The Honorable Janice Rogers Brown
United States Court of Appeals for the D.C. Circuit
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with more than eight years of experience on the California appellate bench.
T Justice Brown currently serves as an Associate Justice of the California Supreme Court, a position she has held since May 1996.
T She is the first African-American woman to serve on the State’s highest court, and was retained with 76 percent of the vote in her last election.
T In 2002, Justice Brown’s colleagues relied on her to write the majority opinion for the Court more times than any other Justice.
T Prior to her appointment and confirmation to the California Supreme Court, Justice Brown served from 1994-96 as an Associate Justice on the Third District Court of Appeals, an intermediate state appellate court.
Justice Brown is an outstanding and highly qualified candidate as evidenced by her background, credentials, and training
T The daughter of sharecroppers, Justice Brown was born in Greenville, Alabama in 1949. During her childhood, she attended segregated schools, and came of age in the midst of Jim Crow policies in the South.
T She grew up listening to her grandmother’s stories about NAACP lawyer Fred Gray, who defended Dr. Martin Luther King, Jr. and Rosa Parks, and her experiences as a child of the South motivated her to become a lawyer.
T Her family moved to Sacramento, California when Justice Brown was in her teens, and she later received her B.A. in Economics from California State in Sacramento in 1974, and her J.D. from the UCLA School of Law in 1977. She also has received honorary law degrees from Pepperdine University Law School, Catholic University of America School of Law, and Southwestern University School of Law.
Justice Brown has dedicated all but two years of her twenty-six year legal career to public service
T Prior to more than eight years as a judge in state courts, Justice Brown served from 1991-94 as Legal Affairs Secretary to California Governor Pete Wilson, where she provided legal advice on litigation, legislation, and policy matters.
T From 1987-90, Justice Brown served as the Deputy Secretary and General Counsel for the California Business, Transportation, and Housing Agency, where she supervised the state banking, real estate, corporations, thrift and insurance departments.
T From 1979-1987, Justice Brown was a Deputy Attorney General in the Office of the California Attorney General, where she prepared briefs and participated in oral arguments on behalf of the state in criminal appeals, prosecuted criminal cases, and litigated a variety of civil issues.
T She began her career in 1977 and served two years as a Deputy Legislative Counsel in the California Legislative Counsel Bureau.
Justice Brown has participated in a variety of community organizations dedicated to improving the quality of life for all citizens of California.
T Justice Brown has served as a Member of the California Commission on the Status of African-American Males. The Commission was chaired by now-U.S. Representative Barbara Lee (D-CA), and made recommendations on how to address inequities in the treatment of African-American males in employment, business development and in the criminal justice and health care systems.
T She was a member of the Governor’s Child Support Task Force, which reviewed and made recommendations on how to improve California’s child support enforcement system.
T Justice Brown served as a Member of the Community Learning Advisory Board of the Rio Americano High School and developed the Academia Civitas program to provide government service internships to high school students in Sacramento. She also assisted in the development of a curriculum to teach civics and reinforce the values of public service.
T She has volunteered time with the Center for Law-Related Education, a program that uses moot courts and mock trials to teach high school students how to solve everyday problems. T Justice Brown has also taught adult Sunday school at the Cordova Church of Christ for 10 years.
The Honorable Janice Rogers Brown Nominee to the United States Court of Appeals for the D.C. Circuit
What those who know her best are saying about Justice Brown:
“Much has been written about Justice Brown’s humble beginnings, and the story of her rise to the California Supreme Court is truly compelling. But that alone would not be enough to gain our endorsement for a seat on the federal bench. We believe that Justice Brown is qualified because she is a superb judge. We who have worked with her on a daily basis know her to be an extremely intelligent, keenly analytical, and very hard working. We know that she is a jurist who applies the law without favor, without bias, and with an even hand.” Letter from a bi-partisan group of 12 of Justice Brown’s current and former judicial colleagues (including all of her former colleagues on the Court of Appeal, Third Appellate District and four current members of the California Supreme Court) to the Honorable Orrin G. Hatch, October 16, 2003.
“We know Justice Brown to be a person of high intelligence, unquestioned integrity, and even-handedness. Since we are of differing political beliefs and perspectives, Democratic, Republican and Independent, we wish especially to emphasize what we believe is Justice Brown’s strongest credential for appointment to this important seat on the D.C. Circuit: her open-minded and thorough appraisal of legal argumentation– even when her personal views may conflict with those arguments.” Letter from a bi-partisan group of 15 California law professors to the Honorable Orrin G. Hatch, October 15, 2003.
