Tag Archives: HI

Holidays

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Holidays

California Holidays

This section covers California-specific basic information on holidays and related topics. Many of California's laws on holidays are similar to those of other U.S. states, with some differences (in some cases, minor differences). California holidays laws on holidays are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on holidays, which is a basic matter in California law.

Sundays and Holidays in California: General Overview

This entry offers readers with practical insight to the subject of sundays and holidays in California, a general introduction to the legal issues relating to sundays and holidays under California law and practice.

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Highways

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Highways

California Highways

This section covers California-specific basic information on highways and related topics. Many of California's laws on highways are similar to those of other U.S. states, with some differences (in some cases, minor differences). California highways laws on highways are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on highways, which is a basic matter in California law.

Highways, Streets, and Bridges in California: General Overview

This entry offers readers with practical insight to the subject of highways, streets, and bridges in California, a general introduction to the legal issues relating to highways, streets, and bridges under California law and practice.

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Higher Education

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Higher Education in California

Higher Education

Welcome to the California legal encyclopedia's introductory part covering the higher education laws of California, with explanations of the various implications of higher education in California and the statutes enforced in California in connexion with higher education. This introductory section covers case law related to higher education in California, the legal approach on higher education in the United States and related topics. The information below provides an California-specific general overview of the legal regime of higher education in California.

Higher Education in relation to Education Law

This section analizes the legal issue of higher education in this context, and provides information on its relation with Higher Education.

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History

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History in California

History and the Legislative Process

A publication that gives a comprehensive list of all actions taken on every bill. It is published in weekly volumes by each house.

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  • Legislation
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  • Legislative Function

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Weekly History and the Legislative Process

A weekly publication that gives a comprehensive list of all actions taken on every bill during that week. It is published by each House (see History).

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Hijack

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Hijack in California

Legislative Meaning of Hijack

Amendments which delete the contents of a bill and insert entirely new provisions. Can be accomplished with or without the author’s permission. See more about California legislative definitions (including Hijack ).

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More information about the California State Legislature

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Hijack and the Legislative Process

An action to delete the contents of a bill and insert entirely new provisions. May occur with or without the Author’s permission.

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HIPAA Liability

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HIPAA Liability in California

For California Attorneys: HIPAA Liability

( 01-05-2010 ) Two personal injury defense lawyers agree to go out for drinks after work. They decide to travel in one car and proceed to stash their laptops in the trunk. While they are at the bar, someone breaks into the car and steals both laptops, which contain client emails with patients’ medical information attached. Although both laptops are password protected, only one has an encrypted hard drive.

After filing a police report and an insurance claim, the lawyers replace their stolen computers. What’s missing from this picture?

HIPAA compliance, that’s what.

Under the Health Insurance Portability and Accountability Act (Pub. Law 104-191), the owner of the unencrypted laptop must promptly notify each client whose patients’ medical records were stored on it. The clients, in turn, must promptly tell each affected patient – and perhaps federal and state authorities – about the security breach. Even with notification, the attorney and clients could face up to hundreds of thousands of dollars in civil fines, and potential lawsuits from affected patients. The attorney may also face breach of contract claims from the client.

What about the attorney with the encrypted laptop? No worries: No action is required.

This Means You

Health care providers have been subject to HIPAA since 1996. The idea behind the law is to ensure that patients’ medical records stay private. But now, if your law firm handles medical records in connection with its practice, the headaches of the attorney with the unencrypted laptop are a very real possibility. On February 17, a new set of HIPAA patient privacy requirements took effect as part of the Obama Administration’s stimulus package, formally titled the American Recovery and Reinvestment Act of 2009 (ARRA). (Follow-up federal rules were published as “Breach Notification for Unsecured Protected Health Information; Interim Final Rule,” 74 Fed. Reg. 42740 (Aug. 24, 2009) (Breach Notice Rule))

Embedded within ARRA is the Health Information Technology for Economic and Clinical Health Act (Pub. Law 111-005). Under this law, commonly referred to as HITECH, attorneys who access patient information in the course of client services are, for the first time, directly subject to two key HIPAA requirements: the Privacy Rule and the Security Rule.

