
where automatic reversal is the result.
That is a drastic result
that the Legislature didn't intend for something less
than a finding under subdivision (d)
that an objectively reasonable person would view race
as a factor in the challenge.
To apply the statute as broadly as possible,
which is the Legislature's intent,
it's important that the totality of the analysis
under subdivision (d)
be applied whenever possible with an eye
towards eliminating bias in jury selection.
And that's the most appropriate means
of accomplishing the Legislature's goal.
The purpose of the statute is to eliminate bias
in jury selection, not to make sure
that the court is looking at every appropriate time
or that better explanations in general are met
or that the court and counsel
are paying attention to the specific details of the statute
and what it requires.
The overall question is really
to best effectuate the Legislature's purpose,
every challenge should be evaluated under subdivision (d).
And we ask the Court to affirm. Thank you.
CHIEF JUSTICE GUERRERO: Thank you.
MATTHEW ALGER: Let me start out by addressing
this idea of absurdity.
It is not absurd to require the trial court
to pay attention to what's going on,
to require prosecutors and defense counsel
to be aware of the law and to follow it.
If any absurdity results from the examples cited
by Respondent, it's not a result of the statute;
it's a result of the incompetence of counsel
and the failure of the trial court to do its job.
JUSTICE GROBAN: What do you mean by "incompetence"?
I'm thinking of a situation
in which you have 60 prospective jurors in the courtroom.
They're not even all sitting in the box.
And the assertion is Juror No. 57
sitting in the fourth row was - the lawyer says,
"I could see her furtively glancing at her cell phone."
The judge says, "A lot was going on; I just can't confirm that."
That's incompetence?
MATTHEW ALGER: (Laughing) Well,
it is the judge's obligation to pay attention
to what's going on.
It's counsel's obligation to pay attention to what's going on
and to be informed of the law on this subject.
That's what I was more or less referring to.
For instance in this case,
the prosecutor did not appear to be familiar with
the provisions of Code of Civil Procedure for Section 231.7
and an obligation to know that law.
And when you're going to exercise a challenge,
obviously it's going to be when the jurors are in the box.
Or if you have a 6-pack method
when you've got - what - 18 people up front,
you don't necessarily have to observe
everyone in the audience.
But what I just heard from Respondent
is that the court doesn't have to follow the law.
I mean, that's basically what it comes down to -
that the court doesn't have to follow
the explanation requirement
because it can just go on to the totality
of the circumstances analysis. But as I said before, the court
doesn't even get there unless it satisfies subdivision (g)(2).
And given that the reasons identified in subdivision (g)(1)
have been associated with discrimination historically,
then if that confirmation and explanation
requirement is not satisfied,
then it's established that the reason given is discriminatory.
CHIEF JUSTICE GUERRERO: I'm not sure that
that is an accurate description of counsel's argument,
that they're suggesting the court not follow the law.
That's just a differing interpretation
of what the law is.
MATTHEW ALGER: Well, no,
I mean look what we have here in this case.
The court didn't follow the explanation requirement.
And Respondent is saying that doesn't matter.
Well, that would mean the court doesn't have to follow
the explanation requirement.
JUSTICE CORRIGAN: Well, Counsel, I think it's a matter of degree.
Suppose behavior is that Juror No. 4
lit up a cigarette and in the process set Juror No. 3 on fire.
[Laughter]
Would we say that the challenge fails
because the lawyer didn't say,
"You know, I just think setting another juror
on fire might be a problem during the course
of this ten-week trial, Judge."
I mean, are we going to be so formulaic
that we can't rely - now, I'm agreeing with you
that I have intentionally chosen a reductio ad absurdum argument.
But the question is whether it is - whether you are arguing
for a standard that is so formulaic
that in its absence logic and reason have no role.
MATTHEW ALGER: As I said,
the standard has very broad application
because it was intended to cover a whole variety of situations.
And perhaps it could have been drafted differently;
but it wasn't, and so it needs to be applied literally.
And there will be reasons or occasions
when it's applied and it's obvious
that the reason is not discriminatory given
what happened;
but the explanation is required to be given, and then you go on.
It's not a big deal except that the Legislature required it.
Let me address subdivision (e) versus subdivision (g)(2).
Subdivision (e) does have a requirement
that it be shown by clear
and convincing evidence
that an objectively reasonable person would view
the rationale as unrelated to a prospective juror's race.
Well, subdivision (g)(2)
doesn't have that because it's not necessary.
It's been established by the failure to satisfy that test
that you have an invalid reason,
and the reason it's invalid is
because it's improperly discriminatory.
And you don't need that; you don't even need to go there.
And my point today
is that you don't even get to a totality
of the circumstances analysis;
you don't even - you can't get there unless
you satisfy both requirements of subdivision (g)(2).
You can't bypass one of them and just say,
"Oh, under the totality of the circumstances,
the strike is fine." And that's what happened here.
So with that,
unless the Court has some questions, I will submit it.
CHIEF JUSTICE GUERRERO: Thank you.
The Court thanks both parties for your arguments here today.
The matter is submitted. Calling the next matter,
Conservatorship of the Person of E. A.
On this case,
the Court is pleased to welcome Justice Delaney
from the Fourth District Court of Appeal.
BRIAN McCOMAS: Thank you, Chief Justice,
and the Associate Justices of this Court.
If it pleases everyone,
Brian McComas on behalf of Appellant E. A.
Freedom is openly on trial in any civil commitment proceeding;
and at the same time,
a trial is needed for a committed person
to obtain their freedom.
And here's the crux of the problem underlying the issue
that the Court considers today.
Whether the conserved person must demonstrate prejudice
when there's a 362-day delay in the initiation of trial,
resulting in a violation of due process and equal protection.
And no prejudice analysis can quantify
how the denial of freedom harms an individual
when the commitment period effectively lapses,
and the functional denial of due process
is what occurred in this case.
No trials occurred between the date of the demand - December 2,
2022 - and the resolution of the case, November 28, 2023.
JUSTICE EVANS: Counsel, how do we think about the fact
that the purpose of the conservatorship
is to provide necessary treatment?
How do we factor that into any prejudice analysis
or thinking about any remedy?
BRIAN McCOMAS: The purpose is treatment,
and the purpose is also swiftness.
The institutionalization combined with treatment
at times can be competing goals.
But the treatment factor must be considered in the test
I'm going to get to when we talk about
whether excessive delays in bringing a person to court over
and over again is actually serving the treatment purpose.
And here, over one dozen continuances were granted
over my client's objections.
Seven motions to dismiss
were denied over my client's objections.
Two petitions for appointment were stacked upon one another
in what appears to be a practice and pattern in that county.
And one petition wasn't even adjudicated.
JUSTICE KRUGER: Can I ask you what is the remedy
that you are seeking for the alleged due process violation
with respect to the 2022 petition?
I understand that your clients accepted the conservatorship
for the following year,
and you're appealing from that judgment.
What is the appropriate remedy if we were to decide
that a due process violation occurred on a previous petition?
BRIAN McCOMAS: And I believe the appeal included
both in the carve-out that was made on the last day.
They wanted to preserve the speedy trial
and due process rights as to the petition
that was never adjudicated.
But to answer Your Honor's question,
we would ask for a dismissal.
And I know that sounds like a Pyrrhic victory.
JUSTICE KRUGER: A dismissal of what?
BRIAN McCOMAS: Of that old petition.
JUSTICE KRUGER: Of the 2022?
BRIAN McCOMAS: Yes.
JUSTICE KRUGER: Okay, so you are not suggesting
that there's any connection between the 2022
and the 2023 -- that resolution?
I understand that there have since been
even more developments in the matter.
But you're agreeing that the 2023 outcome remains in place,
and you would ask for a retroactive dismissal
of the 2022 petition even though it's since been superseded?
BRIAN McCOMAS: Well not necessarily, Your Honor.
The stacking question I guess would be implicated by this.
