The CA Supreme Court Reviewed
California Lawyer

The CA Supreme Court Reviewed

by Gerald F. Uelmen

September 2012

illustration by Charlie Powell

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Sizing Up Justice Liu September 2012

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From July 1, 2011, to June 30, 2012, the California Supreme Court decided 86 cases with published opinions. Of these, 75 were unanimous. And of the few cases with dissents, only 1 was decided by a 4-3 margin (compared with 6 the previous year) and 1 by a 5-2 count (compared with 11 the previous year). The other 9 had 6-1 margins, with 4 solo dissents by Justice Joyce Kennard, 2 by Justice Kathryn M. Werdegar, and 1 each by Chief Justice Tani Cantil-Sakauye and by Court of Appeal Justices Elizabeth Grimes and J. Anthony Kline substituting for retired Justice Carlos Moreno. Thus, the total dissent rate for the year sank to an all-time low of 2.3 percent (compared with 6.9 percent the previous year) - the lowest level in the past century.

All of this suggests that the replacement of Chief Justice Ronald George and Justice Moreno with Chief Justice Cantil-Sakauye and Justice Goodwin Liu has dramatically altered the fault lines that occasionally divided the court in the past (see "Sizing Up Justice Liu").

Justice Kennard shared the three highest disagreement rates - with Justice Liu (10 percent), Justice Werdegar (8.1 percent), and the chief justice (7.3 percent). Chief Cantil-Sakauye maintained a 97 percent agreement rate with Justices Liu, Marvin Baxter, and Ming Chin - the only exceptions being her solo dissent in California Redevelopment Association v. Matosantos (53 Cal. 4th 231 (2011)) and, for the latter two justices, the lone 4-3 split.

That 4-3 vote came in People v. Mesa (54 Cal. 4th 191 (2010)). Justice Liu authored a majority opinion joined by Justices Werdegar, Carol Corrigan, and the chief justice. Justice Chin's dissenting opinion was joined by Justices Baxter and Kennard. The case presented the question of whether California Penal Code Section 654, which provides that a defendant may be punished only once for a single act, precludes multiple punishments for assault and for actively participating in a street gang, when the only act of participation is the assault. This issue had divided the courts of appeal, particularly two divisions in the fourth appellate district. The majority opinion sided with a ruling from division two of that district (People v. Sanchez, 179 Cal. App. 4th 1297 (2009)) that Section 654 precludes multiple punishments, while the dissent followed a line of reasoning adopted by division three (People v. Herrera, 70 Cal. App. 4th 1456 (1999)), which permitted separate punishment for gang participation.

The most closely watched opinion of the year was Perry v. Brown (52 Cal. 4th 1116 (2011)), in which the court responded to a question certified by the Ninth Circuit: Do the official proponents of an initiative measure have standing under California law to defend its constitutionality when the public officials charged with that duty decline to do so? The question arose on appeal from District Judge Vaughn Walker's ruling striking down Proposition 8, which amended the California constitution to prohibit gay marriage (Perry v. Schwarzenegger, 704 F. Supp. 2nd 921 (N.D. Cal. 2010)). When Attorney General Kamala Harris and Governor Jerry Brown declined to appeal Judge Walker's ruling, the proponents of the initiative intervened, and the Ninth Circuit certified the question of standing to the state Supreme Court. In a unanimous opinion authored by Chief Justice Cantil-Sakauye, the court answered with a resounding "yes" and went on to offer persuasive reasons why the determination of this issue under California law should also control the determination of standing in federal court. The Ninth Circuit subsequently ruled that the proponents did have the necessary standing and affirmed Walker's decision on the merits. Although that ruling was 2-1, the panel was unanimous on the standing issue, in full conformity with the California Supreme Court's analysis. (Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012).) The full Ninth Circuit declined to rehear the case en banc, and a petition for certiorari is now pending in the U.S. Supreme Court. (Meanwhile, the First Circuit has declared the federal Defense of Marriage Act unconstitutional (Massachusetts v. Dep't of Health and Human Serv's, 682 F.3d 1 (1st Cir. 2012)), and a petition for certiorari is pending in that case as well. Next month we will learn whether the high court will hear the Ninth Circuit case, the First Circuit case, both, or neither.)


The court's 86 published majority opinions represent a slight drop from the 100-opinions-per-year average achieved by the George Court. The decline may be attributed to the long delay in filling the seat after Justice Moreno's retirement, requiring the temporary assignment of a different court of appeal justice for each case up until Justice Liu's confirmation on August 31, 2011 (he was sworn in the following day). The authorship of majority opinions was evenly divided among the justices, with two exceptions: Despite his late start, Justice Liu produced 10 majority opinions and 7 concurring opinions, as well as his single dissenting opinion. Justice Kennard produced only 8 majority opinions, but she led the court in dissents, with 4. (Kennard also continued her practice of labeling some of her concurring opinions as dissents, although she joined fully in the court's judgment.)

