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A New Majority?

A Shifting Balance at the California Supreme Court?

A look at the state Supreme Court's newest justices.

By Gerald F. Uelmen and Kyle Graham  |  September 2015
Justice Mariano- Florentino Cuéllar, Justice Kathryn Werdegar, Justice Carol Corrigan, Chief Justice Tani Cantil-Sakauye, Justice Goodwin Liu, Justice Ming Chin, Justice Leondra Kruger.

From left to right: Justice Mariano-Florentino Cuéllar, Justice Kathryn Werdegar, Justice Carol Corrigan, Chief Justice Tani Cantil-Sakauye, Justice Goodwin Liu, Justice Ming Chin, Justice Leondra Kruger.

In 2014, for the second time in Gov. Jerry Brown’s historic four-term career, he was presented with the chance to reshape the California Supreme Court.

The first “Jerry Brown Court” became better known as the Bird Court and ended with the disastrous retention election of 1986, in which voters removed three of Brown’s appointees, including Chief Justice Rose Bird.

But decades after that debacle, opportunity knocked again for Brown with the retirements of Justices Marvin Baxter and Joyce Kennard—the two longest-serving appointees of Gov. George Deukmejian. Together with his previous appointment of Justice Goodwin Liu in 2011, Brown appointees are again the largest segment of the seven-member court. Meanwhile, California has seen the mellowing of the remaining appointees of Gov. Pete Wilson (Justices Kathryn Werdegar and Ming Chin) and Gov. Arnold Schwarzenegger (Justice Carol Corrigan and Chief Justice Tani Cantil-Sakauye).

New Justices

The court’s two newest members have much in common with Liu. Like the former UC Berkeley law professor, both Justice Mariano-Florentino Cuéllar and Justice Leondra Kruger are graduates of Yale Law School (which just so happens to be Governor Brown’s alma mater as well). Also, they are the children of immigrant parents: Cuéllar was born in Mexico and immigrated to California with his family at age 14; Kruger’s mother was an immigrant from Jamaica.

Both Cuéllar and Kruger served as lawyers in the Obama administration, and each clerked for federal judges: Cuéllar for Judge Mary Schroeder of the Ninth Circuit, and Kruger for Judge David Tatel of the D.C. Circuit (for whom Liu also clerked) and for Justice John Paul Stevens on the U.S. Supreme Court.

Perhaps most important, the two new appointees, sworn in last January, are young: Cuéllar is 42 and Kruger 38. So is Liu, who will turn 45 next month. All three are married and parents of young children. In addition, none of the three had served on the bench before joining the state’s highest court.

In making these appointments, Governor Brown was well aware of the perils of retention elections. Justice Cuéllar was confirmed by the voters in November 2014 for a full twelve-year term before he ever decided a case. Justice Kruger will not face the voters until she serves out the four years remaining of Justice Kennard’s term; she then will be up for a full twelve-year term. (Liu was confirmed in the November election to serve the remaining eight years of the term of Justice Carlos Moreno, who also retired.) It’s still too early to tell how the new appointees will affect the left-to-right lineup on the California Supreme Court, but it’s clear that many of the cases still on the docket will divide the justices.

Now we’ll take a look at the high court’s rulings over the past year, from July 1, 2014, through June 30, 2015.

Annual Scorecard

During those twelve months, the California Supreme Court decided 73 cases with signed majority opinions, and two more with per curiam opinions. This is the lowest total since 1987–88, the year of transition from the Bird Court to the Lucas Court, when only 50 majority opinions were signed.

Since Chief Justice Cantil-Sakauye took the reins in 2011, the court has averaged 92 signed majority opinions per year. The process of replacing two justices this year certainly took its toll on productivity, but the court’s new makeup appears to have made little difference in the rate of unanimity. The majority of cases (65 percent) were decided with various court of appeal justices serving pro tem. Most of those decisions were unanimous, with a mere seven dissenting votes from Liu, eight from Werdegar, two from Baxter, one from Corrigan, and six from the pro tems. The chief justice sided with the majority in every case.

Of the 26 cases decided with the participation of Cuéllar and Kruger, all but two were unanimous, and both exceptions involved solo dissenting opinions by Chin. To this point, we have seen only one majority opinion from Cuéllar and no opinions from Kruger, and no dissenting votes from either. In many of the key votes in which both participated, however, they were not on the same side. For example, when weighing rehearing petitions for death penalty cases decided by their predecessors, both Cuéllar and Kruger voted in the four-justice majority to rehear People v. Grimes, but Kruger did not vote to rehear People v. Johnson.

Worst and Best

This past year, only four cases were decided by a 4–3 vote. One was Grimes, mentioned above. Opinions in two others, both decided last August and authored by Justice Baxter, are our twin nominees for the worst decisions of the period. Both Patterson v. Domino’s Pizza, LLC (60 Cal. 4th 474 (2014)) and People v. Tom (59 Cal. 4th 1210 (2014)) would probably have come out the other way if decided by the current court.

