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Shifting alliances tally up to more unpredictable CA Supreme Court

By John Roemer
Special to the Bar Journal

After decades of domination by conservatives, the newly reconstituted state Supreme Court is now approaching political parity.

Mariano Florentino Cuellar
Cuéllar takes the oath of office from Gov. Jerry Brown (AP Photo)

It’s not just the three fresh Democratic justices appointed by Gov. Jerry Brown who have altered the high court’s makeup. Goodwin H. Liu, appointed in 2011, was joined last year by Mariano-Florentino Cuéllar and Leondra R. Kruger.

That made for a 4-3 divide that still favors the Republican appointees: Tani G. Cantil-Sakauye, the chief justice, Kathryn Mickle Werdegar, Ming W. Chin and Carol A. Corrigan. But it is Werdegar’s political odyssey leftward – not the new appointees – that is shifting the bench calculus.

In themselves, Brown’s appointments have uncanny echoes of the 1970s and ’80s, during his first term as governor. Brown placed seven justices on the court, three of whom were ousted from the bench in a politically charged 1986 retention election focused on Chief Justice Rose E. Bird’s rejection of the death penalty.

Kathryn Werdegar
Werdegar (AP Photo)

Now Brown has a second chance to remake the court in a state where aversion for capital punishment has steadily progressed. A 2014 poll found that 56 percent of voters said they still support the death penalty, but it was a sharp drop from 68 percent in 2011. The issue could come before voters this year. Two competing voter initiatives are vying to get on the ballot.

The surprise is that the most outspoken justice on the topic has been Werdegar, who wrote for a unanimous court last year that the Eighth Amendment’s ban on cruel and unusual punishment could potentially be extended to include the lengthy, arbitrary delays in executions that have plagued California’s death penalty system.

Although the court affirmed the conviction and death sentence of a man convicted of robbing and shotgunning to death a groom on the eve of his wedding, Werdegar’s lengthy opinion gave a thorough, respectful airing of the delay claim.

“But although we have consistently and recently, rejected the Eighth Amendment/delay claim,” she wrote, “doctrine can evolve.” The concept of cruel and unusual punishment, she added, ratified in the Eighth Amendment in 1791, “is not a concept carved in 18th-the century stone.”

Rather it “must draw its meaning from the evolving standards of decency that that mark the progress of a maturing society,” she said, quoting from a recent U.S. Supreme Court opinion. Werdegar’s opinion invited defense lawyers to expand the delay argument in future habeas corpus petitions. People v. Seumanu, S093803 (Aug. 24, 2015).

A Wilson appointee

It was one sign of Werdegar’s steady leftward evolution. Appointed in 1994 by Republican Gov. Pete Wilson, whom she dated briefly when both attended the UC Berkeley law school then known as Boalt Hall, Werdegar worked for the previous six years at the high court as a senior staff attorney for the conservative Justice Edward A. Panelli.

Many assumed she would vote with Wilson’s conservative appointees, like Janice Rogers Brown and Ming W. Chin, and often she did. But Werdegar slowly came to be seen as one who would favor limits on police power, liability for gun makers and the expansion of laws letting consumers sue over unfair business practices.

The Supreme Court is overwhelmingly unanimous in its rulings, and the politics of its justices are only sometimes on display, of course. But when divisions arose, Werdegar was – during the years before Brown once again took office in 2011 – the most likely to agree with the lone Democrat then on the bench, Carlos R. Moreno.

Now retired, Moreno said of Werdegar in a 2013 interview, “She’s very composed and proper but it does belie her judicial philosophy and judicial opinions. She sees a matter a certain way and doesn’t care which way the wind blows.”

Werdegar, a former professor of criminal law, once told The Daily Journal, “I don’t think I’m afraid to say the police are wrong.”

Criss-crossing the political aisle

So when the left-leaning Liu got his robes, Werdegar was prepared to be an ideological ally. The two often discussed cases and found they shared views. “We do tend to see things the same way on those rare cases when there is a division,” Werdegar said. “It makes it easier to write concurring opinions if you can talk it out.”