“In my opinion, Justice Brown [possesses] those qualities an appellate justice should have. She is extremely intelligent, very conscientious and hard working, refreshingly articulate, and possessing great common sense and integrity. She is courteous and gracious to the litigants and counsel who appear before her.” Letter from Ellis Horvitz, a Democrat and one of the deans of the appellate bar in California to the Hon.Orrin G. Hatch, September 29, 2003.
“We recommend the confirmation of Justice Brown based on her broad range of experience, personal integrity, good standing in the community and dedication to public service.... In many conversations with Justice Brown, I have discovered that she is very passionate about the plight of racial minorities in America, based on her upbringing in the south. Justice Brown’s views that all individuals who desire the American dream, regardless of their race or creed, can and should succeed in this country are consistent with MILE’s mission to ensure brighter futures for disadvantaged youth of color.” Undated Letter from Regis Lane, Director of Minorities in Law Enforcement, a coalition of minority law enforcement officers in California to Orrin Hatch.
The Honorable Janice Rogers Brown Nominee to the United States Court of Appeals for the D.C. Circuit
ABORTION/PRIVACY Justice Brown has never publicly stated her views on the subject of abortion or Roe v. Wade, and her personal views on this subject are irrelevant. Her opinions demonstrate her willingness to follow Supreme Court precedent.
• Unlike Justice Brown, Supreme Court Justice Ruth Bader Ginsburg in 1985 called Roe “heavy handed judicial intervention” that “was difficult to justify.” The Senate confirmed Justice Ginsburg to the Supreme Court 96 to 3. Those who supported her nomination include six of the 10 Democrats currently on the Judiciary Committee: Biden, Feingold, Feinstein, Kennedy, Kohl, and Leahy.
• Parental Consent (American Academy of Pediatrics v. Lundgren). Justice Brown has voted to uphold a California parental-consent abortion law, which her critics may allege is an indication of her anti-abortion views.
• Justice Brown’s opinion on California’s parental consent statute is well within the legal mainstream. The United States Supreme Court has routinely found these statutes constitutional. In fact, in Planned Parenthood v. Casey, – the case that reaffirmed Roe v. Wade – the Court held that: “Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure.”
Parental involvement in abortion decisions is a mainstream, popular policy that is supported by an overwhelming majority of the American people. According to a 2000 Los Angeles Times poll, 82% of the American people support parental-consent laws.
“Second Parent” adoptions. (Sharon S. v. Superior Court). Justice Brown disagreed with the majority of the California Supreme Court that the California legislature had authorized “second parent adoptions” – i.e., where the “birth parent” allows another adult to become an “adoptive parent” without surrendering his or her own parental rights and responsibilities.
The majority’s ruling in the case was unprecedented. No other jurisdiction in the United States permits more than two adults to serve as parents to a child. As Justice Baxter pointed out in his partial concurrence and dissent, “This makes new law, not only here but nationwide.”
• Justice Brown’s conclusion was based on her belief that courts should defer to the expressed intent of the legislature. And the California legislature, in no uncertain terms, had ruled out the possibility of “second parent adoptions.
California law states: “The birth parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the adopted child, and have no right over the child.”
CIVIL RIGHTS In the Hi-Voltage Wire Works case, Justice Brown powerfully wrote that “discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society.” Her judicial decisions repeatedly demonstrate her firm commitment to this bedrock principle of civil rights. She has also held true to anti-discrimination principles in cases involving claims of age and disability discrimination.
Justice Brown has let stand large damage awards under California’s fair employment law. In one such case, Aguilar v. Avis Rent-a-Car Systems, Justice Brown forcefully stated that “plaintiffs should not be subjected to racial invectives in the workplace,” and she described the defendant’s workplace comments as “disgusting” “offensive” and “abhorrent.”
Wrongful Discharge in Violation of Public Policy Cases (Konig, City of Moorpark, and Stevenson). Justice Brown fearlessly opposed attempts to circumvent the carefully designed administrative procedures under California’s Fair Employment and Housing Act (FEHA), which the California legislature established to eradicate unlawful discrimination.