The longest opinion of the year was a 213-page death penalty affirmance written by the chief justice. (People v. Clark, 52 Cal. 4th 856 (2011).) Justice Chin should win the Professor Stephen Barnett Memorial Prize for brevity and precision: His 15 majority opinions were models of concise legal reasoning, with no superfluous asides.

Speaking of superfluous asides, check out Justice Baxter's concurring opinion in People v. Lowery (52 Cal. 4th 419 (2011)). In that case, Justice Kennard authored a unanimous opinion holding that the statutory prohibition on willfully threatening violence against a crime victim or witness requires no proof that the threat was made with the intent to intimidate, nor is such intent required by the First Amendment. In a footnote, she dismissed a recent Ninth Circuit decision (United States v. Bagdasarian, 652 F.3d 1113 (9th Cir. 2011)), stating simply that "we are not persuaded." (52 Cal. 4th at 427 & n. 1.) Baxter's unusual concurrence offered an extensive critique of the Bagdasarian case, concluding it is "both mistaken ... and dangerous." His analysis drew four other votes (from the chief justice and Justices Werdegar, Chin, and Corrigan). What we're left with, then, are two majority opinions, the only difference being their eagerness to slap down the Ninth Circuit.

Are the changes in the composition of the court the only explanation for the new-found accord? In part, the unanimity may reflect the high proportion of death penalty cases on the docket (see "Dealing with Death", right). It may also reflect the deferral of difficult decisions to a later day. In any case, a timeless reality rings true: With each new appointment, the dynamic of the entire court changes.

In the numbers is a story, and it is a simple tale of togetherness.

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

Sizing Up Justice Liu

If Justice Goodwin Liu's first nine months on the California Supreme Court prove anything, it's how wrong U.S. Senate Republicans were in characterizing him as a "left-wing ideologue" when they blocked his confirmation to a seat on the Ninth Circuit. The federal judiciary's loss is very much California's gain, as Justice Liu has quickly emerged as a paragon of judicial restraint.

In his only dissenting opinion, Liu criticized the majority's reading of Code of Civil Procedure Section 340.1 to bar claims against an Oakland bishop by six brothers seeking compensation for sexual abuse allegedly inflicted on them by a parish priest. "Today's unduly narrow reading of the statute may prompt the Legislature to provide a correction that affirms the statute's remedial purpose," Liu wrote. (Quarry v. Doe I, 53 Cal. 4th 945 (2012).)

His concurring opinions gently suggest that the majority rulings are broader than they need to be. In Vandermost v. Bowen (53 Cal. 4th 421 (2012)), while agreeing that the State Senate districts drawn up by the Citizen's Redistricting Commission should be used even if a referendum challenging them appears on the November ballot, he summoned up the ghost of Justice Felix Frankfurter to warn courts against entering this "political thicket." (53 Cal. 4th at 499.) Expressing fear that by maximizing the court's discretion the majority opinion "will have the unintended consequence of inviting future litigants to bring their grievances with the redistricting process to this court," he notes these disputes are "fraught with political peril." (53 Cal. 4th at 487.) This may reveal a bit of naïveté regarding California litigants, who generally bring their objections about redistricting to the state Supreme Court whether invited or not.

There are many more examples of Justice Liu's restraint. It was plainly evident in People v. Ahmed (53 Cal. 4th 156 (2011)) when he cautioned, "I would not opine on how [Penal Code] section 654 applies to enhancements until we are called upon to resolve an actual dispute on that question." In another case, he chastised the court of appeal for overreaching, saying "today's decision correctly emphasizes that judicial review of [Parole] Board decisions is deferential." (In Re Shaputis, 53 Cal. 4th 192 (2011).) And in People v. Cravens (53 Cal. 4th 500 (2012)), he faulted the majority for indicating disfavor with a prior precedent by "implication" rather than resolving the issue explicitly. Liu cautiously noted that the issue would have to await an appropriate case.

His majority opinions are carefully crafted with precision to give a clear and understandable answer to the questions presented, and nothing more. Eight of his ten majority opinions were unanimous, drawing neither dissenting nor concurring opinions. Among them is one case that every California judge, lawyer, and law student will want to read, for it deals with the issue of whether witness statements recorded by an attorney are privileged as work product: Coito v. Superior Court (54 Cal. 4th 480, 142 Cal. Rptr. 3d 607 (2012)) is a model of succinct clarity, but the unanimity was surprising in view of how much mischief this ruling will create for the pretrial discovery process - attorneys must now strategize over how to insulate witness statements from discovery, and trial judges will have to read those statements in camera to decide the privilege question.

Where does a year's work place Justice Liu on the left-to-right spectrum of the California Supreme Court? For the 61 decisions in which he participated, Liu's agreement rate with the chief justice and with Justices Baxter, Chin, and Werdegar was an impressive 97 percent. And with Justice Corrigan, he agreed 100 percent of the time!

The only fault line remaining seems to be the one that separates Justice Kennard from the rest of the court.

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