The Wedding Planner

By Gerald F. Uelmen
     
Bold is a word rarely used to describe California Supreme Court Chief Justice Ronald M. George. His twelve years at the helm of the court have been characterized by steady but cautious leadership, focused primarily on modernizing the management of the courts and improving their public image. His consummate administrative and political skills have helped the judiciary successfully navigate some rough waters. His published opinions have been moderate, balanced, and well crafted?-but rarely memorable.
      All that changed on May 15, 2008. His opinion for the four-justice majority in In re Marriage Cases, 47 Cal. 4th 757 (2008), is a bold and masterful work of judicial craftsmanship that will long be remembered as his greatest legacy. The opinion declares that sexual orientation is a suspect classification that requires strict scrutiny under the California Constitution, and George then concludes that the right to marry is a fundamental constitutional right that cannot be denied on the basis of sexual orientation. But the decision does put the court out on a limb.
      Within weeks, the California secretary of state announced that the ?protect marriage? initiative qualified for the November 4 election ballot with 1.1 million signatures. The initiative would amend the California Constitution to make the same declaration made in statutory form by Proposition 22, enacted in 2000: ?Only marriage between a man and a woman is valid or recognized in California.? The description of the initiative used to gather signatures, however, stated: ?The measure will have no fiscal effect on state or local governments. This is because there would be no change to the manner in which marriages are currently recognized by the state.?
     Though that may have been true when the measure was circulated, it was no longer true when the measure was presented to the secretary of state for certification. The constitutional amendment might well have a substantial fiscal effect in terms of lost revenue from marriage license applications, and it would engender a dramatic change in the law. Although it was circulated for signatures before the decision was announced, the initiative is now being presented as a referendum on the Supreme Court?s ruling in In re Marriage Cases. Relying on the Supreme Court?s decision, thousands of same-sex couples in California have married, and some fear that the enactment of the initiative might retroactively invalidate those marriages. Would all those who signed the petition have done so had they known it would invalidate the existing marriages of thousands of their fellow Californians?
      This question was presented to the court itself in the challenge to the initiative being placed on the November ballot. The challenge was rejected on July 16. The California Supreme Court has always been extremely reluctant to remove measures from the ballot prior to an election. The last time it did so was in Senate v. Jones, 21 Cal. 4th 1142 (1999), striking down an initiative that combined a legislative pay cut with a transfer of the power to reapportion legislative districts to the Supreme Court. The measure was thrown out on the ground it violated the requirement that initiatives address a single subject.
      Invalidating the initiative on a pre-election challenge would have subjected the court to histrionic claims that it was frustrating the will of the people. Proponents of the measure are eager to have the gay-marriage issue on the ballot in a presidential election year. They also realize that public opinion is rapidly shifting on this issue. Though 61.4 percent of voters approved Prop. 22 in 2000, recent polls indicate that the vote will be much closer in November.
      If the initiative passes, challenges to its implementation will be back before the court. Initiative opponents will claim misrepresentation to voters regarding claims the measure does not change the law and has no fiscal impact. If it is applied retroactively, significant issues will arise under both the federal and state constitution, putting the court back in the hot seat.
      Disappointed initiative backers often turn their fury on justices who frustrated their plans. It will be interesting to see if the anti-gay-marriage forces target Chief Justice George when he faces a confirmation vote for a new twelve-year term in 2010. It?s a real credit to the chief that he?s been able to ignore this crocodile in his bathtub.
      Gay marriage is not the only limb on which the chief justice?and the court?is perilously perched. After 30 years of struggling to get ahead of the flood of death penalty appeals that engulfed it, the court finally cried ?uncle.? Labeling California?s death penalty law ?dysfunctional,? Chief Justice George proposed a constitutional amendment to permit the court to transfer fully briefed death cases to the courts of appeal for decision. Eighty fully briefed death appeals currently await oral argument, so it can be three years from the time briefs are in until the case is heard. This past term the court heard 28 death cases, one-fourth of its docket. Two death judgments were reversed, and two habeas petitions were granted.
      In its death penalty report issued June 30, 2008, the California Commission on the Fair Administration of Justice endorsed the chief justice?s proposal, provided that funding is assured for lawyers to handle the death penalty backlog. But the commission also identified other serious problems in the way death cases are handled by the court.
      As the result of federal habeas corpus petitions, federal courts have now reviewed 58 California death judgments. In 36 of the cases, or 62 percent of them, a new trial or a new penalty hearing has been granted. In most of those cases, the ground for relief was a claim of ineffective assistance of counsel that was rejected by the California Supreme Court.
      The average delay for final resolution of federal habeas petitions in California death cases is 6.2 years. One reason federal habeas petitions take so long is that the factual record must be established, usually without any prior hearings or factual findings in the state courts. The California Supreme Court orders an evidentiary hearing in less than 5 percent of the death-row habeas petitions it decides. The petitions usually are denied by a memorandum order, without opinion. Despite the short shrift they receive, a backlog of 100 undecided habeas petitions now confronts the California Supreme Court. In an alternative proposal, Senior Judge Arthur L. Alarcón of the Ninth Circuit U.S. Court of Appeals proposes sending the habeas petitions to the superior courts for their initial hearing. That idea has merit, but only if trial courts are more generous than the state Supreme Court in granting hearings.
      To some extent, the size of California?s death-row population (now 673) is a result of the ?hands off? policy the California Supreme Court has traditionally assumed toward the death penalty. New death judgments were actually declining under the Bird Court?s interpretations of the Briggs Initiative, which expanded the list of special-circumstance exceptions in 1978. After the 1986 purge in which Chief Justice Rose Bird and Justices Cruz Reynoso and Joseph Grodin were voted off the bench, the court embraced the death penalty, and prosecutors responded by sending up an average of 35 new death judgments every year during the 1990s. Throughout this period, the court never even hinted that the growing backlog was a problem. Thus, it was a courageous break with the past for Chief Justice George to testify that the court now faces a crisis.
      Closing out the year, the U.S. Supreme Court ended its 2007?08 term by handing the California Supreme Court yet another reversal, leaving the court with an 0?4 record for the past five years. (See Stogner v. California, 539 U.S. 607 (2003); Cunningham v. California, 127 S. Ct. 856 (2007); Brendlin v. California, 127 S. Ct. 2400 (2007); Giles v. California, 2008 U.S. Lexis 5264 (2008).) All four reversals favored the defendants in criminal cases: This year?s reversal of People v. Giles (40 Cal. 4th 833 (2007)) rejected the California Supreme Court?s unanimous holding that a forfeiture of Sixth Amendment confrontation rights could be found in any case in which the defendant?s responsibility for the death of a hearsay declarant could be found by a preponderance of the evidence. For a court that tries to keep in step with the U.S. Supreme Court, that?s a pretty bleak record. It?s even worse than the Ninth Circuit!

Gerald F. Uelmen is a professor at Santa Clara University School of Law and the former executive director for the California Commission on the Fair Administration of Justice. Research for this article was contributed by Lauren Fair, class of 2008.

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