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: May 3, 1994, by Gov. Pete Wilson
BORN: April 5, 1936
LAW SCHOOL: George Washington University Law School, 1962
PREVIOUS JUDICIAL EXPERIENCE: First District Court of Appeal
After nearly a dozen years on the California Supreme Court, it’s apparent to those in the know that Justice Kathryn Mickle Werdegar has what the Scarecrow and the Tin Man lacked in “The Wizard of Oz” both a brain and a heart.
And they believe she’s used both along with the courage of her convictions to go down in history as a progressive moderate who’s crafted the law with no particular political bent and with a profound understanding that her rulings affect the daily lives of millions of Californians.
“She’s successful in being quite moderate and quite thoughtful without any agenda,” says Dennis Maio, an of counsel in Reed Smith’s San Francisco office who has known Werdegar for years. “I don’t think she has a hostile bone in her body.”
Oakland attorney Jon Eisenberg, an of counsel for Encino’s Horvitz & Levy who’s also acquainted with the justice, says the constant theme of Werdegar’s rulings has been “personal issues in everyday life.”
“She [has authored opinions in] cases involving reproductive rights, child rearing, employment, freedom of expression, end-of-life decision-making and health care,” he notes. “As a whole, I look at her list and I think family the various aspects of family life.”
That would likely please Werdegar, who says she tries to be “mindful” of the impact of her rulings on the state and individuals alike.
“My hope,” she says, “would be that I would be perceived to be fair and objective and restrained, yet always sensitive to the human and practical consequences of the decision.”
Werdegar says her years on the court have given her “a wide perspective on the issues that are of concern to the citizens of California and a real sense of responsibility to bring to the issues my best judgment.”
Werdegar, 70, hasn’t expressed any thoughts about retiring anytime soon. And with 12 years on the high court as of June 3, several attorneys and law professors say she has come into her own as a balancer of the bench.
“Werdegar’s legacy,” says Stephen Barnett, an emeritus professor at Boalt Hall School of Law, “may well be a court with a strong center, leaning to the left in civil cases, though still to the right in criminal ones.”
Although attorneys and law professors believe Werdegar’s heart has emerged through her rulings on the bench, her intellect has never been in doubt. She finished first in her class while attending Boalt Hall School of Law from 1959-61, and graduated first in her class with highest distinction from George Washington University Law School in 1962.
Evans v. City of Berkeley (2006) 38 Cal.4th 1: Holds that the city did not violate an organization’s constitutional rights by conditioning the free use of marina berths by the Sea Scouts on the group’s refusal to abide by city anti-discrimination policies.
Simon v. San Paolo U.S. Holding (2005) 35 Cal.4th 1159: Rules that a punitive damages award for business fraud may not be based on damages not found or awarded by jury.
Johnson v. Ford Motor (2005) 35 Cal.4th 1191: States that punitives should be no more than nine times the amount of compensatory damages, but the court left room for exceptions.
Catholic Charities of Sacramento v. Superior Court (Department of Managed Health Care) (2004) 32 Cal.4th 527: Holds that a statutory requirement that religion-affiliated social services agency include contraceptive coverage in its employee health plans did not violate constitutional religious freedom guarantees.
Sharon S. v. Superior Court (Annette F.) (2003) 31 Cal.4th 417: Declares second-parent adoptions legal.
Intel v. Hamidi (2003) 30 Cal.4th 1342: Rules that a disgruntled ex-employee’s mass mailings to a company employee e-mail list did not constitute trespass to chattels.
Equilon Enterprises v. Consumer Cause (2002) 29 Cal.4th 53; City of Cotati v. Cashman (2002) 29 Cal.4th 69; Navellier v. Sletten (2002) 29 Cal.4th 82: A trio of cases construing the state’s anti-SLAPP statute.
San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643: States that a city fee charged for a hotel owner’s conversion of residential units to short-term tourist use did not effect an unconstitutional taking.
Conservatorship of Wendland (2001) 26 Cal.4th 519: Rules that a conservator seeking to withhold life support from a conscious conservatee who gave no directions must present clear-and-convincing evidence that such a decision is either what the conservatee would have wanted or in the conservatee’s best interests.
Galanty v. Paul Revere Life Insurance (2000) 23 Cal.4th 368: States that the incontestability clause of a disability policy precluded an insurer from denying a claim based on AIDS where the insured tested positive for HIV before applying for the policy but did not suffer disabling symptoms until several years after policy was issued.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497: Rules that a trial court may sua sponte strike prior felony conviction allegations in furtherance of justice in cases arising under “three strikes” law.
Smith v. Fair Employment and Housing Commission (1996) 12 Cal.4th 1143: Holds that a landlord violated the California Fair Employment and Housing Act by refusing to rent to unmarried couple for religious reasons.
