The UCL Practitioner
Wednesday, May 11, 2005
When will the Supreme Court rule?
Here's the latest $64,000 question: When will the Supreme Court rule on Prop. 64 retroactivity? I was hoping we'd see a ruling by the end of the year, but now I'm not so sure. In an article in the April 2005 issue of California Lawyer, Boalt Law Professor Stephen R. Barnett wrote that the Supreme Court takes an average of 1.6 years to issue a decision after granting review. If that average holds true in these cases, we won't see a decision until November 2006—unless the Supreme Court decides the issue in Kids Against Pollution, in which review was granted in September 2003.

In my capacity as a journalist, I asked two appellate experts, Lisa Perrochet and Will Stern, what they thought about this. Lisa said:
I'd guess it depends on whether the Supremes address the Prop 64 issue in the Kids Against Pollution case. If so, that could be this year. Of course, one could surmise that the recent grants of review in the "real" Prop 64 cases suggests they won't reach the issue in K.A.P., but I don't think you can read that much into it. Their time was running out for ruling on the petitions in the other cases so, by granting review, they kept their options open. If they haven't quite nailed down what they're going to do with K.A.P., they'd logically want to have those other cases pending before them in the event they end up ducking the issue in K.A.P.

As for timing a decision in the recent slew of cases (assuming they don't just get remanded in light of some ruling in K.A.P.), I think your instincts are right that it's far too optimistic to hope for this year. It's not too meaningful, in my mind, to talk about "averages" in other cases because the time is so variable. .... Bottom line is that making a prediction more precise than a broad range (1-2 years for this, I'd wager) is pretty futile.
Will guessed about 18 months before we'll see a ruling, and had this to say about Kids Against Pollution:
It's unlikely they'll decide the Prop 64 issue in KAP, for procedural reasons. KAP is an anti-SLAPP case that got re-briefed after the election w/r/t the Prop 64 arguments. There are lots of grounds on which KAP could turn that wouldn't require them to reach the Prop 64 issue, e.g., the "retroactivity" of CCP 425.17 (the 1/1/04 anti-SLAPP amendments). Plus, KAP doesn't raise the "amendment" issue of Branick, which strongly suggests to me that they will use Mervyn's to decide "retroactivity" and Branick to decide "amendment."
There we have it, from the mouths of those who should know.
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