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Excerpts from ‘Chief: The Quest for Justice in California’

Chief Justice Tani G. Cantil-Sakauye’s introduction to the book:

In 1996, when Ronald M. George became Chief Justice of California, I was in my sixth year as a municipal court judge in Sacramento County. The Supreme Court and the Judicial Council were distant entities; sources of guidance, precedent and rules to be applied on the bench, but not entities that affected me personally. As Chief Justice George assumed his leadership position as head of the Judicial Branch and chair of the council, I anticipated that I would experience his influence as one of a large cadre of state judges whose courtroom work would reflect the decisions of the two bodies that he would now lead—whether administrative or jurisprudential. I knew that his visionary leadership in reorganizing and strengthening the court system and his keen intelligence and jurisprudential experience would be inspiring and beneficial. I underestimated.

Chief Justice George’s leadership in the Judicial Branch has been nothing short of legendary. He saw a disjointed, sometimes struggling collection of individual courts and transformed them into a true judicial branch of government, powered by a deliberate balance between state oversight and local control. One might inquire why Chief George would undertake such a massive restructuring of the Judicial Branch. The answer is simple yet undeniable—Chief George was committed to access to justice for all. As I presided over courtrooms in my local court, I reaped the rewards of his endeavors. As Chief Justice, I have come to admire even more how his major structural reforms have enabled our courts to withstand the great California recession to the greatest degree possible. The judicial branch has struggled and continues to do so, but our courts would be in far worse shape had the changes he championed not been adopted.

My journey to becoming a lawyer and judge started when I was very young and experienced my mother returning home, feeling disrespected and disheartened, after going to court without counsel to protest the forced sale of our family home due to redevelopment. I learned a lesson that I have seen repeated time and again: what courts do—and how they do it—has a profound effect on individual lives and rights. Chief Justice George thoroughly understood that. He demonstrated it in his unwavering focus on ensuring access and fairness for all, his efforts to encourage increased minority representation in the bar and bench, and in his sensitivity to how the sweeping history-making changes he led would have day-to-day consequences of enormous import to individual litigants. He believed in the power of the courts to effect change and it was clear he wanted the courts to exercise that power wisely and well.

In 1997, I was elevated to the Superior Court. There, I had the opportunity to create and then preside over Sacramento’s first courtroom dedicated solely to domestic violence issues. I was part of a vanguard of judges looking to find more effective ways to serve the community by looking outside the courtroom doors—and our efforts were encouraged, enhanced, and supported every step of the way by the Judicial Council led by Chief Justice George and the Administrative Office of the Courts. California saw an increasing profusion of collaborative justice courts and became recognized as a national leader in seeking new partnerships to make court services more effective and beneficial not only to individuals, but to society as a whole.

This was just one area in which Chief Justice George’s leadership made a difference. He promoted the basic premise that by focusing services on particular populations of court users whose appearance in criminal court often simply highlighted a broader problem, courts could prevent future criminality and mitigate potential dangers to society. My experience in advancing the use of domestic violence prevention programs caused me to greatly appreciate how Chief Justice George transformed and improved the court system. The difference between how courts operated at the time I first took the bench and how they function today is unmistakable—the courts are not limited to the strict confines of the cases that come before them but rather the courts now are partners responsive to the needs of the communities they serve.

I was elevated to the Court of Appeal in 2005, and in 2008, I was thrilled to be named to the Judicial Council. The branch had come alive and was exciting, and relevant in a way it had not been when I began practice. The expectations of all whom we served, the diversity of California, the challenges facing courts— all had expanded, morphed, and opened up new areas and perspectives.

My experience on the council brought even greater appreciation and respect for Chief Justice George’s leadership and his dedication. It was a great privilege not only to be a beneficiary of his vision but to serve alongside him in continuing to make positive changes. He also appointed me to the Commission for Impartial Courts, an inclusive and wide-ranging study grappling with difficult issues centered on preserving and enhancing an impartial court system. As he recognized, too often the notion of “independence of the judiciary” was being confused with the concept of judges acting based on personal preferences. Chief George understood that it was essential that the public understand the value of a truly “independent” judicial branch that was not politically or in any other fashion reliant on or taking direction from any source other than the rule of law.

My appreciation for Ronald George and all that he has accomplished has grown exponentially since I succeeded him as Chief Justice. This position is not for the faint of heart or the easily fatigued. He has made it that way, not only by setting an example of strong leadership; the role of Chief Justice necessarily has had to greatly expand in order to accomplish his vision for the courts.

