Conservative Tilts Court Toward Center

Legal scholars and gun-control activists had eagerly awaited the California Supreme Court decision on whether victims of gun violence could sue weapon makers. If the court allowed victims to recover money for the bloodshed that guns caused, lawyers could go after the gun industry in much the same way they had unfurled public fury at tobacco.

But when the decision finally came in August, only one justice favored giving victims the right to sue in some circumstances: Kathryn Mickle Werdegar.

Pegged as a conservative when then-Gov. Pete Wilson appointed her to the court in 1994, Werdegar, 65, has forged an independent and unpredictable path. The Republican appointee has moved “almost in sync” with Chief Justice Ronald M. George from the right to the middle of the long-conservative court, said University of Santa Clara law professor Gerald Uelmen.

“I think they are both a strong part of the emergence of a center on the court,” Uelmen said.

J. Clark Kelso, a law professor at the McGeorge School of Law at the University of the Pacific in Sacramento, said Werdegar’s decisions have reflected a “strong pro-consumer, pro-tenant, pro-employee streak”--but “not across the board.”

The liberal Justice Stanley Mosk, who died in June, found in Werdegar “something of an affinity and a bit of a voting bloc,” Kelso said.

Werdegar votes with the majority on the court in roughly 90% of the cases it decides, making her a “consensus voter,” Uelmen said. The court’s voting patterns suggest that Werdegar is a “mover of votes or a persuader of positions,” said Santa Monica appellate lawyer Dennis Fischer.

Earlier this year Werdegar wrote a unanimous opinion in a controversial right-to-die case that some lawyers had predicted would fracture the court. Werdegar’s opinion held that family members cannot disconnect life support from conscious but severely brain-damaged relatives unless they have clear evidence that their loved ones would have wanted to die under such circumstances.

“I think she has quite a lot of influence because she is pretty much a central figure now,” said UC Berkeley law professor Steve Barnett.

When Werdegar dissents, she often is adopting a less conservative position than the majority. Three months ago, she wrote the minority opinion in a free-speech case in which the court held 4 to 3 that tenant associations have no 1st Amendment right to distribute newsletters door-to-door in apartment complexes.

Werdegar protested that a ban on leafleting violated California’s “traditionally cherished” protections of written communications.

Werdegar also joined the more liberal members of the court--the since-deceased Mosk and Justice Joyce Kennard--when she dissented in June in a ruling that barred an assault victim from suing the owner of a crime-ridden building where she had been attacked.

The majority said such suits against building owners were barred unless there was clear evidence that a lack of security was directly responsible for the crime. Because the attacker had not been apprehended, the woman who was assaulted lacked the required evidence, the majority said.

The decision inflamed Werdegar. “That she should be barred from the courthouse for this very reason is both cruelly ironic and legally unjustified,” Werdegar wrote.

She disagreed in the past year with Justice Marvin Baxter, one of the court’s most conservative members, about 19% of the time, according to statistics compiled by Uelmen. She and Mosk were on different sides of cases about 17% of the time.

“That confirms how much in the middle she is,” Uelmen said.

Werdegar was the justice who was the third most likely to vote for the defense in criminal cases, behind Mosk and Kennard, Uelmen said.

“On this court she may look liberal or moderate, but it may just be a reflection of how conservative our court really is,” the law professor said.

In an interview, Werdegar insisted she has not changed her approach to jurisprudence since joining the court.

“I am really deciding the cases that are brought to me, rather than implementing an overall philosophy that has a label,” said Werdegar, who is slender with graying blond hair and green eyes.

She said she considers herself a conservative jurist “in the sense that I don’t reach out to make broad statements.”

“I try to decide the case at hand and let the law evolve more gradually,” she said. If a decision has political ramifications, “I don’t give them any thought.”

Werdegar is called by some attorneys the Sandra Day O’Connor of the California court. Like the U.S. Supreme Court’s O’Connor, Werdegar is willing to bolt from the conservative line on occasion.

When asked which justice on the nation’s high court she most admires, Werdegar singled out O’Connor.

“I have always admired Justice O’Connor because she had the burden for a time of representing her whole gender, which is unfair for anybody,” said Werdegar, one of three women now on the state high court. “And she is also jurisprudentially a moderate justice who decides cases narrowly.”

Before she was appointed to the bench, Werdegar toiled behind the scenes as a staff attorney on the state Supreme Court and a state Court of Appeal, writing legal opinions for someone else.

“She is in some ways a judge’s judge,” said Kent Richland, an appellate lawyer in Beverly Hills. “She is technically extraordinarily adept at interpretations of legislation and statutory language.”

Richland said he can never figure out how to pitch to Werdegar during oral arguments. She seems to decide cases not according to her political views but “more by her sense of the law and what it is supposed to be,” he said.

Werdegar tries to write narrowly, concerned that a broad ruling might have unintended consequences in future cases. She is always trying to figure out how a particular ruling could be applied under a different set of facts, said Wendy Lascher, a Ventura appellate lawyer who appears before the court.

“She is kind of a chess player in her decision-making,” the attorney said.

Uelmen predicted that Werdegar may “continue to move slightly leftward” on the court, depending in part how the court changes with the addition of Justice Carlos Moreno. Moreno took Mosk’s seat in October and is the court’s only Democrat. Moreno has yet to vote on a written decision.

“Where she will come to rest is likely to be affected by the change on the court,” Uelmen said. “It is interesting to see how shuffling out one justice and putting someone else in there can change the whole configuration of the court and move people around.”