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Law Office Management

Sep. 2, 2006

The State Supreme Court: Right, Left and Center

The recent history of the state Supreme Court presents a play in three acts: the Bird Court pushes the law to the left, the Lucas Court pushes it sharply to the right, and the George Court brings it back the center. by Robert Egelko

By Robert Egelko
      Left, right, and center—that's a thumbnail description of the California Supreme Court over the past quarter century.
      These political shifts might also be described as a play in three acts: the turbulent liberal reign of Chief Justice Rose Bird (197787), the counterrevolution of Chief Justice Malcolm Lucas (198796), and the centrist tenure of Chief Justice Ronald George (1996). Stir in the historic retention election of 1986, the dark genius of Justice Stanley Mosk, a menagerie of state politicians, and California's morbid fascination with the death penalty, and we've got ourselves a movie treatment.
      There's more to the story, of course. Start with Bird, the former public defender who became Gov. Jerry Brown's Agriculture and Services secretary, helped engineer a landmark farm labor law, and banned the backbreaking short-handled hoe. Brown tapped her not only to become the court's first female justice but also, at age 40, to succeed the retiring Donald Wright as chief justice.
      The short history is that Bird presided over a very liberal court in the '80s while the voters were becoming more conservative, passing initiatives to cut taxes and punish criminals and putting George Deukmejian in the governor's office. Bird survived a close election in 1978; but eight years later, after her court had virtually nullified the state's capital punishment law by overturning 64 of 68 death sentences that came before it, she was buried in a landslide vote that also swept away fellow Brown appointees Cruz Reynoso and Joseph Grodin. It marked the first time since California instituted retention elections for its appellate courts in 1934 that a sitting justice had been unseated.
      A fuller version is more complex, but it's hard to dispute that the Bird Court was on the judicial left. Interpreting civil and constitutional rights broadly, it outlawed race and sex discrimination in jury selection, gender-based discounts by businesses, housing discrimination against families with children, and the exclusion of girls from Boys' Clubs. Punitive damages-which have since fallen into constitutional disrepute-were blessed as the public's scourge against insurers who stonewalled legitimate claims and businesses that disavowed valid contracts. (Royal Globe Ins. Co. v. Superior Court of Butte Cty., 23 Cal. 3d 880 (1979).)
      In addition, the court recognized public employees' right to strike and the right of poor women to choose abortion rather than childbirth on an equal basis with wealthier women. (Comm. to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252 (1981).) The ruling on publicly funded abortion-perhaps the court's most lasting legacy-survived many attacks and provided the foundation for a ruling in another abortion case, 16 years later, that helped to define the newly inaugurated court under George. The death penalty reversals were brought about by the Bird Court's plausible interpretation of a 1978 capital punishment initiative-that it applied only to intentional killers-which the chief justice and her colleagues then stretched to the outermost limits. In one case, the court overturned the death sentence of a killer who had stabbed a teen 48 times, noting that the jury wasn't asked whether he'd intended to inflict pain.
      Still, the Bird Court overturned fewer death sentences in nine years than the Wright Court did on a single day in 1972, when Chief Justice Wright wrote a 61 decision declaring the state's death penalty law unconstitutional, thereby permanently commuting the sentences of every condemned prisoner, including Charles Manson and Sirhan Sirhan, to life with the possibility of parole. (People v. Anderson, 6 Cal. 3d 628 (1972).) In fact, from the 1940s onward, California courts had been breaking new ground in civil rights law, dismantling historic barriers to tort liability, and pioneering the use of the state constitution to forbid sex discrimination and recognize rights for criminal defendants that the U.S. Supreme Court had rejected.
