Too Much Togetherness?

By Gerald F. Uelmen

All seven justices on the California Supreme Court are singing from the same song sheet. Of the 156 published decisions announced from April 1, 2008, through June 30, 2009, 90 percent (138) were unanimous. For the same period, the overall dissent rate declined to 3.3 percent, from the 5.5 percent rate registered in last year's survey. The figure measures dissenting votes as a proportion of all votes cast in the 156 cases decided. Out of 1,092 votes cast to decide cases in conference, only 36 were dissenting votes.

Part of the explanation for this lies in the changing composition of the court's docket. Death-penalty review now occupies more than one-fourth of the caseload, and that proportion increases each year. Death decisions are usually unanimous on this court. For the 15 months ending June 30, all but 2 of the 36 death cases were decided by a 7?0 vote.

The decline in dissents is not a shift to either the right or the left. Both wings of the court have become equally accommodating, willing to follow the moderate course charted by Chief Justice Ronald M. George. The highest rate of disagreement with the chief justice was registered by Justice Joyce Kennard, at 8 percent. On the other hand, Justice Carlos Moreno voted with the chief in 96.8 percent of the cases.

The 4?3 Splits

Throughout its 13-year history, the George Court has averaged ten cases each year in which it divided in a 4?3 vote. But for the 15-month survey period, there were only three such cases?all of them important decisions involving highly contentious issues of public policy.

First, of course, was the groundbreaking decision on same-sex marriage (In Re Marriage Cases, 43 Cal. 4th 757 (2008)). Chief Justice George's bold, sweeping majority opinion applied strict-scrutiny analysis to discrimination based on sexual orientation, and he concluded that limiting the right of marriage to heterosexual couples denied same-sex couples the rights of equal protection and privacy guaranteed by the California Constitution. Justices Marvin Baxter, Ming Chin, and Carol Corrigan dissented. The subsequent amendment of the California Constitution by Proposition 8 brought the issue before the court again. In Strauss v. Horton (46 Cal. 4th 364 (2009)) the court upheld the constitutionality of Prop. 8 against a claim that it revised the constitution. Construing Prop. 8 as a narrow proscription that affected only the right to label a union as a "marriage," the court held that the constitutional amendment trumped the justices' prior determination that a statutory limit on the right to marriage violated the state constitution. Limiting the amendment to prospective application, however, the court declared valid all same-sex marriages entered into prior to the enactment of Prop. 8. Only Justice Moreno dissented, arguing that a change in the constitution to deprive a minority of a previously recognized right is, by definition, a constitutional revision.

The second 4?3 split came in In Re Lawrence (44 Cal. 4th 1181 (2008)), challenging a decision by Gov. Arnold Schwarzenegger to reverse a parole board decision granting parole to an inmate. The majority, led by Chief Justice George, concluded that the circumstances of the commitment offense did not provide any evidence that the defendant posed a current threat to public safety. Justices Chin, Baxter, and Corrigan dissented, arguing that the fact the defendant remained a fugitive for eleven years after committing her crime provided the requisite evidence to justify a finding of present dangerousness.

The third 4?3 split came in the long-awaited ruling in In Re Tobacco II Cases (46 Cal. 4th 298 (2009)). The 2004 amendment of California's Unfair Competition Law (U.C.L.) by Prop. 64 limits class actions to any person "who has suffered injury in fact and has lost money or property as a result of [such] unfair competition." The Tobacco II complaint alleged that the tobacco industry defendants violated the U.C.L. by conducting a campaign of deceptive advertising and misleading statements about the addictive nature of nicotine and the relationship between tobacco use and disease. The case was certified as a class action prior to the enactment of Prop. 64. After enactment, the trial court decertified the class, ruling that each member of the class had to show the requisite injury and loss. In a ruling authored by Justice Moreno, the court concluded that the standing requirements of Prop. 64 apply only to the class representatives, not to all absent class members. With Justices Kennard and Kathleen Werdegar joining Moreno's opinion, the deciding vote was cast by Fourth District Court of Appeal Justice Eileen Moore, designated to sit in place of the chief justice, who recused himself.

