Metropolitan News-Enterprise


Friday, February 3, 2017


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Supreme Court Agrees to Hear Challenge to Voter-Approved Death Penalty Measure


By a MetNews Staff Writer


The state Supreme Court has agreed to hear a challenge to a measure approved by voters last November that supporters say would speed up administration of California’s death penalty.

The justices, at their weekly conference in San Francisco Wednesday, ordered state officials to show cause why the petition to declare Proposition 66 unconstitutional and permanently join its enforcement should not be granted. The court also stayed all provisions of the measure pending its ruling, and granted the principal campaign committee for the measure—called Californians to Mend, Not End, the Death Penalty - No on Prop. 62, Yes on Prop. 66—leave to intervene.

The order was adopted by a vote of 5-0, with Chief Justice Tani Cantil-Sakauye and Justice Ming Chin recusing themselves. The chief justice chairs, and Chin serves on, the Judicial Council of California, which is a named respondent in the case.

The high court also set a March 30 deadline for those wishing to file amicus briefs to file their applications for leave to do so, with the proposed briefs attached.

Proposition 66 would, among other things, set a five-year timeframe for death penalty review and require attorneys who accept court appointments in noncapital cases to take death penalty cases as well. The measure received 51.1 percent of the vote in the general election.

A competing measure, Proposition 62, would have ended the death penalty in the state, but 53.2 percent of the electorate voted against it.

In their petition to block Proposition 66, former Attorney General John Van de Kamp and former El Dorado County Supervisor Ron Briggs, argued that the measure would violate the state Constitution by moving first-state post-conviction collateral review of death sentences to the superior courts, would violate procedural due process by setting an inordinately short timeframe for review, and would incentivize lawyers to be less zealous in their representation than under the current system.

In other conference action, the justices left standing a First District Court of Appeal ruling that an amended pleading that accused an attorney of repeatedly advising his landlord clients to enter a tenant’s apartment illegally should have been stricken under the anti-SLAPP law.

In Contreras v. Dowling (2016) 5 Cal. App. 5th 394, decided Oct. 26, Div. Five reversed San Francisco Superior Court Judge Paul H. Alvarado and threw out Laura Contreras’s claim against attorney Curtis Dowling.

Contreras originally sued landlords Gordon and Carol Butterworth, along with their son, and the Butterworths’ original attorneys for tenant harassment and other causes of action based on alleged illegal entries. After Dowling became the landlords’ attorney, Contreras filed her amended complaint, accusing him of aiding and abetting his clients’ illegal entries.

Dowling argued in his anti-SLAPP motion that the claim arose entirely from protected activity. Evidence presented in connection with the motion established that the Butterworths had leased their house to another couple, who built an unauthorized garage unit and rented it to Contreras.

When the main tenants moved out, the Butterworths asked Contreras to vacate. She refused, and the landlords hired a lawyer to commence eviction proceedings.

After that attorney brought two unlawful detainer proceedings, the Butterworths hired Dowling, who served Contreras with a Civil Code §1940.6 notice of intent to remove the garage unit from the house. Contreras then filed her harassment suit.

Contreras alleged that Dowling “aided and incited” the Butterworths’ son, who was managing the property, to enter the apartment without Contreras present and without her permission, “by breaking or causing to be broken the lock on the Apartment door.”

In denying the attorney’s anti-SLAPP motion, Alvarado concluded that Dowling was not merely being accused of giving legal advice but with being responsible for “the actual conduct” of the landlords and their agent “in breaking into Contreras’ unit.”

But Presiding Justice Barbara J.R. Jones, writing for the Court of Appeal, said that all of Dowling’s alleged actions were “communicative acts by an attorney representing clients in pending or threatened activity,” and thus protected activity as defined by Code of Civil Procedure §425.16. “Bare allegations of aiding and abetting or conspiracy do not suffice to remove these acts from the protection of the statute,” she added.

The jurist also concluded that Contreras could not prevail on the merits because all of the alleged conduct was within the scope of the litigation privilege.


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