It’s been 10 years since Ronald George became chief justice of the California Supreme Court. The Recorder reflects on his legacy with a series profiling five of the seven justices who have been on the court the longest.
COURT: California Supreme
APPOINTED: March 1, 1996, by Gov. Pete Wilson
BORN: August 31, 1942
LAW SCHOOL: University of San Francisco, 1967
PREVIOUS JUDICIAL EXPERIENCE: First District Court of Appeal, Alameda County Superior Court
Looking frail and pale, Justice Ming Chin gingerly made his way to his seat near the far end of the California Supreme Court bench during oral arguments early last month in Los Angeles.
The 63-year-old was only three months removed from surgery for subdural bleeding, and court regulars were curious about how he would fare in the first arguments he had attended in person since December.
Chin put any worries to rest almost immediately by joining the fray with a few well-placed questions that kept attorneys on their toes. He obviously was on top of his game mentally, and the next day even had a familiar spring back in his step.
In an interview last week, Chin said he hasn’t resumed running but has played a few games of tennis with longtime friends. And he and his wife, Carol, were invited guests at an April 20 White House luncheon honoring Chinese President Hu Jintao.
After celebrating his 10th year on the high court on March 1, Ming said he feels healthy enough to stay on for a long time to come.
“I have no plans to leave,” he said, noting he expects to run for retention when he’s up again in 2010.
That shouldn’t surprise anyone who’s familiar with Chin, a former captain who won the Army’s Commendation Medal and Bronze Star during a year in Vietnam. He moves with purpose, speaks robustly and is considered by many to be the bench’s most active judge.
“What impresses me about Ming Chin is his energy level,” says Santa Clara University School of Law professor Gerald Uelmen. “This guy must put in a lot of hours. His productivity is just astounding.”
In the decade prior to April 1, Uelmen notes, Chin, who’s on the conservative wing of the bench, had authored 158 opinions for the California Supreme Court, 12 more than Chief Justice Ronald George, his closest competitor.
“He has a reputation,” Uelmen says, “of [having] the fastest chambers on the court.”
Quantity, however, doesn’t diminish quality. And many predict Chin’s rulings will stand the test of time.
“They are not simply law review articles,” says Dennis Maio, a counsel in Reed Smith’s San Francisco office. “They are opinions, and they are intended to resolve issues and provide guidance beyond the facts of the cases.”
Chin said last week that he once was introduced as a justice whose opinions are full of courage and clarity � a description he found fitting.
“That’s what I try very hard to do,” he said. “Whether or not you agree with the opinion, you know what I’m trying to say in the shortest possible route.”
A former deputy district attorney in Alameda County, Chin is widely viewed as both pro-prosecution and pro-business.
The former can be seen in decisions such as People v. Monge, 16 Cal.4th 826, a 1997 ruling that said retrying a prior felony conviction allegation after remand for insufficient evidence didn’t subject a defendant to double jeopardy, and People v. Humphrey, 13 Cal.4th 1073, a 1996 decision that allowed battered woman’s syndrome to be used as part of a murder suspect’s self-defense claim.
As examples of Chin’s pro-business leanings, some point to his 2004 opinion in Wiener v. Southcoast Childcare Centers, 32 Cal.4th 1138, and his 2001 decision in Merrill v. Navegar, 26 Cal.4th 465.
In Wiener, Chin held that property owners cannot be held liable for a third party’s unforeseeable criminal act, while in Navegar, he ruled that gun manufacturers aren’t liable for negligence even if their weapons are used in a crime.
Dennis Henigan, who argued Navegar on behalf of the victims and families involved in a notorious 1993 shooting rampage in a San Francisco high-rise, still believes the decision was “quite outrageous.”
So Henigan, legal director for the Washington, D.C.-based Brady Center to Prevent Handgun Violence, was pleased in September 2002 when the California Legislature � in a direct response to Navegar � passed a law permitting suits against gun companies for willful or negligent acts or omissions in the design, distribution and marketing of firearms or ammunition.
“I really felt, in a way, our clients were ultimately vindicated,” he says.
Deborah La Fetra, principal attorney for the Pacific Legal Foundation, a conservative Sacramento-based organization, says that Wiener was likewise watered down � but by the court itself.
When the ruling came out, La Fetra hailed it as a major victory for landowners. But, she says, the court, in a couple of 2005 rulings by Chief Justice George, weakened Wiener.
La Fetra is referring to Delgado v. Trax Bar & Grill, 36 Cal.4th 224, and Morris v. De La Torre, 36 Cal.4th 260, in which the court placed more liability on businesses to protect individuals from criminal assaults on their grounds. Chin concurred in both.
Cronus Investments v. Concierge Services (2005) 35 Cal.4th 376: States federal arbitration rules don’t pre-empt a state statute that lets judges stay arbitration proceedings pending the outcome of related litigation.
Wiener v. Southcoast Childcare Centers (2004) 32 Cal.4th 1138: Holds that a child care center and property owner were not liable for injuries to children caused by a third party’s unforeseeable criminal act.
