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We’re here … to carry out the will of the people. If the people and the State want three strikes, then we say that’s fine, but they have to realize that we need … resources…. What worries me is when people begin to feel [that] they don’t have access to the courts, that they have to go to [private alternatives]. If you’re rich, fine; if not, tough, go to the streets.
—Los Angeles Superior Court Judge Gary Klausner
The judiciary is often held up as insulated from the daily machinations of politics. In reality, the judiciary and the entire justice system are political institutions, and judicial outputs (e.g., legal decisions, court resource allocation, police oversight) are political variables that render a specific judicial philosophy. Politics permeates the justice system from every corner: Governors select like-minded jurists to sit on the benches of California courts; the legislature sets and approves court budgets, prison construction and judicial laws; California’s multiple law enforcement chiefs—from the attorney general to each county’s district attorney—are elected officials responding to political pressures from their respective constituencies; judges must face the electorate in judicial elections and are subject to recall, sometimes falling prey to public opinion and special interests. Judicial outputs therefore are politically tinged but have a great amount of power in molding public policy and the political process.
From the 1940s through the 1960s California’s system of justice was held up as a model for other state judiciaries. It won praise for its independence and judicial decision making. Under the guidance of forceful leadership, demonstrated by chief justices such as Donald Wright, Roger Traynor, and Phil Gibson, the California supreme court often influenced the path that the U.S. Supreme Court would follow. The California court became a national leader because it pioneered the “independent-state-grounds” doctrine to provide expanded individual rights beyond those mandated under the U.S. Constitution. Justice Stanley Mosk (an Edmund G. “Pat” Brown appointee) argued that while the U.S. Supreme Court sets the constitutional rulings for the nation, those constitutional grounds should be regarded as the basic floor, or minimum, not the ceiling. Thus individual states are always free to provide more expanded constitutional guarantees than the more restrictive ones interpreted from the U.S. Constitution. This doctrine has, at times, encouraged the California supreme court to follow a more liberal interpretation. With the conservative turn of the California supreme court by the mid-1980s, this doctrine has fallen from favor, with the court deferring more often to the U.S. Supreme Court for judicial direction.1
The state and local courts are the backbone of the nation’s justice system. Nine out of every 10 court cases in the United States are conducted in state courts. Each year state court systems throughout the United States process approximately 80 million civil, criminal, and traffic cases.2 It is also on the state judicial level that most citizens interact with the state—either in the form of settling conflicts or in the manifest of state law, ranging from wills and probate, to contracts and torts, to marriage, divorce, and adoption. The structure of California’s judicial system is outlined in Article VI of the state constitution. The courts are divided into two distinct levels: trial courts and appellate courts. Trial courts are the initial points of access to the judiciary. Trial courts have original jurisdiction because the cases originate there. Superior courts make up this lower level. Appellate courts are designed to hear appeals from the lower courts and have no original jurisdiction. The appellate level includes the court of appeals and the California supreme court. In addition to the courts, four important institutions assist the judiciary. They include the Commission on Judicial Appointments, the Commission on Judicial Performance, the Judicial Council, and the Commission on Judicial Nominees Evaluation.
The California state constitution requires that at least one superior court reside in each county of the state. These are essentially the state’s trial courts, with jurisdiction in both civil and criminal law cases. Superior court judges are elected in non-partisan races; however, many superior court judges reach the bench initially through gubernatorial appointment. If a vacancy occurs, the governor may appoint a replacement to sit on the bench until the next election. Given the power of judicial incumbency, these gubernatorial appointments are typically retained during the following election cycle, guaranteeing long-term employment as a jurist.
In 1998, voters approved Proposition 220, which allowed counties to voluntarily consolidate municipal courts with their superior courts. Eliminating the two-tiered system allowed courts to streamline their operations and reduce their backlog of cases. By 2001, all 58 counties had voted to consolidate their court systems. Prior to the consolidation movement, municipal courts were processing over 90 percent of the state’s judicial business. These cases included civil lawsuits involving less than $25,000, small-claims actions, and preliminary hearings on some felony charges were heard in municipal courts.3 Previously, superior courts heard felony criminal cases and civil matters over $25,000 and acted as courts of appeal for municipal court renderings.4 Due in large part to the rise of juvenile crime and the mandatory “three strikes, you’re out” initiative, criminal felonies (crimes that carry a penalty of one year or more) have been jamming the court caseload in urban and suburban superior courts. The average time to hear a civil law case in Los Angeles County, for example, is between five and seven years.