Rules to Follow

The Privacy Rule regulates the use and disclosure of “protected health information” (PHI), which includes certain individually identifiable health data stored by health care plans, clearinghouses, and providers that engage in certain types of electronic transactions. (See 45 C.F.R. Parts 160 and 164, Subparts A and E)

The Security Rule requires these “covered entities” to implement administrative, technical and physical safeguards to secure PHI in electronic form. (See 45 C.F.R. Parts 160 and 164, Subparts A and C.) (Similar requirements have long applied to physical records)

Covered entities may disclose PHI to business associates without patient authorization if the disclosure is needed in performing HIPAA-covered functions – provided the business associates give appropriate assurances that they will safeguard the information. This scenario can include a lawyer providing legal services to a client that is a covered entity. A typical example would be a defense lawyer representing a hospital in a medical malpractice case.

The assurances must be documented in a written contract called a business associate agreement. Under HIPAA, but prior to HITECH, the rules required covered entities to impose certain requirements on business associates, but business associates themselves were not regulated directly, either by the Department of Health and Human Services (HHS) or its Office of Civil Rights (OCR).

Now, with HITECH in place, most of the requirements in HIPAA’s Privacy and Security Rules apply directly to business associates, subjecting them to direct regulation by OCR. HITECH also creates new enforcement tools and imposes enhanced penalties for HIPAA violations. Among other things, HITECH requires a business associate to: (1) implement written policies and procedures, (2) develop a system for identifying breaches and notifying covered entities after discovery of a breach of unsecured PHI, (3) mitigate any harms from the inappropriate use or disclosure of PHI, (4) train its workforce, (5) develop a sanctions policy, (6) establish security safeguards, (6) appoint a privacy officer, and (7) develop and implement a complaint system. For a law firm that deals with PHI, these requirements are onerous; but make no mistake: They are real.

More about HIPAA Liability for Lawyers

Safeguards Required

Business associates must comply with provisions of the Security Rule that require safeguards to protect the confidentiality, integrity, and availability of electronic PHI received from or on behalf of covered entities. In addition, they must implement written policies and procedures documenting those safeguards.

The Security Rule contains dozens of specific safeguards for securing electronic PHI – including a sanctions policy, a complaint system, and training programs. Some of these standards are “addressable,” meaning they must be considered for implementation, and if not implemented, the covered entity or business associate must document why not. Other standards are required without exception, although the means of implementation are flexible. If a business associate uses any subcontractors – such as expert witnesses – to perform functions with client PHI, the subcontractors should implement similar safeguards, given the liability that mishandled PHI can create for the attorney business associate.

For attorneys, this means: (1) assessing the ways in which client medical information can be lost, stolen, or improperly accessed; (2) determining how to reasonably protect against such risks using the Security Rule’s safeguards; (3) documenting those efforts in written policies and procedures; (4) training all your personnel on the policies and procedures; and (5) enforcing the policies and procedures.

Notice of Security Breaches

The statutes combine to require lawyers (who would be considered business associates) to notify their clients (who would be covered entities) following discovery of a breach of unsecured PHI. (Breaches involving “secured” PHI do not trigger the notice requirement.) If notice is required, it must be given to the clients without unreasonable delay and in no case later than 60 calendar days after the breach is discovered. (See 42 U.S.C. § 17932(d); 45 C.F.R. § 164.404(b).) Affected attorneys must, to the extent possible, identify each individual whose unsecured PHI was breached, and any other available information that the covered entity (the lawyer’s client) will need to notify all the affected individuals.

But what constitutes a breach? Under HIPAA and HITECH, the term means the acquisition, access, use, or disclosure of PHI in a manner not permitted under the Privacy Rule that compromises the security or privacy of PHI. Although theft of a laptop certainly qualifies as a breach, unauthorized access by an entity’s personnel (snooping, for example) can also be a breach. (42 U.S.C. § 17921(1); 45 C.F.R. § 164.402)

On the other hand, the law excludes an inadvertent or unintentional disclosure of PHI that occurs in good faith by employees acting within the scope of employment duties – as long as the PHI is not further used or disclosed improperly. To comply with the statute, it’s essential that you understand the proper ways to access and use PHI – and also that you train your workforce.

A breach is considered to be discovered once someone other than the person committing the breach – but who is also an employee, officer, or agent of the covered entity or business associate – knows, or should have reasonably known, of the breach (42 U.S.C. § 17932(c); 45 C.F.R. § 164.410(a)(2)). Law firms (and covered entities) must train their workforce to report any breaches to management.

Development of HIPAA Liability for Attorneys

Case in Point

What about those two lawyers with stolen laptops? Here’s how HIPAA, as amended by HITECH, affects them.