The Patterson case certainly raised a few eyebrows. In that sexual harassment case, the high court agreed to decide an issue that had divided the courts of appeal: Does a franchisor stand in an employment or agency relationship with the franchisee and its employees for purposes of holding it vicariously liable for workplace injuries allegedly inflicted by one franchisee employee on another? In an opinion by Baxter, joined by the chief justice as well as Chin and Corrigan, the court held that Domino’s successfully avoided becoming an employer by leaving to the franchisee all final decisions about the discharge of its employees, even when cause for discharge existed.

However, the dissent by Werdegar, joined by Liu and pro tem Justice Victoria Chaney (of the Second District Court of Appeal), cited several examples in which employees were fired upon “strong urging” from Domino’s, making the case that those employees were subject to the authority of both the franchisee and franchisor. The franchisee testified at a deposition, “[t]he area leaders would pull you into your office at the store, for example, and tell you what they wanted. If they did not get what they wanted, they would say you would be in trouble.” (Patterson, 60 Cal. 4th at 505.)

The majority’s conclusion that there was no employment relationship left us scratching our heads.

In Tom, the prosecution offered evidence against a defendant charged with gross vehicular manslaughter that after his arrest—but before receipt of Miranda warnings—he “expressed no concern about the well-being of the other people involved in the collision.” The court of appeal reversed the man’s conviction, holding that to allow comment at trial on a defendant’s post-arrest pre-Miranda silence would “create an incentive for arresting officers to delay interrogation in order to create an intervening ‘silence’ that could then be used against the defendant.” With the same justices in the majority as in Patterson, the court reversed the intermediate appellate ruling, concluding that a defendant “could easily eliminate any such risk by clearly and timely invoking the [Fifth Amendment] privilege.” (Tom, 59 Cal. 4th at 1234).

The Justices, by DissentWerdegar objected in dissent that the defendant had forfeited the issue by not objecting at trial, indicating she would join Liu’s separate dissent if the issue had been properly before the court. Justice Liu, joined by pro tem Justice William Rylaarsdam (of the Fourth District Court of Appeal), argued that simply remaining silent after being placed under arrest is enough to exercise one’s right to remain silent. Putting the burden on an arrestee to invoke his privilege to prevent his silence from being used against him, Liu concluded, “makes no sense,” since no custodial interrogation is taking place. (Tom, 59 Cal. 4th at 1242.)

This case also left us scratching our heads.

Our choice for the best opinion of the year is California Building Industry Association v. City of San Jose (61 Cal. 4th 435 (2015)). The unanimous opinion by Chief Justice Cantil-Sakauye upheld a San Jose ordinance requiring developers to sell at least 15 percent of new units at a price that is affordable to low- or moderate-income households. The court concluded that the conditions imposed on future developments by the San Jose ordinance did not amount to “exactions” levied upon the developers’ property so as to bring into play the unconstitutional-conditions doctrine under the takings clause of the federal or state constitutions. Unlike the condition that had been the focus of earlier cases—such as San Remo Hotel v. City and County of San Francisco (27 Cal. 4th 643 (2002)), in which the property owner was required to pay a monetary fee—the San Jose legislation instead limited the way a developer could use its property. In addition, “the conditions are intended to serve the distinct, but nonetheless constitutionally legitimate, purposes of (1) increasing the number of affordable housing units in the city in recognition of … the city’s current and future needs, and (2) assuring that new affordable housing units … are distributed throughout the city as part of mixed-income developments.” (61 Cal. 4th at 444 (emphasis by the court).)

The ruling gives the green light to 170 other California municipalities that have enacted “inclusionary housing” programs to address the shortage of affordable housing in California. Werdegar, who authored the earlier San Remo Hotel ruling, added a helpful concurring opinion stating that San Remo “is best understood to state a due process standard, not a takings one.” (61 Cal. 4th at 485.)

Warm and Fuzzy

Our choice for the nicest opinion of the year goes to In re Hong Yen Chang (60 Cal. 4th 1169 (2015)). The per curiam opinion grants posthumous bar admission to the pioneer who became the first Chinese native to practice law in America. After his admission to the New York Bar, Hong Yen Chang’s application for admission to the California Bar was rejected by the California Supreme Court, which had relied on the federal Chinese Exclusion Act. In granting a request by Chang’s descendants and the Asian Pacific American Law Students Association at UC Davis School of Law for Chang’s posthumous admission to the bar, the court recognized the need for “a candid reckoning with a sordid chapter in the state and national history.” (60 Cal. 4th at 1171.) Abrogating the prior opinion in In re Hong Yen Chang (84 Cal. 163 (1890)), the justices spoke with a powerful, unified voice when they said: “Even if we cannot undo history, we can acknowledge it and, in so doing, accord a full measure of recognition to Chang’s path-breaking efforts to become the first lawyer of Chinese descent in the United States. The people and the courts of California were denied Chang’s services as a lawyer. But we need not be denied his example as a pioneer for a more inclusive legal profession. In granting Hong Yen Chang posthumous admission to the California Bar, we affirm his rightful place among the ranks of persons deemed qualified to serve as an attorney and counselor at law in the courts of California.” (60 Cal. 4th at 1175.)

