New California Supreme Court surprises analysts early on

California Supreme Court decision surprises analysts, but it's too early to draw definite conclusions

When Gov. Jerry Brown's two latest nominees joined the California Supreme Court in January, legal analysts foresaw the creation of a more liberal majority.

The first test came in March, when the seven-member court had to decide whether to reconsider a death penalty case. Justices Mariano-Florentino Cuellar and Leondra R. Kruger provided two crucial votes to give the death row inmate another chance to argue that his sentence should be overturned.

But in a case involving a law that some judges said had been inspired by homophobia, Cuellar and Kruger were on different sides.

During a closed session last week, Kruger joined the more conservative justices in refusing to revisit a decision that said adults who have consensual oral sex with minors must register as sex offenders — even though registration is not mandatory for adults who have sexual intercourse with people in the same age group.

Although it is still too early to assess the impact of Brown's appointees, "it tells us they are not voting as a bloc," Santa Clara University professor Gerald Uelmen said.

Analysts had expected Kruger and Cuellar to form a liberal majority with Justice Goodwin Liu (whom Brown appointed in his last term) and Justice Kathryn Mickle Werdegar, a Republican appointee with a moderate to liberal record. Werdegar was viewed as the likely swing vote.

The sex offender case involved a heterosexual man who was forced to register with law enforcement for having had consensual oral sex with a minor.

In the original 5-2 ruling, the justices reinstated a state law that made registration mandatory for convictions involving oral sex. California law, however, allows a judge to decide whether to compel registration when the crime involves sexual intercourse.

That decision was not yet final when the newly constituted court was asked to reconsider it. Decisions to rehear cases are rare and generally occur only at times of turnover on the court.

Werdegar, joined by Liu, dissented in the sex registration case. Werdegar called the distinction between sex acts a remnant from a period of "irrational homophobia" and one that would affect gay people in "a differentially harsh way."

Justice Marvin Baxter, who is now retired, wrote the ruling for the majority. He said the law might rationally treat the sex acts differently because only intercourse could produce children. Forcing a parent to register could hurt the child, the court said.

Kruger joined Chief Justice Tani Cantil-Sakauye and Justices Ming Chin and Carol Corrigan in opposing reconsideration. Cuellar voted with Werdegar and Liu in favor of doing so.

Kruger's vote surprised analysts, and produced speculation, but her reasoning was impossible to know. Decisions on whether to review cases are made behind closed doors and produce only brief orders.

Uelmen said Kruger might have voted to rehear the death sentence case because it involved a man's life and had been decided on a 4-3 vote. Last week's case turned on whether sex registration should be mandatory or up to a judge. He also cautioned that speculating on Kruger's thinking without a full-blown ruling amounted to "reading tea leaves."

Paul Fogel, an appellate lawyer, said the vote by itself was not particularly illuminating.

"It would be premature to jump to any conclusions at this point," Fogel said. "It is just too small a sample on which to base a meaningful conclusion."

Twitter: @mauradolan

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