The California Supreme Court’s 2009-2010 Term: The “George Court” comes to a close

By Clark Kelso

ANALYSIS

The California Supreme Court’s 2009-2010 term will be remembered as the year Chief Justice Ronald M. George announced his intention to bring his distinguished career of leadership and public service to a close. What a remarkable career it has been. Not since the great Chief Justice Roger Traynor has California been blessed by such a towering judicial figure.

LEADERSHIP ON THE SUPREME COURT

During his 19-year tenure on the Supreme Court, 14 years as its chief, Ron George successfully re-established the preeminence of California’s highest court as one of the leading state courts in the country. The court’s national reputation and prominence had taken a steep dive in the late 1970s and early 1980s, and the failure of three justices to win their retention elections in 1986 further damaged the court's prestige and credibility. In the aftermath of the 1986 election debacle, the court swung hard to the right.

Chief Justice George

Chief Justice George slowly but surely led the court back to the center, and from that position of strength, the court re-emerged in this decade as a jurisprudential and constitutional leader. Its jurisprudence has been marked by fundamental themes that express the very essence of a judiciary that is independent yet appropriately restrained and respectful of the people’s political power and the powers of the other branches of government.

RESPECT THE VOTERS

The court has repeatedly demonstrated deference to the voters in its approach to the interpretation and review of voter initiatives. The most obvious recent example was the court’s decision in 2009 upholding Proposition 8, which limited marriage to persons of different genders. In Strauss v. Horton (2009) 46 Cal.4th 364, the court upheld the power of the voters in Proposition 8 to overturn the court's decision of only one year earlier that same-gender marriage was constitutionally protected (see In re Marriage Cases (2008) 43 Cal.4th 757). The court properly held that, under the state Constitution, the voters had the final say.

Whether Proposition 8 survives under the federal Constitution was not litigated in Strauss, and that issue is now squarely before the Ninth Circuit Court of Appeals in an appeal of Judge Vaughn Walker’s decision striking down Proposition 8 on federal equal protection grounds. The conventional wisdom is that the United States Supreme Court will inevitably grant review in this case, but I suspect that depends very much on what the Ninth Circuit does. If the Ninth Circuit affirms, Supreme Court review would be a near certainty; by contrast, if the Ninth Circuit reverses and upholds Proposition 8, the four reliably liberal votes on the Supreme Court might hesitate to grant review fearing that the high court may not be ready to rule in favor of gay marriage. The fact that an issue is important does not mean it is necessarily ripe for review by the U.S. Supreme Court.

Returning to the California Supreme Court, we also saw the court defer to the voters in the 2000 term by broadly interpreting and implementing the provisions of Proposition 209, which forbids discrimination or preferential treatment in public contracting, education and employment based on race or gender. See Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537.

Proposition 209 was back before the court this year in Coral Construction, Inc. v. City and County of San Francisco (2010) 2010 Westlaw 2991113, where the court rejected a challenge to Proposition 209 based on the “political structure doctrine” of the federal equal protection clause. Under that doctrine, a state will be prohibited from changing the structure of its civil rights laws in a way that raises obstacles to equal treatment. See Washington v. Seattle School Dist. No. 1 (1982) 458 U.S. 457; Hunter v. Erickson (1969) 393 U.S. 385.

According to the court in Coral Construction, that doctrine did not apply because Proposition 209 did not formally raise an obstacle to equal treatment; instead, it raised an obstacle only to preferential treatment. Both the concurring opinion by Justice Carol Corrigan and the concurring and dissenting opinion by Justice Carlos Moreno correctly point out that the Seattle and Hunter cases contain language that, fairly read, would consign Proposition 209 to the “unconstitutional obstacle” side of the page, and both correctly observe that Seattle and Hunter are in significant tension with subsequent U.S. Supreme Court cases. Faced with this uncertainty, the majority understandably went with the voters and the more recent federal authorities.