      The court's criminal law doctrine, known as independent state grounds, hindered prosecutors far more than its death penalty rulings. In 1982 prosecutors spearheaded passage of an initiative-grandly titled the Victims' Bill of Rights-that required state courts to follow federal evidence standards. When the court upheld the measure on a 43 vote, Mosk, who had written most of the now-repealed rulings since the late 1960s, mourned in dissent: "The Goddess of Justice is wearing a black armband today, as she weeps for the Constitution of California." (Brosnahan v. Brown, 32 Cal. 3d 236, 299 (1982).)
      Liberal courts, thus, were not new to California. One of the Bird Court's key distinctions was the diverse job history of its members. Few justices before or since had ever been a public defender like Bird, a poverty lawyer like Reynoso, a labor lawyer like Grodin, or a human rights lawyer like Frank Newman. But its unique trait-most evident in its chief justice-was a fusion of unswerving liberalism and a confrontational style, or maybe just an indifference to public opinion. Even Bird's critics usually acknowledged that she was a principled jurist. But they had little trouble portraying her as subversive to the people's will. When the court upheld tax-cutting Proposition 13, she alone dissented and then joined a majority that interpreted its scope narrowly-a ruling later reversed by the Lucas Court. Bird voted, usually in dissent, to overturn or hamstring other popular measures, including the mandatory-sentencing, "use-a-gun, go-to-prison" law-a politically charged case that inspired two books and the most embarrassing public hearings in the court's history. (People v. Tanner, 24 Cal. 3d 514 (1979).)
      As Bird's poll ratings plummeted, she continued to vote to overturn death sentences, even the few her colleagues approved. As the political world closed in on her, she shunned political advice and fired each campaign consultant she hired, saying she didn't want to trick people into voting for her.
      After her defeat, Bird spent the rest of her life in self-chosen obscurity and died of breast cancer in 1999. Her memorial services included fitting tributes to her courage and integrity. But a political epitaph for her court was pronounced much earlier by Bill Zimmerman, a fellow liberal and one of the consultants she had fired. Surveying the results of the 1986 election-the state apparatus and the liberal doctrines Bird cherished left in the hands of the first conservative-controlled court in 30 years-he observed, "It wasn't hers to lose."
      Lucas, Deukmejian's former law partner and his first supreme court appointee in 1984, now commanded a 52 majority with an evident mandate from the voters to turn the court around. He was only partially successful.
      The court quickly repealed the intent-to-kill requirement-with Mosk, who had voted for the previous ruling in 1983, unblushingly writing the majority opinion (People v. Anderson, 43 Cal. 3d 1104 (1987))-and then tackled a huge pile of capital cases. Nine years later, when Lucas retired, his court had ruled on 225 death sentences and upheld more than 90 percent of them, regularly finding that defects in the trial-a drunken lawyer in one case, wrongfully admitted evidence of gruesome crimes in others-were "harmless errors" that could not have affected the verdict.
      But only a handful of executions had taken place. Federal courts were starting to overturn some of the sentences, death row inmates were waiting three years for an appellate lawyer, and the backlog of pending capital appeals had actually grown from 174 to 250, according to statistics compiled by Professor Gerald F. Uelmen of Santa Clara University School of Law. The court's capacity for noncapital cases had shrunk correspondingly; perhaps not coincidentally, the three new justices appointed in 1987-John Arguelles, Marcus Kaufman, and David Eagleson-left after two, three, and four years, respectively.
      On the civil side, the Lucas Court overturned its predecessor's rulings on punitive damages and restricted suits against insurers, employers, and drug companies. It declared that social policy should be made by legislators and voters, not the courts, and that commercial wrongdoers should be policed by public agencies, not private liability. In response, consumer advocates won passage of Prop. 103, a 1988 initiative stiffening insurance regulation, and the court largely upheld it. The ruling signaled that, whatever its pro-business sympathies, this was now a court that was sensitive to the people's will.
      That sensitivity proved troublesome, however, when the public's wrath was directed against state legislators in a 1990 initiative limiting their terms of office and cutting their operating budget by 38 percent. Lucas, in a ruling upholding the measure, said it would guard against "an entrenched, dynastic legislative bureaucracy" and suggested the Legislature would be better off with a leaner budget. (Legislature v. Eu, 54 Cal. 3d 492 (1991).) The comments provoked a brief legislative proposal to slash the judicial budget by 38 percent and seriously damaged the court's standing in Sacramento. Lucas was no longer invited to give his annual State of the Judiciary address.
