Sizing Up Justice Liu
California Lawyer

Sizing Up Justice Liu

by Gerald F. Uelmen

September 2012

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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. -Gerald F. Uelmen

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