USA Today last week published “Not just the Supreme Court: Ethics troubles plague state high courts, too,” by Aaron Mendelson a reporter at the Center for Public Integrity. It says, “Across the country, state high courts wield enormous power over abortion, LGBTQ+ rights and elections, among other issues. But judicial ethics at the state level receive scant attention. Experts say that’s a mistake and that potential problems are widespread.” One of the “ethics troubles” mentioned is a case from which Justice Carol Corrigan should have been recused. But it’s a stretch to include the case as a “trouble,” let alone one that’s a “plague.”
The article reports various ethical problems, focusing primarily on North Carolina Supreme Court’s chief justice, who ruled in favor of a large utility in at least six cases despite owning stock in the utility worth $20,000 or more. Deep into the lengthy piece, however, is a brief discussion about Justice Corrigan not recusing herself from two California Supreme Court rulings in a writ proceeding initiated by two petitioners, including a company in which Justice Corrigan “reported owning between $10,000 and $100,000 in . . . stock that year.”
Also included is this: “A spokesperson for California’s Judicial Council said that ‘due to clerical errors, the court’s internal case captioning and screening procedures did not identify a potential conflict, and Justice Corrigan was unaware of the company’s involvement in these matters. The court has since implemented an automated system in which potential conflicts are initially screened and identified by the court’s case management system.’ ”
The case is not named, but it’s probably Rittiman v. Public Utilities Commission.
The court’s failure to identify a potential conflict might have been because the company in which Justice Corrigan owned stock was not the first-listed writ petitioner and the company’s name was thus not in the court’s abbreviated case title.
Also, the conflict, besides apparently being unknown to Justice Corrigan, seemed to be of little consequence because the case and the Supreme Court’s fairly minimal involvement in it were unlikely to affect the company’s stock, and the petitioner company ultimately lost the case.
The case concerned not a monetary judgment, but a Public Records Act request for communications between the PUC president and the governor’s office.
The Court of Appeal had summarily denied the writ petition, stating in a brief order that the petitioners hadn’t exhausted their administrative remedies. But the Supreme Court — by a 7-0 vote — granted the petitioners’ subsequent petition for review and transferred the matter back to the appellate court with no comment other than instructing that court “to vacate its order denying mandate and to issue an order directing respondent California Public Utilities Commission to show cause why the relief sought in the petition should not be granted.”
The Supreme Court’s action was simply telling the Court of Appeal to address the writ petition’s merits. (See Desert Outdoor Advertising v. Superior Court (2011) 196 Cal.App.4th 866, 872 [“The Supreme Court’s transfer order does not mean petitioners are correct on the merits or that a writ should issue, but rather we should reconsider the matter and file an opinion”].) Even reading between the lines, the Supreme Court’s ruling was not a comment on the worth of the petition other than maybe that the arguments raised weren’t frivolous. Indeed, subsequent events in the Court of Appeal and Supreme Court didn’t go petitioners’ way.
On remand, the Court of Appeal ruled against the petitioners in a published opinion. (Rittiman v. Public Utilities Commission (2022) 80 Cal.App.5th 1018.) The petitioners did not seek review a second time. Although the PUC won the case, it asked the Supreme Court to depublish the opinion. (The appellate court found to be applicable a statutory exemption that excused the PUC from producing the requested documents, but it also stated some adverse legal principles that the PUC apparently didn’t like — the petitioners were not required to fully exhaust their administrative remedies and the PUC’s action on the petitioner’s administrative appeal did not moot the writ proceeding). The Supreme Court, without any recorded dissenting vote, denied the depublication request and declined to review the case on its own motion.
The absence of a recusal in the Rittiman matters is not quite an example of no-harm-no-foul. There was a foul — Justice Corrigan should have been made aware that one petitioner was a company in which she owned stock and she should have been recused. However, the harm from the inadvertent foul was minimal, certainly far less in magnitude than the North Carolina Supreme Court chief justice ruling on the merits of cases the article says “have concerned legal matters ranging from property easements to issues with a direct impact on the company’s bottom line, including the utility rates it charges customers and the company’s state-sanctioned monopoly.”