In each of these three cases, Justice Brown wrote separately, but agreed with the majority that the plaintiffs in these race, disability and age discrimination cases could pursue their discrimination claims under FEHA and receive full recovery.
Affirmative Action (Hi-Voltage). Justice Brown has been wrongfully accused of categorically opposing affirmative action. In the famous Hi-Voltage Wire Works case, every judge at every stage of the litigation – including the trial court, intermediate appellate court, and the California Supreme Court – agreed with the result reached by Justice Brown.
A large bi-partisan group of California law professors has written that they unanimously agree that Justice Brown reached the legally correct result: “The holding in Hi-Voltage – disallowing race and gender-based contracting preferences by the State – is a faithful application of California’s constitutional instruction . . . .” Letter to Chairman Hatch from California Law Professors, October 15, 2003.
Justice Brown also specifically wrote in the Hi-Voltage Wire Works case that “equal protection does not preclude race-conscious programs.”
CONSUMER PROTECTION • Justice Brown’s decisions regarding consumers’ rights and other related issues demonstrate that she approaches cases by following the law wherever it leads her, without regard to the background or identity of the litigants.
Justice Brown has authored and concurred in numerous opinions protecting the rights of ordinary consumers. For instance, she has ruled in favor of plaintiffs in cases involving fraud claims against cigarette companies, allegations of elder abuse, claims that drinking water was tainted by harmful chemicals, wrongful death claims, and tort claims by victims of various acts of negligence. See Attachment A.
Unfair Competition Law cases (Stop Youth Addiction Inc. and Quelimane). In a series of cases, Justice Brown has demonstrated her willingness to protect small businesses and consumers who ultimately bear the expense of the abusive use of California’s unfair competition law.
In Stop Youth Addiction Inc., Justice Brown would have dismissed the claims of a for-profit corporation whose only business is filing lawsuits, and whose sole shareholder is the mother of the corporation’s lawyer. This sham corporation filed eight identical lawsuits in multiple venues seeking more than $50 billion in restitution against some 2000 defendants, many of whom are small retailers.
Punitive Damages Cap case (Lane v. Hughes Aircraft Co.). Justice Brown has been criticized because she adopted the mainstream and widely-held notion that punitive damages should be capped at some multiple of compensatory damages. Her opinion demonstrates that, as a judge, she believes in “proportionality” and strives to ensure that the punishment fits the crime.
Shortly after she issued her opinion in Lane, the United States Supreme Court vindicated her position in State Farm Mutual Automobile Insurance Company v. Campbell and similarly held that a ratio of more than 4-to-1 “might be close to the line of constitutional impropriety.”
• Childhood Lead Poisoning Protection Act (Sinclair Paint Co.). The California Constitution, as amended by Prop. 13, requires that new taxes be imposed by a two-thirds vote of the legislature. The program at issue was to be funded by an “assessment” against manufacturers whose products contain lead, but was passed by only a simple majority of the legislature.
Writing for a unanimous Court of Appeals, Justice Brown applied precedent, recognized the assessment for what it truly is, and determined that it is a “tax” within the meaning of Prop. 13. The majority simply liked the program, so they said the line between “taxes” and “fees” is “blurred” and upheld the assessment.
Sinclair Paint Co. was not about whether children should be protected from lead poisoning. Justice Brown did not dispute that the goals of the program were beneficial. She merely held that it was funded in a manner that violated the California Constitution. Under Justice Brown’s opinion, the California legislature could have funded the program out of general appropriations or any in number of lawful ways.
Criminal Law JuJustice Brown’s criminal law decisions demonstrate that she is an impartial and even-handed jurist who has a strong and solid commitment to the rule of law. She has an impressive record of deciding cases not only based on the law as propounded by the Legislature, but also of applying controlling court precedent – even in situations where the law compelled her to take an unpopular position.
Stun Belt case (People v. Mar). In dissent, Justice Brown argued that because a defendant had not demonstrated that he was in any way prejudiced by use of a stun belt at trial – a showing he was required to make – the Court should not overturn his conviction for assaulting a police officer.
The use of the stun belt in this case was reasonable, given that the defendant’s own attorney argued that the defendant was incompetent, that he was incapable of having rational conversations with counsel, that his behavior was “explosive,” and that he was psychotic.
Numerous federal and state courts have upheld the use of stun belts at trial, including the United States Courts of Appeals for the Fifth, Seventh, Ninth and Tenth Circuits, and state appeals courts in Colorado, Delaware, Minnesota and Washington.