      But the Lucas Court won public acceptance at the ballot box and had a lasting impact on California law in fields as diverse as tort liability and capital punishment. The court's rightward surge ebbed only in Lucas's final years as chief justice, possibly reflecting a change in the state's political climate. Although the court had a 61 Republican majority in 1991-an alignment that continues today-the balance of power gradually shifted with the arrival of more moderate justices such as Joyce Kennard, a Deukmejian appointee, and Kathryn Mickle Werdegar and Ron George, both appointees of Gov. Pete Wilson.
      The clearest sign that Lucas had lost his majority on social issues came in 1995-a year before his retirement-when he dissented alone from a George opinion that barred sex discrimination by private country clubs. (Warfield v. Peninsula Golf and Country Club, 10 Cal. 4th 594.) The outgoing court's last major case was a 43 ruling in 1996 upholding a parental-consent law for minors' abortions. But Lucas and Justice Armand Arabian stepped down before that decision was final. The new court granted reconsideration, and George led a new 43 majority that overturned the law, relying on the same California privacy rights that the Bird Court had invoked in 1981. (American Acad. of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997).) Antiabortion groups then launched the first organized anti-retention campaign since 1986, targeting George and new Justice Ming Chin. Both campaigned strongly and easily won reelection.
      In his decade as chief justice, George has excelled administratively, repairing relations with the Legislature and winning passage of state trial court funding and trial court unification. His court, the most diverse by gender and ethnicity in state history, has become one of the least diverse ideologically-particularly since the departure in 2005 of conservative firebrand Janice Rogers Brown for the federal appellate bench, and Gov. Arnold Schwarzenegger's unhurried appointment last January of the more centrist Carol Corrigan as her replacement.
      The George Court has upheld death sentences at nearly the same rate as its predecessor, and it hasn't strayed far from the conservative path on crime. The justices have handled the three-strikes sentencing law gingerly, ruling that trial judges have some discretion to disregard a third-striker's prior convictions. (People v. Superior Court (Romero), 13 Cal. 4th 497 (1996).) But they limited that authority in later cases and steered clear of constitutional questions about life terms for petty criminals.
      On issues of sentencing and parole, in particular, the George Court has at least equaled and perhaps surpassed the Lucas Court in its deference to decisions by the governor, the Legislature, and the voters. For instance, rulings on the governor's power to veto paroles and the parole board's authority to deny release set such minimal standards of review that they virtually eliminated the possibility of parole for most life prisoners. The court's routine affirmances of three-strikes sentences have merely shifted the constitutional debate on proportionality of sentencing to the federal courts. Similarly, the justices have had little to say about ineffective assistance of counsel in capital cases, and they have been silent on lethal injection, leaving those issues up to life-term federal judges.
      On civil rights, however, the George Court has followed a different path, one that might be described as cautiously liberal. It has upheld adoption and parental rights for gays and lesbians and protected same-sex domestic partners from discrimination on the basis of marital status. It upheld the Boy Scouts' exclusions of gays and atheists, but later it allowed the city of Berkeley to withhold a rent subsidy from a scouts affiliate because of that policy. To no one's surprise, the court refused to validate same-sex weddings performed in San Francisco in defiance of state law. But its ruling was narrowly focused and left the constitutional status of sexual orientation for another day. The court gave a typically broad reading to the anti-affirmative action Prop. 209, but it upheld an injunction against racial slurs in the workplace, took a strong stand against age discrimination, and sided with women's-rights advocates in cases involving sexual harassment and access to contraception as well as to abortion.