Winter v. DC Comics (2003) 30 Cal.4th 881. Allows that expressive works of comic-book fiction which incorporated celebrity identities were protected by the First Amendment under the “transformative” test stated in Comedy III Productions Inc. v. Saderup.
Advanced Bionics v. Medtronic (2002) 29 Cal.4th 697: Allows that only exceptional circumstances will justify the issuance of a temporary restraining order barring parties from pursuing litigation in foreign jurisdiction.
Konig v. Fair Employment and Housing Commission (2002) 28 Cal.4th 743. States that the Fair Employment and Housing Commission had the authority to award general compensatory damages for emotional distress and lost housing opportunities based on findings of racial discrimination.
Merrill v. Navegar (2001) 26 Cal.4th 465: Holds that a gun manufacturer was not liable under common-law negligence theory for the manufacture and sale of an inherently dangerous assault weapon.
Morillion v. Royal Packing (2000) 22 Cal.4th 575: Rules that an agricultural employer who required employees to travel to work sites on employer-provided buses was required to pay employees for travel time.
People v. Falsetta (1999) 21 Cal.4th 903: Allows the use of prior sex crimes evidence to show that the propensity to commit a charged sex offense did not violate due process.
Cel-Tech Communications v. Los Angeles Cellular Telephone (1999) 20 Cal.4th 163: States that below-cost and loss-leader sales do not violate Unfair Practices Act unless the business acts are done with specific purpose of injuring competitors.
People v. Monge (1997) 16 Cal.4th 826: Allows the retrial of a prior felony conviction allegation after reversal and remand for insufficient evidence did not subject non-capital defendant to double jeopardy.
Professional Engineers in California Government v. Department of Transportation (1997) 15 Cal.4th 543: Rules the court of appeal erred in dissolving injunction preventing Caltrans from privately contracting for engineering and inspection services previously provided by state employees.
Bunch v. Coachella Valley Water District (1997) 15 Cal.4th 432: Holds that the flood control district is not liable for the failure of reasonable efforts to divert floodwaters from a dangerous natural course.
People v. Humphrey (1996) 13 Cal.4th 1073: States expert testimony on “battered woman’s syndrome” is admissible to determine the reasonableness of a murder defendant’s belief in the necessity for self-defense against assault by victim.
La Fetra, who participated as an amicus curiae in Delgado, Morris and Wiener, says the court “seemed to move away from the bright-line, heightened security requirement discussed in the Wiener case and more toward a sliding-scale balancing test.”
She says that “leaves landowners very uncertain as to what their duties are and what their potential liability is.”
The decisions also somewhat undercut Chin’s reputation as pro-business.
Chin’s greatest legacy � in most observers’ minds � began when he was on San Francisco’s First District Court of Appeal, but it has followed Chin onto the high court in both rulings and speeches.
Specifically, Chin is a nationally renowned expert on DNA evidence.
“He frequently speaks at conferences and symposia,” says Uelmen. “He’s kept up on it. I think he has an abiding interest in the science.”
Chin first gained fame on the DNA front in 1992, nearly 3 1/2 years before joining the Supreme Court, when he ruled in People v. Barney, 8 Cal.App.4th 798, that while DNA “fingerprints” represented a useful forensic tool, the statistical model used to analyze them wasn’t generally accepted in the scientific community.
He reaffirmed that holding seven months later in People v. Wallace, 14 Cal.App.4th 651.
The rulings infuriated the law enforcement community, including prosecutors. But in 1998 the state Supreme Court � with Chin on board � followed Chin’s logic in People v. Venegas, 18 Cal.4th 47. A year later, however, the court finally relented, holding in People v. Soto, 21 Cal.4th 512, that the science had been accepted.
Oakland appellate specialist Jon Eisenberg says Chin should be proud of his early rulings on DNA.
“This was at the dawn of the DNA era,” he says, “and what Chin said was, ‘This technology is just about there, but the prosecutors are currently overstating its significance because it hasn’t quite been perfected yet. We are going to hold them to the line.’ These were very cautious opinions.”
Since then, Chin has participated in national reports on DNA admissibility and has toured the country giving lectures to groups as small as the Placer County Bar Association and as big as the FBI’s Second International Symposium in Quantico, Va.
He also heads up the Supreme Court committee that helps update technology at courts throughout the state and has been in the forefront of making sure judges can handle scientific issues such as gene therapy and forensic DNA.
“We are not generally versed in science,” he said last week, “and we need concentrated programs to bring judges up to speed on the science involved in these particular issues. And it’s going to get harder.”
Outsiders often describe Chin as quiet and self-effacing, but as his stance on DNA proved, he isn’t afraid to take an unpopular stand. He proved that again 17 months after joining the high court when he sided with the majority in striking down a state statute requiring minors to get parental consent before having an abortion.
Stephen Barnett, an emeritus professor at Boalt Hall School of Law, believes that possibly was Chin’s most courageous act on the court. Outraged anti-abortionists were so upset that they tried to oust Chin and George, who wrote the ruling, on the November 1998 ballot.
They failed, and won Chin many fans.
“He threw caution to the wind and did what he thought was right,” Eisenberg says. “I thought that was admirable.”
As Barnett says: “You can build a reputation by not worrying about your reputation.”