Carlos Moreno’s resignation from California Supreme Court creates opportunity for Jerry Brown

The unexpected decision by Justice Carlos R. Moreno to retire from the California Supreme Court has created an early opportunity for Gov. Jerry Brown to put his stamp on the state’s highest court.

FOR THE RECORD:
An article about Justice Carlos R. Moreno’s resignation from the California Supreme Court in Friday’s Section A said Moreno was a Princeton University graduate. He is a graduate of Yale University.

Moreno, 62, the only Latino and Democrat on the court, said Brown’s election cemented his decision to leave for work as either a private judge or for a private law firm. The retirement this month of Chief Justice Ronald M. George and the transition in the governor’s office had prodded him to “try something new while I am still young enough and vigorous enough,� Moreno said in an interview.

“I saw transition in the air,� said Moreno, who was appointed to the top court by former Gov. Gray Davis in 2001.

Brown’s selection of Moreno’s successor will be closely watched. His office said Brown received Moreno’s resignation Thursday and thanked him for his service.

“The governor intends to fill Justice Moreno’s seat with a candidate who is equally knowledgeable, thoughtful and judicious,� a Brown spokesman said.

Brown infuriated conservatives in 1977 by naming Rose Bird, a friend and member of his cabinet, as chief justice. Bird had never been a judge, and she voted to overturn every death sentence she reviewed. In 1986, voters rejected her in a retention election, defeating two other Brown appointees on the state high court at the same time.

During his campaign last year, Brown said he would make judicial appointments differently this time around. He said he was trying to make a point with his early judicial selections. Bird was the first woman to serve on the state’s highest court. It is now headed by a Filipina American, and four of its seven jurists are women.

Among the candidates Brown is expected to consider is Court of Appeal Justice Martin Jenkins, a former federal trial judge and prosecutor who is considered politically moderate. Jenkins, placed on the state appeals court by former Gov. Arnold Schwarzenegger, would be the only African American on the court, although others have served in the past.

Another potential successor is appeals court Justice Maria Rivera, a Davis appointee who is considered liberal on issues of discrimination. Other names mentioned Thursday were Arturo Gonzalez, a successful litigator who has been active in the San Francisco bar association, and Thomas Saenz, who heads the Mexican American Legal Defense and Education Fund. Neither Gonzalez nor Saenz has judicial experience.

Legal analysts said Brown also might consider Court of Appeal justices he appointed many years ago, including Arthur Gilbert and J. Anthony Kline, who have decades of experience.

Although Moreno was the court’s only Democrat, he blended in easily during his first years on the court, most of whose justices are moderately conservative. He described himself as a “moderate-to-liberal centrist� and said that he did not favor big leaps in the law. During one 15-month period examined by Santa Clara law professor Gerald Uelmen, Moreno agreed with the conservatives as often as with the more liberal members.

Uelmen said Wednesday that Moreno was just slightly left of George, considered the swing vote between liberals and conservatives. One of Moreno’s greatest opinions, Uelmen said, was one that permitted demonstrators to protest at a private shopping mall, “preserving free speech under the California Constitution.�

“I think he is leaving with an excellent reputation as a very thoughtful and very fair judge,� Uelmen said.

Moreno’s profile grew during the last two years as he staked out more liberal positions and filed solo dissents. He was the only justice on the court to vote to overturn Proposition 8, the 2008 ballot measure that reinstated a ban on same-sex marriage. He said in his 2009 dissent that the initiative was a threat to all minorities.

At the time the court was examining the measure, President Obama was considering Moreno for the U.S. Supreme Court. Moreno’s dissent could have doomed any chance he had. Obama chose Justice Sonia Sotomayor instead.

Moreno also wrote a ruling that recognized the parental rights of a non-biological mother in a lesbian relationship and another that barred businesses from treating domestic partners differently than married couples.

J. Clark Kelso, a professor at the McGeorge School of Law, said Moreno embraced civil rights for gay couples long before the marriage case surfaced, sided with consumers and voted with prosecutors on criminal cases as a “law and order� justice.

“There were quite a few cases where he was writing opinions to make sure that consumers weren’t put in an unfair position,� Kelso said. “You see a justice who was concerned about the rights of individual people.�

Moreno’s announcement surprised court analysts, who assumed he was leaving for family or financial reasons.

Chief Justice Tani Cantil-Sakauye, who succeeded George this week, said she had expected Moreno to serve at least another decade.

She lauded him for his work on the Judicial Council, the courts’ policymaking body, on behalf of foster children and said he had improved practices in juvenile cases.

Moreno acknowledged that “money was definitely a consideration� in resigning. More years of service would not have added to his retirement benefit, and he and his wife care for her aged mother and her disabled brother, he said.

The couple adopted a niece, 15, who is severely autistic, in 2009 and also have two grown children. Associate justices of the top court earn $218,237 annually, less than Moreno could earn in the private sector. Moreno lives in Los Angeles and has commuted to the San Francisco-based court.

The son of Mexican immigrants, Moreno grew up near Dodger Stadium and was the first in his family to attend college. He graduated from Princeton University and Stanford Law School.

He began his legal career as deputy city attorney in Los Angeles and then worked for a private firm doing commercial litigation.

Former Gov. George Deukmejian appointed him to the Municipal Court in 1986, former Gov. Pete Wilson elevated him to the Superior Court in 1993 and former President Clinton nominated him as a federal trial judge in 1998.

[email protected]