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News from the Director

Nov. 9, 2016

Prop 66 Impact on Court of Appeal Panel

On Nov. 8, the voters rejected the ballot initiative which would have abolished the death penalty (Prop 62). The initiative which expedites death penalty post-conviction proceedings (Prop 66) is likely going to pass. (Results are not official, but the "yes" votes lead by approximately 150K.)

One aspect of Proposition 66 of particular relevance to Court of Appeal panel members is the conscription provision, which would require panel attorneys qualified for "the most serious non-capital appeals" to be appointed in capital cases:

(b) When necessary to remove a substantial backlog in appointment of counsel for capital cases, the Supreme Court shall require attorneys who are qualified for appointment to the most serious non-capital appeals and who meet the qualifications for capital appeals to accept appointment in capital cases as a condition for remaining on the court’s appointment list. A “substantial backlog” exists for this purpose when the time from entry of judgment in the trial court to appointment of counsel for appeal exceeds 6 months over a period of 12 consecutive months.

For several reasons, this should be no cause for alarm for court of appeal panel attorneys who are not seeking capital appointments. First, the requirement does not take effect unless the Supreme Court deems it "necessary to remove a substantial backlog in appointment of counsel for capital cases." Second, even if the Supreme Court declares such a backlog, there may be enough court of appeal panel attorneys volunteering to handle such appeals to sufficiently reduce the backlog. Third, the conscription provision should not take effect until a rule-making process takes place. Fourth, the conscription provision (and other aspects of Prop 66) will be subject to litigation.

There are unanswered questions, which will take some time (probably through the rule-making process) to address, such as how will the rule apply to attorneys expecting to retire before a capital appeal could be fully litigated and how is "most serious non-capital appeals" defined, etc. The appellate projects will be diligent in monitoring and seeking input in the rule-making process. We will keep the panel apprised of any developments regarding this new law.



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