There is yet another wrinkle. The focus on the administration of justice, of course, is only part of the role. The Chief Justice of California also participates fully as a member of the Supreme Court, presides over oral argument and court conferences and meetings, produces one-seventh of the opinions, and handles internal administrative and policy issues. At this point, mentioning the intermittent but, nonetheless, very real demands of the role of chair of the Commission on Judicial Appointments, which reviews gubernatorial appointments to the Appellate and Supreme Courts, would seem like piling on.

When I arrived at the Supreme Court, I thought I was a reasonably seasoned appellate justice. I soon found that the work of the state’s highest court is different in quantity and urgency to a degree that one really cannot comprehend from outside these chambers. This is all the more reason to marvel and appreciate the remarkable jurisprudential legacy from Chief Justice Ronald George. From his earliest days as an advocate before the United States Supreme Court for our state, to his 15 years presiding over one of the finest groups of justices one could hope to assemble on one bench, he has been a thoughtful principled jurist. His opinions have strengthened the rule of law and the foundation for the reputation of California’s high court as one of the finest—indeed, studies have shown that opinions of our court are the most followed by high courts in other states.

Ronald George served with grace and wisdom, and he made it look deceptively easy. As I have grown to understand in greater detail the demands of the position and the complexity of being the leader of the third branch of government, my admiration and appreciation for him and his body of work continues to grow. Like him, I have spent my legal career in public service—and, like him, I believe there can be no higher calling. He set the bar very high—after helping to redesign a far more challenging playing field. Each day I uncover another reason to appreciate what he did, and each day I find another challenge to moving ahead. My hope is to serve with honor and to advance and improve the branch that George built. The foundation that he laid, the example that he set, the courage that he displayed, the vision that he demonstrated—and most of all the deeply felt, undiluted commitment to improving the administration of fair and impartial justice for all that he modeled—all light the way for those of us who follow. I thank him—and am most enthusiastic to join others in learning more about his history from the pages that follow.

The Honorable Tani G. Cantil-Sakauye
Chief Justice of California, August 2013

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George discusses the reaction to one of his most well-known rulings as a trial court judge – refusing to grant the prosecution’s motion to dismiss the Hillside Strangler case:

It appeared to me from the scene in the courtroom and the reaction immediately afterwards that the parties—both the prosecution and the defense—were stunned by the ruling. I recall there were some media accounts that suggested this could be “George’s folly.” Who was this judge to require the D.A. to proceed with a case in which the D.A. had little faith and that would result in great expense to the county in proceeding with a trial that was essentially unwinnable? Under the headline “Judge not known for controversy,” the Los Angeles Times described the ruling as “extraordinary.”

But my view was, even were the jury to render a verdict of acquittal, this was a case that, given the state of the evidence available, had to go before a jury in order to preserve the public’s confidence in its system of justice. These serial killings had been front-page news day after day, reflecting how the community was terrorized by the discovery every several days of another nude, strangled body on a hillside facing the civic center from different angles of a circumference.

In subsequent years, various persons—including one of our court administrators who was living in the Glendale area—have told me that women and girls were afraid to leave their homes, especially at night. What made it so insidious were the indications that the perpetrators might very well be a police officer or a couple of officers or individuals pretending to be law enforcement officers, because there had been some sightings of victims being stopped by what appeared to be plainclothes officers displaying badges. On one or more occasions, observations had been reported of police agency insignia affixed to the exterior of what could have been an undercover vehicle. People were afraid when they were approached by a police officer—not knowing if he was a police officer committing these crimes or someone pretending to be a police officer.

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George talks about drafting the court decision that recognized the right of marriage by same-sex couples:

What I ended up doing in preparing the case was unprecedented, as far as my own experience is concerned, and rarely done in the past practice of the California Supreme Court. At least I certainly didn’t encounter it during my 19 years on the court, and I hadn’t heard of this being done before. I worked with [Research Attorney Hal Cohen] to prepare a calendar memorandum on the case reflecting two opposite outcomes. As I indicated before, a calendar memorandum is a draft opinion.

