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Justice Chin’s legacy

Overview

On
January 15, 2020, Justice Ming William Chin — the court’s longest-serving sitting
member — announced that he will retire in August. His distinguished, 24-year
tenure has spanned three chief justices and five governors. Former Governor
Pete Wilson, who appointed Justice Chin to the state high court in 1996, praised
him as “a model of judicial excellence.” Chief Justice Cantil-Sakauye described
Justice Chin as a “valuable mentor” and stated “his loss to this court
will be incalculable.”

In
this article we analyze Justice Chin’s contributions to California law and reflect
on his remarkable career.

Justice
Chin has been a workhorse

Throughout
his tenure, Justice Chin has been one of the most productive writers on the court.
After his appointment, Justice Chin “quickly gained a reputation for producing
a prolific number of opinions — authoring six majority opinions in his first eight
months.”[1] A 2006 profile described Justice Chin as “one of the
bench’s most active members.”[2]

The
numbers corroborate Justice Chin’s reputation. As of publication, Justice Chin
has written 474[3]
total opinions: 361 majority (76%), 113 separate (24%). He has written a nearly
identical number of concurring opinions (43) as he has dissenting opinions
(45). He also has written 25 concurring and dissenting opinions in which he
concurs in part, but dissents in part from a majority opinion.

Justice
Chin was especially active during the first half of his career. In his first 12
years, he authored an average of 22.5 opinions per year. In 2004, he authored a
career-high 29 opinions. Justice Chin has also remained productive during the
second half of his career. His 86 opinions since 2015 are second only to
Justice Liu’s 118. He has a career average of 19 opinions per year.

 Justice Chin has profoundly shaped criminal
law and labor and employment law

Although
Justice Chin has written opinions on dozens of subjects, his greatest impact was
on criminal law and employment law. This is unsurprising, given that Justice
Chin began his legal career as a prosecutor and has co-authored Rutter Group
practice guides on employment litigation and forensic DNA evidence. We used Westlaw’s
categorizations[4]
to create the following chart.[5]

Justice
Chin has written opinions on 22 different subjects, which demonstrates his
versatility. The data also show that Justice Chin has areas of particular expertise.
Just over half (56%, 266 of 474) of his opinions are in criminal cases. That
percentage is consistent with our previous finding that Justice Chin’s opinions
are weighted slightly toward the criminal side. The plurality of his opinions
in civil cases (17.8%, 37 of 208) address labor and employment. Government (9.6%,
20 of 208) and family law (8.2%, 17 of 208) are his next most frequent civil
subjects.

But
Justice Chin should also be remembered for the quality of his opinions.
Commentators have long lauded his analysis for its insightfulness and clarity. In
criminal and employment cases, Justice Chin often wrote separately to stake out
a nuanced position. In 266 criminal cases, he wrote 49 separate opinions, or about
18% of the time. In two criminal cases — People
v. Cleveland
(2004)
32 Cal.4th 704 and Cowan
v. Superior Court
(1996)
14 Cal.4th 367 — he wrote both the
majority opinion and a separate concurrence. In 37 labor and employment cases, Justice
Chin wrote 10 separate opinions, or about 27% of the time.

Justice
Chin also authored several landmark opinions that have transformed California law.
His most-cited opinion, Cel-Tech
Communications, Inc. v. Los Angeles Cellular Telephone Co.

(1999)
20 Cal.4th 163, established the “safe harbor” doctrine,
which precludes plaintiffs from suing under California’s Unfair Competition Law
based on actions “the Legislature permits.” That same opinion also established
an unfairness test for a UCL claim between competitors, while leaving in place
multiple other tests for consumer claims. Justice Chin’s most-cited
criminal-law opinion, People
v. Falsetta
(1999)
21 Cal.4th 903, affirms the
constitutionality of Evidence Code section 1108. That section permits
prosecutors to introduce evidence of a defendant’s other sex crimes to show
propensity. More recently in Sargon
Enterprises, Inc. v. University of Southern California

(2012)
55 Cal.4th 747, Justice Chin clarified the gatekeeping
function of trial courts in admitting expert testimony.

Justice
Chin’s inimitable judicial philosophy

Although
Justice Chin is the court’s most currently identifiable conservative member, his judicial philosophy
transcends binary political labels. When he was appointed to the high court in
1996, the Los Angeles Times described him as “moderately conservative.”[6] A year later, he voted in
favor of overturning a law requiring parental consent for abortion.[7] Although he is generally conservative
on criminal matters, he notably reversed a woman’s manslaughter conviction
because the trial judge did not allow her to present evidence of battered
women’s syndrome in her defense.[8] And as we previously
noted
, “conservative” here is a relative term: Justice Chin only
looks somewhat conservative compared with the court’s other current members;
the usual conservative and liberal labels are not good descriptors for these
justices; and this is a court that has trended back to a median after dramatic
swings to the left and right in the past 50 years.