FIGURE 8.1 CALIFORNIA COURT SYSTEM
Note: Death penalty cases are automatically appealed from the Superior Court directly to the Supreme Court.
Source: Judicial Council of California/Administrative Office of the Courts.
The state is divided into six court of appeal districts, with more than 88 jurists elected for 12-year terms. These courts serve as a screening mechanism to reduce the workload of the state supreme court. They usually grant appeals considering only questions of law, not questions of fact. There are no juries, no introductions of evidence, and no interrogations of witnesses. Normally three jurists sit as a full panel in the appellate court, considering transcripts from the lower court and brief oral arguments. The court of appeals also has jurisdiction over decisions of quasi-judicial state boards. While most lower-court verdicts are upheld by the appellate court, an appeal is still possible directly to the state supreme court.
The California supreme court is composed of one chief justice and six associate justices. As the highest court in the state, it has been an active participant in the major public policy debates, from civil rights to the death penalty to the status of immigrants in the state. The court has broad discretionary authority to decide which civil and criminal cases it will hear, with cases involving capital punishment receiving pro forma review. The state supreme court has original jurisdiction to issue writs (or orders) over the following areas: (1) habeas corpus (“produce the body”), which requires that a state-detained person must be brought before a judge so that legal detention can be determined; (2) prohibition, which prevents a lower court from exercising jurisdiction over a certain case; and (3) mandamus (or mandate), which commands a public servant to perform a specific duty under their domain. An example of mandamus would be the state supreme court ordering a county district attorney to enforce provisions of the “three strikes” initiative.
In its role as the state’s final court of appeals, the state supreme court considers approximately 150 of the 3,000–4,000 cases appealed each year. In the cases that are decided, written majority and minority opinions are rendered, based on a legal analysis of state statutes and the state constitution. As a symbol of its separation from the political world, the supreme court makes its home not in Sacramento but in San Francisco. Supreme court judges are confirmed for 12-year terms in the same manner as district court judges.
The supreme court begins by first determining whether it wants to review a lower court’s decision, based primarily on the constitutional grounds of the California constitution. This first stage is largely how we come to define the “tone and character” of a particular sitting supreme court. A “judicial activist court” will lean in favor of pursuing broad policy and political debates, reaching, if necessary, into the lower courts to pull cases that best reflect a ripeness for judicial review. A less activist court, following what judicial scholars term a “court of judicial restraint,” would tend to rule very narrowly on cases it accepts, shying away from overturning legislative decisions or inserting itself in the political battles around the controversial policy battles of the moment.
Starting with the court clerks who prepare and research a conference memorandum, the court at its weekly conference meeting decides which cases shall be reviewed and which decisions “shall be left standing” (meaning that the decision rendered from the lower courts shall be final). The granting of a case to move forward requires four affirmative votes. One of the justices voting for review of a particular case is assigned the task of preparing a calendar memorandum (closely resembling a draft legal opinion) for his or her judicial colleagues to review. At this stage, there is some legal horse-trading back and forth, as each individual jurist renders his or her own deletions/additions and approval/dissenting positions on the draft. When four or more jurists approve with the outline of resolving the case, the chief justice then moves forward in scheduling it for oral arguments.
Hearing oral arguments from attorneys from both sides of a case takes place for one week of every month, except July and August. The oral argument phase of determining a case is not an opportunity to retry the matter at hand. Rather, it is an opportunity for the court to inquire about the fine points of the law and for individual justices to reexamine their initial position on the pending case. After oral arguments, the justices reconvene, and if there is still a majority of the court (four or more members) in favor of resolution of the case, the chief justice assigns one of the members in the majority to draft the final legal decision. After the majority opinion is finished and circulated to all seven justices, dissenting and concurring opinions may be issued as the court publicly hands down its legal rendering.
Vacancies of judges on a district court of appeals and the supreme court are chosen in the following three-step method: (1) governor’s nomination; (2) approval by the Commission on Judicial Appointments (in consultation with the Commission on Judicial Nominees Evaluation; both are discussed later in more detail); (3) a confirmation vote (good for a 12-year term) in the first gubernatorial election after an appointment has been approved. There are no opposing candidates, only a voter’s choice between “yes” and “no,” with the question: “Shall___be elected to the office for the term prescribed by law?”