Does an invalid petition that violates a commitment period
- does that taint a later commitment petition
that's stacked on top of that? At this point,
as Your Honor knows,
my client is not in the conservatorship anymore.
And we did our best to get this up in front of the courts
at a time when a remedy might have been more palpable for her.
But I think if we focus on
how could this have been remedied in time
when it mattered and we look at the 2022 petition,
because that is when this would have mattered,
we would have started with dismissal.
But there are lesser remedies. There's remedies like release.
There's remedies like less-restrictive placement.
And this was never a question,
but my client might have had remedies like restoring some
of her rights and taking away some of the special-
CHIEF JUSTICE GUERRERO: Why would a writ not be a better
path to pursue for this type of relief that you're requesting?
Well, if they're having trouble getting into a courtroom
and then they file a habeas petition,
this goes to the same department that's already overburdened.
And habeas is generally a slower remedy than demand for trial
that is set out with 10-15 days in Section 5350,
I don't think that's really an efficient way
for them to get to a trial.
The other question I think that's interesting here
too is the delay of the trial is so long here
that other aspects of the statute
are essentially nullified.
So if there was a timely trial,
my client might have been able to seek rehearing
in a timely fashion.
If there was findings as to disabilities or placement,
my client might have been able to file a motion
for reconsideration of those issues.
But since there's just a petition hanging out in ether,
there's no real ability for her to implement any
of the other rights that are tied into the LPS Act.
JUSTICE DELANEY: Mr. McComas? BRIAN McCOMAS: Yes?
JUSTICE DELANEY: Let me take you back to the question
the Chief Justice asked you about the writ.
Are you suggesting then
that the trial court - you're expecting the trial court
in this scenario, or a scenario like this,
to treat the petition for writ of habeas corpus
in the same manner they're treating the request for trial?
Do you not think it would garner more attention
and more expediency addressing some of the issues
that you're raising?
BRIAN McCOMAS: I don't think it would
because we're setting trials on a monthly basis,
making demands every month.
I file a habeas petition; maybe I get an informal reply,
maybe I get an order to show cause.
I do a return; I do a denial.
We're not doing this in 30 days.
They're coming to court every 30 days.
Moving to dismiss,
asserting my client's rights as frequently as possible,
is really the only way of effectively asserting
those rights under the LPS.
JUSTICE EVANS: Counsel, just to follow up the writ series
of events that you just articulated, is that based on
actual experience; or are you speculating?
BRIAN McCOMAS: That is based on my writ experience.
It can be expedited.
A judge can issue an order to show cause right away.
But the Respondent usually has their own due process rights
that usually at least require a filing of a return
and a denial of the allegations.
But just to get back to sort of where I wanted to start this,
the question of treatment that you started with,
Justice Evans, is a complicated factor
that cannot be quantified in an analysis of harmless error.
It cannot be quantified in an analysis of an impairment
of the evidence to be introduced at trial,
and nor can the types of enduring attachments
of a normal life that we take away from the conserved person
be analyzed in a prejudice-styled analysis
from the Barker/Camacho cases.
And I think when we get to it,
I have a test that does sort of fit the LPS Act better.
But I think we have to keep this in mind
when we're thinking about an Act that's created to protect
the most hyper-marginalized people in our society.
JUSTICE EVANS: So are you saying we
shouldn't be thinking about treatment
and any prejudice analysis?
But is it appropriate to think about treatment
in terms of remedy?
BRIAN McCOMAS: Yes, absolutely.
JUSTICE EVANS: Okay.
BRIAN McCOMAS: I also think it's appropriate
to think of treatment in terms of
whether the due process violation has occurred,
and I want us to get to that.
I think one thing that would be very helpful in this field
is an opinion from this Court just saying
that Section 5350 is backed by due process.
If you look at the cases we've discussed,
there is not a clear statement of that.
There's not a clear statement, as far as I can tell,
in this Court's precedent of that.
And that type of promise,
that type of delivery to the lower courts,
in itself provides greater protections.
And we know this has to be true
because Section 5350 has created liberty interests.
Those liberty interests protect against bodily restraint,
which is at the core of the due process protections.
And we know that Section 5350
is trying to guarantee conserved people trial
in a meaningful manner at a meaningful time.
And so due process must apply if the statute is violated,
perhaps not just by one day;
perhaps it has to be more extreme.
But without that type of backing by the Court,
we will see longer delays.
I look to Justice Corrigan and her Opinion in John L.
when we talk about what type of test
I'd like to see applied here which is the private interest,
the risk of erroneous deprivation,
the government interest,
and where I think this addresses Justice Evans'
concerns about treatment of the dignity interest
of the conserved person. And when we look at that,
we can see that the private interest is usually
at its maximum - that commitment is much like incarceration
in terms of the rights we're depriving of the person.
And we know that timely trials increase accuracy
in terms of verifying the allegations
in the commitment petition.
And we know the government really doesn't have
an interest in delay in these cases because
the LPS Act sets out a series of timelines that are swift.
And at the end of the day,
delay is a violation of the dignity interest.
It is not recognizing the committed person
as a person with preferences, preferably probably
not to come back to court over and over again.
And so if we do recognize that due process applies,
then the question is, well, what process is due.
And the process that is due
does have to balance medical objectives
but also swift legal proceedings.
And this is where the prejudice analysis from Camacho and Barker
can't quite quantify the issues.
And it's hard for me to even think of
how we describe prejudice in terms of the social death
we impose on a conserved person.
How do we measure what it feels like not
to be treated as an equal, fully participating
and a responsible member of our society?
CHIEF JUSTICE GUERRERO: What if there is no dispute
about the grave disability of that individual
at any time in the proceeding?
BRIAN McCOMAS: In terms of no dispute,
there still could be other issues, Your Honor.
And less restrictive placement might be the most important one
for somebody, moving closer to their home and their loved ones.
There could be a dispute perhaps - perhaps not a dispute,
but there could be an issue about
whether there's a third party
who might want to provide shelter, clothing,
and care for these people.
JUSTICE EVANS: Did any of those negotiations
occur during this lengthy process - efforts
to ask for less restrictive placement
or any other accommodations in light of the delay?
BRIAN McCOMAS: There is not a record of that below
until the November 28th date.
But I think that really gets to
why the right to jury trial is so important, right?
It's the anchor that holds the government
to the promises of the Constitution.
It is the way that a person who feels
they're not being treated correctly,
maybe even not in a dignified manner, can be heard.
And maybe even if they're just frustrated, have that exhausted.
But without that demand,
there is no negotiation on these lesser things.
And that's why I think a test
that really evaluates the dignitary interests
would incorporate more oral participation
from the conservatee
and potentially foster greater resolution.
Because if there is - this is a case where it's not contested.
Grave disability is not contested,
and we really should be getting to the other issues
that are creating the contest in the courtroom.
JUSTICE GROBAN: I just want to make sure I understand.
I understand you to be saying that the continuances in
and of themselves in the process of kind of going back
and forth to court and the delay,
that that in and of itself is disruptive to treatment.
I have some sense of what you mean;
but to the extent I'm understanding you correctly,
can you elaborate a little bit? BRIAN McCOMAS: Yes, I mean,
there is only a record of three appearances
by my client at these hearings.
But there are records of attempts to get her remotely.
There is records of how these appearances interfere
with family visits,
and all of which is not conducive to stability,
which is what the conservatee ideally would need
in a regimented treatment
that is only supposed to last one year.
The other aspect in the case law I think
that the Court can really help us out with
is this question of prejudice
is really not fully developed in a way that I think is coherent.
If we look at James M., which is the first case
to address a violation of Section 5350,
a nominal violation of 11 days or something,
it just says no prejudice.
And as we go down the line,
we actually have the case of Jose B.
where it does the factor test from John L.
and then just throws in no prejudice.
And if we go further, we go to T. B.
where it assumes the Camacho test;
but it also recognizes the parties in the brief
whether Camacho applies.