Justice Chin’s two most recent dissents
People v. Lopez (2019) 8 Cal.5th 353 and OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111 — are emblematic of his
judicial philosophy. In Lopez (a 4­–3 criminal decision) the Brown-appointed majority held that
the Fourth Amendment does not allow warrantless vehicle searches for a driver’s
identification.[9] In
his dissent, Justice Chin thoughtfully discussed the practical consequences of
the majority’s ruling on law enforcement and emphasized the importance of stare
decisis. Justice Chin’s analysis of the majority was sharp: “In brief, the
majority sets up a straw man and then knocks it down, relying on a decision
that is not on point.”[10]

In the labor and employment case Kho, Justice Chin
dissented from an otherwise-unanimous decision to write that an arbitration
agreement was not substantively unconscionable. That Justice Chin dissented
alone is itself noteworthy because nearly 80% of California Supreme Court opinions
in 2018 were unanimous. Dissenting opinions are unusual — solo dissents are
rare. Justice Chin’s dissent in Kho was the only dissent from an
otherwise-unanimous decision in 2019. And Justice Chin’s pointed clarity was
again on display in Kho: “Today, the majority holds that an arbitration agreement is
substantively unconscionable — and therefore unenforceable — precisely because
it prescribes procedures that, according to the majority, have been ‘carefully
crafted to ensure fairness to both sides.’ If you find that conclusion hard to
grasp and counterintuitive, so do I.”[11]

Conclusion

Few justices in the history of the
California Supreme Court leave a legacy as distinguished as Justice Chin. In 24
productive years, he shaped and refined California jurisprudence, especially criminal
and employment law. Chief Justice Cantil-Sakauye and Justice Corrigan, both also
former prosecutors, will likely honor Justice Chin’s pro-law enforcement
perspective going forward. But the court will undoubtedly miss Justice Chin’s pro-business
jurisprudence in labor and employment cases. When Justice Chin retires, the
court will also lose a prolific writer with the ability to synthesize complex
legal doctrines into masterful opinions. Overall, Justice Chin should be
remembered for his clarity and courage.

—o0o—

Senior research fellows David and
Michael Belcher are attorneys in private practice and government service,
respectively. Nothing here reflects the views of their employers, and they
write solely in their academic capacity.


[1] Justice Chin also wrote two concurrences during his first
eight months. California Courts Press Release, Justice Ming Chin to Retire from
California Supreme Court (Jan. 15, 2020), https://newsroom.courts.ca.gov/news/justice-ming-chin-to-retire-from-california-supreme-court

[2] See McKee, Judicial Profile: Ming Chin, The Recorder
(May 2, 2006), at https://www.law.com/therecorder/almID/900005452654/judicial-profile-ming-chin/

[3]
We excluded Burton v. Shelley (2003) 2003 WL 21962000 because it is a
writ denial that Justice Chin co-authored with Justices Baxter, Werdegar, and
Brown. We counted People
v. Superior Court (Johnson)
(2015)

and its
republication, People
v. Superior Court (Johnson)
(2015)
, as one opinion. In
three cases — People
v. Cleveland
(2004)
,
Cowan
v. Superior Court
(1996),
and Cheong
v. Antablin
(1997)

— Justice Chin wrote the majority opinion and a concurring opinion. We counted
the majority and concurring opinions separately.

[4] We acknowledge the
limitations of Westlaw’s categories. Most cases address multiple areas of law.
And some categories (like “Criminal Justice”) are broader than others.

[5] We categorized Garcia v. McCutchen (1997) as “Litigation” instead of
“Civil Procedure.” We categorized Merrill v. Navegar, Inc. (2001) and Johnson v. American Std., Inc. (2008) as “Torts” instead of “Products
Liability.” We categorized People v. Macias (1997) as “Criminal Justice” instead
of “Juvenile Justice.” We categorized County of San Diego v. State of
California

(1997)
as
“Government” instead of “Securities and Commodities.” We categorized Western Security Bank v. Super.
Ct.
(1997)
and Zengen Inc. v. Comerica Bank (2007) as “Business Organizations.”
Finally, we categorized Sinclair Paint Co. v. State Bd.
of Equalization

(1997)
as
“Government” instead of “Business Regulation.”

[6] Maura Dolan, State High
Court Justice Sworn In Amid Protests
, LA
Times (March 2, 1996), athttps://www.latimes.com/archives/la-xpm-1996-03-02-mn-42134-story.html.

[7] American
Academy of Pediatrics v. Lungren
(1997)
.

[8] People
v. Humphrey
(1996)
.

[9] We previously identified
People v. Lopez as one of just a few 4–splits with the Brown appointees
in the majority and all three senior justices dissenting.

[10] People v. Lopez (2019) 8 Cal. 5th 353, 382 (dis. opn. of Chin, J.).

[11] OTO, L.L.C. v. Kho (2019) at 141–42 (dis. opn. of Chin, J., citation
omitted).