Remember that a breach involving secured PHI does not trigger the notice rule (42 U.S.C. § 17932(a); 45 C.F.R. § 164.410(a)). PHI may be secured either by proper encryption, or by using certain approved destruction technologies and processes. The acceptable methods of encryption and destruction were explained last year in an HHS guidance document (published in 74 Fed. Reg. 19006 (April 27, 2009)). Access controls – such as passwords, firewalls, and biometric controls – are not equivalent to encryption; they are not sufficient, standing alone, to secure PHI. Thus, the laptop in our example that is only password-protected was not considered secure under HIPAA. Although it’s not specifically required by law, the best practice is to use encrypted computers and other devices for storing and transmitting electronic PHI. In addition, attorneys should periodically destroy unneeded PHI to prevent future privacy breaches.

An unsettled issue involves the portion of the statute that requires reporting of a breach that ‘compromises the security or privacy of the protected health information.’ (42 U.S.C. § 17921(1); 45 C.F.R. § 164.402.) Just how do you know when reporting is required? To provide guidance, HHS has articulated the “significant harm” test. The agency also suggests performing a risk assessment to determine whether the circumstances call for notification. The assessment involves documenting answers to these three questions:

– Has there been an impermissible use or disclosure of PHI under the Privacy Rule?

– Does the impermissible use or disclosure compromise the privacy or security of the PHI by creating a significant risk of financial, reputational, or other harm to the individual?

– Is the incident excluded from the statutory definition of breach (see 45 C.F.R. § 164.402; 74 Fed. Reg. at 42744?45).

The validity of the significant harm test, however, is in question after the authors of HITECH declared that the HHS interpretation does not reflect legislative intent and should be rescinded. (See October 1, 2009, Letter to HHS Secretary Kathleen Sebelius from U.S. Rep. Henry Waxman et al. at http:// energycommerce.house.gov/Press_111/ 20091001/sebelius_letter.pdf)

Reporting Client Breaches

What if your client breaches the business associate agreement (BAA)? In a provision perilous to attorneys, HITECH requires business associates to take reasonable steps to cure any known BAA breaches by covered entities. If such steps prove unsuccessful, the business associate (that’s you) must terminate the BAA; and if termination is not feasible, the business associate must report the breach to the HHS secretary. (42 U.S.C. § 17934(b).) This new “snitch” rule potentially obligates lawyers to report clients’ transgressions to the federal government – no small ethical dilemma.

Attorneys who deal with PHI thus face a double bind: They risk violating rules of professional conduct if they report a client (see Cal. Rules of Prof. Conduct, Rule 3-100 & Cal. Bus. & Prof. Code § 6068(e)(1)), but they risk violating HIPAA if they don’t.

There is no clear solution to this dilemma. Some attorneys have attempted one by adding a provision to their BAAs stating that they will not be obligated to take any action which conflicts with the Rules of Professional Conduct.

Details

Enhanced Penalties

HITECH also ups the ante for HIPAA violators. A business associate is now liable for violations in the same manner as a covered entity (42 U.S.C. §§ 17931(b), 17934(c)). Criminal fines for a knowing and improper HIPAA violation continue to range from $50,000 to $250,000, and jail time ranges from one to ten years (42 U.S.C. § 1320d-6). However, HITECH extends the scope of the criminal penalties, and it drastically increases potential civil penalties, allowing fines of up to $1.5 million per calendar year for wrongful disclosure of PHI. The statute also requires the HHS secretary to formally investigate HIPAA complaints, and to impose civil penalties in cases of willful neglect. (See 42 U.S.C. § 1320d-5(c))

Audits and the AG

Under HITECH, the HHS secretary must conduct periodic audits (which can be random) to ensure that covered entities and business associates are complying with the law. Because the HIPAA requirements are so extensive, an audit is likely to turn up evidence of noncompliance, and this may well lead to more enforcement actions. Within HHS, the OCR now has authority to enforce both the Privacy Rule and the Security Rule (42 U.S.C. § 17939(c)).

In addition, state attorneys general who believe that residents of their state have been affected by violations of HIPAA or HITECH can bring a civil action in federal court to enjoin further violations, and they can seek statutory damages. A court may award the state costs and reasonable attorneys fees in any successful action (42 U.S.C. § 1320d-5(c)).

In January, Connecticut’s attorney general sued Health Net of Connecticut for failing to secure the private information of roughly 446,000 enrollees, and to promptly notify them of the security breach. Expect more such suits under the new law.

Minimum Necessary Rule

HIPAA requires covered entities to use reasonable efforts to limit the access, use, and disclosure of PHI to the “minimum necessary” to accomplish a legitimate purpose (45 C.F.R. § 164.502(b)). HITECH applies this rule to business associates. HHS has emphasized recently that an unnecessary disclosure could be a breach requiring notification (42 U.S.C. § 17934(a); 74 Fed. Reg. at 42744).