Words like that make you proud to be a lawyer. Here’s hoping that there are more such uplifting affirmations to come from Governor Brown’s new court.

Death Penalty Cases

In the six months before Justices Cuéllar and Kruger came on board in January, the court decided 13 death penalty appeals, affirming 11 and reversing 2. All but three of the affirmances were unanimous. Two of those that divided the court led to closely watched petitions for rehearing.

In People v. Grimes (S076339 (Jan. 5, 2015)), the court had upheld a death sentence imposed upon the defendant for a robbery-murder. Justices Werdegar and Liu and pro tem Justice Laurie Zelon (of the Second District Court of Appeal) dissented, arguing that although it was harmless error to exclude as hearsay from the guilt phase the admission of a co-defendant (who subsequently committed suicide) that he was primarily responsible for killing the 98-year-old victim, the statement should have been admitted in the penalty phase and could have affected the outcome. Two months later, on March 11, with Cuéllar and Kruger joining dissenters Werdegar and Liu, the court granted a petition for rehearing, 4–3.

This was the first rehearing petition the court had granted in 20 years, but for those who remember the Supreme Court purge of the 1986 election, it was déjà vu in reverse: In People v. Wade (43 Cal. 3d 366 (1987)), the departing justices of the Bird Court reversed a death sentence on their way out the door. The Lucas Court promptly granted a rehearing and wound up upholding the death sentence (see People v. Wade, 44 Cal. 3d 975 (1988)) (the sentence was later vacated by the Ninth Circuit).

The second divisive capital case was People v. Johnson (60 Cal. 4th 966 (2015)). In a 4–3 vote, the court affirmed a death sentence imposed for the murder of an elderly victim in which the victim’s car was stolen from her garage. The majority upheld findings that the death occurred in the perpetration of both a robbery and a carjacking. Werdegar and Liu—joined by Cuéllar—dissented, arguing that the carjacking special circumstance should be reversed, because the taking of the car was not in the “immediate presence” of the victim.

Six death penalty cases were decided unanimously after Cuéllar and Kruger joined the court. However, one of these presents a troubling question. In People v. Scott (61 Cal. 4th 363 (2015)), the court upheld a death sentence imposed for the rape and murder of a 78-year-old victim in her home, rejecting the defendant’s claim that the exclusion of a black juror violated Batson v. Kentucky (476 U.S. 79 (1986)). A concurring opinion authored by Liu and joined by Kruger argued that although the Batson claim lacked merit, the court did not follow the analytic approach required by Batson itself. But the most disturbing aspect of this case is that no justice was identified as the author of the five-justice majority opinion; it was simply designated “Per Curiam”—for the first time in a death penalty ruling during Chief Justice Cantil-Sakauye’s tenure. Although it is well known that lengthy death penalty opinions are primarily staff-produced, it has always been the practice for one of the justices to assume primary responsibility for them. Hopefully, this does not signal a new approach to death cases. (One explanation could be that the court asked for post-argument briefing, and the justice who initially assumed principal responsibility for the opinion had left the court before decision day. If so, another justice should have been designated to assume principal responsibility.)

By signing on as author, a justice adopts the opinion as his or her own, assuring us that he or she has given it the same intense attention that any other opinion receives. If no justice is willing to sign it, what does that tell us? Too often, everyone’s business is no one’s business. Obviously, some sitting justice must have taken a hand to the majority opinion, as it includes a sarcastic reference to Liu’s concurring opinion, saying “a handful of cases … have taken an approach similar to the one he espouses.” (61 Cal. 4th at 393.) Liu responded by writing, “If the cases I have cited are a mere handful, then the pertinent non-California authority cited by the court could fit in a thimble.” (61 Cal. 4th at 415.) Was he responding to a nameless member of the court staff?

Looking Ahead

Our prediction is that when the court splits 4–3 going forward, a new majority of Justices Werdegar, Liu, Cuéllar, and Kruger will emerge. Next year, we can see how prescient that proves to be.

In the Pipeline

The court’s modest calendar from January to June means that the impact of the new justices’ ideology may become clear only with decisions on the dozens of cases that are still advancing toward decision. Here are some pending matters likely to expose the jurisprudential preferences of the new justices.

