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Law Office Management

Sep. 2, 2014

Sede Vacante at the California Supreme Court

The departure of two justices means change is coming to the state's high court. A look at the past year's decisions.

Latin for "vacant seat," sede vacante is most often used to describe the period when no pope is presiding in Rome. But it might also describe the anticipation of waiting for smoke signals from Governor Jerry Brown's office when a vacancy occurs on the California Supreme Court. Justice Joyce L. Kennard retired this past April, after 25 years on the court, and Justice Marvin R. Baxter, who has served for 23 years, announced he will not seek a new term in November's retention election.

Brown filled the Baxter vacancy first, nominating Stanford law professor Mariano-Florentino Cuéllar on July 22. Cuéllar will appear on the November ballot for confirmation to a full twelve-year term before deciding a single case.

The Kennard vacancy is likely to remain open until after September 16, so the appointee can be seated immediately to fill out the four remaining years of Kennard's term without having to appear on the ballot until 2018.

Kennard's Legacy
Regardless of who replaces them, the absence of Justice Kennard and the anticipated absence of Justice Baxter will affect the output of the court. Somewhat quirky and unpredictable, Kennard was a frequent author of separate opinions which she labeled "concurring and dissenting," many of which appeared to be calendar memos that lost the concurrence of a majority of her colleagues. But she also produced her share of landmark majority opinions, including rulings that the federal and state rights to freedom of speech and religion do not entitle physicians to deny to lesbian patients fertility treatments that are otherwise available (North Coast Women's Care Medical Group v. Superior Court, 44 Cal. 4th 1145 (2008)), and that a city may be liable under respondeat superior when an on-duty officer leverages his authority to rape a detained suspect (Mary M. v. City of Los Angeles, 54 Cal. 3d 202 (1991)).

On a court that cultivates consensus, Kennard did not hesitate to offer sharp critiques of the majority's misadventures. For example, in Lockyer v. City and County of San Francisco (33 Cal. 4th 1055 (2004)), she criticized as unnecessary the majority's decision to invalidate 4,000 marriages incident to its ruling that the city acted contrary to then-prevailing state law when it issued marriage licenses to same-sex couples."

Some of her dissenting positions ultimately prevailed with her colleagues. For example, she dissented in In re Tyrell J. (8 Cal. 4th 68 (1994)), where the court held that an otherwise unlawful search of a juvenile could be salvaged by an officer's later discovery that the juvenile was subject to a probation search condition. Twelve years later, in In re Jaime P. (40 Cal. 4th 128 (2006)), the court adopted Kennard's position and overruled its earlier decision.

Even when Kennard's logic did not ultimately persuade her fellow justices, it occasionally found receptive ears in Sacramento. In 1999, the California Legislature amended the law regarding stipulated reversals to essentially codify Kennard's dissent to Baxter's majority opinion in Neary v. Regents of the University of California (3 Cal. 4th 273 (1992)).

Baxter's Influence
Justice Baxter anchored the conservative wing of the court throughout his tenure. Always a courtly gentleman, his velvet gloves concealed an iron fist. He frequently led the court in the production of majority opinions; his were restrained and unambiguous. Though he declined to offer a "hit parade" of his landmark decisions, such a list would certainly include John B. v. Superior Court (Bridget B.) (38 Cal. 4th 1177 (2006)) holding that one who should reasonably know he or she has AIDS has a duty to warn sexual partners; and City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (56 Cal. 4th 729 (2013)), which held that state law does not preempt local regulation of medicinal marijuana dispensaries.

A procedural stickler, Baxter rarely voted to overturn a conviction. He even dissented when the court found creative ways to correct an obvious injustice. (See Rappleyea v. Campbell, 8 Cal. 4th 975 (1994).)

Baxter's rate of disagreement with Kennard frequently exceeded 25 percent of the cases, with Kennard usually on the dissenting side. Two such dissents by Kennard were later vindicated by the U.S. Supreme Court. In People v. Frazer (21 Cal. 4th 737 (1999)), Kennard protested Baxter's majority opinion finding no ex post facto violation when a legislative extension of the statute of limitations revived a previously time-barred prosecution. Four years later, Justice Stephen G. Breyer's majority opinion in Stogner v. California (539 U.S. 607 (2003)) agreed with Kennard. Similarly, in People v. Black (35 Cal. 4th 1238 (2005)), Baxter joined Chief Justice Ronald M. George's majority opinion declaring that California's determinate sentencing law did not violate the Sixth Amendment right to a jury trial. Kennard's solo concurring and dissenting opinion was vindicated two years later by the U.S. Supreme Court in Cunningham v. California (549 U.S. 270 (2007)).

However, in two other rulings - both interpreting the Fourth Amendment protection against unreasonable searches and seizures - the high court rejected the position adopted by Kennard and Baxter. In People v. Brendlin (38 Cal. 4th 1107 (2006)), Kennard joined Baxter's majority opinion holding that a passenger in an automobile unlawfully stopped by the police was not "seized" within the meaning of the Fourth Amendment. The ruling was reversed by a unanimous U.S. Supreme Court in Brendlin v. California (551 U.S. 249 (2007)). In the other instance, Baxter and Kennard joined Justice Ming W. Chin's 5-2 majority opinion ruling that police could search a cell phone seized from an arrested suspect without obtaining a search warrant. (See People v. Diaz, 51 Cal. 4th 84 (2011).) This past term a unanimous U.S. Supreme Court, in a powerful opinion by Chief Justice John G. Roberts Jr., ruled that a search warrant was required (Riley v. California, 134 S. Ct. 2473 (2014)).

The departure of two mainstays for the past quarter century gives Governor Brown the opportunity to reshape the high court with a less conservative majority. The coming year will see the emergence of a dramatically different California Supreme Court.

Gerald F. Uelmen is a professor at Santa Clara University School of Law, where Kyle Graham is an assistant professor. Earl Horner, a 2014 graduate, compiled data for this article.


Kari Santos

Daily Journal Staff Writer

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