He's come down on both sides in civil cases, too. Liu's opinion in Kirby v. Immoos Fire Protection spared plaintiffs from having to pay attorney fees in rest-break litigation, but his ruling in Parks v. MBNA America Bank held that federal law pre-empted a California consumer protection measure for credit card holders.
Counseling restraint—usually
Liu has used his separate opinions to counsel judicial restraint. In Vandermost v. Bowen, Liu cautioned against getting involved in legislative redistricting litigation, which he saw as "fundamentally political." In People v. Ahmed he said the majority was right to apply a statutory limitation on multiple punishments, but that it went too far in explaining why. "I would not opine on how [Penal Code] § 654 applies to enhancements until we are called upon to resolve an actual dispute on that question," he wrote.
In one concurrence, though, Liu seemed less restrained. In In re Bacigalupo, Liu joined Justice Joyce Kennard's unanimous opinion throwing out a death judgment for prosecutorial misconduct. "I write separately to highlight three additional points in favor of the court's holding," Liu explained.
Asked about it, Liu says Bacigalupo was "an extraordinary case." A court-appointed referee held a years-long hearing before concluding that a DA investigator withheld evidence that a killer was coerced into committing his crime by a Colombian drug lord.
"I thought it was important that the referee Judge [Richard] Arnason, who was very dutiful, very complete, very thoughtful in what he produced as a report—that his findings be given their due," Liu said.
Three other justices signed his concurrence.
Asked if his experience before the Senate informs his views on judicial restraint, Liu laughs softly. "You know what?" he says. "The confirmation experience informed my understanding of politics. But it didn't really do much to inform what I do day-to-day here. I think the most any of us could say here is that we call 'em as we see 'em."
Liu has seemed especially eager so far to weigh in on criminal law. Twelve of his 15 separate concurring opinions have come in criminal cases, as have seven of his nine dissents. One of those opinions appear to be developing a following among California appellate justices.
In In re Shaputis, Liu agreed with the majority that parole board decisions must be upheld so long as they're not arbitrary or capricious. But, Liu said—confronting an issue that has vexed the state's appellate courts—judges must examine "the evidence and reasoning on which the board or governor actually relied." Appellate Justices Miguel Marquez, James Richman, James Lambden and Coleman Blease have already cited Liu's Shaputis concurrence with approval.
No nose-counting
Liu has been dissenting somewhat more during his second year on the court. One quarter of the way through the 2012-13 term, he's parted company three times—half his output from last term.