Voters choose superior court judges for six-year terms in nonpartisan elections. The only requirement for judges who serve at this level is that they must have practiced law for at least five years and be in good standing with the state bar. Because most voters know little about a jurist’s temperament or judicial renderings, incumbency plays a major role. Over 95 percent of judges throughout California face no opposition and are automatically reelected. While traditional endorsements for judicial candidates may mean something (especially in the few contested judicial races), little campaign money is raised overall (especially in comparison to, say, state legislative races). Most of the money raised goes to “state mailings” and other direct voter contact.
In the end, the prevailing question on most citizens’ minds in California is: “Should we have an elected judiciary at all? Or should judges be ‘above electoral politics’ and perhaps appointed for life terms?” In which case is democracy better served? Is there a danger in compromising impartiality of the judiciary if unpopular legal decisions come back to haunt a judge during election cycles? Or should judges be accountable to the “will of the people,” keeping judges (like every other public servant) responsive to the needs of the governed?
The balancing act between judicial accountability and judicial independence is a sensitive one. Throughout the 1960s and 1970s, the California supreme court was held in high esteem for its professional and progressive decisions that went head-on into the controversies of the day. Some of its decisions equalized school funding formulas across the state, regardless of local tax bases, desegregated school districts by court-ordered busing, intervened to broaden the legal rights of defendants in criminal cases, and ended the quota system in higher education by highlighting “reverse discrimination” yet affirming affirmative action as a lofty goal. The California supreme court is often in the eye of the hurricane, practicing what some call “judicial activism”—an active partner in shaping major public policy debates.
One of the major flashpoints between the state supreme court and the legislature is the death penalty, which the court declared unconstitutional. The death penalty later was restored by legislative mandate, and California had the largest death row in the nation by 2006, with 650 prisoners awaiting execution. In 1986, an unprecedented event occurred: Supreme Court Chief Justice Rose Bird and two associate justices, Cruz Reynoso and Joseph Grodin, were removed from office by the voters. Bird, who had overturned 61 death sentences, had become a lightning rod of the voters’ frustration—losing by a landslide of 32 points, the first time this had happened in California’s 52 years under its judicial-retention election process. The defeat of the three liberal judges gave Governor George Deukmejian the rare opportunity to stack (or “pack”) the court with conservative “judicial restraint” appointees. Governor Pete Wilson followed in this path as well. During the Malcolm Lucas and Ronald George court era, there has been a 180-degree turn in the tendencies of the court. For example, in the area of criminal law, the post-Bird courts have rarely turned down a lower-court-ordered death penalty decision, except in some unusual cases where gross trial errors were made.5
There are four institutions that assist the courts in California and are themselves key actors in the judicial system.
The Judicial Council is a 21-member state board that oversees the overall administration of the court system. The Judicial Council consists of 15 judges from all tiers of the court system, plus 4 lawyers from the state bar and 2 members of the state legislature. The chiefjustice chairs the council. The purpose of the council is to improve the efficiency and workload of the courts, keep records, organize various seminars for trial and appellate court judges, conduct research on the court system, periodically brief the legislature on the “state of the courts,” and propose judicial reforms.
One recent blue-ribbon report issued by the Judicial Council is worth noting. California has used the traditional standard jury system. Grand juries (19–23 citizens depending on the county) investigate public officials and agencies and can return indictments. Trial juries usually consist of 12 registered voters in civil and misdemeanor cases; fewer than 12 may be used if both parties agree.
The Judicial Council has put forth a reform proposal to transform California’s jury system by allowing non-unanimous verdicts (11–1 vote) in felony convictions except in the cases of death penalty or life in prison; encouraging jurors to confer during trial; and punishing jurors who shirk their civic responsibility.6 All eligible citizens of California are required to serve on a trial jury if summoned. Only a few individuals are automatically excused from serving: ex-felons, police officers, and some government employees. Trial juries are composed of citizens whose names are drawn from the state’s voter rolls and vehicle registration lists. Being a juror is not glamorous, involving limited court compensation and long delays in getting impaneled on a jury (some describe this as waiting in a “cattle-car” environment or indentured servitude approaching “state slavery”). Despite the hassles, jurors serve as critical participants in the democracy we all treasure via a judicial system we all recognize is a cherished commodity. The controversies surrounding the jury systems are set in historical record. Some, like Alexis de Tocqueville, saw jury service as “one of the most efficacious means for education of people which society can employ.”7 Others viewed the jury system with disdain for its capriciousness of lay citizens unfamiliar with the law.
