Metropolitan News-Enterprise


Thursday, February 17, 2011


Page 3


S.C. to Decide Whether Proposition 8 Sponsors May Intervene in Suit


From Staff and Wire Service Reports


The California Supreme Court agreed yesterday to decide whether sponsors of Proposition 8, the initiative constitutional amendment banning same-sex marriage enacted in 2008, may intervene to defend the measure from a constitutional challenge.

The justices, at their weekly conference in San Francisco, voted unanimously to accept a certified question of law from the Ninth U.S. Circuit Court of Appeals. A three-judge panel of that court certified the question after hearing arguments from sponsors, who want to appeal a ruling by then-U.S. District Judge Vaughn Walker, now retired, that the measure violates the Equal Protection Clause.

Sponsors have taken up the measure’s defense because former Gov. Arnold Schwarzenegger, former attorney general and now Gov. Jerry Brown, and Attorney General Kamala Harris have all refused to do so.

John Matsusaka, president of the Initiative and Referendum Institute at the University of Southern California, said the state court did the proper thing by taking up the question.

“As a matter of law, it’s right that you want to give these groups standing,” he said. “The attorney general and governor should have done their job and not put us into a constitutional bind.”

Federal Law

Lawyers for the two gay couples who successfully sued to overturn the ban had urged the state Supreme Court to refuse the case, arguing the issue of who is eligible to bring an appeal in federal court is a matter of federal law.

The U.S. Supreme Court, in a non-binding decision, has cast doubt on the ability of initiative backers to appeal rulings.

Lawyers for Protect Marriage had urged the state court to get involved, maintaining it would be a disaster for democracy if laws enacted by citizens could be tossed out because state leaders chose not to defend them.

The state Supreme Court asked to be briefed on the question this spring and said it would be prepared to hear oral arguments as soon as September.

Meanwhile, a California lawmaker has introduced a bill requiring the state attorney general to defend all voter-approved laws from legal challenges and authorizing the sponsors of ballot propositions to step in if he or she won’t or can’t act.

SB 5, by Republican Sen. Tom Harman also would permit the attorney general to appoint a special counsel to defend an initiative if the sponsors choose not to. The bill has been referred to the Senate Judiciary Committee, which has not scheduled hearings.

In other conference action, the justices:

•Voted 6-1 to grant review in People v. Johnson, A124643, limited to the issue of whether a defendant who is mentally competent to stand trial is necessarily competent to act as his or her own counsel. The First District Court of Appeal, in an unpublished opinion, concluded last October “that a trial court does not violate the constitution in denying self-representation at trial to a defendant who meets the minimal standard of competency to stand trial but who suffers from a severe mental illness to the point where he was not competent to conduct trial proceedings by himself.”

Only Justice Joyce L. Kennard voted to leave the Court of Appeal ruling standing.

Parole Decision

•Agreed to decide whether convicted wife-killer Richard Shaputis is entitled to a new parole hearing. The court’s ruling would be the fifth appellate decision in the matter.

The Fourth District’s Div. One ruled 2-1 last November that evidence presented at Shaputis’ 2009 hearing before the Board of Parole Hearings was inadequate to show that he remains a danger to society. The Supreme Court had previously ruled that the evidence presented at his 2006 hearing was sufficient to show that he was too dangerous to be released at that time.

Shaputis, convicted of second-degree murder in 1987 after shooting his wife and sentenced to 17 years to life in prison, is now 74, has served 23 years, and has been in ill health for several years. Then-Chief Justice Ronald M. George wrote, in In re Shaputis (2008) 44 Cal.4th 1241, that his history of domestic violence prior to the murder—he beat his wife two or three times a year during a 23-year marriage and had shot at her and threatened her with a knife about 18 months before he killed her—and his failure to take responsibility afterward supported then-Gov. Arnold Schwarzenegger’s conclusion that he remained a danger to society.

The case is In re Shaputis, D056825.

•Left standing a Sixth District ruling allowing former longtime employees of the California State Automobile Association to sue on their claims that the company discharged them in an attempt to escape its promise to relax sales quotas as the employees neared retirement age.

Reversing a grant of summary judgment, the panel in McCaskey v. California State Automobile Association (2010) 189 Cal.App.4th 947, said three former insurance agents stated a breach of contract cause of action where they alleged that they remained with the company for most of their working careers in reliance on a promise to relax work standards after they reached age 55. It also ruled that a trier of fact should decide whether the company had a legitimate, non-discriminatory reason under the Fair Employment and Housing Act for renouncing its promise.

•Declined to review a First District Court of Appeal ruling that a San Francisco-area widow must continue making support payments to her deceased husband’s previous wife.

Div. Three, in its Nov. 4 opinion in Kircher v. Kircher (2010) 189 Cal.App.4th 1105, said that the form of title in real property that passed to the widow upon her husband’s death—joint tenancy—did not shield it from consideration when determining the extent of her personal liability for his obligation.

The panel had previously concluded, in an unpublished 2009 opinion, that the agreement by San Francisco hotel and apartment house operator Vincent Kircher to support first wife Bonnie Kircher until she died was sufficient to waive state law providing that such an obligation would normally terminate upon his death.


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