RESPECT THE CO-EQUAL BRANCHES OF GOVERNMENT

Similarly, the court has repeatedly deferred to the legislature and governor in the interpretation and review of statutes and executive decisions. For example, in Obrien v. Jones (2000) 23 Cal.4th 40, the court upheld the constitutionality of a statute that took away from the Supreme Court the power to appoint all of the members of the State Bar Court in favor of an appointment system in which, of the five judges of State Bar Court hearing department, only two judges were appointed by the court, one was appointed by the governor, one by the Senate Committee on Rules and one by the Speaker of the Assembly. Although the decision transferred significant authority from the Supreme Court to the governor and legislature, the court did not reflexively declare the statute unconstitutional in a vain effort to protect its bureaucratic turf. Instead, the court engaged in a careful analysis of the purposes for the change and its actual likely consequences, ultimately concluding that the change did not violate separation of powers.

The court reached a similarly deferential conclusion five years later in Marine Forests Society v. California Coastal Commission (2005) 36 Cal.4th 1, where the court upheld the constitutionality of provisions giving the legislature a majority of the appointments to the California Coastal Commission.

In cases involving the governor’s parole powers, the court has regularly deferred to executive authority, brushing back claims that Gov. Gray Davis had implemented an unlawful “no parole for murderers” policy in In re Robert Rosenkrantz, 29 Cal.4th 616 (2002), and rejecting lower court instructions to the Parole Board that purported to limit the board’s consideration of relevant evidence and factors in cases remanded to the board for further consideration. In re Michael B. Prather (Cal. 2010) 234 P.3d 541.

The extent of the court’s deference to executive authority will be tested again in a series of cases that are before the court right now involving the legality of the governor’s orders furloughing state employees. Given the court’s general history of deference, those who are challenging the governor’s authority have their work cut out for them.

RESPECT THE ORDINARY PERSON

In the area of civil common law, the court has steered a centrist’s course. The pro-plaintiff excesses of the Bird court ended in 1986 when Gov. George Deukmejian appointed three conservatives to fill the seats vacated by the three justices who lost their retention elections. There was a hard swing to the right under the leadership of newly appointed Chief Justice Malcolm Lucas, and several Bird court precedents were overruled as a result. See, e.g., Parvaneh Moradi-Shalal v. Fireman’s Fund Insurance Companies (1988) 46 Cal.3d 287, overruling Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880; Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, overruling Seaman’s Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752.

As the composition of the court gradually changed with appointments by Govs. Pete Wilson, Davis and Arnold Schwarzenegger, and under the strong leadership of Ron George, who was appointed chief in 1996, we have seen the California Supreme Court move to the center and express respect for the ordinary person’s interests in employment and privacy and as consumers.

For example, in the field of employment, although the court reiterated its support for the contract-based “at will” doctrine as set forth in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, over a period of years, the court delineated a sophisticated framework for determining when a discharge violated public policy considerations and could nevertheless result in the imposition of tort liability upon the employer notwithstanding the “at will” doctrine. See, e.g., Stevenson v. Superior Court (1997) 16 Cal.4th 880 (tortious wrongful discharge as applied to older workers); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66 (tortious wrongful discharge based on federal aviation safety regulations). The court never adopted an all-or-nothing rule in this area of law to the benefit of employees.

In the field of privacy, in a decision this term, the court held that an employee’s privacy interest in his or her office may be invaded when the employer secretly installs a camera in the office to determine whether a computer in the office is being misused during overnight hours, although the court also held that the intrusion on the particular facts in this case was not “highly offensive” (primarily because the defendant carefully limited the scope of the videotaping activity in an attempt to discover only improper use during off hours). Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272. In prior years, the court has recognized that season ticket holder’s privacy may have been violated by a policy of subjecting all ticket holders to a pat-down search prior to entering the stadium to watch a football game. Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992. Privacy interests receive special protection in California.