Applying the minimum necessary rule can be challenging, because lawyers often instinctively request all information from a client related to a matter. But such requests may be at odds with the minimum necessary requirement. Indeed, the rule is affected by other HIPAA requirements specifically governing the disclosure of PHI in litigation. In such cases, disclosures by a lawyer may be permissible or not, depending on whether the disclosures are affirmative, responsive, or pursuant to a court order or subpoena. (Compare 45 C.F.R. § 164.506 with 45 C.F.R. § 164.512(e).) Depending on the circumstances, a litigator may have to redact PHI supplied during discovery, strip it of information that identifies a specific patient, or seek a protective order.

More about the Issue

Staying Current

Since the enactment of HITECH in 2009, HHS has issued two major regulatory issuances that affect attorney business associates: the April 17, 2009, guidance mentioned above, and the Breach Notice Rule. Many more are on the way. This trend marks a major shift, for HHS issued no security guidances during the first ten years under HIPAA (from 1996 to 2006). Because of constant regulatory developments in privacy, attorneys must monitor changes both in HIPAA and in state privacy laws. Fortunately, each HHS regional office has a privacy advisor to guide and educate covered entities, business associates, and individuals. (Information on California’s is available at www.cms.hhs.gov/RegionalOffices/Downloads/ SanFranciscoRegionalOffice.pdf)

Caution and Vigilance

HITECH vastly expands HIPAA’s potency and requires intensive and ongoing compliance efforts by covered entities and their business associates. Law firms handling patient information maintained by clients should institute a formalized HIPAA compliance program with detailed written policies, training programs, dedicated personnel, and management oversight. Although such programs are time-consuming and burdensome, they are a must for anyone who desires to mitigate (and hopefully avoid altogether) the extensive liability risks posed by HIPAA and HITECH.

High-Court Review

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High-Court Review in California

For California Attorneys: Securing High-Court Review

( February 2010 ) How do you get to the California Supreme Court? Forget MapQuest and GPS. We’re not talking directions, but rather how to secure high court review for cases involving disputed issues.

In all your cases, make sure to follow the applicable procedural rules. The hard part is not some intricate formatting requirement; it’s getting the Supreme Court’s attention. And in that regard, never lose sight of the oft-cited reason for Supreme Court review: “to secure uniformity of decision or to settle an important question of law.” (Cal. R. Ct. 8.500(b)(1))

The court grants review in only a tiny percentage of cases, and not all of those get briefed and argued. The court may “grant and hold” a case pending resolution of another case involving similar issues. Or it may “grant and transfer,” directing a court of appeal to consider the case (Internal Operating Practices and Procedures of the California Supreme Court, Rule IV.C). But in 2008 the court granted review without deferring briefing in 42 civil cases – less than 5 percent of the petitions it received.

Procedure for Review

A necessary predicate to review is following the rules of procedure. First, if the court of appeal’s opinion contains factual errors, they must be corrected via a petition for rehearing; otherwise the petitioner risks being stuck with those errors at the Supreme Court (Cal. R. Ct. 8.500(c)(2)). With few exceptions, the rehearing petition is due 15 days after the opinion is filed (Cal. R. Ct. 8.268(b)).

The petition for review must be filed within 10 days after the court of appeal’s opinion becomes final (Cal. R. Ct. 8.500(e)(1)), which typically occurs 30 days after the opinion is issued. However, if the decision denies a petition for writ of supersedeas or dismisses an appeal on request or stipulation, it is final immediately (Cal. R. Ct. 8.264). But if the court of appeal designates its opinion for publication after filing, the 30-day finality period runs from the date of the order (Cal. R. Ct. 8.264(b)(3)). The decision is final on the 30th day, even if it falls on a weekend (Cal. R. Ct. 8.500(e)(1)). However, if the deadline for petitioning for review falls on a weekend, the deadline is extended to the following business day (Cal. Civ. Code §§ 12, 12a, 12b; Cal. R. Ct. 8.60(a)).

A petition for review looks, on the surface, like other appellate briefs. The same formatting rules apply: The petition must contain a table of contents, a table of authorities, and citations to the record, and it must adhere to the formatting requirements of Rule 8.204(b), including margins of one and a half inches on the sides and one inch on the top and bottom, 13-point type, and one-and-a-half-line spacing (headings and footnotes may be single spaced). The caption page is the same as for the lower court?the parties retain their respective “appellant” and “respondent” designations as the case moves upward (Cal. R. Ct. 8.504(b)).