And so I think we really need some kind of guidance
on what is the test,
particularly in light of the most recent decision, A. H.,
which does do the full test under Barker
and recognizes that this decision is pending
before this Court.
And I think the other issue
that the Court needs to consider here
is that the Barker test is ill-suited
for questions or remedies.
It recognizes that in the Barker Opinion,
and it also is recognized in footnote 5 of Camacho.
But the John L.
test actually is built for incorporating potential remedies
by looking at the conservatee's dignitary interests
- what is the reason they're demanding trial,
what is the reason
that promoting their oral participation.
And I think that it's a better test for that reason.
Very briefly wanted to just discuss equal protection.
We recognize that going on 100 years now,
civil commitments are not entitled to the same rights as
in criminal cases.
But I don't think that the question is necessarily
of superior versus inferior as to rights.
It's a question of uniqueness.
And LPS Act is very unique with to a history of California.
And the California Constitution also has a unique place
in this decision.
And so what I'd ask the Court to do is to look at
how there's not adequate justifications
to graft procedures from SVP proceedings into LPS proceedings
because LPS proceedings must go quickly.
There's no reasonable basis to adopt a test
that permits indefinite delay for a commitment period
that doesn't exist.
LPS people do not necessarily pose a danger to society,
so there's not a justification for holding them
in prison-like facilities for as long as necessary
to reduce that danger.
And LPS defendants face stigmatization
for no moral blame or weakness of their own.
And again, in this function it is of treatment
in the swiftest manner possible.
And so there really are no similarities
between SVP proceedings and LPS proceedings
that would justify using the Camacho case here.
And so we would argue it is an unequal application of the law.
CHIEF JUSTICE GUERRERO: What two groups are you comparing?
You said the SVP and the LPS?
BRIAN McCOMAS: Yes. CHIEF JUSTICE GUERRERO: Okay.
BRIAN McCOMAS: And I think
that you could look at also the Camacho Opinion to the extent
that that provides a test of what type of test should apply.
There's a discussion on that too.
We appreciate the consideration.
But if you do that type of test even,
it doesn't really make a ton of sense in the LPS context.
CHIEF JUSTICE GUERRERO: I guess I'm - can I just go back?
I'm not clear on the equal protection argument
that you're asserting.
Are you asserting the two groups are treated
similarly or differently?
BRIAN McCOMAS: I would be asserting
that it's unfairly treating them similarly
if you graph on these tests from SVP proceedings to LPS.
It gets a little bit of an inverse there.
And if you look at it though, you can see why.
Because in Camacho,
Your Honor recognized that there is incentive to delay,
to manipulate the system.
But there would be no such incentive in LPS proceedings.
And Your Honor also recognized there's no fixed point
in the process where a trial must occur.
To the contrary,
in LPS proceedings there is a fixed point
both by statute within the commitment period --
or within the 10 and 15 days and the entire commitment period.
Your Honor did recognize
that delay causes anxiety in both types of proceedings.
But it's not just anxiety;
it's contrary to the purpose of LPS Act proceeding,
which is to provide treatment
and ideally get them out of the commitment.
And we can definitely say in an LPS Act proceeding,
unlike an SVP proceeding,
that we know how long is too long
because Section 5362 and Section 5361
say commitment terminates at one year.
And we know that a trial that doesn't occur within
that is too long.
And I would say the same is true for a trial
that effectively lapses that commitment period.
I do want to just touch on what I think is a true point --
that the California Constitution on appeal
requires a finding of miscarriage of justice
for a reversal if my remedy is as to the 2022 petition
and that miscarriage of justice
is typically framed as prejudice.
I do think the court can separate that
for what lower courts need to do to apply a due process test
on motions to dismiss. But in my unique context,
I wanted to address why my client was harmed;
and I'll just start with the fact that this is
the longest reported delay to trial in an LPS case.
That delay was so long that we eventually
waived the right to jury trial, that my client
couldn't get a trial like the defendant in A. H. --
or the committed person in A. H.
And during that time,
my client was essentially prevented
from receiving the less-secure
or the less-restrictive placement
that apparently they were seeking the whole time
and were entitled to upon agreement.
They were prevented from petitioning for rehearing.
They were prevented from petitioning for reconsideration.
They were denied access to multiple hearings;
denied oral participation in the case;
increased anxiety and concern; ongoing stigmatization;
and I have to admit, even for me,
constant confusion over the process,
which is antithetical to treatment.
At base we find the oppressive stacking of petitions a practice
that essentially could eliminate the right to jury trial.
The practice of ratifying
can also eliminate the right to jury trial.
So what we need is an interpretation of the statutes
that enforces that right
and does so with the backing of due process.
And at base,
how can the State provide shelter, food, care,
clothing, safety,
if the State cannot even provide timely trials?
And we can't delegate LPS proceedings
as sort of the judicial banishment for the crestfallen.
It can't be that they're so deprioritized
that the LPS Act becomes a dead letter.
So we can't sanction this pattern of stacking,
and we have to bring forth an interpretation of due process
that aligns with some idea of therapeutic jurisprudence.
And so I ask that the standard this Court selects recognizes
persons with mental illness
are the most vulnerable in our society.
And if we don't incorporate a standard
that protects their rights,
they will just continue to suffer those vulnerabilities
in the courtroom.
So specifically what I'm asking is dismissal.
Alternatively, remand with the application of John L.
in the lower court or remand for greater evaluation
of the equal protection rights we discussed.
And I will sit for a moment. Thank you.
CHIEF JUSTICE GUERRERO: Thank you.
ANDREA RUSSI: May it please the Court.
Andrea Russi on behalf of the Contra Costa Public Guardian.
There is no question that there was a lengthy
and unfortunate delay in Appellant's
conservatorship trial.
But even if the trial court erred in failing
to sufficiently make good cause findings for the continuances
or in denying Appellant's motions to dismiss,
Appellant still must demonstrate prejudice.
Appellant argues that in a case with a lengthy delay prejudice
should be presumed,
and the Court should apply the test from Matthews and John L.
that doesn't have a prejudice requirement.
We disagree and believe that the proper framework
to evaluate a due process violation in a trial delay
is the four-factor test from Barker v. Wingo
that this Court applied in Camacho.
As this Court noted in Camacho,
the factors considered in Mathews
are all matters already addressed and
with somewhat greater specificity
by the Barker factors.
The Mathews test is better suited to questions
about the adequacy of procedures in government decision-making.
As both the United States Supreme Court
and this Court have recognized,
the right to a speedy trial
is a more vague concept than other procedural rights;
and it's hard to quantify how long is too long for a delay.
JUSTICE CORRIGAN: Well, that's kind of why we have judges,
right? ANDREA RUSSI: Correct.
JUSTICE CORRIGAN: Because they're supposed to take
all those things into account. What I worry about, Counsel,
is the way the standard you suggest applies
it could be argued that even
though the trial was delayed to the 360th day, oh well,
the court found that there was indeed evidence
of grave disability so what the heck?
What the heck, we didn't follow the statute;
and there weren't really very good reasons for not doing that,
but close enough because clearly there's a mental issue here.
How do we structure a standard
that doesn't support that kind of kind of
"what the heck" evaluation of error?
Because the "what the heck" standard
really doesn't do it for me.
ANDREA RUSSI: I think that adopting the Barker standard
with a consideration of prejudice
allows for consideration of the conservatee's dignity interests.
And it goes beyond just looking at
whether there was prejudice from the trial delay.
And admittedly, that is something
that's difficult to prove in a case like this
where she was found gravely disabled in 2020,
in 2021, and again-
JUSTICE EVANS: Well, can there ever be prejudice
if the person is subsequently found gravely disabled?
I think if we are just considering prejudice
in the delay of trial, that might be difficult.
But the Barker test allows for consideration
of the other aspects of prejudice including the impact
of the pretrial confinement, stigma, anxiety,
and concern - all in addition to the prejudice
to the trial itself.