Werdegar’s liberal leanings aren’t confined to criminal cases.  

Indeed, Werdegar was well to the left of Liu in the court’s 2014 high-impact Iskanian labor law decision. Liu found a loophole in the U.S Supreme Court’s Concepcion ruling after the U.S high court prioritized the Federal Arbitration Act over California contract law and affirmed class action waivers. Liu agreed with that pro-business outcome, but held that a form of employee representative action remains valid under state law and is immune from class-action waivers. Iskanian v. CLS Transportation Los Angeles LLC, 59 Cal.4th 348 (June 23, 2014).

Werdegar, in effect, dismissed Concepcion. Dissenting at length, she had no problem with Liu’s loophole, but contended that the whole notion of forbidding workers to act collectively is bogus. Congress in the 1930s banned employers from forcing workers to sign so-called “yellow dog contracts” that required them to promise not to join unions.

“Eight decades ago, Congress made clear that employees have a right to engage in collective action and that contractual clauses purporting to strip them of those rights as a condition of employment are illegal,” Werdegar wrote. “What was true then is true today,” including the right to pursue collective action in court, she added, concluding, “Today’s class-action waivers are the descendants of last century’s yellow dog contracts.”

Congress’ affirmation of workers’ rights in the 1930s came well after the 1925 Federal Arbitration Act and expressly superseded it and any other act to the contrary, Werdegar argued. In fact, the Wagner Act and other pro-labor laws were designed to minimize the need for strikes by authorizing courtroom resolution of grievances. If class-action waivers are valid, employees “would be protected if they elected to protest through strikes or walkouts but precluded from resolving grievances through peaceable collective action,” Werdegar noted.

Six months after penning that progressive broadside, Cuéllar and Kruger came along, and Werdegar emerged as the court’s potential swing vote.

A history of shifting alliances
Not that Brown’s appointees are voting in lockstep. As the new court formed and solidified, shifting alliances were its early hallmark. Liu, Cuéllar and Werdegar voted unsuccessfully in April 2015 to grant a review petition for a case where a sex crimes prosecutor threatened to bring charges against a defense investigator and implied that the defense lawyer could also be prosecuted. Kruger voted with the majority to deny the petition. In May, Liu, Cuéllar and Werdegar again lined up to rehear a death appeal but were outvoted, with Kruger again on the other side.

But in August, in a vote that appeared to solidify an emerging liberal bloc, Liu, Cuéllar, Kruger and Werdegar sided together in a 4-3 decision that prosecutors did not prove enough in a gang case to warrant a sentence enhancement under a street terrorism statute. People v. Prunty, 214 Cal.App. 4th 1110 (Aug. 27, 2015).

The case was significant because the liberal majority opposed for the first time the high court’s leader, Cantil-Sakauye, in a criminal matter. The chief justice is married to a former Sacramento police officer, and her conservative colleagues are tough on crime.

The fissures showed in Cantil-Sakauye’s dissent, which called the case “a classic gang crime” and faulted the majority for failing to see it that way. Chin joined her; Corrigan dissented and concurred separately.

A former high court justice, Joseph R. Grodin, who was ejected from the bench alongside fellow Brown appointee Bird in 1986, said he thought the majority got it right by finding the prosecution offered little more than guilt by association to demonstrate a street gang affiliation.

“While the context and issue are quite different,” Grodin said in a published interview, “I am reminded of the controversy, during the 1950s, over ascribing criminal liability based on membership in the Communist Party.”

Added Grodin, now an emeritus professor at UC Hastings College of the Law: “In broader terms, it would be premature to say that the case is evidence of a new majority on the court in criminal cases, but if that should develop we ought not to be surprised.”

John Roemer is a San Francisco Bay Area freelance writer who has covered the California legal community for more than 20 years.