However, there are four differences between a petition for review and a brief on the merits. First, the petition for review is shorter than an appeal brief?8,400 words, rather than 14,000. (See Cal. R. Ct. 8.504(d)(1), 8.204(c)(1).) Second, the petition for review must begin with a statement of the issues presented for review, which should be “concise” and “nonargumentative” … “framing them in terms of the facts of the case but without unneces-sary detail.” (Cal. R. Ct. 8.504(b)(1).) Third, if the appellate opinion was not final immediately, the petition must state whether a petition for rehearing was filed and, if so, the result (Cal. R. Ct. 8.504(b)(3)). Finally, the court of appeal opinion or order must be bound at the back of the petition.

The petition should address the court of appeal’s errors, but not focus on them. The goal is to explain why the court should devote its scarce resources to resolving the issue presented, and the focus must be the criteria for review. Normally, the petition should present only one or two compelling issues; anything more may suggest that none of the issues is worthy of review.

The respondent may ignore the petition, file an answer, or if appropriate, file a separate petition for review. An answer ordinarily must be filed within 20 days after the court clerk receives the petition, but this deadline can be extended by the court (Cal. R. Ct. 8.500). Like the petition, the answer generally should follow the formatting standards for appellate briefs in the court of appeal.

If the respondent believes that additional issues are worthy of the court’s review, it can raise additional issues in its answer – identifying these issues at the beginning of the answer, as in the petition for review (Cal. R. Ct. 8.504(b)). Alternatively, a separate petition for review can be filed within the deadline for filing a petition – 10 days after the court of appeal opinion is final (Cal. R. Ct. 8.500(e)(1)). The answer, like the petition, is limited to 8,400 words.

Finally, the petitioner may file a reply, due 10 days after the answer is filed, and limited to 4,200 words (Cal. R. Ct. 8.500(e)). Like the petition and answer, a reply should follow the formatting requirements for court of appeal briefs.

Standards for Review

Sometimes review by the California Supreme Court seems inevitable. The recently decided case about the constitutionality of Proposition 8 is a paradigm example of “an important question of law” warranting review by the Supreme Court (Strauss v. Horton, 46 Cal. 4th 364 (2009)).

Other cases are of such widespread significance that high court review also appears certain. In Martinez v. Regents of the University of California (No. S167791), for example, the court will decide whether federal law preempts a California statute granting preferential UC tuition rates to certain in-state residents.

But not every case contains an issue that leaps to the headlines or affects thousands (or millions) of people in a significant way. In some cases, petitioning lawyers will face a significant challenge as they attempt to engage the interest of at least four justices on the California Supreme Court?the number required to obtain review (Cal. R. Ct. 8.512(d)(1)).

More about High-Court Review for Lawyers

Uniformity of Decision

One of the most straightforward reasons for granting review is to secure “uniformity of decision” – to ensure that trial courts have a consistent body of law to follow. Because unpublished decisions are not considered precedent and therefore do not affect California law (Cal. R. Ct. 8.1115(a)), they are unlikely to be accepted for review under this criterion.

Where a direct conflict exists, the reason for review is apparent. For example, in Simpson Strong-Tie Co. v. Gore (No. S164174), the court will review the Sixth District Court of Appeal’s decision expressly disagreeing with the Second District Court of Appeal on two separate issues involving California’s anti-SLAPP statute (Code of Civ. Proc. § 425.16).

Similarly, in City of San Jose v. Operating Engineers Local Union No. 3 (No. S162647), the petitioner city urged review because “[w]hile this matter was pending before the Sixth District Court of Appeal, the very issue presented in this case was being considered in at least four other appellate cases in District Courts throughout the State.” The respondent union joined in the request for review, pointing out that one of the other four courts considering the issue had “issued a published decision directly in conflict with the decision … in the instant case,” and urging the court to review both cases. That pitch worked; the court granted review.

But even if no direct conflict exists, review by the Supreme Court may be necessary to ensure that the courts of appeal are not taking the law in an improper direction. Thus, in Village Northridge Homeowners Association v. State Farm Fire & Casualty Co. (No. S161008), the court agreed to review a decision distinguishing between two Supreme Court decisions holding that a party seeking to avoid a settlement agreement on the ground of fraud must rescind the agreement and return the consideration for it. The petition for review asserted that the appellate decision “threatens to erase 80 years of settled California law,” and the court granted review even though the answer argued that the court of appeal carefully explained its reasons for distinguishing the Supreme Court cases, and limited its holding to the unique circumstances presented.

