MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. As the nomination of Elena Kagan to the U.S. Supreme Court moves to a full Senate vote, the makeup of California's Supreme Court is undergoing its own change. With much less fanfare than the U.S. Supreme Court, California's Chief Justice has announced his retirement and his successor has been nominated. We'll hear about that process and about a ruling by the Ninth Circuit Court of Appeals that carries a message for the San Diego Police department. Joining us on this legal update is These Days legal analyst Dan Eaton. Good morning, Dan.
DAN EATON (KPBS Legal Analyst): Good morning, Maureen. There’s been a very, very busy few weeks in the legal landscape. We were talking about how we could easily have doubled the number of topics we’re talking about.
CAVANAUGH: It’s amazing. Well, we, you know, we’re tried to pare them down to the most relevant.
EATON: We have, right.
CAVANAUGH: But there’s been a lot going on.
EATON: Yeah, right.
CAVANAUGH: Well, first off, we have a case where the winner didn’t win much but apparently made his point with the Ninth Circuit. A San Diego man appealed his award of only a dollar in damages after he claimed that the San Diego Police Department violated his civil rights. What’s the factual background of this case?
EATON: Here’s what happened, Maureen. On January second, 2005, so you’ve got to figure this was sort of a New Year’s party that spilled over into the wee hours, outside of a bar, presumably around closing time, I suppose that a man saw that another man was being beaten up and so he went—his name was Anthony Guy. Anthony Guy sought to intervene in this particular fight. Eventually, the police, who were across the street, saw this was going on and, of course, then moved in. What happened next, there is some question, but what happened next is that Anthony Guy ended up getting into a scuffle with one of the police officer (sic). He claims the officer came from behind him. The police officer later said, no, he approached from a front angle and identified himself as a police officer. But either way, apparently Mr. Guy hit the police officer, which caused the police officer to throw him to the ground and then eventually when Mr. Guy was on the ground, at least according to him, there was kicking by the police officer, who initially responded, and two others, as well as putting pepper spray in his head and so forth, all of which Mr. Guy claimed was unnecessary because he was already subdued. But the police officers, of course, have a different story. They said that when he was on the ground, he was kicking and thrashing his legs and so forth, and he was not compliant. So what they were using, they said, was reasonable force to try to restrain him. Ultimately, Mr. Guy disagreed and sued in federal court for violation of his civil rights, claiming that the police officers used excessive force in violation of the 4th Amendment of the United States Constitution.
CAVANAUGH: So, and the result of this lawsuit? What did the jury find?
EATON: Well, what the jury ultimately found was they found in favor of all of the police officers except for the one who initially responded. And they said, no, that one violated Mr. Guy’s Constitutional rights to be free from excessive force. But here’s the thing, the jury initially awarded him no damages. The judge eventually said, look, you have to award him what are called nominal damages at least because you found that his rights were violated. So the jury came back with an award of one dollar in nominal damages for violating the 4th Amendment rights. Obviously, Mr. Guy was not very happy so on the one hand they found that I violated – they violated my rights but they only gave me a dollar in damages. But even if they only gave me a dollar in damages, I’m entitled to my attorney’s fees and cost. What the judge said was, no, you are not entitled to your attorney’s fees and cost. Why? Because even though the jury found that your rights were violated, there was no public benefit to this lawsuit and, therefore, you are not what the law calls the prevailing party and you are, therefore, not entitled to your attorney’s fees and cost. Mr. Guy wasn’t very happy about the dollar in damages and wasn’t happy about not getting the attorney’s fees and cost so he appealed to the Ninth Circuit.
CAVANAUGH: And how did the Ninth Circuit Court of Appeals rule on this last month?
EATON: Well, it was a split. It was a split decision, Maureen, actually. By a two-to-one vote, the panel rejected Mr. Guy’s argument that the jury verdict was somehow inconsistent, that the jury could find that his rights were violated yet only award a dollar in damages, said what that probably means is that the jury found that Mr. Guy’s injuries were caused while he was resisting arrest and the officers were using reasonable force to try to restrain him, so it wasn’t inconsistent and that his jury – and that Mr. Guy’s injuries were caused while he was resisting arrest and the officers were using this reasonable force. But the court also had to deal with this issue of whether he was entitled to attorney’s fees and cost.
CAVANAUGH: Right, so I – Tell me again why did – why was excessive force found and yet no jury award for his injuries because he – when he got his injuries that the officers were using the correct amount of force.
EATON: Right, but yet that’s what the jury would have found…
CAVANAUGH: Right, right.
EATON: …according to the Ninth Circuit. The injuries were caused by the reasonable use of force but it went beyond that and the beyond that, at least the jury could conceive, didn’t cause these injuries he was claiming. He claimed physical and emotional injuries to his hands, his thumb was wrenched and so forth.
CAVANAUGH: Right, okay.
EATON: And there’s a tremendous amount of emotional trauma involved in this as well. That’s where you sort of reconcile this. Says, yes, you received injuries but it was because you were resisting and the officers had to use reasonable force.
