What About the Bar Exam After the 2020 Dust Settles?

VIKRAM DAVID AMAR

Illinois law dean and professor Vikram David Amar comments on some of the questions commentators and analysts are, or will soon be, asking—specifically why we have bar exams for legal licensure, and, assuming we retain them, what they should look like going forward. Amar observes the limitations of the so-called diploma privilege advocated by some and suggests that states adopt greater interstate uniformity in their bar exams, shift toward more performance (as opposed to memorization) exams, and move away from being so time pressured.

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Oakland Bulk and Oversized Terminal, LLC v. City of Oakland

Docket: A157330(First Appellate District)

Opinion Date: September 17, 2020

Judge: James A. Richman

Areas of Law: Civil Procedure, Communications Law, Contracts

Oakland entered into agreements with OBOT for the development of the former Oakland Army Base. The project was to include a bulk commodity shipping terminal for products, including coal. When the subject of coal became public, it activated interest groups, ultimately leading to an ordinance banning coal handling and storage in the city and a resolution applying the ordinance to the terminal. A federal court held that the resolution was a breach of the OBOT agreements, and enjoined Oakland from relying on the resolution. Friction between OBOT and Oakland continued. OBOT sued, alleging breach of contract and tort claims. The city filed a demurrer, then a special motion to strike (SLAPP motion, Code of Civil Procedure 425.16) that sought to strike “in part” the complaint. The SLAPP motion was heard with other matters. The hearing dealt primarily with the demurrer, which the court overruled in most part, and sustained in part with leave to amend. Days later, the court “denied without prejudice” the SLAPP motion, describing it as “premature” in light of the amended complaint to come. The court of appeal determined that the SLAPP motion has no merit because the complaint is not based on protected activity and remanded with instructions to deny the motion on the merits. The essence of the complaint arose from Oaklands’s acts or omissions in breach of its agreements, its refusal to cooperate, and its tortious conduct.

People v. Superior Court of Los Angeles County

Docket: B305626(Second Appellate District)

Opinion Date: September 17, 2020

Judge: Baker

Areas of Law: Civil Procedure

The Court of Appeal considered how the timeliness rules for Code of Civil Procedure section 170.6 judicial peremptory challenges should apply in case of a proceeding initiated by the filing of a habeas corpus petition in Los Angeles County Superior Court. The habeas petition was sent from Department 100 to the Torrance Courthouse, and on February 20, 2020, the supervising judge in Torrance assigned the matter "for review and ruling" to Department G, the department in which real party in interest's criminal trial had been held. The judge who presided over real party in interest's trial was no longer assigned to that department, and thus Judge Edmund Clarke was the recipient of the petition for ruling. The District Attorney subsequently filed a petition for writ of mandate challenging the trial court's denial of its Section 170.6 motion. The court held that the trial court correctly ruled that the District Attorney's Section 170.6 motion was untimely. Applying Section 170.6's all purpose assignment rule, the court stated that the peremptory challenge to Judge Clarke had to be made "within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance." In this case, the District Attorney had legal notice of Judge Clarke's all purpose assignment at the latest on March 15, 2020, five days after service of the informal response order (and actual notice on March 13, 2020, when the District Attorney received the order). Furthermore, the District Attorney did not file its Section 170.6 motion until April 15, 2020. Therefore, there was more than ten days after notice of the assignment.

People v. DeCasas

Docket: B301297(Second Appellate District)

Opinion Date: September 17, 2020

Judge: Frances Rothschild

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Court of Appeal affirmed the trial court's grant of defendant's motion to dismiss a petition to have him civilly committed under the Sexually Violent Predators Act (SVPA), because he was deprived of his due process right to a speedy trial. Applying the four factors in the Barker analysis, the court held that neither the length of the delay, the assertion of the right, the reasons for the delay, or prejudice is a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, the court held that they are related factors and must be considered together with such other circumstances as may be relevant. In this case, the trial court engaged in that balancing process and concluded that the state had failed defendant. Whether the court reviewed this determination under the abuse of discretion standard or, as the People assert, under a de novo standard, the court found no error based on the analysis. The court also held that, under the Mathews analysis, defendant's right to be free from government restraint without due process of law has been violated. The court rejected the People's cursory contention that the case should be ordered to trial and held that the trial court did not err in dismissing the petition.

People v. Kurianski

Docket: B301292(Second Appellate District)

Opinion Date: September 17, 2020

Judge: Brian M. Hoffstadt

Areas of Law: Criminal Law

When a parolee accepts a court's offer to admit a parole violation for a specified sentence and expressly waives his right to the preliminary and final parole hearings, he has waived his statutory right to have a preparation of a written report under Penal Code section 1203.2, subdivision (b)(1). First, the Court of Appeal held that a defendant's express waiver of his constitutional and statutory rights to a preliminary, probable cause hearing and a formal revocation hearing in order to obtain a specific disposition necessarily—albeit implicitly—includes a waiver of his statutory right to have the trial court refer the district attorney's petition to the parole agency to obtain that agency’s input regarding the appropriate disposition. Second, the court held that a defendant's waiver of the right to insist that the trial court refer the district attorney's petition to the parole agency and consider the agency's responsive report need not be express. The court affirmed the revocation order in this case where the petition to revoke parole was filed by the district attorney and the trial court did not refer that petition to the parole agency for a report before it accepted defendant's admission to a parole violation during the hearing that was originally set for the probable cause determination.