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Thursday, June 04, 2009



Given the new counsel shenanigans, I expect C.J. George may look askance at what appears to be transparent judge-shopping in connection with this rehearing petition.

Chris from L.A.

What judge-shopping? It might be judge-shopping to retain counsel so as to deliberately conflict out a judge who would ordinarily rule on a case. But no-one alleges that that happened here. How is it judge-shopping to retain counsel so as to avoid conflicting out a judge (C.J. George) who would ordinarily rule on a case?


Come on, after the assigned panel rules against you, you try to get the recused judge back onto it, in lieu of the substitute Justice, in the hopes that the CJ will vote to grant re-hearing? The defendant isn't "retaining" counsel to avoid conflicting out CJ George, as you suggest. That would have been something they'd do BEFORE the case was decided. Instead, they're substituting in new counsel, after an adverse decision, in an effort to see whether he has a different view than Justice Moore. It's transparent, and in my view it's judge-shopping of a sort.

Then again, I may be operating under an incorrect assumption. Maybe in this situation the CJ doesn't even vote on the re-hearing petition since he wasn't involved in the original decision. I'm not sure of the procedure in these circumstances. Maybe Ms. Kralowec knows.


p.s. Obviously, they knew CJ George was likely going to recuse himself when they elected to go ahead with his law firm as their appellate counsel in the appeal. They took a calculated risk, probably expecting, given his well-known stance in favor of access to the courts, that he was not going to go their way. Now, having lost, they have nothing to lose by jettisoning Loeb & Loeb and trying to take a shot at a rehearing with him. This appears to be a calculated strategy. Or maybe as a former defense lawyer I'm overly suspicious of the craftiness of my former co-counsel.

Chris from L.A.

I have no reason to conclude that C.J. George would vote one way or another on the substantive issues. One might be able to reach a conclusion on this by a detailed analysis of his opinions. However, relying on something as vague as being "in favor of access to courts" does not do it, for me at least. I cannot believe that C.J. George has, during his career as a judge, never granted or affirmed the granting of a demurrer or summary judgment, and thereby denied a party "access to the courts." Thatis just too broad a notion to carry the weight being placed on it.

I agree that it is an interesting procedural question whether, with the change of counsel, C.J. George gets to vote on the petition for rehearing.

Kimberly A. Kralowec

My assumption would be that the substitution was made for a legitimate reason that the public is not privy to. If this were gamesmanship, it would be more likely to hurt the rehearing petition than help it.

Notwithstanding the substitution, Chief Justice George may very well remain disqualified under Code of Civil Procedure section 170.1.

Assuming the substitution could eliminate the conflict of interest retroactively, I don't know whether an appellate panel member can be changed between issuance of the original opinion and rehearing. My guess would be no, unless a previously-unknown conflict came to light and disqualified one of the original panel members.


The Supreme Court's Internal Procedures appear to address this issue:

C. If an assigned justice has participated in the decision of a case before this court, that justice will also participate in any further proceedings -- including requests for modification, petitions for rehearing, and rehearings -- until such time as the decision has become final. This procedure is to be followed unless the original assignment was necessitated by the absence of a regular justice of this court, in which event a regular justice, if able to do so, will participate in lieu of the assigned justice in the consideration of any petition for rehearing and, if rehearing is granted, in any subsequent proceeding.

Kimberly A. Kralowec

That's interesting. It says "unless the original assignment was necessitated by the absence of a regular justice." That may not mean the same thing as disqualification of a regular justice.

It would be interesting to see which justice signed the order granting the court an extension of time to rule on the rehearing petition. Normally the Chief Justice would sign an order like that, but for this case, Justice Kennard sat as Acting Chief Justice, so the task should have fallen on her.

It also appears that the disqualification rules are somewhat broader than section 170.1. Subsection A of that part (Part XIII) reads: "A. As soon as a justice discovers that he or she is disqualified in any case or, although not technically disqualified, deems it advisable not to participate, he or she will notify the Calendar Coordinator."

The Court's internal operating practices and procedures are available at this link.

Fred Burnside

Here's a link to an article I wrote re this case, suggesting that the federal courts can, and should, ignore much of Tobacco II.

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