No Repub for Controversial Lockheed Ruling

Ready for one more surprise in the massive Lockheed case that the California Supreme Court shockingly dismissed in early November?

Well, late Wednesday the high court in a 4-0 vote rejected the oil company defendants’ request that the Second District Court of Appeal’s opinion — which favored them and was depublished upon the high court’s 2005 decision to grant review — be republished.

What that means, appellate specialist Jon Eisenberg said, is that the Second District’s ruling remains a victory for Exxonmobil Corp. and Union Oil Co. of California, but neither they nor anyone else can ever cite that ruling as precedent.

“The Supreme Court has the authority to have the [lower court] opinion returned to its publication status,” Eisenberg noted. “And that’s what the Supreme Court didn’t do in this case.”

Groups such as the Consumer Attorneys of California and the Council for Education and Research on Toxics had opposed republication.

Justices Joyce Kennard, Marvin Baxter, Ming Chin and Carol Corrigan recused themselves from voting on republication Wednesday, just as they recused themselves from deciding the overall issue back in November, which resulted in the case getting dismissed — much to the dismay of many in the appellate community.

At the time, Chief Justice Ronald George said he worried that a ruling in Lockheed Litigation Cases, S132167, with a panel comprised of a majority of pro tem justices wouldn’t carry precedential value — a statement he reinforced during a press conference on Tuesday.

William McGuiness, the administrative presiding justice of San Francisco’s First District Court of Appeal who served as a pro tem when the case was dismissed last month, served as a pro tem again on Wednesday to tip the vote in favor of denying republication. He made up the majority with George and Justices Kathryn Mickle Werdegar and Carlos Moreno.

Now what if McGuiness hadn’t joined the majority? Who knows?

Do any readers of Legal Pad feel like chiming in?

—  Mike McKee

Comments

[Greg May]

On what does Chief Justice George rest his rationale? I haven't seen his comments from Tuesday, but when the dismissal was first announced, he cited no rule regarding lesser (or lack of) precedential value for opinions by designated justices. In fact, I know of at least one Supreme Court opinion in which the panel was composed ENTIRELY of designated Court of Appeal justices.

This just seems like a way to kick the issue down the road to be dealt with later.

But I must say that those justices recusing themselves from the republication vote have a point. If they cannot be presumed neutral in deciding the case, can they be presumed neutral in deciding on republication?

And what about granting the petition for review in the first place? The order of dismissal states that the circumstances warranting dismissal arose since the grant of review. Does that mean none of the justices were aware they owned stock in these oil companies?

Finally, its hard to understand how the circumtances warranting dismissal did not arise until more than two and a half years after review was granted and the parties poured an untold amount of money and effort into the case before the Supreme Court.

Am I missing something?

Oops. Form your earlier coverage, I now see why circumstances warranting recusal developed after review was granted. The conflicts of three justices were apparently created when Chevron, in which they owned stock, merged into Unocal a few months AFTER review was granted.

As the Cal Law article notes, it's possible none of the three justices was aware that the conflict was created until much later. A shame they couldn't catch it earlier. All that work by the parties down the drain!

But why not republish? If the issue is so important it warrants review, isn't it better to have precedent out there as guidance for litigants?