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California Supreme Court Chief Justice Ronald George didn’t give up on consensus-building in 2000. But mustering a majority among the justices of the state’s high court hasn’t exactly been a cakewalk lately. In the past, George often cast the tie-breaking vote on the court. Yet even he concedes some interesting alliances have turned up recently. “It’s like a square dance. You’re always dancing with someone else,” he joked during a recent meeting with reporters. And the odd alliances meant that George — who rarely dissented in past years — found himself in the minority 10 times last year. With no predictable majority bloc, decisions last year depended on mix-and-match coalitions. “This court produced some real surprises in terms of the combinations of justices,” said Gerald Uelmen, a law professor at Santa Clara University. “A couple of cases made me rub my eyes.” California’s high court may not have been burdened by the task of weighing in on the nation’s presidential election as was the supreme court of a certain other sunny state. But this panel of seven justices decided a total of 104 cases in 2000, including the review and affirmance of 15 time-intensive death sentences. Uelmen suggests that the justices’ increasing independence “is going to make it more difficult to get everyone on board.” Others suggest this is a natural evolutionary stage for the George court. “The fractures might be partially attributable to a very human explanation: Over years of working together on divisive cases, they’ve just become a bit more testy with each other,” said appellate specialist Jon Eisenberg, of counsel in the Oakland office of Encino’s Horvitz & Levy. And with the court’s most junior member now approaching the four-year mark, the justices’ independence may just be a sign of a maturing court, where junior justices feel more confident breaking rank with the chief or the majority. Last year, the chief justice even ventured to write his first lone-wolf dissent since taking the helm four years ago. In Paz v. State of California, 22 Cal.4th 550, George rejected the majority’s holding that a developer was not liable for negligence after failing to deliver on a promise to install traffic lights at a dangerous intersection. George also found himself on the outs in this year’s blockbuster, Hi-Voltage Wire Works v. City of San Jose, 00 C.D.O.S. 9442. Not surprisingly, the decision threw out the city’s minority contracting outreach program, saying it violated Proposition 209, which outlawed racial and gender preferences. But what was surprising was George’s scathing dissent from Justice Janice Rogers Brown’s majority opinion and her denunciation of affirmative action. Uelmen said the outcome in Hi-Voltagerevealed the justices may be more deeply divided than previously thought. “It’s one of the most interesting cases because of the vehemence of Chief Justice George’s criticism of Justice Brown’s opinion,” he said. “Frankly, I was surprised Justice Brown was able to pull justices [Stanley] Mosk and [Ming] Chin with her on the opinion she wrote. It indicated to me that obtaining a consensus on this court may be becoming a more difficult task for the chief.” ‘NOT A TASK FOR WIMPS’ It was a big year for lawyer law. In a 6-1 decision in PLCM v. Drexler, 22 Cal.4th 1084, the justices handed corporate law departments a huge victory, saying in-house lawyers can recover fees at market rates. But the regulation of lawyers proved more divisive. With In re Rose, 22 Cal.4th 430, a George-led majority concluded the state Constitution does not require the justices to hold oral arguments and issue written rulings before suspending or disbarring attorneys. Brown accused the majority of “empty formalism.” “What petitioner really objects to is the absence of any indication that, despite the elaborative administrative hoops through which attorneys facing discipline must jump, a court of law, a constitutionally founded judicial body, has considered a lawyer’s claims on the merits before pronouncing judgment,” Brown wrote. Brown was even more direct in Obrien v. Jones, 23 Cal.4th 40. There, George again wrote the majority opinion upholding a state law that lets the Legislature and the governor — instead of the justices — make appointments to the State Bar Court. Brown said the ruling was the latest example of the court’s willingness to abdicate its constitutional authority. “The preservation of a viable constitutional government is not a task for wimps,” she wrote. George wasn’t the only one with whom Brown butted heads over separation of powers. Brown dissented from Justice Joyce Kennard’s majority opinion in Leone v. Medical Board of California, 23 Cal.4th 660. Kennard said doctors fighting to keep their medical licenses aren’t entitled to oral argument, citing a state law that makes an extraordinary writ petition the only way a doctor can seek to overturn such administrative decisions. Digging in her heels again, Brown warned that Kennard’s ruling “threatens to overturn the conception of a constitutionally rooted, truly independent judiciary.” Boalt Hall professor and veteran courtwatcher Stephen Barnett says Brown and Kennard may be competing for the tag of court maverick. “They’re both independent, unpredictable and they seem to be vying for the role of court conscience,” he said, noting that sometimes they come out together, as in Roseand Obrien. But, Barnett says, “sometimes they come out at opposite ends of the seesaw.” In Hi-Voltage, for example, Kennard offered a three-paragraph dissent from Brown’s decision that said she could “see no need to discuss potentially divisive matters.” THE WILL TO WORK The justices were again active in the employment and alternative dispute resolution arenas. In Armendariz v. Foundation Health Psychcare Services, Inc., 00 C.D.O.S. 7127, the justices reasoned that businesses can force workplace disputes into arbitration so long as the terms are fair and don’t trample the employee’s rights. With Mosk leading, the court laid out a list of guidelines that businesses must follow — and the decision will likely force companies throughout the state to tread a little more carefully in employee relations. In the highly anticipated Guz v. Bechtel, 24 Cal.4th 317, the justices dashed the hopes of plaintiff lawyers seeking a way around at-will employment precedents, saying employees can still be sacked despite a history of favorable reviews. In Asmus v. Pacific Bell, 23 Cal.4th 1, the justices said an employer can terminate certain policies with adequate notice. George wrote a dissent saying the majority’s opinion endorsed a “patently unfair, indeed unconscionable, result.” George seemed irked that, with Justice Kathryn Mickle Werdegar’s recusal, Fourth District Court of Appeal Justice Judith Haller