Yesterday, Governor Jerry Brown appointed his Senior Advisor for Judicial Appointments, Josh Groban, to fill the vacant seat on the California Supreme Court, bringing the Court up to its full strength of seven justices. Nominee Groban must still be confirmed by a panel made up of the Chief Justice of the California Supreme Court Tani Cantil-Sakauye, Attorney General Xavier Becerra, and Presiding Justice of the First District Court of Appeal J. Anthony Kline.

In anticipation of December 5, 2018 oral argument in CAL FIRE Local 2881 v. CalPERS, a number of commentators and journalists have sought our view on whether Groban should recuse himself from hearing the case, if he is confirmed by December 5.  We understand that Groban will himself determine whether to recuse himself.  That decision turns on his level of involvement in advising about or litigating CAL FIRE Local 2881 v. CalPERS.  Actual bias or the appearance of bias is the usual standard for recusal.  Grobin was a member of the Governor's Office of Legal Affairs.  CAL FIRE Local 2881 v. CalPERS is a highly unusual case, because the Governor's Office itself, and not the Attorney General's Office, represents the State.  Nonetheless, we have every confidence that, if he is confirmed prior to December 5, Groban will make the appropriate decision concerning his participation in CAL FIRE Local 2881 v. CalPERS.

If you have any questions about this alert, please contact Gregg Adam or Gary Messing.