JUSTICE KRUGER: Can I ask you whether the prejudice inquiry
in your view is appropriately considered only as one
of several Barker/Camacho factors,
or is there also a prejudice inquiry
that informs the appropriate remedy
if a court were to determine that a proposed conservatee's
due process rights were violated?
in other words, if we have a situation
where an individual is concededly gravely disabled
throughout the period in question,
would the prejudice or lack thereof
that they suffered by virtue
of not having a trial on one of the intermediate reappointments
of the conservator affect
whether or not some sort of adjustment,
retroactive or otherwise to their conservatorship,
is an appropriate remedy? ANDREA RUSSI: I think
that that is - that can be a consideration.
And I think the posture of by the time
the case gets to the Court of Appeal,
the posture below
may have changed which makes it difficult
to determine what the appropriate remedy is.
For the conservatee, I think evaluating the prejudice
and whether or not that should have necessitated
dismissal goes to both what the remedy is for the conservatee
and what has happened in other cases of finding
that the trial court abused its discretion by
not dismissing the case due to prejudice.
But again, it's difficult because in this case
that petition is already over; she is no longer a conservatee.
So it appears that Appellant's
primary concern is that the Barker test doesn't allow
for protection of a conservatee's dignity interests
and that it's next to impossible
for the conservatee to prove prejudice.
As I said, I think the dignity interests can be evaluated;
and we saw that most recently in a case out
of the First District, Conservatorship of A. H,
where the court found that the conservatee's
trial rights were not prejudiced but still found prejudice
because the conservatee had suffered anxiety and concern.
In that case,
the conservatee had never been found gravely disabled before,
had never been part of the conservatorship process.
And so the court there looked at the factors
that were involved and ultimately found
that the petition should be dismissed in that case
due to the types of concerns
that Appellant is raising - the stigma
and the impact of the confinement on the conservatee.
To Appellant's argument that it's impossible
to show prejudice, in Conservatorship of T. B.
there was 171 delay; and the court found no prejudice.
In Jose B., there was 137-day delay,
and the court found no prejudice.
But I think based on the decision in A. H.,
it is possible to find prejudice.
And I think that the benefit of that decision
is the court found
that the trial court had abused its discretion
in the substantial delay.
And I think that that sends a message to the trial court
that even though the language in the statute
doesn't identify - that's the discretion with the trial court,
but under Rule 3.1332,
the trial court needs to make good cause findings.
And I think that those findings were
not adequately articulated in that case.
And so that is sort of the role of the appellate process --
is to provide guidance to the trial courts
that perhaps even
though the trial court has vested discretion
with the trial court under Section 5350,
that the court needs to provide reasons
for either finding good cause to continue
or for denying motions to dismiss in these cases.
JUSTICE DELANEY: Can you discuss the potential impact
of a petition for writ in the trial court,
as we discussed with your friend on the other side;
and include in that the practicalities
that he addressed on
whether that would be a viable option in a case like this?
ANDREA RUSSI: We believe it would be a viable option
in a case like this.
I am not aware of a situation where a writ has been filed
and it hasn't been handled in a timely fashion.
So I do believe that in a case like this one
that writ relief would be addressed,
and that would also get the matter presumably
to the Court of Appeal more quickly.
I recognize that we have a factual situation here
where we had a very overburdened court system that was having
difficulty handling the volume of LPS trials.
But I don't think there's any reason
to believe that a writ would not be addressed by the trial court.
JUSTICE GROBAN: But the Court of Appeal
of course has original jurisdiction on habeas matters,
which I guess is certainly an option.
You lose any factfinding of the trial court though.
ANDREA RUSSI: Yes, that is an option.
I mean, I think in a scenario such as this,
it probably would be to the conservatee's benefit
to start in the trial court; but that is also a possibility.
If there aren't additional questions on due process,
I will briefly touch on equal protection.
So basically, Appellant has not properly made
or preserved an equal protection argument.
It wasn't raised in the trial court.
It wasn't raised in the Court of Appeal.
It's not addressed in the Court of Appeal decision,
and it wasn't adequately briefed in the Petition for Review.
So we don't believe that it's proper -
that there's enough basis to address it here,
especially because the Public Guardian hasn't had
an opportunity to address what the State's interests are
in an equal protection type claim.
If the Court has no additional questions, I will submit.
CHIEF JUSTICE GUERRERO: There don't appear to be any, thank you.
ANDREA RUSSI: Thank you.
BRIAN McCOMAS: Briefly,
I just want to start on the question of a writ.
What we're asking these public defenders to do
is come to court repeatedly for multiple clients
on the same calendar. And if you read the record here,
at the start of each hearing they're calling four
or five cases; all can't find a courtroom,
usually represented by one or two people.
And we're now asking them not just to come to court
every master child calendar, but to set up motions to dismiss;
to exhaust habeas petitions in the lower courts;
keep coming to court in the meantime
and demanding your right to trial;
now litigate this up to the Court of Appeal
and ultimately to this Court
within a one-year commitment time frame.
This is not a viable remedy.
And the way the writ is used in other parts of the LPS Act
is with most extreme situations, on like a 14-day hold
when there's like an unlawful basis to hold someone,
something so fundamental that they shouldn't even (inaudible).
And these types of motions to dismiss,
I'm not sure you'll ever get to that
or be able to make a better record without going to court,
filing your papers,
explaining what my client's been doing this last month,
why this is interfering with treatment.
So I don't think a writ is really the way forward here.
What I think the way forward
is an interpretation from this Court
that reinforces the rights to due process,
in fact backing Section 5350. JUSTICE EVANS: And, Counsel,
how do we determine when the due process violation occurs?
How much delay is it - a day, 30 days, 6 months, 9 months?
BRIAN McCOMAS: Well, I don't think it would be --
I can straight face tell you it would be a day.
You might start your record softly.
Certainly if you're appearing before the same judge
and you understand the burdens of your court,
I don't think you're objecting vehemently every time.
You do want to obviously state the rule;
and all parties need to comply with the rule,
both the 5-day demand,
continuous 15-days only not 30 days
as was occurring in this case. There becomes a point though
where that's why these factor tests matter.
And the reason why we think the John L.
factor test matters and does better
is the question of remedy.
It actually gets to that and puts everyone in the room,
has everyone talking,
including the conservatee who needs to be there.
Mind you, my client wasn't there all of but three times.
A continuance is guaranteed in that situation.
They can't go to trial; she's not in the courtroom.
Everyone's there under the factor test,
and particularly the dignitary interests
where the government official has to hear the conservatee.
I think that could resolve many situations
that aren't based necessarily just on grave disability
but on something, a preference that this person wants.
And it could be as simple as a contract,
maybe a cell phone contract.
And that's why the Barker factors just do
not work in this situation -
because they are created to evaluate
whether evidence has disappeared,
witnesses' memories have vanished.
They do have three layers of pretrial incarceration,
anxiety, and then this impairment of the defense.
But that again isn't really crafted
as well as the John L. test.
And another just more basic reason to go with the John L.
test is it's derived from the California Constitution
which this Court is here to interpret,
has unique flexibility in line with the LPS Act for people
who are the most vulnerable in our society.
In fact,
the Barker test is derived from the Sixth Amendment.
And what we're talking about here
is due process from the Fifth Amendment but here in Article I,
section 7 of the California Constitution.
And just the last part I want to touch on
is Conservatorship of A. H. in E. A.
My client's name appears in the Opinion of A. H.
because they were appearing on the same docket
over and over again.
How my client can have further delay but not dismissal,
but A. H. can get dismissal with less delay, less anxiety,
it shows that the Barker test is inconsistent
and not created for this situation.
Also, I mean if you just look at the two opinions, E. H.
is about four times longer than my client's three-page opinion.
And so the Barker test doesn't require us
to really Idealist Guide into the conservatee's
dignitary interests.