Though one other 2008 decision includes an opinion joined by three justices that is labeled a "dissenting" opinion, it seems to be simply another example of judicial confusion about the difference between concurring and dissenting opinions. Even if a minority of justices totally reject the reasoning of the majority opinion but would still reach the same result in terms of the underlying judgment, their separate opinion should be labeled a concurrence, not a dissent. In Van Horn v. Watson (45 Cal. 4th 322 (2008)) the issue was whether the immunity from civil liability created by Health and Safety Code section 1799.102 for a "good Samaritan" who renders care at the scene of an emergency is limited to those who rendered "medical" care. Four justices, led by Justice Moreno, agreed that the Legislature intended immunity to apply only to those rendering medical care. Justices Baxter, Chin, and Corrigan insisted the plain language of section 1799.102 is not limited to medical care. Nonetheless, they concluded that triable issues were presented as to whether there was even an "emergency" in the first place. Thus, they too would affirm the reversal of summary judgment in favor of the defendant. That's seven votes to affirm the lower court?in other words, unanimous.

The Civil Cases

California Business and Professions Code section 16600 provides that "every contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void." Beginning in the 1990s, the Ninth Circuit created a "narrow restraint" exception to section 16600, upholding noncompetition provisions mandating that an employee forfeit stock options if that person is employed by a competitor within six months of leaving, and restricting a party from courting any specific customer. The narrow-restraint exception was recognized if the agreement did not prevent a former employee from working in another "substantial part" of the market or "entirely preclude" a party from pursuing his or her trade or business.

In Edwards v. Arthur Andersen (44 Cal. 4th 937 (2008)) the court unanimously rejected this narrow-restraint exception. In a testy opinion, the court expressed the view that California courts "have been clear in their expression that section 16600 represents a strong public policy of the state which should not be diluted by judicial fiat."

Yet another potential conflict between California courts and the Ninth Circuit was defused in Munson v. Del Taco (46 Cal. 4th 661 (2009)). Although the court had held in Harris v. Capital Growth Investors XIV (52 Cal. 3d 1142, 1175 (1991)) that proof of intentional discrimination was necessary to establish a violation of the Unruh Civil Rights Act, a subsequent amendment provides that a violation of the right of any individual under the Americans with Disabilities Act of 1990 (ADA) would also violate the Unruh Act. The ADA does not necessarily require a plaintiff to show intentional discrimination. In Lentini v. California Center for the Arts (370 F.3d 837, 846-847 (9th Cir. 2004)) the Ninth Circuit held that ADA violations, whether or not they involve intentional discrimination, were now included in the class of discriminatory acts for which the Unruh Act provides a remedy in damages. However, in Gunther v. Lin (144 Cal. App. 4th 223 (2006)) the court of appeal, expressly disagreeing with Lentini, held that a damages remedy under the Unruh Act is not available for unintentional ADA violations. In Munson, answering a question certified by the Ninth Circuit, the state Supreme Court unanimously concluded the Lentini interpretation was right and Gunther's was wrong.

One other civil case is worthy of note. In Cable Connection, Inc. v. DIRECTV, Inc. (44 Cal. 4th 1334 (2008)) the court held that parties could contract for judicial review in arbitration. The court was sensitive to the need for finality in ADR proceedings but was willing to permit parties to stipulate that a court could review an arbitration award for compliance with California law, provided the parties spelled out their intentions in the submission agreement.

The Criminal Cases

Even criminal defense lawyers found a few things to like in the array of unanimous decisions during the 2008?09 survey period. The court endorsed the use of comparative juror analysis in assessing Batson/Wheeler claims, looking at treatment of all jurors in considering whether the peremptory dismissal of a minority juror was motivated by racial discrimination (People v. Lenix, 44 Cal. 4th 602 (2008)). In Verdin v. Superior Court (43 Cal. 4th 1096 (2008)) the justices concluded that courts have no statutory authority to order a defendant to submit to a psychiatric examination by an expert retained by the prosecution. And in People v. Hernandez (45 Cal. 4th 295 (2008)) the court held that temporary license plates on a vehicle do not alone provide reasonable suspicion to justify a traffic stop.

