Supreme Court of California

Under the original 1849 California Constitution, the Court started with a chief justice and two associate justices.[3] The Court was expanded to five justices in 1862. Under the current 1879 constitution, the Court expanded to six associate justices and one chief justice, for the current total of seven.[4] The justices are appointed by the Governor of California and are subject to retention elections.[5]

According to the California Constitution, to be considered for appointment, as with any California judge, a person must be an attorney admitted to practice in California or have served as a judge of a California court for 10 years immediately preceding the appointment.[6]

To fill a vacant position, the Governor must first submit a candidate's name to the Commission on Judicial Nominees Evaluation of the State Bar of California, which prepares and returns a thorough, confidential evaluation of the candidate.[7] Next, the Governor officially nominates the candidate, who must then be evaluated by the Commission on Judicial Appointments, which consists of the Chief Justice of California, the Attorney General of California, and a senior presiding justice of the California Courts of Appeal.[8] The Commission holds a public hearing and if satisfied with the nominee's qualifications, confirms the nomination. The nominee can then immediately fill an existing vacancy, or replace a departing justice at the beginning of the next judicial term.

If a nominee is confirmed to fill a vacancy that arose partway through a judicial term, the justice must stand for retention during the next gubernatorial election. Voters then determine whether to retain the justice for the remainder of the judicial term. At the term's conclusion, justices must again undergo a statewide retention election for a full 12-year term.[9] If a majority votes "no," the seat becomes vacant and may be filled by the Governor.

The electorate has occasionally exercised the power not to retain justices.[10] Chief Justice Rose Bird and Associate Justices Cruz Reynoso and Joseph Grodin were staunchly opposed to capital punishment and were subsequently removed in the 1986 general election.[11] Newly reelected Governor George Deukmejian was then able to elevate Associate Justice Malcolm M. Lucas to Chief Justice and appoint three new associate justices (one to replace Lucas in his old post and two to replace Reynoso and Grodin).[12]

Membership

Justices of the California Supreme Court (2019–2020): Standing, from left: Justice Leondra R. Kruger, Justice Goodwin H. Liu, Justice Mariano-Florentino Cuéllar, and Justice Joshua P. Groban. Seated, from left: Ming W. Chin (Retired August 31, 2020), Chief Justice Tani G. Cantil-Sakauye, and Justice Carol A. Corrigan.

Position	Name	Born	Appt. by	Took office / Length of service	Term expires	Law school	Prior positions
Chief Justice	Tani Cantil-Sakauye	October 19, 1959 (age 61)	Arnold Schwarzenegger	January 3, 2011 10 years, 1 month	January 1, 2023	UC Davis	California Court of Appeal (Sacramento, 2005–2011); Sacramento County Superior Court (1997–2005); Sacramento Municipal Court (1990–1997); Deputy Legislative Secretary (1989–1990); Deputy Legal Affairs Secretary (1988–1989); Sacramento County Deputy District Attorney (1984–1988).
Associate Justice	Carol Corrigan	August 16, 1948 (age 72)	Arnold Schwarzenegger	January 4, 2006 15 years, 1 month	January 2, 2031	UC Hastings	California Court of Appeal (San Francisco, 1994–2006); Alameda County Superior Court (1990–1994).
Associate Justice	Goodwin Liu	October 19, 1970 (age 50)	Jerry Brown	September 1, 2011[13] 9 years, 5 months	January 3, 2027	Yale	Associate Dean of UC Berkeley School of Law (2008–2011); Professor of Law, UC Berkeley School of Law (2003–2011).
Associate Justice	Mariano-Florentino Cuéllar	July 27, 1972 (age 48)	Jerry Brown	January 5, 2015 6 years, 1 month	January 3, 2027	Yale	Stanley Morrison Professor, Stanford Law School (2001–2014); Director (and other positions), Freeman Spogli Institute for International Studies at Stanford University (2004–2015); Co-Chair, Equity and Excellence Commission, United States Department of Education (2011-2013); Special Assistant to the President, Justice and Regulatory Policy, White House Domestic Policy Council (2009–2010); Senior Advisor to the Under Secretary, United States Department of the Treasury (1997-1999)
Associate Justice	Leondra Kruger	July 28, 1976 (age 44)	Jerry Brown	January 5, 2015 6 years, 1 month	January 2, 2031	Yale	Deputy Assistant Attorney General, Office of Legal Counsel, United States Department of Justice (2013–2014); Assistant to the Solicitor General and Acting Principal Deputy Solicitor General, Office of the Solicitor General, United States Department of Justice (2007–2013); Private practice (2004–2006).
Associate Justice	Joshua Groban	August 15, 1973 (age 47)	Jerry Brown	January 3, 2019 2 years, 1 month	January 3, 2022	Harvard	law clerk, S.D.N.Y (1998–1999); private practice (2005–2010); counsel Brown campaign (2010); general counsel to California Governor (2010–2018)
Associate Justice	Martin Jenkins	November 12, 1953 (age 67)	Gavin Newsom	December 4, 2020 2 months	January 3, 2023	USF	Law clerk, Alameda County District Attorney's Office (1980–1981); Deputy district attorney, Alameda County (1981–1983); Trial attorney, United States Department of Justice Civil Rights Division (1983–1985); Judge, Alameda County Municipal Court (1989–1992); Civil litigator, Pacific Bell Legal Department (1985–1989); Judge, Oakland-Piedmont-Emeryville Municipal Court (1989–1992); Judge, Alameda County Superior Court (1992–1997); Judge, United States District Court for the Northern District of California (1997–2008); Judge, California Court of Appeal for the First District (2008–2019)

