The Questions I Would Have Asked Judge Amy Coney Barrett Before Voting for Her to Ascend to the United States Supreme Court

MARCI A. HAMILTON

Marci A. Hamilton—a professor at the University of Pennsylvania and one of the country’s leading church-state scholars—offers eight questions she would have asked Judge Amy Coney Barrett during her confirmation hearings. Hamilton points out that questioning a person’s religious affiliation is considered taboo because of the false, public mythology in the United States that religion is always good and pure, despite overwhelming evidence that religion, which is run by humans, often perpetuates domestic violence against women and children.

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Am. Chemistry Council v. Off. of Environ. Health Hazard Assessment

Docket: C079078(Third Appellate District)

Opinion Date: October 19, 2020

Judge: Murray

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law

Proposition 65 was enacted by the voters to protect the people of California and its water supply from harmful chemicals. Proposition 65 required the Governor to publish, at least annually, a list of chemicals known to the state to cause cancer or reproductive toxicity. Proposition 65 added Health and Safety Code section 25249.8, which provided the listing obligations and sets forth four independent “listing mechanisms” by which a chemical could be listed, including the “state’s qualified expert” listing mechanism and the “authoritative body” listing mechanism. At issue in this case was whether the decision by the Office of Environmental Health Hazard Assessment (OEHHA) to list Bisphenol A (BPA) as a chemical known to cause reproductive toxicity under Proposition 65, was an abuse of discretion. BPA is used primarily to coat food and beverage packaging and containers. The American Chemistry Council (ACC) commenced this action seeking to enjoin OEHHA from listing BPA. In an amended complaint, ACC sought a peremptory writ of mandate directing OEHHA not to list BPA. The trial court denied the requested relief. ACC appealed, asserting that OEHHA abused its discretion in: (1) refusing to consider the arguments against listing BPA; (2) concluding that the National Toxicology Program (NTP) formally identified BPA as a reproductive toxicant in the monograph; and (3) determining that NTP concluded that studies in experimental animals indicated that there was sufficient data to establish that an association between adverse reproductive effects in humans and BPA is “biologically plausible” within the meaning of that term as it was used in OEHHA’s own regulation. The Court of Appeal found OEHHA’s position as to biological plausibility was based on, among other things, the presumption that chemicals that cause harm in experimental animals will also cause similar harm in humans in the absence of evidence to the contrary. The Court concluded OEHHA did not abuse its discretion in listing BPA based on the monograph. Therefore, the Court concluded the trial court did not abuse its discretion in denying ACC the relief requested in the amended complaint.

Malott v. Summerland Sanitary District

Docket: B298730(Second Appellate District)

Opinion Date: October 19, 2020

Judge: Arthur Gilbert

Areas of Law: Civil Procedure

Plaintiff filed an administrative mandamus petition challenging wastewater disposal fees under Proposition 218. The trial court dismissed the petition based on failure to exhaust administrative remedies. The Court of Appeal held that plaintiff should have been given leave to rename her petition, which was, in essence, a complaint for declaratory relief. In this case, the trial court erred by preventing plaintiff from presenting evidence from an expert to support her claims. Therefore, plaintiff may proceed in her action against the sanitary district to allege that rates charged residential customers are disproportionate and unlawful.

California v. Son

Docket: G057657(Fourth Appellate District)

Opinion Date: October 19, 2020

Judge: Raymond J. Ikola

Areas of Law: Constitutional Law, Criminal Law

Defendant Troy Son was charged with murder with an enhancement for the personal use of a deadly weapon. A jury found defendant guilty of first degree murder, unanimously finding that the murder was willful, deliberate and premeditated and committed by lying in wait. The jury found the weapon use allegation to be true. Defendant was sentenced to a state prison term of 26 years to life, comprised of 25 years to life for the murder, plus a consecutive one year for the enhancement. Defendant raises three issues on appeal. The first was that the trial court erred by permitting a detective to describe the events of a surveillance video that was subsequently watched by the jury. Defendant’s second and third arguments went to each of the first-degree murder theories. The jury made separate findings on two theories of first-degree murder: premeditation, and lying in wait. Defendant contended both were infected with error. To prevail on appeal, he had to prevail on both arguments: if either the premeditation or lying-in-wait finding was upheld, then any error in the other is necessarily harmless. The Court of Appeal concluded the trial court did not abuse its discretion, in admitting the detective’s narration - it was admissible lay testimony based on her extensive review of the video. The Court found no misconduct as to how the prosecutor explained the concept of premeditation to the jury: "the example was harmless: the multiple-shots example is not entirely wrong, the prosecutor mentioned it only briefly, this was not a gun case, the issue of premeditation hinged on defendant’s mental health, and the court properly instructed the jury. Because we uphold the first-degree murder conviction on a theory of premeditation, we need not address lying in wait." Conviction was affirmed.

People v. Hendrix

Docket: B298952(Second Appellate District)

Opinion Date: October 19, 2020

Judge: Kenneth R. Yegan

Areas of Law: Criminal Law

The Court of Appeal affirmed defendant's conviction and sentence for first degree burglary. The court held that, although the trial court erred when instructing the jury on mistake of fact, the instructional error was harmless because there is no reasonable probability defendant would have obtained a more favorable result had it not been made. The court also held that the trial court did not abuse its discretion by using defendant's July 2017 conviction as a first strike and as a five-year prior serious felony conviction for purposes of sentencing. Finally, the court held that defendant's 10 year sentence did not violate federal and state constitutional prohibitions against cruel and unusual punishment. In this case, given defendant's status as a recidivist whose offenses are growing more serious, the sentence imposed does not shock the conscience or offend fundamental notions of human dignity.