All On Board
California Lawyer

All On Board

September 2011

On board (from front of train): Chief Justice Tani Cantil-Sakauye and Justices Marvin R. Baxter, Joyce L. Kennard, Ming W. Chin, Carol A. Corrigan, Kathryn H. Werdegar, Goodwin Liu (incoming), and Carlos R. Moreno. Illustration by Caitlin Kuhwald

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The Splits September 2011

Passages May 2011




The Gibson Court. The Traynor Court. The Wright Court. The Bird Court. The Lucas Court. The George Court. For 70 years, we've been identifying the California Supreme Court by the surname of its chief justice. But the tag never went past two syllables. If we keep with tradition, we all have to learn to pronounce the six syllables in Cantil-Sakauye (note: sounds like kahn-TEEL sock-ah-OOH-way). Our gracious new chief might be OK with "the Tani Court," but that's much too flippant. We can't just call it the California Supreme Court, so I'll opt for the Cantil-Sakauye Court. The sooner we all can pronounce it, the better: She is planning to stay for at least 12 years.

Each of our chief justices has made a unique contribution to California justice. Some were most notable for their administrative ability, some for scholarly jurisprudence, and some for resolute independence. At midyear, just six months into her tenure on the court, it is too early to predict where Chief Justice Tani Cantil-Sakauye will leave her mark.

Though the chief has participated in the decisions in 28 cases, she has authored only two opinions. People v. Castaneda (51 Cal. 4th 1292 (2011)) was a routine death penalty affirmance, the last of 26 such orders issued by the court in the yearlong period I review (July 1, 2010 to June 30, 2011). I count it as a unanimous decision, even though Justice Joyce L. Kennard filed one of those "concurring and dissenting" opinions that drive me crazy. (I adamantly maintain that if you "concur fully in the judgment," your opinion should not be labeled a dissent. A concurring opinion can disagree with the reasoning of the majority; if the disagreement does not affect the outcome, it is still not a dissent.)

In Chief Justice Cantil-Sakauye's other opinion the seven justices unanimously reversed a Court of Appeals ruling that game wardens must have reasonable suspicion to stop a motorist and search the vehicle for illegal game (People v. Maikhio, 51 Cal. 4th 1074 (2011)). The high court ruled that such searches can be justified as administrative in nature. The chief's opinion is excellent: clear, concise, and well reasoned. If this is a sample of what's to come, we can all rejoice.

Though it is somewhat premature to assess Chief Justice Cantil-Sakauye's disagreement rates, 4 of the 28 cases in which she participated drew dissents from Justices Kennard, Kathryn H. Werdegar, or Carlos R. Moreno. Because the chief justice consistently sided with the majority, her rate of agreement with Justices Marvin R. Baxter, Ming W. Chin, and Carol A. Corrigan is 100 percent so far.

She has maintained an arduous speaking schedule, and nearly everyone who meets her is impressed with her candor and openness. She displayed impressive political skills in engineering the legislative defeat of AB 1208, which would have shifted authority from the Judicial Council back to lower courts to manage their budgets. But California's 2011-12 budget whacked another $350 million from the courts, and it will be impossible to handle an additional cut of that magnitude without some significant court closures. The chief has announced ambitious plans to reorganize the Judicial Council, and the retirement of director William C. Vickery will provide an opportunity to reshape the Administrative Office of the Courts as well.

Meanwhile, the high court's productivity remained down from its level of two years ago. Only 98 opinions were published this year, compared with 96 last year and 156 the year before. In part, this is due to the retirement of Justice Moreno on March 1, 2011. No opinions were published in March or April, and only a trickle of decisions were released in May and June as a different substitute associate justice was brought in from the Courts of Appeal for each case. Though the budget impasse offered a good excuse for Governor Brown to delay filling the Moreno seat, the vacancy stretched the interval between full briefing and oral argument for cases that are piling up on the calendar. (Hopefully, the recent appointment of UC Berkeley law professor Goodwin Liu to the spot will ease the burden.)

Moreno's Final Year
After ten years on the court, Justice Moreno left in a blaze of glory, authoring what I thought was the best opinion of the year, and dissenting in what I thought were the two worst decisions of the year. In Pineda v. Williams-Sonoma Stores Inc. (51 Cal. 4th 524 (2011)), he wrote for a unanimous court in ruling that the state's Song-Beverly Credit Card Act prohibits merchants from requesting and recording a credit card customer's ZIP code. In two separate cases, Division One of the Fourth District Court of Appeal had unanimously concluded that a ZIP code alone does not constitute personal identification information, allowing defendant merchants to record customers' ZIP codes in a database used for marketing. In its independent review of statutory construction, the supreme court construed the Song-Beverly Act broadly and in so doing addressed the misuse of personal identification information for marketing purposes. Though merchants are free to demand identification from credit card users, they are not permitted to record data gleaned from the identification presented. (You still have to enter a ZIP code to use your credit card to purchase gasoline at the pump-but that's to verify you are the authorized user of the card, and the information is not recorded for use in marketing.)