Five current justices were appointed by Democrats (Liu, Cuéllar, Kruger, Groban, Jenkins) and two by Republicans (Cantil-Sakauye and Corrigan). The justices generally do not publicly discuss their political views or affiliations; however, in December 2018, Chief Justice Cantil-Sakauye announced that she was leaving the Republican Party.[14]

One justice earned an undergraduate degree from a University of California school (Cantil-Sakauye at Davis), four from private universities in California (Corrigan at Holy Names, Liu and Groban at Stanford, and Jenkins at Santa Clara), and two from an out-of-state private university (Cuéllar and Kruger at Harvard). Two justices earned their law degrees from a University of California law school (Cantil-Sakauye at Davis and Corrigan at Hastings), one from a private California university (Jenkins at the University of San Francisco), and four from law schools at out-of-state private universities (Liu, Cuéllar, and Kruger at Yale and Groban at Harvard).

The most recent Justice to leave the court was Justice Ming Chin who retired from the court on August 31, 2020.[15] Appointed by Republican Governor Pete Wilson, Chin was the first Asian American man, the first Chinese American person, and second Asian American person to serve on the court.[16] The most recent addition to the court is Associate Justice Martin Jenkins, who was sworn in on December 4, 2020, to replace Chin on the court. Appointed by Democratic Governor Gavin Newsom, Jenkins is the first openly gay justice, the third African American man, and the fifth African American person to serve on the court.[17][18][19]

There is one Filipino-American justice (Cantil-Sakauye), one Hispanic (Cuéllar), two African-American (Kruger, Jenkins), one East Asian-American justice (Liu), and two non-Hispanic white justices (Corrigan, Groban).

The court had a female majority from 2011–2017. The majority was achieved in 2011 after Republican Governor Arnold Schwarzenegger appointed Chief Justice Tani Cantil-Sakauye to the court, joining Justice Joyce L. Kennard (an appointee of Republican Governor George Deukmejian), Justice Kathryn Werdegar (appointed by Republican Governor Pete Wilson), and Justice Carol A. Corrigan (another Schwarzenegger appointee). When Kennard retired in 2014, Democratic Governor Jerry Brown preserved the female majority by appointing Leondra Kruger to succeed her. The female majority ended when Werdegar retired in 2017, and Brown appointed Joshua Groban to succeed her.

Structure

Between 1879 and 1966, the court was divided into two three-justice panels, Department One and Department Two.[20] The chief justice divided cases evenly between the panels and also decided which cases would be heard en banc by the Court sitting as a whole.

