California Appellate Law Blog : California Appellate Lawyer & Attorney: Archer Norris Law Firm: Trial, Business, Torts: Sacramento, Bay Area, Los Angeles, California

If you noticed a few extra suits, shades, and ear-piece types around the Civic Center last week, you are not alone.  The federal marshals were out in number for the appearance last Thursday and Friday of not one, but two supreme court justices.  Call it the convergence of the black robes.

For those lucky enough to have a seat, Justice Breyer appeared at a sold-out Herbst Theater last Thursday.  In the "conversation with" format, Justice Breyer talked about his career on the high court, his judicial philosophy of "principles and consequences," and his newest book, "Making Democracy Work -- A Judge's View."  Breyer said that justices typically "look to the words at issue, to surrounding text, to the statute's history, to legal traditions, to precedent, to the statute's purposes, and to its consequences evaluated in light of those purposes."  He said, "Of these I find the last two—purposes and consequences—most helpful most often."  Breyer, a Lowell High School grad, was obviously comfortable with the home crowd.  He charmed the audience with a series of anecdotes that often left the crowd laughing.  And Justice Breyer took questions from the audience.  It was electric.

The very next day, Justice Scalia also participated in the "conversation with" format, at Hastings College of the Law.  There, to a crowd of mostly law students, Justice Scalia ruminated on everything from the New York Yankees, Sicilian pizza, and the originalism that is his judicial trademark.  Comparing anything else to ad-hoc decision making, Justice Scalia mocked others by looking up at the ceiling repeatedly and stating, "I wonder if the death penalty is constitutional today?"  Of his approach to adjudication, he said he tries to view the constitution from the framers' perspective and then project that perspective to today's cases and issues.  According to Scalia, any other approach allows a court to make it up as it goes along.  As he put it, there's nothing worse than a court trying to determine if something is an "undue burden."  As is well known, Scalia is witty.  But more than one Left-Coaster in the audience was surprised that he's also charming.  As one audience member put it to me, "I felt like a moth being drawn to a candle." 

Men in black.  Amazing.

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To the uninitiated, oral argument is the denouement of every appeal; the moment when the great appellate orators clash and the appellate court considers how to rule.  But for those that have been around the appellate block more than once or twice, loss of innocence is discovering that the appellate court has a draft opinion already written before the oral argument.  In September 9th's Daily Journal, professor and appellate practitioner Myron Moskovitz had an intriguing guest column called "Abolish Oral Argument?"  In it, Moskovitz, all-around good guy and lover of things appellate, ruminated on the impacts of the "90 day rule" in California's appellate courts. 

Upon submission of a case (at the conclusion of oral argument), the court has 90 days to issue an opinion, or else the justices don't get paid.  Yep - no pay.  Now just think if your paychecks were subject to something like that!  That could be a pretty effective form of incentive.  At the Court of Appeal, it means that as appellant's counsel approaches the podium, the court has already made up its mind.  As Moskovitz puts it, "oral argument in most of California's appellate courts is indeed an 'empty ritual'."  As a justice at the First District told me only half-jokingly, "Sometimes we'd like to hand the lawyers the draft opinion as they are walking away from the podium."

For oral argument lovers, and I am included in that group, the situation is very different in the Ninth Circuit.  The circuit judges are not boxed in by a 90 day rule, and as a result, oral arguments tend to be hotter.  (Admittedly, any oral argument with live human beings could be hotter than some state appellate court oral arguments, but that's not the "hot" I am referring to.)  At the Ninth Circuit, all 3 members of the panel tend to be more interested, ask more questions on the law and the facts, and both parties tend to receive active questioning.  While the panel may have an idea where they are headed, there is still plenty of time to come to a conclusion.  And so they fire away.

I'll take an oral argument in the Ninth Circuit any time. 

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“It doesn't take Hamlet to figure out that something rotten happened in this case.” So begins Great West Contractors, Inc. v. Irvine Unified School District 2010 Cal.App. LEXIS 1521. And when the author is the Fourth District’s Justice David Sills, a little entertainment is bound to be included with the enlightenment. But if you are involved in public works contracting, Great West is far from comedy. It’s a dramatic reminder of the perils and pitfalls facing contractors and counsel. With fewer private projects underway, more firms are bidding on public work. And it’s not like there’s a lot of public projects to bid on either. To the qualified low bidder, goes the rare and coveted work. That’s the theory anyway. Great West exemplifies how ephemeral the phrase “winning bid” can be.

"Responsible bidder” means “a bidder who has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity and experience …” (Public Contracts Code § 1103.) If the low bidder is found to be nonresponsible, it is entitled to a hearing before the bid can be awarded to another bidder.  (D.H. Williams Construction Co. v. Clovis Unified School Dist. (2007) 146 Cal.App.4th 757, 772.) In contrast, “a bid is responsive if it promises to do what the bidding instructions demand.” (Taylor Bus Service, Inc. v. San Diego Bd. of Educ. (1987) 195 Cal.App.3d 1331, 1341.) Responsiveness is “readily ascertainable on the face of the bid.” (Great West Contractors, 2010 Cal.App. LEXIS 1521 at p. *65.) Examples of nonresponsiveness include the low bidder proffering an “insurance trust” instead of the requested CGL policy, proposing to lease a phone system instead of selling it as the bid package required, failure to include requested documentation of compliance with an outreach program, and failure to list the required “class A” license.  

So what happened in Great West? 

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