It doesn't require us to dig into the government interests.
It doesn't require us to dig into
how much delay are we causing or risk of erroneous deprivation.
And I'm not picking this test
because it always favors the conservatee.
I genuinely think
that this test will function better in the trial courts,
lead to greater resolution,
and preserve the right to timely trial
that's necessary to hold the government to the promises
of the Constitution.
And I'm going to submit on that.
Thank you, all.
CHIEF JUSTICE GUERRERO: Thank you to both parties
for your arguments here today. The matter is submitted.
Calling the next matter, In Re Mr. Spielbauer.
On this case,
the Court is pleased to welcome Justice Castillo
from the Fourth District Court of Appeal.
Whenever you're ready.
RACHEL GRUNBERG: Okay, thank you.
Good morning, Your Honors.
Rachel Grunberg on behalf of the Office of Chief Trial Counsel
for the State Bar of California. May it please the Court.
We're here today to reaffirm a well-settled principle,
one deeply rooted in this Court's
attorney disciplinary jurisprudence.
And that is that a disciplinary restitution order is a remedial
and prophylactic tool aimed at protecting the public,
maintaining integrity and confidence
in the legal profession,
and rehabilitating unethical attorneys.
Its purpose is accountability, deterrence, and reformation.
It is not a damages award; and it is not civil debt collection.
This Court's cases in Brookman, Galardi,
Morse, Coppock, Sorensen,
and more have broadly favored restitution
when it serves the purposes of discipline.
And this Court has made clear
that restitution is not limited by
whether or not the victim is a client,
whether or not the victim has a parallel remedy in tort,
or whether or not the victim - excuse me -
whether or not the attorney personally profited
off of the wrongdoing.
It is not even limited to misconduct
that occurs during the practice of law.
The touchstone, as articulated by this Court, is simple.
Will a restitution order promote public protection
and encourage attorneys to act honestly and with integrity?
And if the answer is,
"Yes," this Court has not hesitated to order restitution.
As this Court expressly said in Bach v.
State Bar, restitution in the licensing context
operates independent of any remedy
that an aggrieved party may pursue in any other form.
Now, the Review Department's published opinion in this case
directly conflicts with these longstanding principles
and categorically bars restitution
in cases involving tort-based damages to nonclients.
It strips the State Bar Court of discretion
to utilize this important and remedial tool,
and it thereby serves to undermine public protection.
And I think Exhibit A is Mr. Spielbauer himself.
Mr. Spielbauer's case demonstrates exactly
why restitution should remain available
in cases involving nonclients,
even where the victim has a remedy in tort.
Mr. Spielbauer committed fraud.
He submitted a knowingly false and wildly-inflated
payoff demand in a real estate transaction,
where he inflated the amount of the payoff demand
by more than 37 times the actual amount due.
He then failed to take even the most basic or reasonable steps
to explain or justify the amount,
forcing the sellers to cancel a pending sale
and sue to clear title. He then repeatedly
and needlessly prolonged the litigation violating
discovery orders,
advancing shifting and baseless legal theories,
and filing a false declaration with the court.
He even filed a lis pendens on the property
after losing a trial,
which caused the property owners to have to litigate
that further and have that removed.
Now, the Superior Court awarded substantial compensatory
and punitive damages; and those awards were affirmed on appeal.
Mr. Spielbauer then spent years trying
to discharge the fraud judgment in bankruptcy,
which required the property owner
to file an adversarial action to preserve the debt.
And even now, nearly a decade later
after clear finding of intentional fraud
and a final and enforceable Superior Court judgment
and a nondischargeability order,
Mr. Spielbauer continues to deny wrongdoing.
He refuses to accept responsibility
and has not paid a single cent towards satisfaction
of this judgment. His persistent defiance,
his refusal to acknowledge or take any steps whatsoever
to remedy the harm he caused,
is exactly the type of unrepentant recidivism-risk
conduct for which disciplinary restitution is essential.
JUSTICE KRUGER: Can I ask you, recognizing the distinction
that Sorensen draws between restitution
that is appropriate in this context
for purposes of rehabilitation
of a disciplined attorney and compensation
for a civil wrong of the sort
that properly occurs in our courtrooms
and outside the disciplinary context,
are there any
- how do we determine what the correct dollar amount is
of restitution in a case
in which there is a civil judgment outstanding?
Do you have a view as to
whether or not an appropriate disciplinary restitution amount
is always going to encompass the entirety
of that outstanding civil judgment
if its based on the same conduct underlying
disciplinary proceeding?
If not, are there any guidelines or limitations
that you would propose?
RACHEL GRUNBERG: Okay, well first of all,
Your Honor, the civil court and civil proceedings
are focused on making the victim whole;
and that's not necessarily the purpose
of disciplinary proceedings.
Disciplinary proceedings are focused
on these primary purposes of discipline - again,
protecting the public, rehabilitating the respondent,
deterring future wrongdoing,
and ensuring confidence in the legal profession.
So those are the primary goals;
and while compensation to the victim
might be an incidental outcome, it is not the primary focus.
So want to start with sort of that as our basic threshold.
As to how to,
I guess, fashion or calculate the amount of restitution,
I think the standards
for attorney disciplinary sanctions - Standard 1.4,
which is standards
that are adopted by the Board of Trustees
- give us some guidance. Standard 1.4(a)
says that a condition of restitution
can include specific restitution,
which is where in this case
a court would fashion an amount in the first instance;
or it can require satisfaction of a judgment.
And I think let's talk first
about the satisfaction of the judgment.
A judgment represents a final finding judicial determination;
and attorneys are officers of the court,
and so they have different responsibilities
than lay persons.
Allowing them to simply walk away from their nose --
essentially is what Mr. Spielbauer did here --
at that judgment and stand here defying
that he's done anything wrong or that he has to pay it,
I think, sends the wrong message to the public.
And so pointing to that judgment and saying,
"Pay that judgment," not necessarily
because of the judgment itself
but the obligation underlying that judgment suits the purpose
of the discipline. Now here,
we didn't ask this Court to order the entire judgment.
So I think it is appropriate in certain circumstances
to look at the judgment and say, "Pay some or all of it."
I think that's an appropriate situation.
But again, I think that it's not limited
to an outstanding judgment.
I think the State Bar Court can, and does all the time in fact,
order restitution in the first instance.
In misappropriation cases, in breach of fiduciary cases,
in return of unknown fee cases, they take testimony;
they review documents; they review bank records;
sometimes we have forensic experts;
they determine witness credibility;
and they determine in the first instance
what an appropriate amount of restitution would be.
So I think that those are both acceptable ways
of fashioning restitution.
JUSTICE KRUGER: I guess I'm interested in particular
in the first scenario that you outline in your answer
that I understand to be
that the appropriate amount of restitution
may not always be precisely the same as the amount
of the civil judgment.
The amount that's necessary to rehabilitate the attorney
in your view could encompass partial payment
or some payment of that outstanding obligation, right?
RACHEL GRUNBERG: Well here when we made that request,
we were trying to align our request with Sorensen,
which are specific out-of-pocket financial losses.
So that's why we've asked in our restitution request
for just the compensatory portion of the award.
But I think it would be
and could be appropriate to just point to the entire judgment
and say, "Pay the entire judgment."
That's also acceptable.
I think the whole point of why we're here today
is we want to return discretion to the State Bar Court.
The published opinion in this case
takes discretion away from the State Bar Court
and an entire class of cases and says,
"We are never, ever,
ever going to even consider restitution
if the case involves a nonclient and they have a remedy in tort."
And we think that that's wrong,
and that's inconsistent with this Court's decision.
We're simply asking that that categorial bar be removed
and that the State Bar Court be allowed in the first instance
to exercise discretion and determine
if restitution is even appropriate in a given case.
JUSTICE EVANS: Counsel - down here at the end.
Good morning. RACHEL GRUNBERG: Oh, sorry.
