Christina Von der Ahe of Orrick, Herrington & Sutcliffe
Christina Von der Ahe of Orrick, Herrington & Sutcliffe (Courtesy photo)

The California Supreme Court on Tuesday is set to hear arguments in a case challenging Proposition 66, a ballot initiative aimed at speeding up the state’s death penalty appeals process that was narrowly passed by voters last fall.

Lawyers at Orrick, Herrington & Sutcliffe filed a petition to block the law the day after the election and convinced the state’s Supreme Court to put off implementing the law until their constitutional challenge to the proposition could be heard.

Christina Von der Ahe, a partner in Orrick’s Irvine office who is heading up the firm’s effort on the case, took a break from argument preparations Friday to talk to The Recorder about why Orrick took the case pro bono and the proposition’s potential to disrupt California courts. The answers have been edited for length and clarity.

Why did Orrick decide to take this project?

Orrick has a very strong pro bono program. We actually have Rene Kathawala whose job is to gather interesting and impactful pro bono projects and to distribute them to lawyers, to make sure that we all have as many pro bono opportunities as we could possibly want.

So the death penalty opponent community knew our work because we had done some really good work on behalf of one particular death penalty defendant. They approached Rene and asked if we would be willing to take on this case, and he said “absolutely.”

So you were retained before the election?

We filed the day after the election. If you think I can throw together a 50-page brief in a day, then please keep thinking that (Laughs.) No, it was contemplated before the election.

For folks focused on business litigation, what would the implementation of the measures outlined in the proposition mean for the California court system?

I think if Proposition 66 gets passed, they are less likely to get a fair hearing at any level of the courts, particularly in the Supreme Court.

Proposition 66 mandates that the Supreme Court eliminate its backlog of death penalty appeals within 6.5 years. That’s over 350 cases.

These cases take the Supreme Court a very long time, they have records in the thousands of pages, they have prior orders in the hundreds of pages and the court currently spends about 25 percent of its resources resolving approximately 22 of these cases per year. So now imagine if this court is trying to push 350 of these cases out within 6.5 years. It is going to have very limited bandwidth, if any bandwidth, to address any other litigation.

This is one of your main arguments against the law?

It is. We are arguing that Proposition 66 violates the separation of powers by interfering with the court’s ability to balance the work before them in fairness to all litigants.

Have previous ballot measures tried to implement time limits on the courts similar to this?

There was a prior statute that tried to implement an unreasonable time limit on the court and the court in that case said the time limit was unconstitutional, but was able to construe the statute in such a way so as to make it not binding on the courts.

Another similar case said that the courts needed to prioritize a certain kind of case above all others. And again the court said forcing the court to prioritize a certain type of case at the expense of all others is a violation of the separation of powers.

What are the chances that some provisions of the proposition are struck down and others survive?

The proposition sponsors and the state are certainly arguing that certain provisions should stay, but to address that argument we need to back up.

Our first argument for why this statute is unconstitutional is that it violates the single subject rule. That’s a rule that the voters in our state put into our constitution to say that propositions should only be about one thing. You don’t want a proposition that combines two things because that obscures the will of the voters as to both. What if people voted for one only because they wanted the other and vice versa.

We argue that this proposition is about more than one thing and when you violate the single subject rule, a proposition is struck down in its entirety. There’s no way to save it.

What can you take from the court’s order staying implementation of the initiative while it considers your challenge?

I think it’s a great sign. I think it means the court recognizes these are very important questions.

As I’ve read far too much case law relating to propositions, I’ve seen a lot of propositions where the courts stay the proposition in part or they only stay the most problematic portion of the proposition. So I am personally taking it as a very good sign that the court chose to stay the proposition in its entirety. Knock on wood.

You point out in your opening brief that in order to meet the requirements of Proposition 66, additional death penalty appellate counsel would have to be identified in far greater numbers than they have to date. What do you think this case will do in terms of raising awareness about the lack of counsel available to process the backlog of death penalty appeals in the state?

I think it already has raised that awareness. I think this court system is going to immediately run into a big practical problem.

If Proposition 66 passes, the courts will have to create a pool of attorneys qualified and willing to take death penalty cases that’s big enough to process all the pending death penalty cases within 6.5 years.

One of your plaintiffs, former Attorney General John Van de Kamp, passed away while the case was pending? What effect has that had on the proceedings?

His name is removed from the pleadings. We have another plaintiff, so the case moves forward.

It’s been personally very sad. He was a lion in the legal community. Having his mind on our side was helpful and inspiring. I only knew him briefly. Many people can and have said things about what a wonderful man he was. I am just happy to be fighting a case that he believed in.

Ross Todd is bureau chief of The Recorder in San Francisco. He writes about litigation in the Bay Area and around California. Contact Ross at rtodd@alm.com. On Twitter: @Ross_Todd.

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