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
--
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.
--
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.
--
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.
--
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.