JUSTICE EVANS: Notwithstanding
that you're not taking the full amount of the civil judgment,
that you're limiting the request to specific
out-of-pocket financial losses,
the hearing judge expressed a concern about the impact
on Mr. Spielbauer's ability to pay that amount prior
to returning to the active practice of law.
In Galardi, we expressed a similar concern.
And in Morse and other cases,
we fashioned a sort of more flexible way to pay the amount.
Is that something that we should consider doing here
should we agree that restitution is appropriate in this case?
RACHEL GRUNBERG: I don't think that would be appropriate
in this case, Your Honor,
because here the debt has been determined
to be nondischargeable.
In Galardi, there was a bankruptcy;
and I think there was some concern over exactly
what those bankruptcy orders said.
And so there was concern about the ability to pay.
But here, Mr. Spielbauer has made no showing whatsoever
that he cannot pay.
In the disciplinary proceeding,
it would have been his burden to demonstrate
that he is financially insolvent
or somehow this would be a financial hardship.
He presented no evidence whatsoever.
And in fact,
the civil court records in this proceeding show
the exact opposite.
The civil court specifically found
that Mr. Spielbauer was evasive
and deceptive about his inability to pay
during the punitive damages phase
and that he withheld complete documentation
about his financial wherewithal
and that he had more assets than he claimed.
Notably, it pointed to his mother's
trust assets totaling approximately $2.5 million,
which the court found Mr. Spielbauer disclaimed
when it suited him and that he used as he wanted.
So I don't think there's any evidence in this record
to demonstrate here that he's insolvent.
And again,
the debt was determined to be nondischargeable.
JUSTICE EVANS: My question is really
whether there should be -- should we agree with you
that a restitution order is appropriate
whether there should be the ability
to negotiate a payment plan.
For example, we did that in Morse and some other cases.
RACHEL GRUNBERG: Right, I think
where there are concerns about the ability to pay,
this Court has exercised flexibility, creativity,
innovation in sort of fashioning that restitution order in a way
that allows the respondent to pay it without being punitive.
So for instance, it could be paid over the course
of the probation period in installments.
There are other cases
in which this Court has said pay this in the first 90 days,
the first year, of a probation period.
But in cases like this
where an attorney remained indifferent,
intransigent, defiant, I think the (inaudible)
requirement were they're required to pay it upfront
before they're allowed to return to the active practice of law
following their suspension is the appropriate sanction here.
And that sends the right message to the public
that in this case
Mr. Spielbauer is going to have to take demonstrable,
concrete steps to demonstrate that he's making amends
and that he's going to be held accountable
before he's allowed to practice law again.
I think this Court has said in cases like Menna and Glass
that actions speak louder than words;
and payment is that objective demonstrable action
that shows the public and the victim that he's making amends.
And I think that that's why this is a discipline here.
I want to talk briefly about the fact
that Mr. Spielbauer claims that the judgment has expired.
Not so, this is just another baseless argument
that demonstrates his indifference.
Under CCP Section 337.5,
creditor can bring an independent action
on the judgment 10 years from finality of the judgment.
And this Court took judicial notice
of the entire civil court appellate record,
which shows that finality occurred
when the remittitur issued on August 18, 2016,
which means that William LLC still has
at least until August 18th of this year to renew the judgment.
But even if the judgment was not expired,
attorneys again are considered officers of the court;
and their responsibilities, as I said, differ from lay persons.
And so therefore their obligation to pay here
is not just based on the legal obligation
but a moral obligation, particularly here again
where the debt has been determined
to be nondischargeable. I also want to express
that we are not asking for restitution to be applied
in a talismanic fashion. We're not asking
that restitution be applied in every case.
We're simply asking
that the State Bar Court be allowed
to exercise discretion on a case-by-case basis based
on the specific facts, the nature of the misconduct,
the attorney's attitude and spirit of earnestness,
the impact on the public,
and the public protection goals that I announced earlier.
And removing that categorical bar
will allow the State Bar Court to determine
in appropriate cases
whether restitution is a remedial tool
that is going to help rehabilitate the errant attorney
and preserve confidence in the profession.
And so for that reason,
we are asking that Mr. Spielbauer pay restitution
in the amount of the compensatory damages,
attorney fees and costs, which total $536,726.49
to William LLC, plus interest.
We think this restitution requirement is
consistent with Sorensen v. State Bar
and the larger framework of cases
out there on restitution in disciplinary matters.
And again, I want to focus on the fact
that restitution here is not about civil compensation.
It's about accountability.
And Mr. Spielbauer's intentional fraud
and ongoing indifference warrant an order
that requires him to confront in concrete terms the harm
he has caused before he's able to return
to the active practice of law.
This is squarely within this Court's precedent
and it's regulatory mission and duty
to protect the public and profession.
And unless the Court has any other questions,
I will reserve the rest of my time.
CHIEF JUSTICE GUERRERO: Thank you.
GLEN MOSS: I'm Glen L. Moss.
I represent Thomas Spielbauer in this matter.
The argument is being divided between myself and the Amicus.
Just so the Court understands,
Amicus will basically be dealing with the case law and arguments
of the State Bar that were in the briefs.
And so any questions about that
should be directed to the Amicus.
My role is basically to answer questions
and deal with the trial court transcript,
which the Court on its own motion took judicial notice of,
and also the public policy issues
that are discussed in my brief.
In the event I don't use all my time,
I'd delegate whatever I haven't used to Amicus
to give him a little extra time. In particular,
the first - although the State Bar deems it frivolous,
we believe that the fact
that the Legislature has passed enforcement of judgment acts
to limit enforcement for 10 years
and also provided for exceptions for judgments
that are enforceable more than that 10 years,
and that means something.
And that we urge this Court to pay attention to
and follow the views of the Legislature
to limit the enforcement of judgments.
This is not like Shylock,
where the State Bar can get its pound of flesh
just because it thinks it's worthwhile.
In this case,
the Legislature has put limits on the scope
of enforcements of judgments.
The bankruptcy procedure helps clarify and show
whether or not a given person --
whether he's a lawyer, a real estate broker, a doctor,
or whoever - all citizens in California
are entitled to the benefits of both the bankruptcy laws
and the enforcement of judgment law.
In the bankruptcy procedure there were substantial hearings,
substantial procedures,
to verify whether or not Mr. Spielbauer did
or did not have any ability to pay anything on this judgment.
After a full adversary trial, it was concluded by the court
that he did not have the ability to pay.
The argument that he didn't show that is just nonsense.
That's what we have bankruptcy courts for.
They showed he did not have the ability to pay.
So what the Bar is asking for
is essentially an order of disbarment and a pound of flesh,
where the trial court transcript,
as the Court knows from taking judicial notice
of that transcript,
shows that there were no actual dollar loss by the Plaintiffs.
His main damages were he was a consultant,
and he was not able to do as much consulting
because he was in trial or in deposition
or otherwise dealing with litigation.
And we submit that's a substantial difference
than what you had before. In this case,
restitution should be of any benefits that the Defendant got,
not the losses to the Plaintiff,
which is what the damages were awarded.
As an example,
when you look at their transcript for November 14th,
where the court was discussing Mr. Spielbauer's effort to try
and get discovery on the attorney fee issue,
the court denied any discovery on the ground
that what is the law that would make it (inaudible).
There's lots of laws
that says attorney fees can be awarded even
if they're not paid or incurred.
That indicated the view of the trial court
and why Mr. Spielbauer's efforts to have discovery
on the attorney fee issue were denied.
In other words,
he wasn't even allowed to get discovery as to
whether there was any obligation to pay the fees
or whether or not they were reasonable.
I pointed out in my brief
that's very contrary to the views when other professions,
like medical doctors,
submit bills and they have to actually show
that they're reasonable and that they're paid.
We submit attorneys shouldn't be held
to a substantially higher standard than doctors
or other professionals that also have a duty of good faith
and are trying to help have good confidence with the public.