Advanced Micro Devices v. Intel (1994) 9 Cal.4th 362: Holds that an arbitrator award was proper so long as it bears rational relationship to an underlying contract and to breach.
Most of her career has been in the cerebral world as a professor, consultant or research attorney. And she has the distinction of joining the high court by replacing Justice Edward Panelli, whom she served as a senior staff attorney for six years.
All that insider knowledge has served her well, most say.
“She really does take cases as they come,” says Maio, himself a research lawyer on the court for about 20 years, “and it may be because she was there as an attorney and had a sense of dynamics and a sense of how things work.”
Boalt Hall professor Herma Kay says it’s apparent Werdegar does much of the opinion writing herself rather than relying on staff and even compares the native San Franciscan to Roger Traynor, chief justice from 1964-70 and considered one of the great intellects of the bench.
Kay was Traynor’s law clerk for a year before he became chief justice and says Werdegar writes in the same tradition.
Specifically, she says, Werdegar has a lucid writing style, is clear on issues and precedents, respects legislative intent, proceeds cautiously on constitutional questions, considers other states’ rulings and explains how the trial courts should apply her holdings.
“Traynor’s opinions appeared in case books all across the country in a variety of fields,” Kay says. “And I’m sure Werdegar’s would as well.”
She points to rulings such as 2004′s Catholic Charities of Sacramento Inc. v. Superior Court (Department of Managed Health Care), 32 Cal.4th 527, which upheld a statute requiring religion-affiliated social service agencies to provide contraceptive coverage to employees.
“She shows great sensitivity to religious freedom guarantees,” Kay says, “but makes quite clear that Catholic Charities is not a religious employer.”
She also admires Evans v. City of Berkeley, 38 Cal.4th 1, a ruling issued in March that said Berkeley hadn’t violated any constitutional rights by denying the Sea Scouts an affiliate of the Boy Scouts of America free marina berths as long as the group refused to abide by the city’s anti-discrimination policies.
Kay also speaks highly of Werdegar’s dissent in 2004′s Lockyer v. City and County of San Francisco, 33 Cal.4th 1055, in which the justice argued it wasn’t necessary for the high court to void nearly 4,000 same-sex marriages performed illegally by San Francisco authorities.
Kay points out that the case dealt with Proposition 22, which only prohibited the state from recognizing same-sex marriages licensed in other states. “So the question of whether those marriages were void was not before the court.”
Jon Davidson, legal director of New York’s Lambda Legal Defense and Education Fund, said Lockyer and Evans aren’t the only cases that prove Werdegar whose husband was the director of the San Francisco Department of Public Health during the height of the AIDS epidemic is gay-friendly.
He also cites Catholic Charities, 1996′s Smith v. Fair Employment and Housing Commission, 12 Cal.4th 1143, which ruled against a landlord who tried to use religious beliefs to refuse to rent to unmarried couples; 2000′s Galanty v. Paul Revere Life Insurance, 23 Cal.4th 368, which cracked down on insurers trying to deny claims by AIDS patients; and 2003′s Sharon S. v. Superior Court (Annette F.), 31 Cal.4th 417, which legalized second-parent adoptions.
“I don’t think anyone could say she’s got a political leaning one way or the other,” Davidson says. “But I think she seems to understand the issues presented.
“The one thing that one comes away with in reading her opinions is that she’s smart, she thinks and writes very clearly, and she seems very principled.”
San Francisco attorney Jill Hersh, who handles many cases involving gay families, called the Sharon S. opinion a “seismic shift” for gays and lesbians.
“What the court was doing was valuing these families,” she says, “giving them legitimacy, giving children the protection of the right to have both parents.”
As important as that ruling was, several court watchers including Eisenberg, Kay and Gerald Uelmen, a professor at Santa Clara University School of Law believe Werdegar’s most historic ruling was 2001′s Conservatorship of Wendland, 26 Cal.4th 519.
In that landmark decision reviled by many on the left Werdegar declared that people wishing to remove life support from semi-comatose patients must prove by clear and convincing evidence that’s what the bedridden person would have wanted.
“That opinion, which also was a unanimous opinion, is just so sensitive and so appreciative of individual autonomy,” Kay says. “It’s really quite remarkable.”
Eisenberg, who participated in the case as an amicus curiae on the losing side, felt the ruling was flawed because it was based on a long-suffering man’s condition in 1997, not four years later when the ruling came out.
“I think she ruled from the heart in that case,” Eisenberg says. “I tend to be law-bound myself. My view is that we have to operate on the premise that the law will lead us in the right direction.”
Some say that heart, however, compliments a person whom Uelmen calls “the smartest judge on the court.” And a justice that Barnett says could have several good years ahead of her.
“She’s just starting to come into her own now,” he says. “Her legacy could be a good deal broader than it now is.”