Moreno retires from the Supreme Court,
leaving behind a legacy of decency
By Kristina Horton Flaherty
Staff Writer
California Supreme Court Justice Carlos Moreno, who authored some of the state’s key gay rights opinions and helped spark recent changes in the foster care system, will leave the bench this month after 24 years as a judge in state and federal courts. Moreno’s upcoming departure, at age 62, after his recent election to a full 12-year term, came as a surprise to some, but citing a mix of career, family and financial reasons, he said recently: “The timing seemed right.”
He plans to re-enter private practice at a law firm while he’s still young enough to actively contribute, he says. His family — including an autistic daughter, a disabled brother-in-law and an aging mother-in-law who lives with him in Los Angeles — needs more of his time and support. He maxed out his retirement benefit last year. And he welcomes the chance to become more involved in political and civic activities. The recent election of Gov. Jerry Brown, too, helped ease his departure.
“I thought it only fair that a Democrat select my replacement,” said Moreno, who was appointed to the court by Gov. Gray Davis in 2001. He currently is the only sitting justice appointed by a Democrat.
Moreno, the court’s sole Latino, has been appointed to judgeships four times in his career, twice by Republicans and twice by Democrats. And in leaving the bench, he said he would simply like to be remembered as someone who was “open-minded, a good listener and a fair decider of important issues.”
UC Irvine School of Law Dean Erwin Chemerinsky said Moreno brought “great intellect and great decency” to the state’s high court.
Santa Clara University School of Law Professor Gerald Uelmen, a longtime analyst of the court, said Moreno has been a moderate “and yet a very compassionate judge” who agreed with recently retired Chief Justice Ronald George roughly 95 percent of the time. He was “a real workhorse” who will be missed, Uelmen said. “I think he wrote some landmark opinions that will really stand the test of time.”
From Uelmen’s perspective, Moreno’s greatest opinion was Fashion Valley Mall v. National Labor Relations Board, a 2007 ruling that upheld the rights of demonstrators to solicit public support in private shopping centers.
Moreno himself believes his work has made a difference in a number of cases dealing with arbitration, class action waivers and the right to a jury trial (Gentry v. Superior Court of Los Angeles and Discover Bank v. Superior Court of Los Angeles, for example).
He leaves a legacy of opinions upholding parental, custody and other rights of same-sex couples as well. Moreno’s 2005 majority opinion in Koebke v. Bernardo Heights Country Club, for example, found that a lesbian couple’s domestic partnership status entitled them to the same family country club membership rights that were available to traditionally married couples.
In 2008, Moreno voted with the 4-3 majority to overturn California’s ban on same-sex marriage as unconstitutional. When the state’s voters removed the right to same-sex marriage less than six months later by passing Proposition 8, a constitutional amendment, the court voted 6-1 to uphold the initiative.
It was Moreno who issued the lone dissent — a controversial move that some characterize as courageous and principled, particularly under the circumstances. He had just been interviewed by White House officials as a potential candidate for a seat on the U.S. Supreme Court. As coincidence would have it, President Obama nominated Sonia Sotomayor for the seat on the same day that the Prop. 8 ruling was released.
“I think in terms of his independence and not being influenced by political factors, he was an excellent judge,” Uelmen said of Moreno.
In his dissent, Moreno argued that such a change in the state constitution was too far-reaching and fundamental to be made through the initiative process with a simple majority vote. Upholding it not only allows same-sex couples to be stripped of the right to marry, he said, “it places at risk the state constitutional rights of all disfavored minorities.”
Recently, Moreno said he believes the feelings toward same-sex marriage are largely generational, not unlike old attitudes toward interracial marriage. “I think that years from now, when we look back at this particular era and development of the law, that it will seem sort of outdated,” he said. “To me, it’s inevitable that we’ll have equality among the sexes with respect to marriage.”
He also said he is troubled by California’s initiative process. He feels it can be misused too easily, with enough money, to serve special interests. “It’s so easily misused,” he said, “that it would shock the initial framers” of the process.
Outside of court, Moreno has chaired California’s Blue Ribbon Commission on Children in Foster Care since 2006 — work driven by firsthand experience. Roughly a year before his Supreme Court appointment, Moreno and his wife, Christine, took in an autistic niece as their foster child. At the time, the dehydrated four-year-old could not speak or chew food, and was being held in a caged crib. “Some people said, ‘Oh, don’t do it,’ but because she was our niece, we really felt that we had no choice,” Moreno said. “Compared to what would have happened to her otherwise, we felt that we should step in.”
Moreno’s past played a role in his decision to intervene as well. He and his four siblings grew up in an uncle’s home. “I felt that, in one sense, if my mother and her children had been saved, in a sense, by an uncle,” Moreno said, “that it was kind of prophetic or poetic justice that I would do the same — sort of like payback — when I had the ability to do it.”
But turning his niece’s life around turned out to be very difficult, “sometimes very frightening and shocking and emotional,” said Moreno, recalling his frustration. “You realize that, well, maybe you can’t conquer this one, no matter what you do.”
Moreno and his wife, who have two other grown children, have since adopted the now-stabilized young girl. But Moreno’s nine years as a foster parent struggling to obtain needed services for her left an impression.
“With persistence and good record-keeping and not taking ‘no’ for an answer and exercising your rights, I think the system does work,” he said. “The question is: Why is it so difficult? And why does it take having to appeal from one level to the next to obtain services for such an obvious case?” And if it was hard for him, as a judge, he said, he could only imagine what it was like for others.
Under Moreno’s guidance, the foster care commission has since recommended sweeping reforms in the state’s juvenile dependency court and child welfare system. Recent changes include, for example, legislation that phases in support for foster youth through age 21 (up from age 18), requires greater efforts to find relatives willing and able to take in family members as foster children and provides more assistance for guardians.
“His leadership and experience have been critical in ensuring a brighter future for this state’s most vulnerable children,” said William C. Vickrey, the California courts’ administrative director.
Legal observers say Moreno has also served as an important link between the court and the Latino community — readily serving on committees and speaking to groups. It is a role that the affable justice clearly relishes.
“I always felt that it was part of my duties as a judge on the Supreme Court,” he said, “to offer sort of a role model to inspire young people . . . that they could aspire to rise to high levels in the legal system.”
The son of Mexican immigrants, Moreno grew up in a working-class Los Angeles neighborhood surrounded by extended family. He recalls his childhood in his uncle’s home as stable and nurturing, even “idyllic.” His uncle worked a union job at a railway delivery service, paid $43 a month in mortgage payments and encouraged his young nephew to do well.
Moreno eventually attended Yale on a scholarship — he was the first in his family to graduate from college — and later went on to Stanford Law School. “The law seemed to offer the most flexibility,” he said, “and the ability to help other people.”
He began his legal career as a deputy city attorney in Los Angeles and spent seven years in private practice before joining the municipal court bench in Compton and later the Los Angeles Superior Court. Named to the U.S. District Court’s Central District by President Clinton in 1998, he presided over complex civil and criminal matters there until he replaced Justice Stanley Mosk on the Supreme Court.
Moreno’s last day is Feb. 28, but it could take months to fill his seat. Uelmen said he thinks Gov. Brown, long committed to diversity on the bench, will look for a well-qualified Latino or African American successor.
In the meantime, pro tem justices will likely be appointed on a rotating basis by Chief Justice Tani Cantil-Sakauye to round out the court. When Moreno announced his retirement, the new chief justice was among those who seemed taken by surprise. Hailing the departing justice as “a consummate professional, a dedicated and gracious jurist,” she said she had fully expected him to remain on the court for at least another decade. But, she added, “I am happy for him because his future is filled with possibilities.”