S.C. Puts Utility Re-Regulation Measure Back on Ballot

Thursday, July 28, 2005

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S.C. Puts Utility Re-Regulation Measure Back on Ballot

By a MetNews Staff Writer

An initiative that would restore the Public Utilities Commission’s power to regulate the California electricity market was ordered back on the Nov. 8 ballot yesterday by the California Supreme Court, four days after the Third District Court of Appeal knocked it off.

“Because, unlike the Court of Appeal, at this point we cannot say that it is clear that article XII, section 5, of the California Constitution precludes the enactment of Proposition 80 as an initiative measure, we conclude that the validity of Proposition 80 need not and should not be determined prior to the November 8, 2005 election,” the high court said in an order signed by all six justices.

The order, issued following the court’s weekly conference in San Francisco, does not preclude opponents of the measure from pressing their challenge before the high court after the election if Proposition 80 passes.

The Third District panel held that the initiative, backed by labor unions and a utility consumer group and opposed by the owners of independent generating facilities, was “unquestionably invalid on its face,” and thus within an exception to the general rule that challenges to ballot measures will not be heard until after they have been approved by voters.

The panel reasoned that the state Constitution’s grant of plenary power to the Legislature to expand the PUC’s jurisdiction precludes the people from doing so through statutory initiative.

In another unanimous action yesterday, the high court agreed to decide whether a San Francisco lawyer convicted of second degree murder after her dog mauled a neighbor to death is entitled to a new trial.

The First District’s Div. Two held that San Francisco Superior Court Judge James Warren used an incorrect standard when he ruled there was insufficient evidence of implied malice on Marjorie Knoller’s part to support the murder conviction, and ordered the judge to reconsider his order granting the retrial.

While agreeing to review that order, the high court left standing the convictions—affirmed by the First District panel—of Knoller and her husband, Robert Noel, also a lawyer, on charges of involuntary manslaughter and ownership of a mischievous animal causing death.

Noel, unlike his wife, was not present when Diana Whipple, a college lacrosse coach, was killed by the 120-pound Presa Canario in the hallway of the Pacific Heights apartment building where the victim and defendants lived.

Warren sentenced Noel and Knoller to four years in prison in 2002. Both were subsequently paroled, with Noel living in Solano County after serving out his sentence in Oregon and Knoller living in Florida; parolees are not allowed to share a residence and it is not clear whether the couple is still married.

Both are under interim suspension from the State Bar as a result of the convictions. In addition, Noel is ineligible to practice due to nonpayment of bar dues and Knoller for lack of MCLE compliance, according to the State Bar.

The defendants said they were keeping the canines on behalf of a state prisoner, who was a white supremacist accused of running an attack dog circuit from prison. The two eventually adopted the prisoner as their son.

Jurors in Los Angeles—the trial was moved because of extensive pretrial publicity in San Francisco—found the couple guilty on all counts. But Warren, while expressing incredulity at Knoller’s claim that she did not know the dog was capable of killing, found that she did not subjectively know “that her conduct was such that a human being was likely to die.”

He also said she was no more culpable than her husband.

But Justice James Lambden, writing for the Court of Appeal, said it was error to consider relative culpability as a factor in granting a new trial and that the correct standard for evaluating evidence of implied malice was whether the defendant disregarded a known risk.

The panel rejected Knoller’s claim that she was deprived of her constitutional right to counsel because Warren—about three-fourths of the way through the prosecutor’s closing argument—threatened to jail defense attorney Nedra Ruiz if she continued to object to arguments that she said misstated the evidence.

Justice Paul Haerle dissented on that issue, but all three justices agreed that Warren was correct in admitting—subject to limiting instructions—evidence that the defendants and their adopted son had ties to the Aryan Brotherhood and its dog-breeding scheme.

The evidence was relevant, Lambden explained, because it refuted defense claims that the couple only took Bane and two other Presas in because they were concerned about the dogs’ care.