The Court's headquarters in San Francisco at the Earl Warren Building and Courthouse, which it shares with the Court of Appeal for the First District

After a constitutional amendment in 1966, the Court currently sits "in bank" (en banc) (all seven together) when hearing all appeals. When there is an open seat on the court, or if a justice recuses himself or herself on a given case, justices from the California Courts of Appeal are assigned by the chief justice to join the court for individual cases on a rotational basis.

The procedure for when all justices recuse themselves from a case has varied over time.[21] For a 1992 case, the chief justice requested the presiding justice of a Court of Appeal district (different from the one where the case originated) to select six other Court of Appeal justices from his district, and they formed an acting Supreme Court for the purpose of deciding that one case.[22] However, in a later case where all members of the Court recused themselves when Governor Schwarzenegger sought a writ of mandate (Schwarzenegger v. Court of Appeal (Epstein)), seven justices of the Courts of Appeal were selected based on the regular rotational basis, not from the same district, with the most senior one serving as the acting chief justice, and that acting supreme court eventually denied the writ petition.[23] In a yet more recent case (Mallano v. Chiang) where all members of the Court recused themselves on a petition for review by retired Court of Appeal justices on a matter involving those justices' salaries (that apparently involved matters up to and including the 2016–2017 fiscal year), the Court ordered that six superior court judges be selected from the pool that took office after July 1, 2017 to serve as the substitute justices for the six sitting justices, with the senior judge among that group serving as the acting Chief Justice; that acting Supreme Court eventually denied the petition for review.[24]

The Court supervises the lower courts (including the trial-level California superior courts) through the Judicial Council of California and the California Commission on Judicial Performance, and also supervises California's legal profession through the State Bar of California. All lawyer admissions and disbarments are done through recommendations of the State Bar, which then must be ratified by the Supreme Court. California's bar is the largest in the U.S. with 210,000 members, of whom 160,000 are practicing.[36][37]

The Stanley Mosk Library and Courts Building, the Supreme Court's branch office in Sacramento, which it shares with the Court of Appeal for the Third District

As the Wall Street Journal said in 1972:

The state's high court over the past 20 years has won a reputation as perhaps the most innovative of the state judiciaries, setting precedents in areas of criminal justice, civil liberties, racial integration, and consumer protection that heavily influence other states and the federal bench.[38]

Statistical analyses conducted by LexisNexis personnel at the Court's request indicate that the decisions of the Supreme Court of California are by far the most followed of any state supreme court in the United States.[39] Between 1940 and 2005, 1,260 decisions of the Court were expressly followed by out-of-state courts (meaning that those courts expressly found the Court's reasoning persuasive and applied it to the cases before them).

Many important legal concepts have been pioneered or developed by the Court, including strict liability for defective products, fair procedure, negligent infliction of emotional distress, palimony, insurance bad faith, wrongful life, and market-share liability.

The major film studios in and around Hollywood and the high-tech firms of Silicon Valley both fall under the Court's jurisdiction. Thus, the Court has decided a number of cases by, between, and against such companies, as well as several cases involving Hollywood celebrities[40] and high-tech executives.[41]

The California Supreme Court and all lower California state courts use a different writing style and citation system from the federal courts and many other state courts. California citations have the year between the names of the parties and the reference to the case reporter, as opposed to the national standard (the Bluebook) of putting the year at the end. For example, the famous case Marvin v. Marvin, which established the standard for non-marital partners' ability to sue for their contributions to the partnership, is rendered Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106] in California style, while it would be Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 106, 134 Cal. Rptr. 815 (1976), in Bluebook style. The California citation style, however, has always been the norm of common law jurisdictions outside the United States, including England, Canada and Australia.

While the U.S. Supreme Court justices indicate the author of an opinion and who has "joined" the opinion at the start of the opinion, California justices always sign a majority opinion at the end, followed by "WE CONCUR," and then the names of the joining justices. California judges are traditionally not supposed to use certain ungrammatical terms in their opinions, which has led to embarrassing fights between judges and the editor of the state's official reporters. California has traditionally avoided the use of certain French and Latin phrases like en banc, certiorari, and mandamus, so California judges and attorneys use "in bank," "review," and "mandate" instead (though "in bank" has become quite rare after 1974).