Created in 1961, the Commission on Judicial Performance is made up of 11 members, only 3 of whom are judges. This commission investigates complaints about judicial misconduct or malfeasance and can recommend the censure, recall, or removal of a judge ruled unfit to serve. The supreme court may discipline or remove a judge (or a court referee or court commissioner) upon recommendation of the Commission on Judicial Performance. The supreme court must remove any sitting judge found guilty of a felony or a crime involving “moral turpitude.” Finally, the commission can recommend the censure, removal, or retirement of justices who are on the supreme court after the approval of a tribunal of seven court of appeals judges selected by lot.
In 1994, the legislature proposed a constitutional reform measure, Proposition 190, that opened up the commission to greater public scrutiny and review. Monitoring the professional ethics of more than 1,500 judges who sit on California’s tribunals at all levels is no easy mandate. Having a “closed system” whereby judges would essentially monitor other judges seemed outdated and fraught with the potential for accusations of cover-ups. Proposition 190, passed overwhelmingly by the voters, established new guidelines for the commission and a “sunshine strategy” to remove these past hearings from secrecy to open exposure. Furthermore, it rearranged the composition of the commission itself, tipping the scales to “citizen non-lawyers” as the controlling majority on the commission in charge of regulating judicial behavior and conduct.
The Commission on Judicial Nominees Evaluation is a 25-member body of the California Bar Association that rates the judicial nominees of the governor. The governor is required by statute to submit nominees for judgeships to the commission to determine fitness for the position. Confidential recommendations are returned to the governor regarding each name submitted. The rankings are quite simple: “exceptionally well-qualified,” “well-qualified,” or “not qualified.” The commission thus acts as a pre-screening for evaluating gubernatorial appointees and can actually act as a check on the governor should a “not qualified” candidate be moved ahead—perhaps using the public stage to embarrass the governor when this jurist runs for judicial office on the ballot. The checks and balances historically provided by this commission, may itself be up for reinterpretation. Former Governor Pete Wilson for example, tossed aside the “unqualified” rating by the commission for his nominee to the supreme court, Janice Rogers Brown.8 What normally would have been an embarrassment for Pete Wilson turned out to be “political fodder” for him. Wilson took on the commission, arguing that the individual members were biased against Ms. Brown, who happened not only to be a politically conservative woman but also African American.
The Commission on Judicial Appointments must approve a governor’s nominee to the court of appeals. A majority must vote in approving the nomination, normally with input from the Commission on Judicial Nominees Evaluation. Only once has the commission officially rejected a governor’s nomination, but in the past the commission has also caused the governor to remove a nominee from consideration based on the prevailing votes. Supporters of this commission process insist that this body serves as a “depoliticized” reviewing mechanism against a governor’s appointment of unqualified individuals to the appellate bench. They point to the highly politically charged process on the federal level, where a president’s judicial nominee must be confirmed by a majority of the U.S. Senate. Critics, however, are still dismayed that the commission may still block nominees—not so much based on their legal qualifications as on their pronounced judicial philosophy. This was clearly evident during the Jerry Brown days, when then Attorney General George Deukmejian threw his weight around to block several liberal (yet highly qualified) Brown judicial nominees. In the case just described, when Pete Wilson pushed ahead with his nomination of Supreme Court Judge Janice Rogers Brown despite her “unqualified” ratings, she was able to muster a unanimous vote of approval from this three-member commission— proving, once again, that politics sometimes does override judicial standards.
As the largest and most diverse state in the nation, and as a state often noted for its progressive brand of politics, it is surprising that California has yet to elect its first woman governor. However, the state’s highest court cannot be criticized for having a male-dominated bench. At the start of 2005, three of the seven justices on the California Supreme Court were women. They include: Associate Justice Janice R. Brown (appointed in 1996), Associate Justice Joyce L. Kennard (appointed in 1989), and Associate Justice Kathryn Mickle Werdegar (appointed in 1994). Brown, the only African American justice on the County, was notable more conservative than her other moderate Republican colleagues (six Republicans total), and she clashed often with moderate Chief Justice Ronald M. George. As a result, she gained the attention of the White House and President George W. Bush, who nominated her to a U.S. appellate court position in July 2003. However, Senate Democrats had successfully blocked her nomination along with certain other conservative Bush appointees to the federal bench during the first Bush term, but Brown was eventually confirmed to the U.S. Circuit Court of Appeals for the District of Columbia in June 2005.
