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California

Mark Pulliam
Supremes in the Balance
Jerry Brown and the future of California’s highest court
18 April 2014

California’s Supreme Court was once the nation’s most respected and influential state judicial body. Its opinions were collected in textbooks and pored over in law schools from coast to coast. That iconic status began to erode in the 1970s and has deteriorated for the most part ever since. In recent years, the California Supreme Court has become a joke. If he wins reelection in November as expected, Governor Jerry Brown will have a chance to shape the court for years to come. His appointments will determine whether the court moves toward greater moderation or continues the leftward judicial trend that began in his first tenure as governor, from 1975 to 1983.

Brown appointed three activist liberals to the seven-member court during that period. Chief Justice Rose Bird, along with Associate Justices Joseph Grodin and Cruz Reynoso, were ultimately removed by California voters in 1986 for ignoring the law, especially the death penalty. Brown’s successors, Republicans George Deukmejian and Pete Wilson, appointed centrists, but the court never fully repaired its reputation. Under the leadership of Chief Justice Malcolm Lucas (1987–1996), the court reversed much—but not all—of the jurisprudential mischief done during the surreal Bird era, particularly in criminal cases. But the pendulum began swinging in a liberal direction again under Chief Justice Ronald George (1996–2011), who showed a lack of principle when it came to enforcing the rights of property owners, employers, and insurance companies. Moreover, the court suffered a major loss when Janice Rogers Brown, an outspoken conservative, left to join the D.C. Circuit Court of Appeals in 2005.

Under Bird, the court invented the common-law claim for “wrongful termination” (despite a legislative presumption that employment may be terminated “at will”); created the tort of “bad faith refusal to settle” insurance claims; and unleashed a torrent of shakedown litigation for “unfair competition.” The court eventually scaled back the first two but has continued to encourage costly unfair-competition lawsuits. It ruled in 2011, for example, that the maker of Kwikset locks could be sued for labeling the locks “Made in U.S.A.” because some products contained screws and pins sourced in Taiwan. The court’s rulings have spawned a cottage industry in California of suing for minor regulatory violations and trivial inaccuracies in packaging, labeling, and advertising. In 2013, a Sacramento man sued Subway in California federal court because a “foot-long” sandwich he bought at one of its franchises was fractionally less than 12 inches long.

The court also generated a flood of “wage and hour” claims by employees (typically brought as class actions) for offenses such as failing to take prescribed rest breaks and meal periods. Few employers avoided such lawsuits. At the same time, the court is strangely hostile to contractual arbitration of disputes, finding novel reasons and loopholes limiting enforcement of arbitration agreements, though other jurisdictions routinely enforce them. In short, the court’s lawsuit-friendly rulings have created a hostile litigation environment that has led national tort-reform groups to rank California as one of the nation’s “judicial hellholes.” Plaintiffs can assert claims in California that no other state allows, such as “public nuisance” actions against makers of lead paint (before it was banned in 1978) on behalf of local government bodies. In December, a California judge ordered three paint companies to pay $1.1 billion in such a case.

The court’s controversial and divisive rulings extend to other areas. For example, in 1997, Chief Justice George orchestrated recognition of a state constitutional right for minors to obtain abortions without parental consent. The court seems eager to stay ahead of every trend and fad. Just this year, it held that an illegal alien could be admitted to practice law in California, notwithstanding that his presence in the United States is a crime and he cannot legally be employed. “The fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the state bar,” the court declared.

At present, Governor Brown has appointed only one judge, former UC Berkeley law professor Goodwin Liu. Liu’s 2011 appointment was notable, however, because President Obama had previously nominated him to the notoriously liberal Ninth Circuit but withdrew the nomination when the Senate refused to confirm him. By contrast, Liu’s appointment to the California Supreme Court sailed through with no controversy.

The retirement of Joyce Kennard, a moderate who served for 25 years after being appointed by Deukmejian, means that Brown will soon have to pick a new justice. Three of the sitting justices—Marvin Baxter, Kathryn Werdegar (author of the Kwikset decision), and Ming Chin—are over 70. Thus, a reelected Brown may get to appoint a majority of the seven justices. The short list of candidates identified in a recent Los Angeles Times story consists mainly of left-wing law professors, sitting liberal judges, or “public interest” lawyers, such as MALDEF’s Thomas Saenz, who engineered the successful federal court challenge to a 1994 ballot initiative prohibiting illegal aliens from accessing public benefits.

With his judicial picks, Brown has an opportunity to redeem himself for the Rose Bird mistake. Californians should hope that he makes the most of it.

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