Finally, the Court has the power to "depublish" opinions by the Courts of Appeal (as opposed to the federal practice of not publishing certain "unpublished" opinions at all in the federal case reporters).[42] This means that even though the opinion has already been published in the official state reporters, it will be binding only upon the parties.[43] Stare decisis does not apply, and any new rules articulated will not be applied in future cases. Similarly, the California Supreme Court has the power to "publish" opinions by the California Courts of Appeal which were initially not published.[42]

The California Supreme Court has handed down important and influential decisions since 1850. Some of the most significant of these important and influential Court decisions are listed below in date ascending order. Most of the Court decisions that follow were landmark decisions that were among the first such decisions in the United States or the world.

• People v. Hall (1854),[44] a case which held that Chinese persons may not testify against a white man, even if the white man is accused of murdering a Chinese person; effectively overturned by state law in 1873. The Hall case has been described as “containing some of the most offensive racial rhetoric to be found in the annals of California appellate jurisprudence” and “the worst statutory interpretation case in history.”[45]
• Houston v. Williams (1859),[46] a leading case on the separation of powers[47] under the California Constitution.

• Escola v. Coca-Cola Bottling Co. (1944),[48] then-Associate Justice Roger Traynor suggested in a now-famous concurring opinion that the Court should dispose of legal fictions like warranties and impose strict liability for defective products as a matter of public policy.
• Perez v. Sharp (1948),[49] the Court overturned the statutory ban on interracial marriage as unconstitutional. Perez directly influenced the landmark U.S. Supreme Court decision on this issue, Loving v. Virginia (1967).
• Summers v. Tice (1948),[50] the Court shifted the burden to the defense to disprove causation when it was clear that one of two defendants must have caused the plaintiff's injury, but it was not clear which one.
• Dillon v. Legg (1968),[51] the Court radically expanded the tort of negligent infliction of emotional distress (NIED) beyond its traditional form, which historically had been limited to plaintiffs standing in the same "zone of danger" as a relative who was killed.
• Pacific Gas & E. Co. v. G.W. Drayage & Rigging Co., Inc. (1968), [52] in which the Court held that parol evidence could be conditionally received by a trial court to determine if a contract was ambiguous when not ambiguous on its face. This decision has not been followed by the courts of any other state.
• Rowland v. Christian (1968),[53] the Court abolished the old distinctions between different types of persons entering land and imposed a general duty of care in the context of the tort of negligence.
• People v. Belous (1969),[54] finding the state’s criminal statute prohibiting abortions to be unconstitutionally vague, in a 4-3 decision.
• People v. Anderson (1972),[55] the Court relied upon the state constitutional clause prohibiting "cruel or unusual punishment" (note the difference from the federal Constitution's "cruel and unusual punishment" clause) to abolish capital punishment in California. The state electorate promptly overruled Anderson that same year with a popular initiative, Proposition 17, that kept the "cruel or unusual" clause but declared the death penalty to be neither cruel nor unusual.
• Pitchess v. Superior Court (1974),[56] the Court held that criminal defendants have a right to access the arresting officer's personnel file when the defendant alleges in an affidavit that the officer used excessive force or lied about the circumstances of the arrest.
• Li v. Yellow Cab Co. (1975),[57] the Court embraced comparative negligence as part of California tort law and rejected strict contributory negligence.
• Tarasoff v. Regents of the University of California (1976),[58] the Court held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient. The original 1974 decision mandated warning the threatened individual, but a 1976 rehearing resulted in a decision calling for a "duty to protect" the intended victim, which did not necessarily require that a potential victim be informed of the threat.
• Marvin v. Marvin (1976),[59] the Court ruled in favor of the enforceability of non-marital relationship contracts, express or implied, to the extent that they are not founded purely upon meretricious sexual services. In other words, even though California does not recognize common law marriage, persons who cohabit for long periods of time and commingle their assets are allowed to plead and prove marriage-like contracts for support and division of property.
• Robins v. Pruneyard Shopping Center (1979),[60] the Court found that the broad right to freedom of speech in the state constitution included an implied right to freedom of speech in private shopping centers. The U.S. Supreme Court in turn held that the state supreme court's decision did not amount to a "taking" of the shopping center under federal constitutional law.
• Sindell v. Abbott Laboratories (1980),[61] the Court imposed market share liability on the makers of fungible hazardous products.
• Thing v. La Chusa (1989),[62] the Court withdrew from the expansive form of NIED set forth in Dillon and imposed a rigid bright-line test for recovery in bystander NIED cases. The Thing decision included extensive dicta hostile to plaintiffs which more generally limited the scope of recovery for both the tort of negligence and emotional distress damages in California.
• Moore v. Regents of the University of California (1990),[63] the Court held that patients do not have intellectual property rights in profits from medical discoveries made with their body parts.
• Wendland v. Wendland (2001),[64] the Court held that in the absence of a legally recognized method of determining who should make medical decisions on the behalf of an incompetent patient, the constitutional right to life and right to privacy granted special protection to the incompetent person.
• Yount v. City of Sacramento (2008),[65] the Court held that a criminal conviction does not limit an individual's right to bring civil action for deprivation of rights in cases of excessive use of force.
• In re Marriage Cases (2008),[66] the Court held that sexual orientation is a protected class which requires strict scrutiny and under such scrutiny, laws prohibiting same-sex marriage are unconstitutional under the state constitution. The state electorate overturned the marriage portion of the decision that same year by enacting a popular initiative, Proposition 8, but left in place the discrimination protections.
• Silicon Valley Taxpayers' Assn., Inc. v. Santa Clara County Open Space Authority (2008),[67] the Court unanimously held in a Proposition 218 ("Right to Vote on Taxes Act") case that courts must exercise their independent judgment in reviewing local agency legislative decisions adopting special assessments. The highly deferential standard of review before Proposition 218 became law was grounded in separation of powers. Because the constitutional provisions of Proposition 218 were of equal dignity to the separation of powers doctrine, it no longer justified allowing a local agency to usurp the judicial function of interpreting and applying the constitutional provisions that governed assessments under Proposition 218.
• People v. Diaz (2011),[68] the Court held that the warrantless search of information in a cell phone was valid when incident to a lawful arrest. (The holding in Diaz was eventually repudiated by the United States Supreme Court in Riley v. California.)