The most notable woman jurist in California’s history, however, would have to be the state’s former Supreme Court Chief Justice Rose Elizabeth Bird. As the first woman ever to serve on California’s highest court upon her appointment in 1977, she served on the bench until January 1987. From the start, Bird had a distinguished career in both the law and public service. She received her law degree in 1965 from Boalt Hall School of Law at the University of California, Berkeley (a time when only a handful of women were accepted to top law schools). She clerked for the chief justice of the Nevada Supreme Court after graduation and in 1966, she became the first woman hired as a deputy public defender in Santa Clara County. She taught at Stanford Law School from 1972 to 1974, and then in 1975, Governor Jerry Brown appointed her as the first woman to serve as a cabinet member in California. As secretary of the Agriculture and Services Agency, she had administrative responsibility over 12 different state agencies.
Under Bird’s leadership, the Supreme Court strengthened environmental laws, consumer rights, and the rights of women and minorities. Her accomplishments also included the 1984 adoption of the first rule to permit television and photographic coverage of court proceedings in trial and appellate courts with the consent of the presiding judge. Bird also introduced the first use of word and data processing to the Supreme Court and courts of appeal. In 1987, she appointed the Committee on Gender Bias in the courts, which began the trend for more studies in the years to follow on state courts’ treatment of people based on gender, race and ethnicity, sexual preferences, and disabilities.
But more important, Bird received national attention for her opposition to the death penalty, becoming a lightning rod on the issue by invalidating every one of the 58 death penalty cases that she heard on appeal. Supporters of Bird claimed that she had been “appropriately circumspect, cautious, and thorough” in her review of all 58 death penalty cases, and she was joined by at least one other justice in overturning each sentence. Opponents of Bird and her death penalty decisions claimed that she used a “series of minute legal technicalities … to prevent the implementation of California’s death penalty” as the only California Supreme Court jurist between 1978 (when California’s death penalty statute went into effect) and 1986 who had not voted to affirm a single death penalty case. Bird’s opponents were eventually victorious, as California voters removed Bird and two of her liberal colleagues from the Court in a 2 to 1 vote in 1986. The election marked the first time that Californians had voted not to retain a Supreme Court justice. Bird died at the age of 63 from complications of breast cancer in 1999. Since leaving the high court, she had remained completely out of the public spotlight. However, regardless of one’s opinion on the death penalty, perhaps Bird’s legacy can be found in the fact that California continues to have the largest backlog of death row inmates in the nation.
Source: “Women on the California High Court: Ideological Diversity in Action.” From Lori Cox Han, Women and American Politics: The Challenges of Political Leadership (McGraw-Hill, 2007) pp.140–141.
Judicial policymaking is laden with political undertones. The criminal justice system is directly affected by the priorities set by the courts, judges, and politicians. California’s prison system is one of the state’s largest growth sectors—consuming almost 10 percent of the state’s general fund revenues. This is not surprising, given the current “tough-on-crime” attitudes of the populace and the judicial system. Critics and supporters are still arguing over the end results of California’s criminal policies: Has crime gone down because of stricter punishment, longer determined sentences, and capital punishment? Or are other less tangible issues, like a thriving economy, low unemployment rates, and a general aging of the population, driving the spiral downwards? However we cut the deck, Californians will continue to tinker with their judicial apparatus, which in turn will affect the criminal justice and civil law system.
1. In fact, in many controversial areas (such as police searches, busing, and the death penalty), the voters of the state used the initiative process to overturn several unpopular judicial mandates.
2. Bureau of Justice Statistics, State Court Caseload Statistics (Washington, DC: U.S. Printing Office, 1983).
3. In 1994, all justice courts in California were converted to municipal courts. They were essentially holdovers from an earlier period when “justices of the peace”—mostly in rural counties—functioned in the same jurisdictional arena as did the municipal court structure.
4. With the rise in civil litigation and the mandatory sentencing of the “three strikes initiative,” urban courts are severely overloaded. It currently takes between five and seven years to hear a civil lawsuit in Los Angeles County.
5. The future of the death penalty in California was called into question once again when a U.S. District Court ruled that the way the state administers its lethal injections violates the Eighth Amendment ban on cruel and unusual punishment (New York Times, December 16, 2006): A10.
6. Stephanie Wilson, “Major Reforms Proposed for California Juries,” Los Angeles Times (April 30, 1996): A3.
7. Alexis de Tocqueville, Democracy in America (New York: Vintage Books, 1945), p. 296.
8. Charles L. Linder, “Will Wilson Defy State Supreme Court History?” Los Angeles Times (April 28, 1996): M3.