May 21, 2013

Recent article discusses the justices’ differing approaches to statutory interpretation and the importance of consensus in high-profile cases

In a recent article in the Daily Journal [subscription required], reporter Emily Green wrote that the California Supreme Court has displayed a remarkable degree of unanimity. This unanimity has also been noted by other court watchers, including Professor Gerald Uelmen, as we discussed here. Nonetheless, as Green noted, the Court does issue a few closely divided opinions each year, and has issued five 4-3 decisions since August 2012.

As observers of the U.S. Supreme Court know well, closely divided opinions can say much about justices’ approach to the task of judging. But, Green pointed out, “The breakdown of the [California] justices’ positions defies ideological and political expectations. No single bloc is emerging on the court, and not one majority opinion includes the same four justices.” Green then made the astute observation that, more than anything else, the Court’s 4-3 decisions reveal a difference of opinion among the justices over how to interpret statutory law. She noted that Justices Baxter and Kennard are greater adherents of a “plain meaning” approach, while Justices Werdegar and Liu “tend to place more emphasis on the law’s legislative history.” Even so, the justices often seek the middle ground, especially when deciding controversial cases, which reflects a value judgment that consensus is more important than ideology. Green emphasized the point by quoting Justice Liu as recently saying the justices craft their opinions so as “‘to garner the most votes.’”

Green concluded by noting the justices’ differing views regarding statutory interpretation would be put to the test again in City of Riverside v. Inland Empire Patient’s Health and Wellness Center, S198638, in which the Court was called upon to decide whether state law preempts the authority of local municipalities to ban medical marijuana dispensaries within their borders. The Court issued that opinion earlier this month, as noted in this Los Angeles Times article, and upheld local authority to ban such dispensaries.

So does the City of Riverside opinion support Green’s hypothesis? Yes, to some degree. The opinion’s unanimity underscores the importance of consensus in high-profile cases. And it probably is not a surprise that the opinion, authored by “plain meaning” adherent Justice Baxter, is rooted heavily in the operative language of the governing statutes and gives less weight to the Legislature’s statements of intent. (See typed opn., 33-34 [“We cannot employ the Legislature’s expansive declaration of aims to stretch the MMP’s effect beyond a reasonable construction of its substantive provisions.”].) On the other hand, the opinion’s very unanimity tends to vitiate the notion that there is a deep divide on the Court over the proper approach to statutory interpretation. It is true that Justice Liu wrote a separate concurrence, but it was not to advocate a broader approach to statutory interpretation. Instead, he wrote separately to reaffirm the proper state vs. local preemption inquiry. (Conc. opn. of Liu, J., p. 1 [state law preempts local legislation not only “when local law prohibits . . . what a state statute ‘demands’ but also what the statute permits or authorizes”].)

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