Reserved Justice Finds Self at Eye of ‘3 Strikes’ Storm

When Kathryn Mickle Werdegar was appointed to the California Supreme Court two years ago, some critics mistakenly presumed her to be a socialite who got the job over more qualified candidates because she had dated Gov. Pete Wilson in law school.

Now the scholarly jurist is at the eye of a storm as the author of a ruling that struck at the heart of the state’s “three strikes” law and infuriated victims rights activists, renewing debate over the power of the judiciary and triggering major political reverberations.

Although she shuns the limelight, it is no surprise that Werdegar wrote one of the court’s most important and controversial rulings.

In her 24 months on the court she has become one of its most influential members, establishing a reputation for diligence and legal acumen, and churning out many of the court’s best-known rulings.

A reserved judge who approaches the law more intellectually than pragmatically, Werdegar had spent years writing court opinions as a staff lawyer on the California Supreme Court and the Court of Appeal before Wilson put her on the bench in June 1994.

Even as the court’s junior justice--which she was until a few months ago--Werdegar quietly tackled some of its most sensitive assignments, and became well acquainted with criticism.

Before authoring Thursday’s opinion, which allows judges to spare repeat offenders from long prison terms, she had penned a housing discrimination decision that angered religious conservatives and an opinion last year in a sexual molestation case that infuriated liberals and drew criticism from a legal newspaper, which zinged it as the court’s worst opinion of 1995.

But the intense fallout from Thursday’s decision is said to have taken Werdegar by surprise. Callers to radio talk shows denounced her, and her photograph ran alongside newspaper stories featuring politicians and victims rights advocates blasting the court. Although the ruling was unanimous, Werdegar, as its author, has been most publicly associated with it.

Justices are not allowed to discuss pending cases, and Werdegar declined Friday to talk about the “three strikes” ruling because it will not be final for 30 days. But she spoke indirectly about the publicity she is receiving.

“One of the really new aspects of being a Supreme Court justice is the comparatively higher profile that comes with it,” she said carefully. “I am, to use a cliche, a private person, and I have never sought the limelight. But if that comes with my job, so be it.”

Werdegar is known to agonize over some of her decisions in a deliberative style that one lawyer said some regard as “indecisive.”

“I don’t make quick decisions. My style is to digest and reflect,” Werdegar said, admitting that she sometimes feels torn over cases before the court and wishes she had more time to make up her mind.

“I think the biggest challenge here is not to care how you are labeled or characterized,” she said, “but to do what you think is right.”

Lawyers who appear before the court and law professors who follow it describe Werdegar as not yet a standout, but a solid judge; a conservative who appears to relish legal precision and restraint, a prolific producer of opinions.

She is considered generally conservative in criminal cases and more moderate in civil disputes, particularly on questions of civil rights. Her opinions are described as professional, but they are not particularly profound or noted for their literary flair or style. They read as if written for a legal audience rather than the public, and contain little that is memorable or dramatic.

“I am not a flamboyant personality,” she said Friday. “I think I am very conservative in my opinions . . . not reaching out and injecting flamboyance.”

Slender, with short, graying blond hair and bright green eyes, Werdegar describes herself as shy, her perceived aloofness mere reserve. She knows she has been mistaken for a socialite, with her refined demeanor and regal bearing, but she finds the image “ludicrous.” Those who know her agree, portraying her as modest and unassuming, a politically unsophisticated mainstream Republican who is most comfortable in the background.

Although she often strikes others as demure, Werdegar--known as “Kay” to her friends--is said to engage in spirited debate with her colleagues during the court’s closed sessions and can be a forceful and effective interrogator at oral arguments.

Relatively unknown before the “three strikes” decision, Werdegar owes her new fame to retired Chief Justice Malcolm Lucas, who many months ago assigned her to write the ruling. She is now in the uncomfortable position of having her name associated with a decision that many conservative politicians--including Wilson--are loudly condemning.

In the unanimous ruling, the court said judges have the authority to disregard prior felony convictions in sentencing under the “three strikes” law, allowing them to spare defendants from life sentences for relatively minor third convictions. Prosecutors had argued that the law gave only them, not judges, the discretion to discount prior felonies.

Wilson, who Thursday called the ruling “potentially dangerous to public safety,” appointed three of the seven justices who voted to limit “three strikes.” Like two of his other high court appointees, Werdegar has had a long personal association with the governor, which began when the two were law students at UC Berkeley.