The Bar, again,
is trying not to get restitution for the benefit of the public
but rather to punish Mr. Spielbauer.
The fact that his mother may or may not have money
is his mother's money, not his money.
He has no ability to compel his mother to give him money.
In fact, his mother passed away;
so he can't - that's just an unfair and ridiculous argument,
which was rejected by the bankruptcy court.
If in fact there was any ability to get any
of his mother's money,
the bankruptcy court had the power to order
that money distributed.
CHIEF JUSTICE GUERRERO: The other side is arguing, however,
that Mr. Spielbauer did not provide sufficient evidence
to show an inability to pay
so that the Court should impose the amount.
And I guess I'll have the same question
we asked counsel on the other side.
Should this Court allow for the possibility
of giving Mr. Spielbauer another opportunity,
when he already has shown
that he's not able to present evidence of an inability
according to her argument;
or should we allow him to make another attempt
to show inability or to establish
that there should be some type of payment plan
if the amount of discipline is imposed?
GLEN MOSS: We suggest
that the Court should give collateral estoppel
to the bankruptcy court's findings
that he did not have the ability to pay.
Just like the trial court in the State Bar trial court
gave collateral estoppel effect to the adverse trial findings
in the San Jose Trial Court on the issue of
whether or not anyone had the ability to pay,
that's what we had the bankruptcy court for.
There was an adversary trial,
and there were findings he did not have that ability.
Those findings should be binding on the State Bar
and the trial court, as I said.
And I'm bringing up the idea of the collateral estoppel,
which put Mr. Spielbauer in the bad position that he did,
where the State Bar can argue
that the actual award was something like 30 or 50 times
more than what the State Bar - they found.
When you look at the transcript,
essentially he made no real effort to defend
his $269,000 demand;
and that was a strategic error on his part as a lawyer.
But the evidence that actually got introduced in
with the deed of trust showed that had he recognized
that the burden of proof was on him
instead of telling the judge the burden of proof was not on him
and not introducing the evidence,
it would have been a much closer case.
Because all the trial judge did was allow
principal and interest, which was the seven grand.
JUSTICE EVANS: Counsel, I'm-
GLEN MOSS: But in addition, paragraph 8
in the Deed of Trust, it was introduced into evidence
that the Court is taking judicial notice of,
allowed for award of attorney's fees.
Counsel... down here. GLEN MOSS: Oh, am I low?
JUSTICE EVANS: No, no, your fine.
Good morning.
I'm having a little trouble tracking your argument
about the bankruptcy court
because the bankruptcy court found that this debt --
it was nondischargeable.
GLEN MOSS: Well, and then again it is nondischargeable.
But there also was the issue of
whether he had the ability to pay,
whether it was chargeable or not because if he had the money,
then the trustee would have got it.
In other words,
it still would have been distributed to the creditors
if it were there.
It's just because it wasn't there,
the creditor could go try and get it elsewhere.
But there was still a finding that it wasn't there;
otherwise, it would have been distributed.
JUSTICE EVANS: In 2017?
GLEN MOSS: Well, whenever the bankruptcy was.
I forgot when the bankruptcy was.
But it would have been distributed by the trustee
through the bankruptcy
because the trustee would have got a percentage.
I think it was 3% or whatever he could get.
CHIEF JUSTICE GUERRERO: Well,
isn't it possible the circumstances may have changed
during the interim period?
GLEN MOSS: Well, that's why it's nondischargeable.
And if the creditor wanted to try and go forward,
the creditor could.
But the creditor has elected not to go forward
because the creditor recognized the money's not there.
And since it's not there,
they don't want to waste more money on attorney's fees
chasing a nonexistent thing.
Instead, the State Bar is trying to serve the debt collector
for a creditor that recognizes there's nothing there.
And the State Bar is trying to get essentially money
that a trustee in bankruptcy wasn't able to get.
And in fact if necessary,
the creditor could even move to reopen the bankruptcy
if they thought there was something being hidden.
So all the State Bar is trying to do is take --
do what the creditor should have done.
But the Deed of Trust showed that it was a much closer thing
because there were attorneys' fees;
there were adversary proceedings;
there was relief from stay motions.
All of that was done by Dennis in the bankruptcy court
and were additions to the seven grand.
Mr. Mitchell testified
that he added over $60,000 to pay off the man
on the Fifth Street property in the transcript.
That money was recoverable.
But Mr. Spielbauer unaccountably,
and I don't know why, made no effort to defend in his demand.
If you add -- paragraph 13 in the Deed of Trust
allowed for appraisals.
In the bankruptcy court there were appraisals.
That's probably another $4,000 or $5,000.
There was a bankruptcy rider.
There was also a cross-collateralization clause,
paragraph 23 in the Deed of Trust,
which would have -
which allowed Spielbauer to add $116,000
on the Fifth Street property to the $7,000.
When you add all that together,
he still asked for more than he was entitled to.
I'm not questioning that.
But it was a lot closer deal.
It probably was a difference between $200,000
and $269,000 rather than the $7,000.
I mean, why he didn't put on a defense God only knows.
I have no -- I don't know.
But to reverse the decisions of the Trial Department
and the Review Department, they both concluded
that this case did not justify restitution.
And to allow the Bar to get a pound of flesh
that the bankruptcy court concluded he wasn't entitled
to just is unfair, inequitable,
and does not promote the interest of justice
or public confidence in the practice of law or lawyers.
The conduct that Mr. Spielbauer did wrong
of submitting an excessive payoff demand has nothing
to do with the practice of law.
It has to do with being a lender.
Any lender that is - when they get a payoff request
has a duty to submit an honest payoff demand.
And that doesn't - and whether you're a lawyer, a doctor,
or a baker or a tinker,
whatever, you have a duty to submit an honest demand.
And that is something that would happen any time.
JUSTICE EVANS: Didn't Mr. Spielbauer act as an attorney
when he represented Devine Blessings
in the civil proceeding?
GLEN MOSS: He was Devine Blessings,
and the trial court didn't distinguish between the two
and in fact rendered a judgment not against Devine Blessings
but against Mr. Spielbauer as an individual.
Devine Blessings--
JUSTICE EVANS: But he was acting as an attorney in proceeding.
What?
JUSTICE EVANS: He was acting as an attorney in that proceeding.
GLEN MOSS: Not - well, he was in pro per.
I mean, he was acting as himself.
As I say, Devine Blessings existed;
but the judgment was against John Spielbauer
not against Devine Blessings.
So Devine Blessings really didn't have much of anything
to do with the case.
JUSTICE EVANS: Well if - we'll put that aside.
How does your argument square with Galardi,
where we said it didn't matter that the attorney there
was not acting in his professional capacity?
GLEN MOSS: I'll defer to Amicus on that
because, as I said, they're the ones
that are basically dealing with those issues.
The (inaudible) was the trial transcripts
and what I considered the public policy issues.
I'm trying to promote confidence in the practice
of law and attorneys,
but also giving due consideration to the Legislature
to put limits on the enforcements of judgments
which limits should apply to all citizens in California.
Those do have exceptions.
For example, if there was a fiduciary -- if you were acting,
for example, in Sorensen where an attorney was-
CHIEF JUSTICE GUERRERO: I'm sorry, you've reached your time.
So I wanted to make sure you saw that and were able to wrap up.
Okay, I was just going to say Sorensen is an example of
where the attorney should be held liable
because he was clearly practicing law.
He hired the court reporter for the deposition.
That's totally unrelated to this.
CHIEF JUSTICE GUERRERO: Thank you.
GLEN MOSS: Okay, sorry for that over on my time.
CHIEF JUSTICE GUERRERO: Thank you.
JOHN SPRANGERS: Good morning. May it please the Court.
John Sprangers
for Amicus Lawyers Mutual Insurance Company.
This case addresses whether tort damages and fees
may be awarded as a disciplinary restitution.