“Withdrawn Consent” Rape case (In re John Z.). After evaluating the facts in the record in a rape case, Justice Brown dissented and contended that the prosecution could not show the absence of a reasonable doubt regarding the defendant’s reasonable and honest belief that the victim had withdrawn her consent, as required under California law.
Justice Brown fully recognizes that women have an absolute right to refuse or end an act of sexual intercourse. She began her dissent by noting: “A woman has an absolute right to say ‘no’ to an act of sexual intercourse. After intercourse has commenced, she has the absolute right to call a halt and say ‘no more,’ and if she is compelled to continue, a forcible rape is committed.
Respected legal and political commentators have criticized the majority opinion in the John Z. case. See Robert Shapiro, “Prejudice: Advance Sheet,” Litigation (American Bar Association), Spring 2003 at 61; Debra J. Saunders, “Not As She Does,” S.F. Chron., January 12, 2003 at D5.
Fourth Amendment and Death Penalty. Justice Brown has demonstrated her respect of Fourth Amendment rights throughout her tenure on the judge, and has authored opinions reversing verdicts or sentences for capital defendants. In People v. McKay, in a separate opinion, Justice Brown argued for the exclusion of evidence of drug possession that was discovered after the defendant was arrested for riding his bicycle the wrong way on a residential street, suggesting the possibility of racial profiling.
Justice Brown authored an opinion in In re Brown reversing a verdict and death sentence in a case where the prosecutor deprived the defendant of a fair trial by failing to both discover and disclose an arguably exculpatory blood test.
In another case, Justice Brown dissented from the majority opinion, arguing that a defendant’s death sentence should be set aside on grounds of ineffective assistance of counsel. See In re Visciotti, 926 P.2d 987, 1010-12 (Cal. 1996).
FIRST AMENDMENT Justice Brown has a demonstrated record of protecting free speech and her opinions reflect a thoughtful consideration of the often-difficult issues that arise in First Amendment cases.
Corporate speech. (Nike v. Kasky). Justice Brown dissented from her colleagues’ view that Nike could be sued under California law for inaccurate comments it made in defending the company’s overseas labor practices. Well within the mainstream, Justice Brown believed that the California statute authorizing the lawsuit unconstitutionally burdened free speech.
Liberal commentators and groups and several major newspapers agreed with Justice Brown’s views. Liberal Harvard Law School professor Lawrence Tribe represented Nike in the case. The ACLU and AFL-CIO filed amicus briefs that sided with Nike
The editorial boards of the USA Today, Los Angeles Times, Washington Post, and Chicago Tribune all supported Justice Brown’s position in the case. One paper noted that the California Supreme Court opinion threatened to chill free speech by corporations and others by allowing “censorship by lawsuit” rather than “more speech, which invariably exposes the truth.”
Gang injunction. (People ex rel Gallo). Justice Brown, writing for a majority of the California Supreme Court, upheld an injunction sought by the city of San Jose barring gang members from intimidating, harassing, threatening or assaulting persons within a four-block area, from associating with one another and from creating a public nuisance in their crime-riddled neighborhood.
According to her detractors, Justice Brown’s opinion “denied the First Amendment rights of Latino youths to peaceful assembly.” According to the facts of the case, far from engaging in “peaceful assembly”, gang members in the Rocksprings neighborhood of San Jose openly drank, smoked marijuana, snorted cocaine from the hoods of cars, used yards and garages as urinals, sold drugs, engaged in fistfights and gunfights, and harassed, intimidated and retaliated against neighbors who dared complain to the police.
Susan Hammer, the Mayor of San Jose, a Democrat and self-described “longtime member of the ACLU” supported the injunctions, which later were used statewide to end gang activity.
PROPERTY AND ECONOMIC RIGHTS • Justice Brown’s speeches evince a strong belief in individual property rights. However, her opinions as a judge reflect a strict adherence to binding precedent and a respect for the principles of stare decisis.
Lochner speech. In a 2000 speech, Justice Brown criticized Justice Oliver Wendell Holmes dissent in the Lochner case, where Holmes noted that “the constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” In Justice Brown’s view, the Founders indeed intended to address economic rights when they drafted the Constitution– they protected private property rights through the Fifth Amendment’s takings clause.
