Metropolitan News-Enterprise


Thursday, August 11, 2005-08-10


Page 1


Supreme Court Declines to Take Up Same-Sex Marriage Case

Justices Also Deny Review of $50 Million Punitive Damage Award to Family of Smoker Who Died of Cancer


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday denied requests that it bypass the First District Court of Appeal and immediately review a San Francisco Superior Court ruling that the state’s ban on same-sex marriage violates the California Constitution.

Meeting in San Francisco for their weekly conference, the justices voted 5-0 to turn down applications by various parties that they transfer to themselves the appeals in three cases dealing with the constitutionality of same-sex marriage. Justice Kathryn M. Werdegar was absent and did not participate.

The cases are Proposition 22 Legal Defense and Education Fund v. San Francisco, S135603; San Francisco v. California, S135207 and Woo v. California, S135208. Same-sex couples are currently precluded from marrying. The high court unanimously ruled last August that San Francisco Mayor Gavin Newsom overstepped his authority when he directed the city clerk to issue marriage licenses to same-sex couples before the court temporarily blocked the clerk from doing so in March of last year.

Local officials cannot refuse to enforce state law based on a belief—unsupported by a definitive court ruling—that the law is unconstitutional, the high court ruled.

The court, over Werdegar’s dissent, also voided the 4,000 marriages of gay and lesbian couples sanctioned by the city,

The issue then returned to the trial court, where Judge Richard Kramer ruled that “no rational purpose exists for limiting marriage in this state to opposite-sex partners.”

Amendment Proposed

The issue could become moot before the high court gets to consider it again. Opponents of same-sex marriage are attempting to qualify a constitutional amendment for next year’s ballot that would bar same-sex couples from being married in the state, as well as from having marriages entered into elsewhere—same-sex marriage is now legal in Canada, and the law applies to foreigners as well as Canadians—recognized in California.

In other actions take at the conference, the justices:

•Left standing a $50 million punitive damage award to the family of a man who died of lung cancer after more than four decades of smoking Marlboro cigarettes.

A Los Angeles Superior Court jury had originally awarded $3 billion—the largest jury verdict ever in favor of a single plaintiff, according to news accounts—to Richard Boeken in 2001. The amount was later reduced on appeal, but Philip Morris, Inc. failed to persuade the high court to review the matter further.

Boeken testified that while he had conquered addictions to heroin, methadone and alcohol, his repeated attempts to quit smoking were unsuccessful. The cancer, jurors were told, had spread to his brain, back and lymph nodes.

Advertising Believed

Boeken, represented by attorney Michael Piuze, said he believed the company’s long-standing insistence that cigarettes are not addictive. Jurors agreed, awarding $3 billion in punitive damages and $5.5 million in back pay and general damages.

Judge Charles W. McCoy Jr. cut the award to $100 million, and the Court of Appeal cut that in half. But the Div. Four panel, which agreed to reconsider its ruling in Boeken v. Philip Morris, Inc., B15295, following the U.S. Supreme Court’s ruling in State Farm Mut. Auto Ins. Co. v. Campbell (2003) 538 U.S. 408, declined in June of this year to cut the amount further.

The Campbell court, Justice J. Gary Hastings explained, said that punitive damages should generally not exceed four times the compensatory damages. But the high court also recognized the need for exceptions in extraordinary cases, the justice said.

“[T]he extreme reprehensibility of increasing addictiveness by manipulating additives, gaining smokers by fraud, and marketing a product that is more dangerous than ordinary consumers expect, knowing that serious physical injury and death will result in many smokers, does justify a ratio of at least 9 to 1,” the justice wrote. “We round off the figure at $50 million.”

•Agreed to decide whether “an anonymous tip to police that a specific suspect possesses a gun may provide reasonable suspicion for a felony stop, where the police corroborate the innocent details of the tip, but do not corroborate the assertion of illegality.”

Conviction Affirmed

In People v. Dolly, B169971, a divided panel in Div. Two affirmed the conviction of Norman J. Dolly, who was sentenced by Los Angeles Superior Court Judge Jesus Rodriguez to four years in prison for possessing a gun, as a second-strike offender, plus eight months for violating his probation on a charge of possession of marijuana for sale.

Los Angeles police officer Frank Dominguez testified at a suppression hearing that he and his partner responded to a radio call at Ninth Avenue and Jefferson Boulevard in April 2002. The call gave a description of a black male wearing a cast on his left arm sitting “in a possible gray Nissan Maxima.”

When asked if the dispatcher told him how the caller knew that the male black had a gun, Dominguez testified that the caller said he had been threatened with a gun. Dominguez said he arrived at Ninth Avenue and Jefferson Boulevard within two or three minutes after the call and saw the defendant sitting in the driver’s seat of a black Nissan Maxima wearing a cast on his left arm.

The officers then stopped the car, forced the defendant and two others out of the vehicle, and searched it, finding a gun under the front passenger seat. Under questioning by a sheriff’s detective, Dolly admitted the gun was his.

Rodriguez declined to decide whether the anonymous call was a sufficient basis for the search, ruling that the police did not need a warrant because Dolly was on probation and subject to a search condition.

At trial, the tape of the 911 call was played, along with the tape of a second call in which the caller said the Maxima was black.

On appeal, the prosecution conceded that the search condition was an inadequate basis to deny the suppression motion, because intervening appellate decisions had held that a parole or probation condition does not establish the validity of a search unless the officers knew of the condition at the time of the search.

It was argued, however, that the search could be upheld based on the specificity of the information conveyed by the anonymous caller.

The defense argued otherwise, citing Florida v. J.L. (2000) 529 U.S. 266.

The justices held there that an anonymous report of a young black male in a plaid shirt, standing at a particular bus stop and carrying a gun, did not justify an investigatory stop of a black male in a plaid shirt — one of three black men standing at the bus stop — wearing a plaid shirt about six minutes after the tip was reported to the officers.

Presiding Justice Roger Boren, writing for the Court of Appeal, sided with the prosecution, distinguishing J.L. and People v. Saldana (2002) 101 Cal.App.4th 170, which had cited J.L. in suppressing a search based on an informant’s tip.

Boren noted that unlike in the high court case, there was an audio recording of the call leading to Dolly’s arrest, enabling the court to evaluate the anonymous caller’s credibility. On the tape, Boren explained, the caller was obviously upset and said that someone had just pulled a gun on him.

The fact that the call in Dolly’s case was made to a 911 operator and not directly to the police was also a distinguishing feature, the presiding justice said, as was the speed with which the police responded to the call.

Justice Judith Ashmann-Gerst concurred, but Justice Kathryn Doi Todd dissented, arguing that J.L compelled reversal.

“None of the factors the majority regards as distinguishing this case from J.L., such as the urgency in the caller’s tone of voice or the fact the call was tape recorded, amount to corroboration in any way,” Doi Todd wrote.

The justices voted 5-0, with Werdegar absent, to consider the case.


Copyright 2005, Metropolitan News Company