ultimately cast the deciding vote as a pro tem. “It is particularly unfortunate that the majority reaches out to address a broad issue that is not presented by this case, when the court is so closely divided and lacks the participation of all its permanent members,” he wrote, with Mosk and Kennard signing on. In another 4-3 split, Potvin v. Metropolitan Life Insurance Co.,22 Cal.4th 1060, the same justices — this time with Werdegar providing the fourth vote — said a doctor couldn’t be dropped from a HMO’s provider list without reasonable notice and a chance to be heard. Though Werdegar is considered closest to George in ideology and is usually allied with him, her opinion in People v. Camacho, 23 Cal.4th 824, prompted another George dissent — which was joined by the more conservative Chin and Justice Marvin Baxter. In that case, the majority threw out a man’s drug conviction because the cops discovered the narcotics only after they crossed into his side yard and peered through his open window. Werdegar and George also parted ways in Aas v. Superior Court (William Lyon Co.),00 C.D.O.S. 9607, a construction defect case in which Werdegar wrote that homeowners were not entitled to recover economic losses for building code violations that hadn’t yet caused personal injury or property damage. “In determining that a negligently constructed home must first collapse or be gutted by fire before a homeowner may sue in tort to collect costs… the majority today embraces a ruling that offends both established common law and basic common sense,” George wrote in dissent. But that was nothing like the fireworks provided by Hi-Voltage. “All it really did was uphold 209, so the holding itself was nothing surprising. But the opinions were so extreme,” says Barnett. “Justice Brown’s opinion provoked George, who in turn seemed to allow himself to be extreme.” Brown’s opinion surveyed nearly 150 years of case law on race issues leading up to what she characterized as “approval, sometimes endorsement, of remedial race- and sex-conscious governmental decision-making” before concluding San Jose’s program violated the 1996 initiative. But George said the majority’s history lesson “represents a serious distortion of history and does a grave disservice to the sincerely held views of a significant segment of our populace.” And he attacked it for serving “only to undermine confidence in the opinion’s analysis of the legal question actually presented in this case.” But scholars say that while Hi-Voltagemay have stolen the spotlight, the justices’ free speech rulings will be just as significant. In a pair of cases that called on the court to compare the state constitution’s liberty of speech clause with the First Amendment, the justices were split in each case — and along different lines. Joined by Baxter, Werdegar, Chin and Brown in Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal.4th 352, George concluded that a Los Angeles ordinance banning aggressive panhandling did not violate the state speech clause. He found the state clause was at least as protective as the First Amendment, but he ultimately relied on the strict scrutiny test laid out by U.S. Supreme Court precedents to conclude that the ordinance was “addressed to the inherently intrusive and potentially coercive nature of that kind of speech, and not to the content of the speech.” That drew a dissent from Mosk, who said the ordinance discriminates between requests for money and other speech and isn’t content-neutral. “A person holding up a sign that states ‘Fight Hunger In Our Community’ may freely stand on a public street near a taxi stop in Los Angeles, even if people ask him to leave. Another person holding a sign stating ‘Fight Hunger In Our Community; Please Donate To Our Church Soup Kitchen’ standing in exactly the same place is potentially acting illegally under the ordinance,” Mosk wrote. Both he and Kennard, who dissented separately, said it was high time for the court to come through on its suggestion over the years that the California Constitution’s liberty of speech clause is in fact an even stronger guarantee than the First Amendment. Kennard reiterated her dissent in 1999′s blockbuster Aguilar v. Avis Rent A Car System, 21 Cal.4th 121, which approved an injunction censoring disfavored speech in the workplace. “Free speech is often annoying. Just ask any parent,” the dissent began. Kennard conceded that for many, “being asked on the streets for donations or to buy goods or services is annoying, offensive, disturbing, or depressing.” But she expressed concern with the court’s willingness to restrict speech that is offensive to some — last year because of racial slurs, this year sheerly because of annoyance at the speaker. But Mosk eventually prevailed, as the justices, in a 4-3 decision, relied on the state’s speech clause in holding that the state can’t force an independent plum grower to cough up funds to pay for generic fruit advertising. George again led the dissenters in the case, Gerawan Farming v. Lyons, 00 C.D.O.S. 9287, saying “California decisions applying the state free speech clause have more often than not concluded that the state provision affords no greater protection than that afforded by the First Amendment.” The message, some say, is that the court’s decisions on free speech depend less on what’s said than on whose rights are at stake. “In legal doctrine it can be reconciled,” says Barnett. “But on the surface, it comes down to the poor lose and the rich win.” PLEADING THE FOURTH For lawyers defending inmates on death row, last year was a disappointment. The justices didn’t overturn any of the 15 death sentences they reviewed. But it was a bully year for the Fourth Amendment. “This court previously had not been much of a friend to Fourth Amendment suppression motions,” Uelmen said. “We’ve gone whole years without the court every holding suppression was every required. This year we had two major opinions.” Though the justices were divided in Camacho, the decision in People v. Robles, 00 C.D.O.S. 5894, was unanimous. Baxter wrote that police officers can’t validate an otherwise illegal warrantless search of a home simply because they later learn that another person in the house was on probation. In another win for the defense bar, Alvarado v. Superior Court, 00 C.D.O.S. 6897, George wrote that prosecutors cannot keep witness names secret at trial because the Sixth Amendment guarantees every defendant will be confronted with the witnesses against him. In family law, meanwhile, the justices upheld the prenuptial agreement in a high-profile case involving baseball slugger Barry Bonds, ruling their contract was good even though Bonds’ ex-wife hadn’t consulted an attorney before signing it. Related Chart: Justice by the Numbers

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