Opponents of Justice Brown have seized upon this quote to suggest that she supports the majority’s long-since-discredited view in Lochner that the 14th Amendment's Due Process Clause barred states from regulating in the area of employee wage and hour limitations, because individuals have a fundamental right to contract with employers, and states cannot interfere with that right.
In fact, Justice Brown has been openly critical of Lochner, noting in another opinion that “the Lochner court was justly criticized for using the due process clause ‘as though it provided a blank check to alter the meaning of the Constitution as written.’” Santa Monica Beach, Ltd. v. Superior Court, 968 P.2d 993, 1026 n.3 (Cal. 1999) (Brown, J., dissenting):
Justice Brown’s critics also fail to point out that the Supreme Court itself has expressed the view that property rights are intended to carry the same weight and import as other rights found in the Constitution. In the Dolan case, the Court noted that “we see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First or Fourth Amendment, should be relegated to the status of a poor relation...”
Property Rights case. (San Remo Hotel). Justice Brown dissented from an opinion upholding a local San Francisco ordinance designed to maintain the city’s stock of low-income housing. Under the ordinance, hotel owners who wished to convert rooms from long-term to short-term use were required either to pay a fee or replace the long-term units that would be lost by conversion.
In Justice Brown’s view, requiring hotel owners to maintain and use their property for the benefit of the poor, thereby decreasing the value of the property, amounted to an unconstitutional taking.
Her dissent adhered strictly to United States Supreme Court precedent in the area of takings law. It was consistent with the Supreme Court’s holdings in Nollan and Dolan, as well as Erlich, a California Supreme Court takings case.
TEMPERAMENT • Justice Brown is known to her colleagues as a hard-working, intellectually gifted and personable judge. Any efforts to characterize her as lacking the proper judicial temperament are misguided.
• A bi-partisan group of her current and former colleagues have written in support of her nomination, calling her a “superb judge” and “extremely intelligent, keenly analytical, and very hard working.”
• In 2002, Justice Brown was called upon by her colleagues to write the majority opinion for the California Supreme Court more times than any other Justice on that court, a sign of respect by her colleagues for her writing ability and top-notch work ethic.
WORKERS’ RIGHTS • Justice Brown’s decisions regarding workers’ rights demonstrate that she approaches cases by deferring to the policy choices that the legislature enacts into positive law, refraining from substituting her views for those of the legislature, and adhering faithfully to binding precedent issued by the United States Supreme Court.
Justice Brown has authored and concurred in numerous opinions protecting the rights of average working Americans. For instance, she has ruled in favor of plaintiffs in cases involving exposure to asbestos, one-sided arbitration agreements, disability benefits, access to personnel files, wrongful termination, retaliation, workers compensation, overtime pay, and calculation of pension payments. See Attachment B.
Arbitration Case (Little v. Auto Stiegler). Justice Brown agreed with the majority that the appellate arbitration provision in the arbitration agreement – which allowed appeals only of awards greater than $50,000 – was unconscionable because it “inordinately benefits defendants” and should be severed.
• Justice Brown departed from the majority because they imposed burdensome conditions upon arbitrations. Justice Brown’s opinion is yet another reminder that she defers to the policy choices made by the legislature. Justice Brown understood that by imposing restrictions on arbitrations that have no congressional or legislative basis, the majority approach not only undermined the “liberal federal policy favoring arbitration,” but also contravenes California’s “strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.”
Appendix A
Justice Brown and Consumer Protection Case Justice Brown has authored and concurred in numerous opinions protecting the rights of ordinary consumers.