In the field of consumer protection, the court has given Section 17200 of the Business and Professions Code a broad interpretation to protect consumers against any and all types of unfair, unlawful or fraudulent business practices, Cel-Tech Communication, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, and the court has recognized the broad standing rules which apply to such actions. Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553. However, the court has tried to steer a middle course as to the remedies available to consumers by rejecting the effort to use Section 17203 to secure disgorgement of profits from a business in a representative action absent proper certification of a class. Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116. See also Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134 (limiting the disgorgement remedy further to restitution).

In each of these areas and more, the court has searched for, and usually found, a middle ground where common sense and reasonableness rule the day. It has avoided the extremes, whether on the pro-plaintiff side or on the pro-business side.

LEADERSHIP IN JUDICIAL ADMINISTRATION

Chief Justice George was equally successful in leading the judicial branch as the chair of the Judicial Council. Throughout his 14 years as chief, he was committed to strengthening the judiciary as a co-equal branch of government, to improving access to the courts for all, particularly for those who were unrepresented or underrepresented, to advancing the cost-effective and accountable administration of the courts and to bringing the courts into the 21st century in its use of technology.

The list of administrative accomplishments and successes is long: state trial court funding; unification of the trial courts; negotiation of a trial court employee protection act; transfer of ownership of court facilities from the counties to the state judiciary; jury system improvement; increased availability of court interpreters, and creation of family court self-help centers for unrepresented litigants, to name just a few.

In addition to these significant “macro” changes, the chief’s leadership has resulted in a culture of innovation within our court system that will benefit Californians for decades to come. California’s courts and their employees, both judges and staff, are relentless problem solvers, all of whom are committed to improving access to justice.

There is only a little unfinished business from George’s ambitious agenda. The courts’ management of their facilities and management of a multi-billion dollar construction program will be a challenge for the next chief since the courts have taken on a very large portfolio of buildings and construction projects. In addition, the statewide court case management system is entering its most sensitive, expensive development and implementation phase, and large technology projects are a challenge for any organization.

And of course there is the death penalty. Notwithstanding the chief’s decade-long effort to streamline the review process and find more lawyers willing to take on death penalty appeals, the death penalty process in California remains stuck firmly in “park,” mostly for reasons beyond the chief’s control.

There are now almost 700 inmates on Death Row, almost 250 inmates more than when Ron George was appointed chief 15 years ago. If you assume – contrary to all experience and reasonable expectations – that we somehow started executing one inmate on Death Row every two weeks, it would take the state an amazing 27 years just to clear the backlog (and this assumes zero new death penalty convictions for the next 27 years). Each of those years will cost the state hundreds of millions of dollars in excessive corrections and litigation costs associated with maintaining the death penalty. Just this month, the administration announced it was starting construction on a $350 million new Death Row facility because the current facility has run out of space and is literally falling apart. Finally, there is the burden on the Supreme Court itself. Again this year, 20 percent of the court’s opinions were automatic death penalty appeals, a terrible waste of the court’s precious attention and resources. It is time to stop throwing good money after bad. The state simply does not have the will, capacity or money to implement the death penalty in a reasonable fashion.

CONCLUSION

The chief has earned his retirement and our gratitude for his service. He will be leaving the California judiciary much stronger than when he joined the Supreme Court. The courts are more accessible and better prepared to meet the many challenges of the coming decades. Public trust in the judiciary remains at high levels. And Chief Justice George led the California Supreme Court back to national stature. Throughout his tenure, he was the most influential vote on the court, and he often took responsibility for authoring the court’s most difficult and politically sensitive decisions.

Ron George has been a leader in every sense of the word. We will not likely see his equal for generations to come.

Clark Kelso

• Clark Kelso is a professor at the University of the Pacific McGeorge School of Law and he serves as the federally-appointed receiver responsible for California’s prison medical care system. The views expressed in this article are solely the personal views of the author.