Chief Justice Seen as More Independent

In an unexpected turn, California Chief Justice Ronald M. George disagreed with nearly 10% of the state high court’s rulings last year, frequently taking a position that was less conservative than that of the court majority.

Last year, George dissented 10 times compared with about one dissent a year in previous years. California Supreme Court analysts say the spike shows George is growing more confident and independent, particularly in highly publicized cases that affect the public’s perception of the court.

The Republican-appointed chief justice attracted attention in December when he dissented in a major affirmative action case. Although George agreed that a San Jose contracting program violated Proposition 209, which banned preferences for women and minorities in government, he harshly condemned the court majority for its negative portrayal of affirmation action.

As surprising as that dissent was, an analysis of last year’s cases shows that it reflected a broader pattern of disagreement between George and some of his more conservative colleagues.

During his four years as chief justice, George has moved the court from the right closer to the center, establishing “an atmosphere of non-ideology, which the court badly needed,” said Peter Keane, dean of Golden Gate University Law School in San Francisco.

“George put the court back on a much more neutral, scholarly level,” Keane said. “What is happening now is that George, having done that, is able to sit back and make individual decisions on cases in terms of where his own particular intellect and legal analysis take him.”

Santa Clara University law professor Gerald Uelmen, who closely watches the court, said the jump in George’s dissent rate was so large that it can hardly be seen as a minor blip in his voting on court rulings.

“When someone goes from one dissent a year to 10 dissents, he is definitely asserting more independence,” Uelmen said. “I really see that as growth. . . . He is expressing a greater willingness to stand alone.”

The court has three conservatives, Ming Chin, Marvin Baxter and Janice Rogers Brown; two liberal-leaning justices, Stanley Mosk and Joyce Kennard; and two centrists, Kathryn Mickle Werdegar and George. There have always been shifting alliances, but George generally wound up in the majority.

So often was this the case that it became common practice among some journalists and analysts to predict how the court would vote on an upcoming case by the remarks George made during oral arguments. If George appeared to favor a certain result, it was a strong indication that the court would rule that way.

Stephen Barnett, a law professor at UC Berkeley, believes George was probably suppressing his differences with colleagues in past years to get the largest number of votes possible on majority rulings.

His dissents last year may signal that a new majority is forming on the court, one that would not include the court’s most conservative members, Baxter and Chin, Barnett said.

“It would be a moderate or even liberal majority,” the law professor predicted.

The fact that George is now dissenting “is significant because it lowers the flag of consensus-at-all-costs and leaves the field wide open, making the court even more unpredictable,” Barnett said.

George is politically savvy and skilled at public relations, a jurist who served for many years on the trial bench in Los Angeles and climbed the ranks through the state Court of Appeal. He enjoys good relations with state Democratic leaders and has lobbied hard and usually successfully for more funding for state courts.

During a recent meeting with reporters, he downplayed the significance of his disagreements with the court. He has likened the lineup on cases to a square dance, with justices regularly changing partners as each case presents new issues.

The divisions on the court may have appeared sharper in recent months because of the kinds of cases the court was deciding, George has told reporters. Instead of simply resolving business disputes, the court reviewed major constitutional questions on which individual justices may have strong convictions, he said.

McGeorge School of Law professor Clark Kelso agreed that the lineup of justices on cases decided last year may have been more a reflection of the kinds of issues they resolved than of ideological shifts.

George’s legal analysis in some of his dissents was more legally conservative and traditional than the majority’s, even though George’s approach favored consumers or employees over employers, Kelso pointed out.

“The thing that strikes me is, there is no ideological line you can see in all of these” dissents, Kelso said.

In seven of 10 of the cases in which George dissented last year, he took a position that arguably favored a less conservative result than the majority did. He seemed particularly concerned about the practical effects of the decisions.

In Hi-Voltage vs. San Jose, SO80318, George took pains to give cities some guidance in creating programs that would help recruit women and members of minorities without violating Proposition 209.

He chided the court majority, whose opinion was written by Brown, as ‘less than even-handed” and warned that its tone and language, “particularly in a case involving an initiative measure that is as sensitive and potentially divisive as Proposition 209,” would undermine confidence in the court.

A few days later, George again dissented when the court ruled that homeowners could not force builders to pay economic damages for faulty construction unless the owners had actually suffered injuries or financial losses.

In his dissent, George argued that homeowners should be allowed to obtain compensation for construction defects that were life-threatening--before any harm occurred.

“California is prone to earthquakes,” George wrote in Aas vs. William Lyon Co., S071258, “and, tragically, the negligent construction of residential housing almost surely will result in the deaths and injury of numerous current and future residents of this state.”

In one of the court’s most bizarre lineups, Justice Mosk, considered the court’s most liberal judge, wrote a majority opinion affirming a death sentence in People vs. Ayala, SO13188.

George, a former state prosecutor who is conservative on criminal issues, dissented, arguing that Ayala’s conviction should have been overturned because Ayala’s attorney was excluded from a crucial portion of jury selection. Justice Kennard signed George’s dissent.

Some analysts suspect that George’s travels as chief justice and his interaction with the Legislature and a wide array of civic groups may be influencing his jurisprudence.

“He is exposed to a lot of aspects of California politics and California civic life that the other justices aren’t exposed to,” Uelmen said. “And that may give him a broader view.”

Golden Gate’s Keane said George has always had a strong practical side, which he displayed in his first year as chief justice by visiting each of the state’s counties to learn about the administrative needs of the courts.

“George is the kind of guy who likes to have his head under the hood, as opposed to [former Chief Justice Malcolm] Lucas, who would stand off at a distance and watch the vehicles roll off the assembly line,” Keane said.

Legal scholars consider two of the state’s greatest chief justices to have been Phil S. Gibson, who was known for strong administrative skills during his service from 1940 to 1964, and Roger J. Traynor, who was celebrated for his intellect during his tenure, from 1964 to 1970.

“I think George is going to end up being a blend of both Gibson and Traynor, which is going to be quite fascinating,” Keane said.