For instance:
T In Naegele v. R.J. Reynolds Tobacco Co., Justice Brown wrote that a state statute granting tobacco manufacturers immunity for certain products liability actions does not bar fraud claims alleging that the defendants manipulated the addictive properties of cigarettes via additives and that the defendants controlled nicotine delivery to smokers by adding ammonia. 28 Cal.4th 856 (2002). T In People ex rel. Lockyer v. Shamrock Foods, Justice Brown joined in an opinion holding that the more stringent state standard for identifying and labeling milk and milk products, rather than the more lenient federal standard, applied in California. 24 Cal.4th 415 (2000). T In Schreiber v. Kiser, Justice Brown held that a plaintiff who prior to trial fails to submit declarations of treating physicians designated as expert witnesses is not precluded from calling these witnesses to testify. 22 Cal.4th 31 (1999). T In Mercado v. Leong, a medical malpractice action, Justice Brown found that the trial court erroneously held that the mother of the patient was not a direct victim of the physician’s negligence. Justice Brown allowed the mother to recover for emotional distress even absent a showing of outrageous conduct on the part of the physician. 43 Cal.App.4th 317 (1996). T In Olszewski v. Scripps Health, Justice Brown held that Federal Medicaid law preempts a provision of the Medi-Cal law that authorizes hospitals to place a lien on any recovery a beneficiary might obtain from a third party tortfeasor. 30 Cal.4th 798 (2003). T In Lockheed v. Superior Court, Justice Brown held that medical monitoring claims are susceptible to class action treatment. 29 Cal.4th 995 (2001). T In Delaney v. Baker, Justice Brown held that, in an action under the Elder Abuse Act, the plaintiff is not limited to the remedies otherwise available against health care providers under MICRA. 20 Cal.4th 23 (1999). T In Myers v. Phillip Morris Companies, Justice Brown joined in an opinion holding that,although the California Legislature statutorily granted tobacco companies immunity from personal injury actions between January 1, 1988, and January 1, 1998, they are liable for injury sustained or discovered before or after that period. 28 Cal.4th 828 (2002). T In Hartwell Corp. v. Superior Court, Justice Brown joined in an opinion permitting plaintiffs to proceed with certain causes of action against both regulated and unregulated water utilities for injuries caused by harmful chemicals in water. 27 Cal.4th 256 (2002). T In Samuels v. Mix, Justice Brown joined in an opinion holding that In an action for legal malpractice in which the defendant asserted a statute of limitations defense, the Court determined that the defendant, not the plaintiff, had the burden of proof that the action was untimely. 22 Cal.4th 1 (1999). T In Bockrath v. Aldrich Chemical Co., Justice Brown joined in an opinion holding that, in an action for personal injury caused by exposure to toxic chemicals over an extended period of time, the plaintiff was entitled to a second opportunity to plead causation with the required specificity since the current standard had not been articulated by the Court at the time he originally filed his complaint. 21 Cal.4th 71 (1999). T In Salgado v. County of Los Angeles, Justice Brown joined in an opinion holding that plaintiff – a victim of medical malpractice in conjunction with his birth – was entitled to periodic payments of future non-economic damages totaling, over time, the equivalent in current dollars of an immediate lump-sum award rather than a reduced amount used to purchase an annuity. 19 Cal.4th 629 (1998). T In Hess v. Ford Motor Co., Justice Brown has held that a settlement agreement between an injured passenger and the driver – which released the driver, his insurer, and “all other persons, firms, corporations, and associations or partnerships” – did not bar the plaintiff’s action against the vehicle manufacturer. 27 Cal.4th 516 (2002). T In Garcia v. McCutchen, Justice Brown joined in an opinion holding that trial courts do not have authority to dismiss an action for noncompliance with local “fast track” rules when noncompliance is the responsibility of counsel and not of the litigant. 16 Cal.4th 469 (1997). T In Russell v. Stanford University Hospital, Justice Brown joined in an opinion holding that, under the applicable statute of limitation, a plaintiff is entitled to a full 90-day “notice” period in addition to the one- or three-year limitations period even if the complaint is filed on the last day of the latter period. 15 Cal.4th 783 (1997). T In Sullivan v. Delta Air Lines, Inc., Justice Brown joined in an opinion holding that the bar against recovery of damages for pain and suffering in an action on behalf of a deceased plaintiff did not apply where the plaintiff was alive at the time of the award but died while the case was pending on appeal. 15 Cal.4th 288 (1997). T In Amex Life Assurance Company v. Superior Court, Justice Brown joined in an opinion holding that, in light of policy’s incontestability clause, the insurer could not assert an “imposter defense” against an HIV-positive insured who had lied on his application and sent an imposter to the required medical examination. 14 Cal.4th 1231 (1997). T In Linder v. Thrifty Oil Co., Justice Brown joined in a ruling in favor of class certification for a class action alleging violation of state statutory law for the imposition of an additional charge for consumers using credit cards to make gasoline purchases rather than paying with cash. 23 Cal.4th 429 (2000).
T
In People ex rel. Lungren v. Superior Court, Justice Brown joined in an
opinion holding that the phrase “source of drinking water” in the
state’s Safe Drinking Water and Toxic Enforcement Act of 1986 includes
faucets allegedly containing lead, thereby permitting action by Attorney
General against faucet manufacturers. 14 Cal.4th 294 (1996). Appendix B Justice Brown and Workers’ Rights Cases Justice Brown has authored and concurred in numerous opinions protecting the rights of ordinary workers.
