New tilt to state high court?
Kathryn Werdegar’s retirement gives Gov. Brown a chance to appoint a fourth Democratic justice.
Justice Kathryn Mickle Werdegar joined the California Supreme Court at a time when the electorate favored harsh punishment for offenders, domestic partnerships for gays were novel and conservatives dominated the state’s highest court.
Twenty-three years later, as Werdegar prepares to retire, all of that has changed.
California voters have scaled back tough crime laws, gay people may now marry, and for the first time in decades, the state’s highest court will have a majority of Democratic appointees. A married gay man may be one of them.
Werdegar, a moderate appointed by former Gov. Pete Wilson, played a role in each of the changes.
The senior justice announced Wednesday she would step down Aug. 31, giving Gov. Jerry Brown an opportunity to appoint a fourth justice on the sevenmember court.
“It has not been an easy decision,” Werdegar, 80, said of her retirement. She wants to “expand my life a little bit, reconnect with friends, do a lot more hiking, more piano, more time with family and just smell the roses.”
Potential candidates for her seat include Court of Ap-
peal Justice James M. Humes, a Brown appointee who had been his trusted deputy when Brown was attorney general and his top assistant in the governor’s office.
Humes, if selected, would become the first openly gay man to serve on the California Supreme Court.
Werdegar scheduled her retirement to complete the court’s yearly calendar, which ends in August.
She is viewed as the most moderate of the Republican appointees, a cerebral judge who in recent years was as likely to vote with the liberals as with the conservatives.
When she first joined the court, colleagues described her as a conservative, a label that turned out to be not quite right.
Although legally conservative — she tries not to expand the law beyond what is necessary to decide a dispute — she has been a force for civil rights on the court.
She joined a ruling that struck down a law requiring parental consent for minors to obtain abortions and agreed with three other justices to overturn California’s ban on same-sex marriage, a decision that voters later abrogated by passing Proposition 8.
Werdegar also authored decisions that made it illegal for religious landlords to discriminate against unmarried couples, allowed a lesbian to adopt her partner’s child and gave judges the right to spare some defendants a life sentence under the three strikes law.
Her pro-civil rights rulings may have been rooted in part in personal experience.
Even though she was a top law school graduate, the San Francisco native could not find a job at a law firm after graduation. She said she realized only later that she had suffered from sex discrimination.
She worked as a lawyer in the civil rights division of the Department of Justice in the early 1960s, taught at the University of San Francisco law school and served as a staff attorney for the 1st District Court of Appeal in San Francisco and at the California Supreme Court.
Wilson appointed her a justice on the San Francisco-based appeals court and then elevated her to the state Supreme Court.
Some critics initially viewed her elevation to the highest court as cronyism. She and Wilson had dated casually in law school at UC Berkeley and remained friends.
But her willingness to take on conservatives and join decisions Wilson criticized showed she was beholden to no one.
She wrote a lengthy dissent in 2001 from a decision that said a manufacturer of assault weapons could not be sued for their use in a 1993 mass shooting at a San Francisco law firm.
The gunman killed eight people and wounded six others before taking his own life.
In the sole dissent, Werdegar said that selling military-style weapons to the public could be viewed as negligence.
Some of her rulings, even though unanimous, pained her.
In one case, a foster son who cared for his foster father until his death wanted to inherit the estate. The foster father had left no will.
During a hearing, Werdegar pummeled a lawyer for two blood relatives who argued the inheritance belonged to them even though they had not seen their deceased uncle for 15 years and did not attend his funeral.
Werdegar pointed out that the foster son was “lovingly related” to his foster father whereas the blood relatives “had no relationship” with their uncle. Lower courts had ruled the blood relatives should inherit.
“Where is the equity there?” Werdegar demanded in the hearing.
Despite her obvious sympathy for the foster son, Werdegar later wrote a unanimous ruling that gave the inheritance to the blood relatives.
Werdegar said the law, not her heart, dictated the result.
“That was a case where the entire court felt that the law and justice did not coincide,” Werdegar said.
Brown has not indicated whom he will choose to take Werdegar’s seat.
In his later terms as governor, Brown appointed three Supreme Court justices who had no prior judicial experience but whose intellect impressed him.
Humes, who ran the attorney general’s office under Brown, withdrew an application to become a judge to continue to serve Brown in the governor’s office. Brown rewarded him with a 2012 appointment to the appeals court.
Legal analysts have for years anticipated that Brown would eventually put Humes, 57, on the state Supreme Court.
But Brown is difficult to predict when it comes to court appointments.
He is unlikely to appear on another ballot after leaving the governor’s office and faces little pressure to appoint someone of a certain ethnic background.
His three appointees to the California Supreme Court during his last two terms were Goodwin Liu, a Taiwanese American former UC Berkeley law professor; Mariano-Florentino Cuéllar, a Mexican immigrant and Stanford University scholar; and Leondra R. Kruger, an African American former federal government lawyer who regularly argued before the U.S. Supreme Court. All were under age 50.
Legal analysts had expected Werdegar to form a new, more liberal majority with the Brown appointees on the California Supreme Court.
Instead, she will be spending much of her time on the trails.
Her retirement plans, she said, are to hike three times a week instead of once a week and spend more time playing classical music on the piano.
“I will see what the world offers,” she said.