This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

Law Office Management

Jul. 2, 2006

Meeting in the Middle: Ten Years of the George Court

The California Supreme Court ends a decade with Chief Justice Ronald George at the helm in a comfortable stasis--with its liberal and conservative wings in equipoise. by Gerald F. Uelmen

By Gerald F. Uelmen
      May 2006 marked the tenth anniversary of the appointment of Ronald George as Chief Justice of California. For the California Supreme Court, it has been a period of remarkable stability, with very little turnover. Four of the seven justices have served with Chief Justice George throughout the decade. For those four, the rate of agreement with the Chief Justice has been consistently high-and in the case of Justice Joyce Kennard it has steadily increased.
      Chief Consensus Builder
      Chief Justice George is a consensus builder who leads from the center. During his reign as Chief Justice, the court has split 4 to 3 a total of 114 times. In 96 of those cases, Chief Justice George was in the majority. He voted to dissent in only 28 of the 1,025 cases decided since he took the helm, and he wrote only 16 dissenting opinions. Justice Janice Rogers Brown's departure from the court in June 2005 has reduced the total dissent rate to its lowest point in the past ten years: 8.7 percent for the year, half of what it was during the George Court's first year. This year, 71 percent of the decisions were unanimous, close to the 75 percent record level achieved last year.
      The court has now attained a state of near-perfect equilibrium-with its liberal and conservative wings in equipoise. The highest rate of disagreement on the court is now the 21.4 percent that separates Justices Kennard and Marvin Baxter. Their dissent rates, however, are almost equal: Kennard disagreed with 13 percent of the outcomes, and Baxter was in the minority in 10 percent of the cases.
      Pro Tem Justices
      Although there were few blockbusters among its 100 published opinions this year, the court finished with close to its average annual output of 103 opinions. The magnitude of this achievement can be seen in the fact that 28 of those decisions required the participation of 31 different court of appeal justices, sitting by assignment to replace Justice Brown or other recused justices.
      In only two of the cases did the pro tem justices make a difference in the outcome. In Gomez v. Superior Court (35 Cal. 4th 1125 (2005)), Justice Rebecca Wiseman filled Justice Brown's seat, while Justice Miriam Vogel sat in for the Chief Justice, who recused himself. In a 43 decision written by Justice Carlos Moreno, the court held that a roller coaster-the Indiana Jones ride at Disneyland-was a "carrier of persons for reward" and subject to the heightened duty of care imposed by California Civil Code sections 2100 and 2101. Vogel joined the majority, while Wiseman joined Justices Baxter and Ming Chin in dissenting.
      Then, in Costa v. Superior Court (37 Cal. 4th 986 (2006)), the court issued a 43 ruling justifying its action in restoring to the ballot Proposition 77, the reapportionment initiative that was subsequently defeated by the voters in the November 2005 election. The majority held that the differences between the version of the measure submitted to the attorney general and the version circulated for signatures were not substantial enough to require that the measure be removed from the ballot. Chief Justice George's opinion depended on the vote of pro tem Justice Richard Aldrich to achieve a majority.
      In all, 40 of this year's opinions were issued by a six-justice court after Justice Brown's departure, with the necessary four-justice majority unaffected by her absence. Only five of those opinions were decided by a 42 margin, and two more drew a single dissent.
      Growing Backlogs
      Justice Brown's departure, and the seven-month wait to replace her, was not the only crimp in this year's productivity. Justice Chin, the most productive justice on the court, was out for three months recovering from brain surgery necessitated by subdural bleeding. Thus, while this year's 100 opinions kept pace with the George Court's ten-year average, the number was dramatically down from the 127 produced the previous year-leaving the court with a huge backlog of fully briefed cases still awaiting oral argument.
      Of these cases, 66 are death penalty appeals. Though the court made a valiant effort to keep chipping away at the death penalty backlog, the 25 such cases decided this year allowed it only to tread water. Twenty-five new death judgments arrived on the court's doorstep, leaving it with 392 direct death penalty appeals still to be decided. Currently, 103 of the defendants are still awaiting the appointment of a lawyer to handle their appeals, and 177 death row inmates are still without representation for habeas corpus petitions.
      Judicial Independence
      Ten years ago, when Malcolm Lucas stepped down after nine years as Chief Justice, I asked him what advice he had for his successor. "Keep as a fixed goal the immutable independence of the judiciary," he said. "Everything flows from that."
      As Chief Justice George reflects on his decade leading the court, the independence of the California judiciary is secure. Compared with the surge of political storms that threatens the independence of courts in other states, California waters are calm. In South Dakota, for example, an initiative has qualified for the November ballot that would create a special grand jury to investigate and indict sitting judges who "block" the "lawful conclusion" of a pending case. Called the Judicial Accountability Initiative Law (JAIL), its chief sponsor, Ronald Branson, is a frustrated California litigant who could not qualify the measure in California.
      Twenty years after Californians purged the state Supreme Court of three of its justices, there is little public dissatisfaction with judicial performance at any level-and electoral challenges to sitting judges are actually declining.
      The George Legacy
      Chief Justice George deserves much of the credit for this rosy picture.
      A recent assessment of all 50 state supreme court chief justices concluded that California is among the five states with the "greatest difference between ideology of the Chief Justice and public opinion," with the citizenry "considerably more liberal than the Chief Justice." (Langer & Wilhelm, The Ideology of State Supreme Court Justices, 89 Judicature 78, 85 (Sept.Oct. 2005).)
      But Chief Justice George has skillfully eschewed ideological labeling. He is widely perceived as an evenhanded and astute administrator who has increased the efficiency of the judicial branch without compromising its quality. He has responded vigorously to threats to judicial independence, whatever the source. His consummate political skills have restored cordial relations with the executive and legislative branches of state government. He is already being compared to Phil Gibson in the pantheon of California's greatest chief justices.
      But Supreme Court justices like to leave a legacy in the official California Reports as well. There, Ronald George still has a long way to go before he can be compared to Gibson or Roger Traynor. He's made a good start, though, with a legacy of opinions that enhance and protect the rights of women and minorities and promote openness and accountability in government.
      The greatest challenges-and the greatest opportunities-still lie ahead. With state government on the verge of gridlock, a failing system of public education, rampant corporate greed, and a collapsing state prison system, the agenda of the California Supreme Court will be filled with cases that can make an enormous difference in the quality of our lives.

Annie Gausn

Daily Journal Staff Writer

For reprint rights:

Email for prices.
Direct dial: 949-702-5390

If you would like to purchase a copy of your Daily Journal photo, call (213) 229-5558.

Send a letter to the editor: