Joyce L. Kennard: an independent streak on California's highest court.

• Author: Speich, Jeremy
• Position: California Supreme Court

On March 11, 1989, California Governor George Deukmejian nominated Joyce L. Kennard to the state's highest court--the California Supreme Court. In the Governor's announcement, he stated that "`Justice Kennard is superbly qualified and she has had a remarkable life of achievement and triumph over adversity.... [She] has proved that hard work, skill and intelligence, combined with the promise of the American dream, can lead one to great achievements.'" (1) These remarks were particularly appropriate in light of the fact that Justice Kennard did not become a naturalized citizen until 1967. She was born in Indonesia and spent part of her childhood on Japanese-occupied land in West Java, even spending time in a camp run by mercenaries during World War II. (2) Justice Kennard and her mother were eventually able to earn enough money to move to Holland, where she lost a leg due to a serious infection. (3) At age twenty, after having been trained as a Dutch-English interpreter, she relocated to Los Angeles and obtained employment as a secretary. When her mother died, Justice Kennard used her $5000 inheritance to gain admittance into Pasadena City College, where she went on to earn a scholarship that enabled her to attend the University of Southern California (USC). She graduated Phi Beta Kappa and continued on to receive her law degree from USC in 1974. (4)

After law school, Justice Kennard spent nearly five years in the criminal division of the Attorney General's office before joining the state Court of Appeal as a senior research attorney, where she handled both civil and criminal cases from 1975 through 1986--until that same year, Governor Deukmejian appointed her to the Los Angeles Municipal Court. (5) Only one year later, Justice Kennard was selected to serve on the Los Angeles County Superior Court; and then a year after that, she was appointed to her post on the state Court of Appeal. (6)

Despite encountering diverse challenges throughout her lifetime, Justice Kennard's rise to the state's highest court was quick. (7) A University of California at Berkeley law professor remarked, "`[s]he's climbed the ladder so fast--one year on the Municipal Court, one year on the Superior Court and one year on the Court of Appeal--that no one can know for sure what she will be like when she settles in on the Supreme Court.'" (8) While there had long been speculation that Deukmejian would appoint a woman to the Court, only the second in the state's history, Justice Kennard's nomination was considered a surprise. (9)

Gerald F. Uelmen, Dean of Santa Clara Law School as well as a respected authority on the state high court, said at the time of her appointment, "`I think this appointment indicates the governor is willing to take a certain risk in order to achieve the objective of getting a woman on the court ... [but] I don't think the governor would take that kind of risk if this were a swing-vote appointment.'" (10) Ideology, always an important question in the judicial nomination process, has certainly been a factor for Governor Deukmejian, whose five previous appointees were all experienced judges with well-established conservative records. (11) Though dubbed a "judicial conservative" by many court-watchers, (12) it was nonetheless difficult to predict Justice Kennard's votes in civil cases, as her opinions in the past had shown no overriding biases or preferences. (13) University of California Berkeley law professor Stephen R. Barnett noted that "[i]t will be very interesting for everyone--including the governor--to see how she turns out." (14)

How has she turned out then? How has Justice Kennard performed on the court? The answer to these questions may be found by examining her rulings on selected issues during her time on the bench.

1. OVERVIEW

   Before delving into the various areas of law where Justice Kennard has made her mark, perhaps it is more interesting initially to see how and why she decides to even write an opinion. After glancing at only a few of Justice Kennard's opinions, one is impressed by the sheer volume of her judicial activity. Since joining the court, the large number of dissenting opinions, separate concurrences, and partial dissents she has written clearly makes this evident. (15) This suggests that Justice Kennard is independent-minded and unafraid of a fractured opinion's consequence, and that she believes it is her duty to ensure that opposing views are both expressed and heard. Indicators of her judicial diligence also reside in the grounds upon which Justice Kennard relies in writing separately. Many judges, especially at the appellate level, ignore, or at least refuse to get bogged down in the perceived minutia of procedural, legislative, and factual issues. Justice Kennard, however, continuously writes on these grounds in order to express her opinion that the court should conduct a searching inquiry into the specific legal, legislative, and factual issues at hand. (16)