Prosecutors, on the other hand, could take comfort in two rulings authored by Justice Chin. In People v. Chun (45 Cal. 4th 1172 (2009)) the court rejected a challenge to the second-degree felony murder doctrine while overruling three of its precedents to clarify the "muddle" over the merger doctrine. If the underlying felony is "assaultive" in nature, the court declared, it merges with a homicide and cannot be used as the basis for a second-degree felony murder conviction. Dissenting Justice Moreno would simply abolish the second-degree felony murder rule.

In People v. Nelson (43 Cal. 4th 1242 (2008)) the court upheld a conviction for murder 26 years after the death of the victim, when the defendant was identified by a DNA "cold hit" from a criminal database. The court rejected a claim that the right to a speedy trial was denied, and it upheld the method used to calculate the odds that someone else deposited the crime-scene DNA (1 in 950 sextillion). The decision will clear the way for future prosecution of many cold-hit cases, as law enforcement utilizes growing DNA data banks to reinvestigate old crimes.

The Death Docket

After starting with 80 fully briefed death-penalty cases awaiting review, the court decided 36 death cases during the 15 months ending June 30, 2009. That reduced the queue to 60 fully briefed cases. The chief justice's proposal to transfer fully briefed capital cases to the courts of appeal has been taken off the table for now.

Thirty-three death cases were affirmed, and only three were reversed. Just two of the death decisions drew true dissenting votes. In People v. Doolin (45 Cal. 4th 390 (2009)) the five-justice majority, led by Justice Corrigan, rejected the defendant's claim that a flat-fee contract, under which defense counsel could pocket any money that was not spent for investigating the case, created a conflict of interest that prejudiced the defense. Justices Kennard and Werdegar dissented, concluding that the defendant was indeed shortchanged by the lack of investigation to prepare for his penalty trial. They went a step further in suggesting that the court exercise its supervisory power to prohibit flat-fee contracts, as recommended by the California Commission on the Fair Administration of Justice.

In People v. Carasi (44 Cal. 4th 1263 (2008)) a five-justice majority led by Justice Baxter concluded that the trial court did not abuse its discretion by refusing to ask prospective jurors if they could remain impartial knowing that the defendant was accused of the premeditated murder of his own mother and of the mother of his own child on Mother's Day. Again, Justices Kennard and Werdegar dissented, concluding that it was error to deny a defendant the right to thorough voir dire, especially in a case where the prosecution seeks the death penalty.

Although it was not a direct review of a death judgment, the court's 5?2 split in Richardson v. Superior Court (43 Cal. 4th 1040 (2008)) should be noted. The majority, led by Justice Moreno, upheld the trial court's rejection of the defendant's motion for DNA testing pursuant to California Penal Code section 1405, applying an abuse-of-discretion standard. Justice Chin and Chief Justice George dissented, suggesting the court was erecting a higher barrier to DNA testing motions than the Legislature had intended?and noting that permitting the test would have been far cheaper than four years of litigation based on speculation about what the results might have proven. Chief Justice George's dissent was one of only two he registered during this survey period.

Finally, Football!

One of the more interesting cases this past year was Sheehan v. San Francisco 49ers (45 Cal. 4th 992 (2009)), which involved a season-ticket holder's challenge to the indignity of having to submit to a pat-down before entering Monster Park to watch a 49ers game. Though the court was unanimous in reversing the trial-court order sustaining the 49ers demurrer, the justices differed on the standard to be applied in determining whether football fans have a reasonable expectation of privacy when entering a stadium. Justice Chin, in his majority opinion, suggested that private enterprises have greater latitude than governmental entities in imposing security measures. But concurring Justice Werdegar, joined by Chief Justice George and Justice Moreno, took strong exception to that theory, noting that the constitutional privacy clause requires the courts to apply a rule of reason by balancing privacy interests and competing justifications without giving undue weight to whether the defendant is a public entity. The distinct difference between these two views will likely resurface in future cases.

Gerald F. Uelmen is a professor at Santa Clara University School of Law. Data for this article were compiled by Jordan Ciliberto, class of 2010.

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