Justice Moreno also authored one of the best dissents of the year in protesting the majority's ruling in Moore v. Superior Court (50 Cal. 4th 802 (2010)), which held that due process does not require that someone facing confinement as a sexually violent predator (SVP) be competent to understand the proceedings. It is fascinating to compare Moreno's application of the four-part balancing test of People v. Allen (44 Cal. 4th 843 (2008)) with the application of that same standard in Justice Baxter's majority opinion. If one begins with the premise that requiring competency would endanger public safety and render the whole SVP scheme unworkable, it really skews the balance. Moreno, joined by Justice Kennard, adeptly exposes the flaws in the majority's premise.

Justice Moreno also joined the magnificent dissenting opinion of Justice Werdegar in People v. Diaz (51 Cal. 4th 84 (2011)). The majority opinion, by Justice Chin, permits police to probe the text messages on a cell phone seized at the time of a defendant's arrest at their leisure, without a search warrant. Werdegar - recognizing that the search of data stored on a contemporary smartphone or handheld computer presents a massive intrusion into reasonable expectations of privacy - would require a warrant for such a search. Justice Kennard, in concurring with the majority, concludes that directly applicable U.S. Supreme Court precedents compel rejection of the claim that a warrant is needed. But Werdegar cited high court precedent to suggest that stare decisis should not be used "to justify the continuance of an unconstitutional police practice ... in a case that is so easily distinguished from the decisions that arguably compel it." (51 Cal. 4th at 120, citing Arizona v. Gant, 129 S. Ct. 1710, 1722 (2009).) A bill pending in the Legislature (SB 914) would require a warrant to search a smartphone, but even if enacted it would not provide an exclusionary remedy.

The Dissent Rate
The court's overall dissent rate rebounded from last year's low of 3.8 percent to a more respectable 6.9 percent. The leading dissenters were Justices Moreno (12.6 percent), Werdegar (10.5 percent), and Kennard (10.4 percent).

The court split 4-3 in six cases (see "The Splits," opposite). As usual, the outcomes turned on whether Chief Justice Ronald M. George sided with the more liberal wing of Justices Kennard, Moreno, and Werdegar (as he did in two cases) or with the more conservative wing of Justices Baxter, Chin, and Corrigan (as he did in three). (Only in one case did George join Kennard in a Werdegar dissent.) Assuming that Brown's appointment of Liu is promptly approved, this pattern is likely to continue well into the future, with Chief Justice Cantil-Sakauye assuming the pivotal role played by her predecessor.

Death Penalty Decisions
The flow of death penalty cases continued unabated this year, with 26 death penalty affirmances, all unanimous but four. (One capital case that split the court 4-3 is summarized in the sidebar.) Two cases had solo dissents: one signed by Justice Moreno (People v. Lynch, 50 Cal. 4th 693 (2010)), and the other by Justice Wiseman of the Fifth Appellate District sitting on assignment, who disagreed with the majority's application of harmless error (People v. Gonzales, 51 Cal. 4th 894 (2011)). The only 5-2 affirmance was People v. Jones (51 Cal. 4th 346 (2011)), in which Moreno joined a dissent by Justice Werdegar protesting the high court's acceptance of prosecutorial explanations for peremptory challenges to three African-American jurors that were not supported by the record. She concluded that the trial judge's failure to evaluate the explanations offered by the prosecutor "leaves this court without a ruling entitled to deference, and leaves the resulting inferences of pretext and discriminatory intent undisturbed." (51 Cal. 4th at 385 (citations omitted).)

The most important capital punishment rulings, however, came not in direct appeals from death judgments but in procedural challenges to "shell" habeas corpus petitions filed by condemned inmates. The need for these petitions arises from delays in the appointment of counsel to handle the state habeas corpus claims of death row inmates, which puts them in jeopardy of missing the one-year statute of limitations imposed on federal habeas claims. Though the federal statute of limitations is tolled during the pendency of a state habeas claim, California inmates face a lengthy wait for appointment of habeas counsel even after their death sentence has been affirmed on direct appeal. In In Re Morgan (50 Cal. 4th 932 (2010)), for example, the petitioner had been awaiting the appointment of habeas counsel for 13 years, including 4 after the decision on his direct appeal. To toll the federal statute of limitations, the California Appellate Project filed a cursory one-claim state habeas petition on the inmate's behalf, requesting permission to amend the petition within 36 months of the appointment of habeas counsel. The attorney general opposed the request, but the court granted the petition. Justice Kennard, writing for a five-justice majority, concluded that the critical shortage of qualified attorneys willing to handle death penalty habeas claims was a circumstance beyond the court's control. Justice Corrigan, joined by Justice Baxter, dissented: "This court should not abandon its general rules and fashion a sham procedure solely to enable a small set of habeas petitioners to evade federal law." (50 Cal. 4th at 950.) That "small set" of habeas petitioners includes 300 inmates on California's death row who have no counsel to handle their habeas petitions. If Corrigan had her way, they would all be foreclosed from seeking habeas relief in federal court. Thus far, the federal courts have set aside 70 percent of the California death judgments they have fully reviewed. Am I the only one who sees a resemblance between Justice Corrigan and the Queen of Hearts?

Halfway into its first year, the Cantil-Sakauye Court does not yet bear her imprint. But stay tuned.

Gerald F. Uelmen is a professor at Santa Clara University School of Law. Luci Buda, Class of 2012, compiled the data for this article.

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