I made an appointment—basically, informally, I asked to drop by—with each of my six colleagues. I informed all of them, at these six separate meetings, that I was giving serious consideration to recommending that the court invalidate the marriage statutes that limited marriage to the officially recognized relationship “between a man and a woman,” and that I would, in the next day or two, be circulating a draft with both options and would very much welcome and await the views of each of them before finalizing my own views. I would want to study their preliminary responses, their overall input on the issue, in formulating my own final position. I thought, given the momentous, novel, and controversial nature of the legal issues, that this approach would be appropriate and would best serve to edify my own views. Of course, as chance would have it, I ended up having three justices in favor of one version and three in favor of the other, so I was—as came to pass on many occasions during my tenure as Chief Justice—the deciding vote, the tiebreaker, on this issue.

George discusses his choice to visit each of the other six justices in person to warn them that two versions were coming:

The reason I did that was that it was highly unusual to put out alternate versions. Of course, normally the nonauthoring justices would welcome the author’s taking a position. Here my colleagues didn’t have that assistance, if you will, but they had what hopefully was an objective presentation of both sides. I wanted them to know what was forthcoming, instead of their just finding this in their chambers mail slot the next day. I don’t recall any substantive discussion taking place at any of those six meetings. I remember a couple of the justices having their eyes very, very wide open at, I suppose, even the consideration of the outcome of same-sex marriage, notwithstanding the fact that it was only one of two alternatives being presented to them. But the reaction of my colleagues was basically one of wait and see, and “I’ll be very interested to read this.”

Then of course in the days that followed there were very helpful comments, there were disagreements, there were suggestions on how to make one conclusion or another more palatable. There was the usual process, although more extensive here than in most other cases, of back and forth and, in effect, informal negotiation. “This should be added.” “This should be taken out.” “This should be reworded.” As I’ve described elsewhere in our conversations with reference to a much later stage in the decisional process, each little change made in a draft opinion circulated after oral argument, even if two or three words, would necessitate a round of these pink “okay” sheets, until we ultimately had a final product. As in any case, the author of an opinion had to be mindful of the risk that making an addition or deletion, in order to satisfy the concerns of one colleague, might cause you to lose the vote of one or more other colleagues.

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George talks about how the justices sometimes use oral argument to try to change the mind of a colleague:

[P]erhaps the attorney, whether sensing it or not, is playing the role of a ping-pong ball in that dialogue between two or more justices. Sometimes it’s difficult for the justices to get a question in, too. There have been situations where all seven of us are firing questions away at an attorney, and one or more of the justices may ask a series of lengthy, related questions. Another justice may end up not having had the chance to ask a question and may say, “I’ll reserve my question for the next attorney or for rebuttal.” Sometimes justices will defer to each other once they both start talking at the same time. Sometimes they won’t, and it’s whoever continues speaking or speaks loudest who ends up being able to pose the question and obtain an answer. There is no protocol in terms of who goes first or who cedes to another; it is not based on seniority or anything else. Sometimes it’s more or less just a situation of jumping in there, and seeing who can get his or her licks in.

George discusses the Supreme Court’s post-argument conferences:

We sit around the chief’s conference table and go over the three morning cases during the noon hour, and at the end of the day we go over the three afternoon cases. Once in a while due to a noon engagement, we confer on a full calendar of all six cases at the end of the day. The discussion does not start off in the order that takes place in resolving petitions at the weekly conference—the order of seniority among the associate justices, followed by the chief—but instead starts off with the tentative author of the majority opinion presenting the case, indicating any reaction to particular arguments that came up, perhaps for the first time, at oral argument or to the manner in which they were made, and indicating how the oral argument will or will not affect the drafting of the opinion in final form. After that, if a dissenting calendar memorandum was circulated before oral argument, which rarely occurs, I would call upon the dissenter to speak next. Then the remaining justices, without regard to whether their preliminary responses voiced agreement or disagreement with the majority calendar memorandum, speak and vote in order of seniority, with the chief going last.

This does not happen often, but once in a great while I saw the oral argument, despite all of the briefing, despite all of the preparation by the justices, flip things around 180 degrees, and the losing party ends up being the winning party. Then the question arises whether the tentative author is or is not willing to accommodate the new majority among the seven justices. As I said before, when the author is unwilling to make that accommodation, I had to reassign the case to another justice, who would in some instances start pretty much from scratch with the 90-day clock running, because a change in the justices’ positions would rarely provide legal cause to vacate submission. Then a new work product emerges from the newly assigned author. This doesn’t happen often after oral argument, although frequently how the opinion is written on one or more issues is affected by the oral argument, even if it doesn’t change the bottom-line result. The opinion’s analysis clearly can be altered.