The answer this Court's precedents supplies is, "No."
Disciplinary restitution has generally meant
an attorney disgorging client or fiduciary funds,
and it has never before meant paying
a large tort damages and fees judgment consisting of money
the attorney never possessed.
Accepting the State Bar's position would erase the line
this Court drew between damages and restitution in Sorensen
and deprive disciplinary restitution
of any doctrinal coherence.
As we set forth in our Amicus Brief,
most of this Court's disciplinary restitution cases
have adhered to the settled civil law understanding
of restitution as disgorgement.
In the disciplinary context, that serves a few purposes.
One is public confidence.
Requiring attorneys to return money belonging to a client
or fiduciary is essential to public confidence
in the legal profession.
And so adhering to that definition of restitution
ensures that restitution serves a proper disciplinary purpose.
Another is that anchoring disciplinary restitution to that
settled common law understanding
prevents a drift into damages and debt collection of this case
that this Court has warned against in past cases.
And there are several reasons why awarding damages
is not appropriate in the context of discipline.
One is, simply put, that this Court's precedents
and the standards for professional discipline
define the power to issue a financial condition
as restitution;
and that simply has a settled understanding
that many of us have known
since we took remedies class in law school.
And importantly,
it's well-understood to be distinct from damages.
Another that this Court recognized in Sorensen
is that damages typically are not available
in administrative proceedings.
And a final reason is that many of this Court's cases
have instructed
that compensating private individuals -
individual victims is at least not a key aim
of disciplinary restitution.
JUSTICE EVANS: Counsel, in both Sorensen and Coppock,
we ordered payment of restitution even though
the attorneys had not received any funds from the client.
So how do you square that with your argument today?
JOHN SPRANGERS: So I think to understand Sorensen,
which is kind of the key case at issue here,
you'd have to look at the unique facts at issue,
which is how the Review Department understood the case.
And I think it's telling that in the 35 years
since Sorensen was handed down, to my knowledge
neither this Court nor the Review Department
has really extended its ruling.
And that's because I think Sorensen - the misconduct
at issue was essentially an attack on the functioning
of the court system.
There, essentially the court reporter was embroiled
in litigation based on a transaction
that has to play out smoothly dozens of times a day
for the court system to function.
And so protecting the court reporter from those expenses
protected the court system.
And that's a core disciplinary purpose
that's separate from compensating an individual.
And of course Sorensen is also distinct
in that it did not involve a damages award.
There was no tort damage at issue.
In Coppock, there was somewhat of a distinction
from the usual restitutionary fact pattern
in that the funds were ones
that the attorney's client had placed in a trust account
that the attorney had created.
But it's still much closer to traditional restitution
in that it involves disgorgement of funds
that the attorney had some control over in the attorney's
professional capacity.
And it's very different than ordering an attorney
to pay tort damages to a third-party business
that has some relation to professional misconduct
but in which the party's relationship really was
not defined by the practice of law.
I'd also like to talk about Morse,
which is the only case I'm aware of
where this Court has conditioned probation
on satisfaction of a civil judgment.
And I'd submit that Morse also involved extreme facts related
to a unique impact on public confidence
in the legal profession.
Morse involved this mass advertising campaign
that ensnared thousands of clients.
And even so, the restitution ordered in Morse
far more closely resembled traditional restitution
than what the State Bar proposes in this case.
It required disgorging profits.
Much of the award was literal cy prs restitution.
And the funds did not go to compensate an individual victim
but instead went to public entities.
So when we're viewing these past cases
that involve some type of deviation
from the settled understanding of restitution,
we see unique threats to the legal profession.
And even so,
those restitutionary orders did not deviate
from the settled understanding restitution
to the extent of the State Bar's proposal here.
In short,
the court retains many tools to police the sort of misconduct
at issue in this case.
But what the State Bar requests simply isn't restitution
as understood under this Court's precedents.
I'd also like to address the points
this Court made about Galardi,
which involved a payment to a co-venturers
in a real estate venture.
I think the distinction there is the attorney
owed fiduciary duties to those co-venturers.
And certainly this Court's cases have sort of equated
an attorney's responsibilities to its fiduciaries
with those to clients. So in a way,
that too did not represent nearly the departure
from traditional restitution that requiring a damages payment
to a third-party business would entail.
Now I'd like to talk a little bit about the State Bar's
proposed standard for restitution.
And I think it's interesting that the State Bar
has somewhat avoided defining the term "restitution."
It describes it more as by its purpose,
essentially as any compelled payment
it believes may protect the public
or deter attorney misconduct.
The problem is if deterrence and public protection
are the only constraints, then the term
"restitution" really has no doctrinal limit at all.
Yet Sorensen itself reaffirmed a line
between restitution and damages.
So as we've seen when discussing cases like Morse and Galardi,
the court's disciplinary authority allows
some flexibility in restitution doctrine;
but the State Bar's position removes any meaningful boundary
between restitution and compensatory sanctions.
And the State Bar itself admitted, well,
what sort of limitations
might exist on what constitutes a restitution
and in what amount, and it pointed to the fact
that the standards describe specific restitution.
That doesn't provide much of a limitation at all.
If "restitution" doesn't mean "restitution,"
then this authority is somewhat unbounded,
which creates substantial uncertainty
for attorneys facing discipline.
So in summary,
this Court should reject the proposed restitution
by the State Bar as out of step with its precedents.
Doing so will preserve lines
this Court has drawn between damages and restitution,
punishment and rehabilitation, and protecting the public versus
primarily compensating individuals.
If there are no questions, I will submit.
CHIEF JUSTICE GUERRERO: Thank you.
RACHEL GRUNBERG: Your Honors, just a few points.
First of all, Morse is not the only case
where this Court has pointed to a judgment and said, "Pay it."
Larkin, Lipson, Morse - there are several cases out there
where this Court has pointed to an unpaid judgment
and ordered it in restitution.
So Morse is not the only example of that.
Second, this case involves fraud.
It involves fraud, and it involves misconduct
that occurred during the course and scope
of the practice of law.
And if you look at Exhibit No. 25 in the State Bar's record,
you'll see that during the initial discussions
about the inflated payoff demand,
Mr. Spielbauer's was submitting correspondence on Spielbauer
at Law letterhead signed "Thomas Spielbauer, Esquire."
He is holding himself out as an attorney.
He listed himself as "counsel of record"
in the Superior Court case,
and he submitted declarations to the Superior Court saying,
"I am counsel of record in this case."
So clearly his misconduct here did involve the practice of law;
although, as we've discussed,
I don't think that restitution is limited to that circumstance.
It clearly exists here.
And this discussion about
whether Mr. Spielbauer has the money to pay
or doesn't have the money to pay,
the reality is he has been an active member
of the State Bar counseling this entire time;
and he has not paid one cent towards satisfaction
of this judgment, not one cent. And why?
Because he doesn't believe he has to pay.
He doesn't believe that he's committed misconduct,
and he doesn't believe that he has to make amends for it.
As he stood through today,
they think they're still justified in submitting
that inflated payoff demand.
And that's exactly why a restitution requirement is
necessary here because it's going to force Mr. Spielbauer
to confront, in concrete terms, the harm that he has caused
because he has not yet confronted it.
The civil proceedings alone, the large compensatory judgment,
the punitive damages - they have not served to rehabilitate him.
They have not served to teach him that what he did was wrong,
and they have not served to hold him accountable.
And here, we're dealing with licensure.
And the license to practice law is a privilege.
And the message that we want to send to the public
is that attorneys are going to be held accountable.
So for that reason,
we ask that you impose the restitution requirement
as we requested and that he be required to pay it
before he's allowed to return to the active practice of law.
Unless the Court has any other questions,
I'm prepared to submit.
CHIEF JUSTICE GUERRERO: Thank you for your arguments here today.
The matter is submitted, and court is adjourned.
BAILIFF: All rise.