Tort Law

Haver v. BNSF Railway Co. (S219919) and Kesner v. Superior Court (Pneumo Abex) (S219534) (petitions for review granted Aug. 20, 2014)

For decades, the California Supreme Court has been a leader in the field of tort law. From the 1940s through the mid-1980s, it led a nationwide push toward the expansion of tort liability; since then, the court has been more conservative, deciding fewer common law tort cases and trimming back some of its earlier decisions. Haver and Kesner may shed light on the court’s current trajectory. These two “take-home” asbestos cases present the issue of whether and when employers owe a duty of care to the now-ill family members of employees who brought asbestos fibers home from work on their clothing.

Environmental Law

California Building Industry Association v. Bay Area Air Quality Management District (S226753) (petition granted Nov. 26, 2013)

The court’s pending caseload includes a large number of important environmental cases, several of which involve the California Environmental Quality Act (CEQA) (Cal. Pub. Res. Code §§ 21000–21189.3). This law requires the preparation of an environmental impact report (EIR) whenever a government agency conducts or approves a project that may have a significant effect on the environment. The court granted review in this case to decide a basic issue regarding the scope of EIRs: whether they must include “an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project.” The industry association argues that CEQA’s EIR requirement is concerned with how a project will affect the environment, not the other way around. The air quality management district responds that issues such as the effects that poor ambient air quality may have on a project’s users represent fundamental and commonsense topics for an EIR to consider.

Criminal Law

In re Alatriste (S214652) and In re Bonilla (S214960) (petitions granted Feb. 19, 2014)

Both petitioners were 16 years old when they committed murders that led to prison sentences of 77 years to life and 50 years to life, respectively. In arguing that their sentences constitute cruel and unusual punishment, they rely on recent decisions from the U.S. Supreme Court and California Supreme Court that forbid sentences of life without the possibility of parole—or the functional equivalent of such a sentence—for persons convicted of crimes committed while a juvenile. When the court of appeal rejected Alatriste’s and Bonilla’s requests for resentencing, it emphasized that both petitioners were subject to a new state law that grants automatic parole hearings for youth offenders during their 15th, 20th, or 25th year of incarceration—a procedure that may legally soften what otherwise might appear to be essentially an impermissible life sentence. (See Cal. Penal Code § 3051.) The court will probe the boundaries of the earlier decisions in determining whether the petitioners are eligible for resentencing, notwithstanding the new California law.

People v. Lowe (S215727) (petition for review granted Mar. 19, 2014) and People v. Buza (S223698) (petition for review granted Feb. 18, 2015)

The defendants in these cases challenge the constitutionality of a provision within the DNA and Forensic Identification Database and Data Bank Act of 1998 (Cal. Penal Code §§ 295–300.3), more commonly known as the DNA Act. The challenged portion of the law provides for the taking of DNA from felony arrestees. As background, the U.S. Supreme Court recently held that a somewhat less broad DNA statute passed muster under the Fourth Amendment to the U.S. Constitution. (See Maryland v. King, 133 S. Ct. 1958 (2013).) The court of appeal in Lowe held that California’s DNA-collection procedure also comported with the Fourth Amendment. But last December, a different court of appeal held in Buza that the collection of DNA from all felony arrestees, without a prior judicial determination of probable cause, violated the state Constitution’s guarantee of protection from unreasonable searches and seizures.

People v. Macabeo (S221852) (petition for review granted Nov. 25, 2014)

This case presents another interesting and potentially far-reaching search-and-seizure issue. A police officer saw the defendant, Paul Macabeo, roll through a stop sign on his bicycle. The officer detained Macabeo and found a cell phone in his pocket. A search of the phone turned up child pornography, for which Macabeo was then placed under custodial arrest. A judge denied Macabeo’s motion to suppress this evidence as the product of an unlawful search. The court of appeal agreed that the search of the phone fit within the “search incident to arrest” exception to the Fourth Amendment’s search-warrant requirement, at least as this exception was understood at the time. But the search took place before the U.S. Supreme Court’s decision in Riley v. California (134 S. Ct. 2473 (2014)), which prohibits the routine search of a cell phone seized incident to its owner’s arrest. The court of appeal concluded that the “good faith” exception to the exclusionary rule applied. Macabeo argues that no arrest was in progress at the time of the search, and asks the state Supreme Court to reverse.


Correction: An earlier version of this article stated erroneously that the California Supreme Court’s opinion in People v. Scott was the first unsigned opinion the high court had issued in a death penalty case. It was only the first under Chief Justice Tani Cantil-Sakauye’s tenure.

Gerald F. Uelmen is a professor at Santa Clara University School of Law, where Kyle Graham is an assistant professor. Travis Cook, in the class of 2017, compiled data for this article.

Reader Comments

  1. Joe F says:

    Liu blew it, and Werdegar had it right, on class action waivers in employment disputes (Iskanian).

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