CAVANAUGH: So what about – what did the Ninth Circuit find about this issue of public benefit and his attorney’s fees?
EATON: It’s interesting. The court, while agreeing that the jury properly awarded him a dollar in damages reversed the award on him not getting any attorney’s fees and costs. They said, no, you know what, we consider this a, quote, closed question, closed quote, but we do believe that there was some public benefit to this lawsuit after all.
CAVANAUGH: And the public benefit? The message to the San Diego Police Department.
EATON: Right, this is very interesting and so I’m going to read a little bit here. What the court said was that by this lawsuit, Mr. Guy made the San Diego Police Department aware, in a way that it wasn’t aware when they conducted an internal investigation and included the officer had engaged in no wrongdoing, that an initially justified use of force may have gone too far after Mr. Guy was subdued. So this is what the court said, quote, it is logical to expect in the face of the jury verdict that the police department would take a closer look at the level of force used by its police officers after they have been subdued – after they have subdued a suspect, closed quote.
CAVANAUGH: I see.
EATON: So that’s to say the jury’s finding of excessive force. So the – it’s reasonable to conclude that the police department is going to look at their policies more closely.
CAVANAUGH: Reexamine it. And is this – does this just mean that Mr. Guy’s going to get all of his attorney’s fees now?
EATON: Not all.
CAVANAUGH: Okay.
EATON: What the court said was that, look, when you – when it goes back to the San Diego federal judge who’s going to reexamine this, you can taken into account what the Court of Appeals called the – Mr. Guy’s, quote, limited success, closed quote, in determining how much in cost and fees he’s entitled to receive.
CAVANAUGH: I see. All right. Two weeks ago, Ronald George, Chief Justice of the California Supreme Court announced his retirement and it surprised a lot of people apparently. What can you tell us about the man who has headed the California Supreme Court since Governor Pete Wilson appointed him back in 1996?
EATON: You know, Maureen, we talk a lot on these segments because, frankly, it’s a strong interest of mine about the U.S. Supreme Court but it’s really the decisions of the California Supreme Court that hit San Diegans where they live. And Ron George is really a giant here. What happened was that Ron George was appointed to the California Supreme Court by our own Pete Wilson and was, of course, mayor of this town back in 1991, and he was elevated to Chief Justice in 1996 when Malcolm Lucas retired. To give you a sense, though, about how long George – Ron George had been a judge, he was first appointed to the lowest trial court in Los Angeles Municipal Court back in 1972 when the governor was Ronald Reagan.
CAVANAUGH: Wow. So…
EATON: So – and over the – of course, he eventually rose to the level of the Supreme Court in 1991. Over the 20 years that he served on the court, he generally established a record that was considered moderate to conservative. He was right around the center of the court.
CAVANAUGH: So what are Chief Justice George’s notable rulings?
EATON: Well, probably the ruling that most people know him for and probably the ruling for which he will probably end up being – or rulings for which he will be best known is the ruling in 2008 where for a four-to-three majority of the court, Chief Justice ruled that California’s restriction of marriage to marriage between a man and a woman was unconstitutional under the state Constitution. He wrote that that was invalid under the state Constitution’s equal protection clause and other aspects. Of course, later on that year, voters passed Proposition 8, which had the effect of putting the recognition of limiting marriage to a man and a woman in the state Constitution itself. So the following year, 2009, Chief Justice George, now wrote for a six-to-one majority saying that Proposition 8 was, in fact, valid. Of course, that issue is now before a federal judge up in San Francisco. But his opinion also held not only the proposition was a legitimate exercise of the voters’ will but also that the marriages that had been performed from the time of the court’s four-to-three ruling recognizing same sex marriages and the time that the voters passed Proposition 8 in 2008, were still legitimate.
CAVANAUGH: And other rulings of note from Justice George.
EATON: He really started off his term in 1996 with a bang, Maureen. What happened was this. He had been part – He was – First, he was confirmed as Chief Justice on May first of 1996. Well, earlier that year, Maureen, he had been part of the losing part of a four-to-three decision that had upheld a parental notification law on abortion, so he was part of the three-member minority. What happened was, after he was made chief they – the court asked for rehearing on that case and on the following year, with another new justice, Justice Chin, who had joined the court since the original ruling, the court ruled four-to-three to vacate the earlier ruling and strike down the parental notification law as unconstitutional under the state’s right to privacy.
CAVANAUGH: So he had that reversal right off the bat.
EATON: Right off the bat as chief, and says, you know what, I don’t like this anymore and there’s a new sheriff in town so let’s look at this again. And it reached the – a different result. And, of course, subsequent efforts to establish parental notification for abortion at the ballot have been unsuccessful.
CAVANAUGH: Now, Dan, you made a very good point. We do talk a lot about the U.S. Supreme Court. We may not know as much about the state supreme court. Can you give us some basic information about the California Supreme Court?