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George discusses a visit to San Quentin as a deputy attorney general assigned to defend California’s death penalty law:

I planned a visit to San Quentin prison, where all the male inmates on death row were housed. There was only one female defendant then under death sentence, who was kept at Frontera in Corona, and I made a separate visit there. I wanted first of all to observe the facilities on death row so that I could, if appropriate, refute any negative assertions about the actual conditions of confinement. But most importantly, I wanted to examine the records of each of the individuals— I believe there were 102 individuals on death row then—so as to be able to determine on a pragmatic basis whether there was any merit in the assertions that the death penalty was being imposed in a discriminatory fashion upon persons from less advantaged groups and upon racial minorities. The prison authorities were, of course, quite cooperative, and they set me up in the maximum confinement unit there with all the records. I was able to go through the file of each individual on death row, looking at the circumstances of the crime, the particular background—prior history, socio-economic background, employment, IQ, racial classification, and so forth, to see if there was any pattern.

I allocated three days for this chore, a Thursday, Friday, and Saturday, which were August 19, 20, and 21 of 1971. First I was shown through the death row area. By the way, not to get ahead of ourselves on the Sirhan case, but for some reason or other the associate warden taking me around saw fit to introduce me to Mr. Sirhan. “Hello. This is Mr. George from the attorney general’s office.” Sirhan replied, “Yes. Why do I want to talk to him? He’s just trying to get me gassed.” That was extent of our conversation.

I did go through all of death row, and it was rather interesting seeing some of these individuals who had been there for many years and whose cases I had cited in my briefs in various cases. They were almost legendary figures in criminal law, such as Gilbert in the famous Gilbert v. California high court ruling on the right to counsel at police lineups. Seeing them there, in the flesh, so to speak, was a rather bizarre experience.

I saw the conditions of confinement and then, more significantly, went through these reams and reams of files and came up with data that I set forth in various tables in the respondent’s brief that I filed in the U.S. Supreme Court. This data, in my view, certainly did not suggest that the death penalty in California—and I stress California—was somehow imposed in a discriminatory manner. What I did was go through the percentage of individuals who, among those convicted of first-degree murder, then were brought to trial on the issue of penalty, in terms of the racial composition of the individuals who were convicted of first-degree murder compared to the racial composition of those individuals who actually received the death penalty. It was quite interesting to me that, in fact, there was no higher percentage of persons who were black who received the death penalty as compared to those black defendants who received a guilty verdict of first-degree murder. The same was true with regard to persons whose death sentences were commuted and those who were actually executed. There was no disproportion in terms of whites receiving more lenient treatment. That was true up and down the spectrum in terms of murder convictions and death penalties and commutations and executions actually carried out.

It was a worthwhile endeavor, though one of the most bizarre experiences in my professional career occurred on the third day that I was supposed to be there going through all of these records. It was frankly—I don’t know a better word for it—creepy just being locked up there in the maximum confinement unit, spending hours and hours on that Thursday and Friday. I thought I’d just as soon not make a third day of it there. I decided to work late Friday evening so I wouldn’t have to come back Saturday. On the third day I was supposed to be there, the infamous San Quentin riot and escape attempt took place—right in the maximum security area where I had been working—in what came to be known as the San Quentin Six when the case went to trial with the survivors. The riot that day, August 21, 1971, resulted in the death of three guards and three inmates and ultimately a trial that lasted 15 months, which was the longest criminal trial, I believe, in American history until surpassed by my Hillside Strangler trial that ended up holding that distinction in the Guinness Book of World Records for several years. It was quite strange to have been working right there the day before the riot occurred. Without referencing my own personal near proximity to these events, I did include an argument in my brief indicating that life terms do not fully protect society and that there can be violence in prison that puts at risk fellow prisoners and guards and civilian employees, in addition to whatever risk there might be of escape from prison.

That was part of my preparation for the case, with of course months of more mundane type of research. I should mention that I did go visit the one woman who was then on death row, Jean Carver, who was convicted of bludgeoning to death with a large rock an elderly female religious minister. I still remember that case because it was assigned to me. While I examined her file, the warden arranged to have Barbara be given a tour by an inmate around the women’s prison, which didn’t have a true death row, just one special area for this one female. When Barbara came back she said to the warden, “The inmate whom you had show me around was very informed and courteous. What’s she in here for?” “Murder.” She had killed her own child. Barbara had been in her sole immediate company for an hour or so, exchanging pleasantries while discussing life in the prison.

These visits had a pragmatic bearing upon my response to some of the arguments that were being made about the death penalty.