• Serranus Clinton Hastings, Chief Justice (1850–1852) (First Chief Justice, founded Hastings College of the Law)
• Solomon Heydenfeldt, Associate Justice (1852–1857) (First Jewish justice to be elected by direct vote of the people)[69]
• David S. Terry, Chief Justice (1857–1859) (Killed while attempting to assassinate his successor, Stephen Field)
• Stephen J. Field, Chief Justice (1859–1863) (Appointed by President Lincoln to the U.S. Supreme Court)
• Addison Niles, Associate Justice (1872–1880)
• Curtis D. Wilbur, Chief Justice (1923–1924) (Appointed by President Coolidge as U.S. Secretary of the Navy)
• Mathew Tobriner, Associate Justice (1962–1982)
• Roger J. Traynor, Chief Justice (1964–1970), Associate Justice (1940–1964) (Well-respected legal scholar; generally regarded as the greatest justice in the history of the Court)
• Stanley Mosk, Associate Justice (1964–2001) (Longest serving justice)
• Wiley W. Manuel, Associate Justice (1977–1981) (First African-American on the Court; well known for his pro bono work)
• Rose E. Bird, Chief Justice (1977–1987) (First woman appointed to the Court; only Chief Justice ever not to be retained by the electorate)
• Otto Kaus, Associate Justice (1981–1985)
• Allen Broussard, Associate Justice (1981–1991)
• Cruz Reynoso, Associate Justice (1982–1987) (First Latino on the Court)
• Janice Rogers Brown, Associate Justice (1996–2005) (Appointed by President G.W. Bush to the United States Court of Appeals for the District of Columbia Circuit)
• Ronald M. George, Chief Justice (1996–2011), Associate Justice (1991–1996)

• Judiciary of California
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