EATON: Maureen, one thing that you need to know is that there are seven justices of the California Supreme Court, two fewer than on the U.S. Supreme Court, which obviously has nine. They are really the final word that – California Supreme Court’s really the final word on what California law means, including our own state Constitution. They hear appeal from all of the state Courts of Appeal throughout the state and they also hear direct appeal of trial court decisions where – in criminal cases where the death sentence is imposed. There’s a mandatory right of review by the California Supreme Court, which actually takes up a whole lot of its docket. So – And they also will sometimes answer questions from California federal courts, including the Ninth Circuit, on unsettled question of California law, what California law means in a particular issue in a pending federal case. That’s because, as I said at the outset, that California Supreme Court is the ultimate arbiter on what California law means.
CAVANAUGH: So now we have the Chief Justice stepping down. How is the new justice going to be appointed?
EATON: The justices are appointed by the governor and most people get that, Governor Schwarzenegger, in this case. Once the governor appoints a new justice, it goes before the Commission on Judicial Appointments, which is the three-member panel. Who’s on that three-member panel? The Chief Justice, then you have the longest serving Court of Appeal justice throughout the state. In this case that is a woman by the name of Joan Dempsey Klein of Los Angeles. She is a 1947 graduate of what was then called San Diego State College. So it was really that far back. The third member is actually the most intriguing, and that’s the Attorney General, Jerry Brown, who has some experience picking Supreme Court justices. So that’s the three-member panel that ultimately decides whether to confirm or place on the ballot a nominee to the state supreme court. Of course, that’s different from the way they do it in the United States Supreme Court where you have the Judiciary Committee rather than a Commission on Judicial Appointments taking a first look at a nominee to the Supreme Court and then the full Senate ultimately voting. We’re seeing that process play itself out in Elena Kagan. Here, the full – the role of the full Senate for confirmation is taken by whom? The voters of the State of California, who vote on the confirmation at the next gubernatorial election which, of course, in our case, is this November.
CAVANAUGH: And, of course, there has been a nominee.
EATON: Yes.
CAVANAUGH: The governor has named the person he’d like to see succeed Justice George and who is that?
EATON: Gotta be careful here, okay? Because it’s an interesting name. She’s a Filipina and her name is Tani Cantil-Sakauye. I practiced that quite a bit over the last few days.
CAVANAUGH: You did very well.
EATON: Thank you very much. And she’s a Court of Appeal Justice, which means she sits at the court right below the Supreme Court, the California Supreme Court. And she served Governor Deukmejian, George Deukmejian, in a couple of very, very high profile staff positions before being named to the lower federal – lower state court by Governor Deukmejian. In 2005, Governor Schwarzenegger tapped her as his very first pick to the Court of Appeal back in two thousand – as I said, in 2005. Now Justice Cantil-Sakauye, who is 50 years old, is the daughter of farm workers. In announcing her nomination, Governor Schwarzenegger called the justice, quote, a living example of the American dream, closed quote. So she has a really inspiring backstory and she’s generally considered somewhere moderate to conservative. But here’s the important thing, she’s considered a good administrator and that’s going to be very important because the chief justice not only does law stuff, he also represents the California Judiciary before the state legislature. So her experience working with Governor Deukmejian as a liaison to the state legislature will end up being very important.
CAVANAUGH: So now that she’s been nominated, what is the actual process? She has to be reviewed by this Commission on Judicial Appointments?
EATON: She does, and actually those dates have already been set. What happens now is that her name will go to the Judicial Nomination Evaluation, the JNE Commission, which will sort of vett her and look her – and do a background and ask lawyers what they think of her. And then it will go to the Commission on Judicial Appointments and a public hearing, Maureen, has been set for August 25th at 11:00 a.m. in the California Supreme Court courtroom in San Francisco. If a majority of the three member panel, and we’ve already identified its members, confirms her, then it’s not done. Then it will go before the voters in November and at this gubernatorial election we’ll vote up and down about whether to retain her for a full 12-year term as Chief Justice of the United States (sic). If she does get confirmed, by the way, she will be our second woman chief justice and our first Filipina. So, obviously the first woman chief justice was Rose Byrd…
CAVANAUGH: Right.
EATON: …whom Jerry Brown appointed.
CAVANAUGH: And who is notable because of the controversy that she caused.
EATON: Well, ultimately, obviously, she was not retained in an important election. But here’s one of the interesting things. I did some back – okay. I did some background research on this and it turns out that there are three other states, Tennessee, Wisconsin and Michigan, who also have majority women on the Supreme Court. We would have four female justices on the California Supreme Court for the first time, and that would be a majority. There are also 12 other states have women chief justices, so this is really an historic nomination in a lot of ways, Maureen.
CAVANAUGH: It certainly is, and thank you so much for giving us that background. Learned a lot, Dan.
EATON: Sure. Thanks a lot, Maureen.
CAVANAUGH: I’ve been speaking with Dan Irwin (sic), who is our – I’m sorry. Yes, Dan Eaton, who is our These Days legal analyst. You’re listening to These Days on KPBS.