In cases such as these, input from the Supreme Court is needed to ensure that lawyers and trial judges know what the law is. The petition for review should include a thorough discussion of the conflict and why it must be resolved in the case at bar.

Important Questions of Law

Most cases accepted for review involve important but unsettled legal issues. The authority to take a case involving an “important question of law” provides the justices with wide discretion in setting their docket.

Many accepted cases present issues of first impression that affect people statewide. For example, in McCann v. Foster Wheeler, LLC (No. S162435), the court agreed to review choice-of-law issues that “have never been addressed, much less decided, by this Court or by the Court of Appeal.” The petition called into question the state’s reason for favoring residents in its choice-of-law “borrowing” statute, “to the detriment of residents of foreign jurisdictions.” In resolving the case, the court is likely to delve into the public policy underlying the choice-of-law statute in order to discern the basis for allowing California citizens to avoid limitations imposed by other states.

The court also may accept review of a case because of the potentially devastating impact of a statute or regulation. For example, review in In re Nolan W. (45 Cal. 4th 1217 (2009)) had no practical impact on the parties involved. The court considered whether a juvenile court could incarcerate a parent for contempt based on failure to enter a substance-abuse program ordered in connection with attempted reunification with a dependent child. The mother’s parental rights had been terminated at the time of the contempt order, and that order was reversed by the court of appeal. To resolve the case, the court of appeal was not required to address the extent of the juvenile court’s authority, but the Supreme Court granted review to do so, ultimately holding that parents may not be jailed for contempt if they fail to comply with reunification orders.

Some areas of the law seem to be of particular interest to the court. In Pearson Dental Supplies, Inc. v. Superior Court (No. S167169), the court granted review to resolve an issue that no reported decision has discussed, in an area that affects many California citizens – employer-mandated arbitration agreements. The petition argued that the case presented “an ideal vehicle to clarify the scope of judicial review” in this area – certainly a factor the court considers in deciding whether a particular case should be reviewed. The court will decide what standard of review applies to an arbitrator’s resolution of discrimination claims brought under California’s Fair Employment and Housing Act.

Development of High-Court Review for Attorneys

Help From Friends

Under Rule of Court 8.500(g), amici curiae may submit letters to the court supporting or opposing the grant of review. No permission from the court is necessary, and the letters are not listed on the docket; rather, they are simply held for the court’s review. Despite their informal status, letters from amici curiae often are pivotal in demonstrating why a case is worthy of the court’s review.

In Marriage of Sonne (No. S166221), for example, the court will address pension benefits under the California Public Employees’ Retirement System (CalPERS) – specifically, how they should be allocated when a public employee has had more than one spouse while working for the state. Although the petition for review discussed the number of people potentially affected by the court of appeal’s decision (more than 1 million current and former state employees participate in CalPERS) – the particular issue might still have seemed too narrow to warrant Supreme Court review.

Nevertheless, amicus support from several family law practitioners underscored the potentially broad reach of the appellate decision, explaining how it would lead to widespread trouble and needless expense in the lower courts. One certified family law specialist recounted that “[o]n hundreds of occasions, I have assisted parties in disposing of their community property benefits” and “[a]s such I have been faced with the very issues involved in this case.” The attorney explained that because the principles involved are often not understood, “many imperfect and unfair settlements and judgments must have been entered.” Two other amicus letters expressed their agreement with the attorney’s analysis and discussed a conflict with other appellate decisions that was not apparent from the opinion or the petition for review. A fourth amicus letter argued that the court of appeal’s opinion conflicted with three other Supreme Court decisions, and offered two specific examples of situations in which the court of appeal’s analysis assertedly would lead to unfair results.

Think Big

A successful petition for review does not merely harp on errors in the lower courts. Instead, it demonstrates convincingly how the court of appeal’s decision significantly affects a broad range of Californians; or presents a conflict between lower courts that must be settled; or both. At the state’s high court, where only a small fraction of requests for review can be granted, nothing less will do.

Even so, some worthy cases that meet these criteria may still be turned away because the legal issues have not fully ripened on a statewide basis: The state Supreme Court may decide to wait until more lower courts have weighed in on the issue. In addition, a case may involve an issue that the court determines should be resolved by the Legislature rather than the judicial branch.

All of these considerations color a petition for review and can affect your ability to convince the court that yours is the case to hear and that now is the time to hear it.