For instance: T In Little v. Auto Stiegler, Justice Brown agreed that the appellate arbitration provision in an arbitration agreement – which allowed appeals only of awards greater than $50,000 – was unconscionable because it “inordinately benefits defendants.” 63 P.3d 979 (2003). T In Hamilton v. Asbestos Corp., Justice Brown ruled that the statute of limitations runs from the date the plaintiff discovered that his disability was caused by asbestos injury, not from the date of the injury. 22 Cal.4th 1127 (2000). T In McKown v. Wal-Mart Stores, Justice Brown held that the hirer of an independent contractor is liable for injury to the independent contractor’s employee caused by the hirer’s negligent provision of unsafe equipment. 27 Cal.4th 219 (2002). T In County of Riverside v. Superior Court, Justice Brown held that, under the Public Safety Officers Procedural Bill of Rights, a peace officer is entitled to view adverse comments in his personnel file and file a written response to a background investigation during probationary employment. 27 Cal.4th 793 (2002) T In Pearl v. Workers’ Compensation Appeals Board, Justice Brown joined in an opinion holding that, in making its determination of industrial causation for a worker’s injury in a case arising under the Public Employees’ Retirement Law, the WCAB should not apply the more stringent standard of workers’ compensation law. 26 Cal.4th 189 (2001). T In Guz v. Bechtel National, Justice Brown joined in an opinion holding that an employee could proceed with various contractual causes of action because written company policies and guidelines guaranteed fair layoff protections. 24 Cal.4th 317 (2000). T In White v. Ultramar, Inc., Justice Brown joined in an opinion holding that a supervisor who had broad discretionary powers and exercised substantial discretionary authority within a corporation could be considered a “managing agency” under a state statute authorizing an award of punitive damages for wrongful retaliatory termination. 21 Cal.4th 563 (1999). T In Ramirez v. Yosemite Water Co., Justice Brown joined in an opinion holding that the state courts should not rely on federal regulations or interpretations less favorable to employees in construing state regulations regarding overtime pay. 20 Cal.4th 785 (1999). T In Cuadra v. Millan, Justice Brown joined in an opinion holding that the Labor Commissioner must calculate a backpay award from the date of the filing of a complaint, rather than the later date of the hearing on the complaint. 17 Cal.4th 855 (1998). T In State Farm v. Workers’ Compensation Appeals Board, Justice Brown joined in an opinion holding that the definition of “employee” for invoking workers’ compensation coverage under a comprehensive general liability policy is broader than the definition under general workers’ compensation law. 16 Cal.4th 1187 (1997). T In Avalon Bay v. Workers Comp. Appeals Bd., Justice Brown agreed that the 60-day time period for payment of medical benefits applies to the cost of transportation to obtain medical treatment. 18 Cal.4th 1165 (1998). T In Ventura Cty. Deputy Sheriffs’ Assoc. v. Bd. of Retirement, Justice Brown joined in an opinion holding that even if certain types of compensation are “compensation earnable” and “final compensation,” thus entitling an employee to a higher pension benefit. 16 Cal.4th 483 (1997). T In Phelps v. Stostad, Justice Brown joined in an opinion holding that the plaintiff was entitled to recover his costs, including attorney fees, event though he did not recover an amount equal to a nonbinding arbitration award. 16 Cal.4th 23 (1997). T In Mullins v. Rockwell International Corp., an action for constructive unlawful discharge, Justice Brown joined in an opinion holding that the statute of limitations runs from the date the employee actually ceases his employment, not from the occurrence of the intolerable working conditions that give rise to the constructive discharge. 15 Cal.4th 731 (1997). T In Romano v. Rockwell International Corp., Justice Brown joined in an opinion holding that, in a wrongful termination action, the statute of limitations runs from the date termination actually occurs, not from the date the employee is given notice he will be terminated. 14 Cal.4th 479 (1996). T In Colmenares v. Braemar Country Club, Justice Brown joined in an opinion holding that, in an action by an employee for disability discrimination, the more lenient state standard should apply, rather than the more stringent federal standard. 29 Cal.4th 1019 (2003). * * * * * * * * * * |
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