      The George Court, in short, seems to be where opinion polls suggest most Californians are: punitive on crime, open-minded on social issues, environmentally friendly, and leery of judicial intervention in political controversies. That's a comfortable place to be for any elected official-perhaps a bit too comfortable for an institution that supposedly serves as a bulwark against overreaching by the political branches.
      The court has some independent voices, such as Kennard and Werdegar, but it does not have anyone who can be counted on to speak the unspeakable, to question conventional assumptions, to tilt at windmills, or to broaden the debate. Someone such as Rose Bird, for example. Or her ideological opposite, Janice Rogers Brown.
      There is, of course, a counter-argument: that policymaking should be left to those who are elected to make policy, and that a court that does too much is more dangerous than a court that does too little. The justices of the George Court seem satisfied with their roles. They are no longer an issue in partisan campaigns, and five of the seven have been in office for more than a decade, with no signs of imminent departure.
      For the moment, at least, peace reigns.
      Robert Egelko ( is the legal affairs reporter for the San Francisco Chronicle.
      Time Capsule Sidebar
      Time Capsule ? 1992
      500,000 Number of copies of How to Do Your Own Divorce Nolo Press has sold since its publication in 1971
      Double murderer Robert Alton Harris dies in the gas chamber, marking the resumption of executions in California after 25 years.
      Rioters take to the streets in Los Angeles after four white police officers, charged with using extreme force in the videotaped arrest of Rodney King, are acquitted by a predominantly white jury.
      The marbled murrelet, a coastal seabird, is listed by the U.S. Fish and Wildlife Service as a threatened species.
      ?Lawyers have become cynical; they don?t like themselves, each other or what they do every day. In the simplest terms, the profession is taking the life out of people.? ?a law firm consultant in Orange County who decided to quit lawyering after 18 years
      Time Capsule ? 1993
      California surpasses Texas as the state with the largest death row population.
      At Pettit & Martin?s 101 California Street office in San Francisco, eight people are shot and killed and six are injured by a disgruntled former client who then kills himself.
      The U.S. Fish and Wildlife Service declares the California gnatcatcher a threatened species.
      Charles Keating is found guilty of federal racketeering, fraud, and conspiracy charges in the collapse of Lincoln Savings and Loan.
      The Firm is released.
      ?It is too bad that people say, ?Who is the chief justice?? And they know who I am.? ?Joseph A. Wapner, the original judge on the hit TV show The People?s Court
      Time Capsule ? 1994
      52% California lawyers surveyed who say they would choose to be a lawyer again if they had it to do over
      63% Lawyers surveyed who agree there are too many lawyers in California
      State voters approve Proposition 184, the three-strikes law, which imposes mandatory 25-years-to-life prison sentences on anyone who is convicted of three felonies, provided the first two are either serious or violent.
      Time Capsule ? 1995
      Ex-governor Jerry Brown starts a commune in downtown Oakland that houses a law clinic for low-income people.
      A fertility clinic at the University of California, Irvine, is forced to close amid allegations that its doctors removed female patients? eggs without their knowledge, then implanted them in other patients.
      A Los Angeles jury acquits O. J. Simpson of murder and turns Johnnie ?if it doesn?t fit, you must acquit? Cochran into a superstar.
      Time Capsule ? 1996
      California voters approve Proposition 215, which legalizes the use of marijuana for medicinal purposes.
      Ron George becomes chief justice of the California Supreme Court.
      Brothers Lyle and Erik Menendez are sentenced to life in prison without parole for killing their parents in their Beverly Hills home.
      Voters approve Proposition 209, the California Civil Rights Initiative, effectively ending state-sponsored affirmative-action programs?except for those required by federal law.
      ?These patents are the greatest legal scam of the 20th century.? ?self-styled ethicist Jeremy Rifkin, on patenting genes

Annie Gausn

Daily Journal Staff Writer

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