Court Nominee’s Writings Expressed Strong Views

Court of Appeal Justice Janice Rogers Brown, who is up for confirmation to the California Supreme Court this week, expressed strong conservative views in legal writings that state bar evaluators reviewed before finding her unqualified for the state high court.

In a 1993 Sacramento bar journal article, Brown complained that government was too big and expressed dismay about lawyers who advocate civil liberties for topless dancers and the homeless but not for public prayer.

“Rights cannot be regulated,” wrote Court of Appeal Justice Brown, who at the time was Gov. Pete Wilson’s legal affairs secretary, “and they often collide in ways that defeat rational public policy.”

“Thus,” she continued, “lawyers have secured the right of topless dancers to perform, but have banished prayer from public life. They have won the right for indigents to take over public spaces, even our children’s libraries, and for the mentally ill to live on streets and shout obscenities at passersby.”

Brown, 46, continued to express her views in court decisions after Wilson appointed her to the Court of Appeal in Sacramento in 1994, a practice cited by state bar evaluators in deeming her unqualified for the high court.

Nominated by Wilson to the California Supreme Court last month, the African American jurist will appear before a three-member state confirmation panel here Thursday. Wilson expects her to be confirmed in spite of her negative rating by the state bar, which cited lack of experience and the inclusion of personal opinions in her legal opinions.

Voting on Brown’s confirmation will be Supreme Court Justice Ronald George, whom Wilson has nominated for chief justice, Atty. Gen. Dan Lungren and Court of Appeal Justice Robert K. Puglia, who presides over the court where Brown serves and already has publicly endorsed her.

Brown’s opinions, most of which have not been published as precedent-setting, reveal a tendency to mold the law in a way she sees as serving the state’s best interest, even if a more literal interpretation of a statute would yield a different result. Legal scholars give her opinions mixed reviews.

Dissenting in a decision to require a prison to restore a handicrafts program, Brown made it clear that she thought inmates had no right to complain about its elimination.

“Petitioner’s claim is trivial,” she wrote last May. “His writ is an example of petty self-interest run amok.” To require prison authorities to readjust budget priorities to reinstate the program provided under a state regulation, she added, “seems frankly outrageous.”

In a case in which a school district was sued by the parents of a student who had committed suicide, Brown wrote an opinion last year that said the district could not be held liable for failing to have detected the student’s suicidal tendencies.

Even if there were no legal obstacles to such a suit, Brown wrote, public policy considerations alone would preclude the court from allowing parents in such situations to sue schools.

“The public school system is already so beleaguered by bureaucracy; so cowed by the demands of due process; so overwhelmed with faddish curricula that its educational purpose is almost an afterthought,” she wrote. “To expect teachers to behave as prescient psychotherapists and hold them liable for their failures is likely to make the educational project altogether impossible.”

UC Davis law professor Vikram Amar said he was troubled that Brown expressed sarcasm toward a litigant in the prison case because litigants cannot defend themselves in court opinions. She appeared to be “venting,” he said, whereas most appellate judges use only biting language when referring to their colleagues’ positions.

But he said Brown’s positions are also defensible, even from a politically liberal perspective, and her arguments are sound. “What gives me pause is the way she presents the arguments,” he said.

McGeorge School of Law professor J. Clark Kelso, one of the more conservative court analysts, called Brown’s opinions strikingly well-written and praised Brown for clarifying the public policy reasons behind rulings.

“I think it is a very good thing when a court clearly tells you what it is that is influencing” the result, he said. She could be viewed as an “activist” judge, he conceded, because she may not be bound by the wording of a statute she has been asked to interpret. But Kelso said he would not label Brown an activist.

“Some people will say she is rejecting the plain meaning approach” to interpreting laws, Kelso said. “I think that is probably true. She will favor a more comprehensive approach.”

Stanford University law professor Gerald Gunther said Brown was not “way out of line” by expressing strong opinions in her court rulings because other appellate justices resort to such language on occasion.

Nevertheless, he said, “You can criticize them, and the more criticism, the better.” A “better hand,” he said, would not use such strongly opinionated language.

The problem with expressing vehement personal views in court opinions is that lawyers and others may infer that the results were motivated by politics rather than the law, said Santa Clara law professor Gerald F. Uelmen. Brown’s opinions contain “sloganeering” that underscores her lack of experience, Uelmen said.

“The credibility of the opinions may be lessened if judges are seen as kind of promoting a political agenda,” he said.