   First and foremost, Justice Kennard's opinions display a healthy respect for the impact present decisions have on both future decisions and past precedent. (17) In a recent criminal case, (18) although agreeing with the court in affirming the conviction, she wrote separately to elucidate her belief that a prior decision need not have been modified. (19) Justice Kennard, dissenting in Hunter v. Up-Right, Inc., a case that involved employment fraud, again demonstrated her unwillingness to associate herself with an opinion that would have a deleterious "practical effect" in like cases. (20) She has further revealed her reluctance to join the majority when there is the possibility of endorsing what she believed to be the wrong rationale implicit in the court's current opinions. (21) While opinions like these may seem trivial, the frequency with which Justice Kennard focuses on these seemingly minor details exhibits their importance to her judicial philosophy.

   Justice Kennard's opinions also reflect her desire that the court adhere to settled principles of law. (22) Her opinions often encourage the court to limit its review to the issues on appeal and to avoid disrupting the rights of parties by departing from sound legal principles. (23) Justice Kennard also frequently writes separately when she believes the majority has misinterpreted the plain meaning of statutory language, (24) and she rarely hesitates to criticize the court when it has failed to afford the proper weight to the legislative history. (25) Again, while these points may appear to be of little consequence individually, they have appeared in numerous opinions--often in conjunction with one another--throughout Justice Kennard's tenure on the court, revealing an overall pattern of great concern for even the minutiae of law and fact.

   Justice Kennard also holds strong views on substantive issues, in both the criminal and civil contexts. These beliefs, combined with her concerns regarding the treatment of factual and statutory issues, are the driving force behind her independent streak. Consistent with her prosecutorial background in criminal law, (26) Justice Kennard's opinions have generally displayed a proprosecution stance. (27) In fact, her most impassioned opinions have been written to reflect concerns for the criminal process. Justice Kennard strongly believes that an informed jury, adequate counsel, and precise sentencing guidelines are necessary components for the protection of individual rights. (28) Similarly, in civil cases, Justice Kennard's opinions illustrate her concern for the rights of individuals. She regularly and steadfastly votes in favor of the individual over the government with respect to property, First Amendment rights, parental custody, and voting rights. (29) Justice Kennard also frequently votes in favor of the individual over corporate interests to protect the rights of plaintiffs and employees. (30)

   Overall, it is difficult to state with certainty that Justice Kennard has fulfilled the legal community's expectations upon taking the bench. Since political perspective does not appear to be a motive behind her opinions, it is difficult to classify Justice Kennard as a liberal or conservative justice. (31) Indeed, in two of her earliest votes, which were the decisive votes on a divided court, she sided with the more liberal justices in a police brutality case (32) and in a case involving a drug dealer accused of felony-murder for furnishing cocaine. (33) Justice Kennard's first majority opinion, however, hinted of a more conservative streak when she upheld imposing the death penalty for a convicted murderer, holding that the jury need not be instructed that it had discretion to exercise mercy. (34) Justice Kennard has at least in one regard fulfilled the expectations of many--that she would be independent. Her opinions certainly reflect that notion, as she is currently identified as the "`court's most frequent dissenter.'" (35) The opinions analyzed in the succeeding sections demonstrate how Justice Kennard's views on substantive areas of law are guided by, and written in accordance with, the principles previously discussed.

2. CRIMINAL CASES

   Legal commentators have been more confident in assessing Justice Kennard's judicial perspective after considering her performance in criminal cases, specifically noting the persuasive opinions she has written in this realm. (36) Although many lawyers consider Justice Kennard a "prosecution-oriented jurist," it also has been noted that she is "`very fair' to defense attorneys." (37) Generally speaking, after reviewing her opinions since joining the court, Justice Kennard seems to emanate pseudo-liberal vibes but without basing her opinions on any strongly held ideology. In fact, when dissecting the criminal cases in which she has felt strongly enough to write a separate opinion, it is evident that she has sided more often than not with the prosecution. (38) On a cautionary note, however, as Justice...