The emergence of a moderate era
The George court's first year

by Rex S. Heinke and Taggart Hansen

Few changes were expected when Ronald M. George was sworn in as chief justice of the California Supreme Court in May 1996 -- little more than a year ago. Most observers felt the conservative tendencies of the previous nine-year term of Chief Justice Malcolm M. Lucas would continue to dominate.

Such speculation was based on George having frequently voted as Lucas voted and on the court, which George was chosen to preside over, consisting of five other appointees (Justices Joyce L. Kennard, Marvin R. Baxter, Kathryn M. Werdegar, Ming W. Chin and Janice R. Brown) of conservative Republican governors. Only Justice Stanley Mosk was appointed by a Democratic governor.

"Surprising" may therefore be the appropriate word to utilize when summing up the first year of the George court. Since George was sworn in as chief justice, the court has become more moderate and less predictable than the two predecessor courts of Lucas and Rose E. Bird. The main impetus for this shift has been that justices once considered conservative have moved toward the center, increasing the chances that the moderate view will prevail.

Move to the center

Seen as conservatives since their appointments, George and Werdegar have emerged as moderates since Lucas retired. George's lack of dissents (he registered no dissents in any of the cases decided between May 31, 1996, and June 1, 1997) and his exceptional leadership abilities have placed him at the center of the court.

Werdegar's move to the court's center has been more pronounced. At one point she occupied a position on the right. Now, Werdegar has positioned herself at the center with the new chief justice.

ABC International Traders v. Matsushita Electric Corp., 14 Cal. 4th 1247 (1997), solidified Werdegar's position in the center and highlighted her departure from her position as one of the court's most conservative justices when she authored the majority opinion. ABC involved the Unfair Practices Act's provision prohibiting sellers from giving buyers secret unearned discounts. The law was clear that a competitor of a seller, who gave such discounts, could sue. The issue was whether a buyer, who did not receive such discounts, could also sue. Id. at 1252. Significantly expanding the potential plaintiffs in such cases, Werdegar held that buyers could sue. Id.

Werdegar engaged in a telling exchange with the conservative Brown, who wrote a pointed dissent to the majority's interpretation of the Unfair Practices Act. In her dissent, Brown wrote: "The quixotic desire to do good, be universally fair, and make everybody happy is understandable . . . There is only one problem with this approach. We are a court." 14 Cal. 4th at 1272. In response, Werdegar (joined by all of the other members of the court) dismissed the dissenting opinion as nothing more than hyperbolic rhetoric and emphatically stated that, while the majority "need not go as far as to disclaim all interest in fairness and human happiness," the majority's goal was much "narrower and simpler." Id. at 1267.

The centrist shift of the George court was confirmed with the recent holding in Ame-ican Academy of Pediatrics v. Lungren, 1997 Cal. LEXIS 4411 (Cal. Aug. 5, 1997), which was decided during the second year of the George court. In a rarely used procedure, the court chose to rehear arguments in a case addressing the constitutionality of a law requiring minors to seek parental consent prior to obtaining an abortion. Although the U.S. Supreme Court has upheld such laws as constitutional, the George court struck down the law as a violation of the right to privacy guaranteed by the California Constitution. The opinion was authored by the chief justice, who was joined by fellow centrists Werdegar and Chin, with the moderate Kennard writing a separate opinion in agreement. If one opinion can define a court, at least for now, this case could very well be it for the George court.

Moderation the appropriate term

Make no mistake, this is not a liberal court by any stretch of the imagination, but a closer look at the opinions during the first year of the George court indicates that this court can rightfully be called moderate.

If the opinions handed down during the past year are broken down into subject categories by legal area -- torts, employment and labor, government, business and criminal -- and further categorized as "pro-plaintiff" or "pro-defense" (or their equivalents), a moderate trend emerges.

For example, the overwhelming majority of the 77 cases decided by the court were criminal cases. Of a total of 38 criminal law cases, only 57% came out in favor of the prosecution -- somewhat surprising, considering that many of the justices are considered to be "law and order" jurists. However, the numbers for the remaining categories do not indicate the court's moderation in criminal law is a fluke. For tort law, 62% of the cases came out pro-plaintiff; in labor and employment, the court ruled in favor of the employer only 49% of the time; and the government was the beneficiary of the court's decisions in only 56% of the government law decisions. Only in the area of business law did the court display its conservative tendencies, with 67% of the cases coming out pro-business.

Defining the court's character

Every indication is that when Lucas retired, he took the conservative disposition of the court with him. If the current centrist trend continues, the coming year could redefine the character of a once conservative court.

Rex S. Heinke is a partner specializing in appellate matters and Taggart S. Hansen is a summer associate in the Los Angeles office of Gibson, Dunn & Crutcher. Cases which did not fit the pro-plaintiff or pro-defense categories were marked as neutral.