She and Wilson lived in the same residence hall, where they became friends and socialized together, striking up a dating relationship that Werdegar describes now as casual.

“Everybody wanted to carry Kay’s books,” Wilson said when Werdegar was confirmed as a justice. That is, he said, until they saw her grades. Then, they decided instead “to try to look at her notes.”

Over the years, the pair kept in touch by telephone and with an occasional dinner. Before naming her to the bench, Wilson appointed her husband, Dr. David Werdegar, former health chief of San Francisco, to head health planning and development for California.

Although the state bar found Werdegar “well qualified” for the high court, the second highest possible rating, Werdegar had never been a trial judge, and some court observers labeled her appointment cronyism.

But she immediately established herself in legal circles as a quick study, drawing upon her experience as a staff lawyer to former state Supreme Court Justice Edward Panelli.

“She has really hit the ground running,” said McGeorge School of Law professor J. Clark Kelso, one of the more conservative analysts of the court. “Her writing is that of a mature jurist and thinker, and there might have been some questions about that given the way she made it to the courts.”

But she has disappointed some liberals, who expected her to distinguish herself more vividly from the court’s conservative bloc and join more often with Justice Joyce L. Kennard, an appointee of former Gov. George Deukmejian who is staunchly independent and frequently at odds with the court’s conservatives.

“I expected more of Werdegar,” said an appellate lawyer who has cases before the court. Speaking before the “three strikes” ruling, he said: “I thought she would come in and be with Kennard, but she is not. Maybe it will develop. . . . Werdegar is more the consensus type, so she joins with the right wing.”

Before writing the “three strikes” decision, Werdegar’s most controversial opinion, dubbed the worst of 1995 by The Recorder, a legal newspaper, came in December. Writing for a five-justice majority, she said a hospital, unless proved negligent, cannot be held responsible for an ultrasound technician who molests a woman during an examination.

Werdegar’s opinion infuriated some liberals who believed that the hospital was liable, and annoyed others, who said it failed to resolve the law clearly. But she avoided giving conservatives a complete victory in the case, when she refused to join her colleagues who wanted to use it to overturn a precedent that allows victims of police sexual abuse to sue cities.

“She is a conservative with a heart,” said retired Supreme Court Justice Armand Arabian, who as a judge was viewed as a legal advocate for rape victims.

Although Werdegar’s personal style is cautious, her legal decisions show a willingness to take political risks. She dissented last year in a court ruling that upheld a statewide voter initiative requiring a two-thirds vote for new “special” taxes, arguing that the measure was unconstitutional.

“Here is someone who is willing to go against the Howard Jarvis taxpayer people,” said professor Kelso. “Well, that is a big group of people to take on.”

The 60-year-old Werdegar is an avid hiker, a Jane Austen devotee and a classical pianist, the grand-daughter of a lawyer and the daughter of an attorney who worked for the California Supreme Court in the 1920s.

Her mother died when she was 4, and her father did not feel capable of rearing the children on his own, so she and her brother were shunted from boarding school to camp to relatives, living like well-heeled foster children.

Werdegar discussed this period only reluctantly. But her husband said living with strangers “taught her to fend for herself.” Her happiest time, he said, was living with an aunt during high school.

Although Werdegar was first in her class in law school at UC Berkeley’s Boalt Hall and later at George Washington University, law firms rejected her applications during the 1960s in a pattern that Werdegar now sees as sex bias.

“I want to emphasize [that] at that time and place, the concept of sex discrimination in employment did not exist,” she said. “And if you can’t name it, it is hard to recognize.”

She laughs at herself now, remembering that it never occurred to her that she was being repeatedly turned down because she was a woman. “I may have been a little denser then,” she said.

Not long after her appointment to the Supreme Court, she said, she found that many women view her as a role model and feel gratified by her success, a discovery that seems to have both startled and touched her.

“It has made me more sensitive and aware of what women have been up against and what they still are up against as they try to establish themselves in the profession. . . ,” she said recently.

Perhaps because of her personal experience with discrimination, Werdegar appears to be especially sensitive to civil rights concerns.

“I think she has been relatively liberal on some social justice issues--equality issues for the most part,” said American Civil Liberties Union lawyer Carol Sobel.

Werdegar worked part-time in various consulting and legal research jobs while her two sons, now adults, were growing up. She later became an associate law school dean.

She loves “the stimulation, the intellectual challenge” of serving on the state’s highest court, she said, and still sees herself as a judicial “work in progress.”