Tani Cantil-Sakauye

, The Recorder

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COURT: California Supreme Court

APPOINTED: 2010 by Governor Arnold Schwarzenegger

LAW SCHOOL: UC-Davis School of Law

PREVIOUS JUDICIAL EXPERIENCE: Sacramento County Municipal Court (1990 to 1997); Sacramento County Superior Court (1997 to 2005); Third District Court of Appeal (2005 to 2010)

PREVIOUS EMPLOYMENT: Deputy district attorney, Sacramento County DA's office (1984 to 1988); deputy legal affairs secretary and deputy legislative secretary for Governor George Deukmejian (1988 to 1990)

AGE: 53

PLACE OF BIRTH: Sacramento

POLITICAL AFFILIATION: Republican

Q: What do you like best about being a judge?

A: I like best the logic and the fairness of it. I was the youngest of four children and with my brothers and sisters I never got a word in edgewise. And even if I was right, it didn't matter because they were bigger and stronger. So I just love the logic and the fairness and the structure. It gives even the little guy an opportunity to win.

Q: California has the largest judicial system in the country and you are running it. What has been your experience so far as the chief justice?

A: It has been a very gratifying experience and the deeper I dig, the richer it is. This is a very complex and complicated system and we have a rich history of development, coming first out of the county courts asked to become state courts. Our whole mechanism has changed. In the last 15 years, I'd say, we've been reborn as a branch.

I like to say the branch is really only 15 years young, notwithstanding the fact that it's been around since statehood, because we've had so much consolidation and change. Now we are at a place where we have a greater structure as an institution. Statewide funding, unification of courts, so we have 58 superior courts instead of what was once 120 separate muni courts, justice of the peace courts, traffic courts. In the last several years we've actually evolved into a leaner, more efficient structure.

That doesn't mean that we don't have any more inefficiencies. We do, and we're pursuing them. And what I've found is we are in constant states of improvement even if fiscal constraints exist. Notwithstanding that, we are always looking at how we can be better serving of the public.

Q: In your State of the Judiciary that you presented in March of 2012, you mentioned that probably the biggest challenges were the financial constraints. Does that continue to be the court's greatest challenge?

A: It definitely continues to be the greatest challenge. It affects so much of what we do, and how much we can do, and how well we can do it. It affects how responsive we can be to the needs of our public — not just California as a whole, but every community and every county has a different culture. It has to be a different legal culture because there are different needs in the community, and as you probably read in my State of the Judiciary, we are incredibly diverse. So we need to maintain that and still have a local presiding judge and local trial courts' autonomy. But that's somewhat at tension with creating some uniformity that permits us to be more efficient statewide.

Q: So is that the direction you would take the court in? Towards more uniformity?

A: Well, more efficiency. Recognizing that every court has a different personality, recognizing that every judge is independently elected and is responsible to the community who elects him or her so that statewide administration is not a great fit because of that individuality. But [also] recognizing there are benefits from it and knowing when it would be best, with trial court input, for something more uniform. And when it's best not to be uniform because there's greater flexibility in nonuniformity.

I think in the overarching tension is trying to convince the administration and the Legislature that we aren't a state entity in the sense that we are subject to uniformity; a homicide trial in Butte is going to be different from a homicide trial in Siskiyou or Imperial County. That's the nature of the case. And we want it to be that way. Justice is individual. It's not a cookie-cutter mentality.

Q: You mentioned that the court is evolving and in your State of the Judiciary you spoke of some of the changes you've already been implementing. Can you talk about some of these changes?

A: Sure. When I came in in January of 2011, we were still on the fiscal-austerity road, only the road was getting steeper and more narrow. By that I mean in 2011 we suffered our greatest single cut to the branch in any one year — $350 million — in addition to a last sweep of construction funds. Same is true in fiscal year 2011-12. We saw a $544 million cut and a sweep of $240 million in construction funds. So the difficulty is while we are being cut, we have to reduce. But we have to reduce our services to the public and to the court intelligently.

The first thing I did upon coming in was something that had never been done. I conducted a survey of all of the judges. I used the presiding judges and asked them to contact their judges and tell me three things: What's wrong with the branch governance, what's wrong with the AOC, and what are your recommendations.

[This was] anonymous. You could tell me verbatim, I wouldn't know who you are. You could identify your large, small or medium county. Up to you. And I chronicled and read and categorized all of the complaints made against the branch at that time.

I also went to the Judicial Council ... I went to them and said, "Tell me. What do you think is wrong? You know statewide administration." And we had a session. We put up some whiteboards and we brainstormed all things that were wrong and how we could improve. I took that together, categorized it and sent some complaints to the Judicial Council on what we could fix and I also, at the same time, created the Strategic Evaluation Commission — a group of judges, retired and current, and some administrators, whom I knew nationally and statewide, who weren't necessarily involved with courts, but who knew structure and the business of running a business funded with public funds. I put them together. Created a commission. Gave them no money and no staff, and said, "Go about determining core priorities of the AOC — the staff arm of the Judicial Council — for what we should be doing and how we can be doing it better."

[The commission] put together a multiple-hundred-page report for us and as soon as I got it, I made it public and we put it on for public comment. There were over 150 recommendations and we accepted all of them. I would say I'd characterize that beginning as really taking a hard look at ourselves in a way that we never had before. We'd had 15 years of growth without any review. Now we've reviewed. Now we know we can restructure in a way that's more efficient, costs less. We don't need as many people.

The AOC went from about 1,100 people to about 800 people. That meant services were cut to the trial courts, and to the public, and to the Judicial Council.

At the same time, I put judges in charge of our computer system. I didn't know, really, what the judges thought about it. There were judges who were in favor of the computer system at that time and others who were not. I put judges in charge and they eventually made a recommendation to cancel, that we don't have the money to continue this project, and so Judicial Council voted to end the project.

I also put judges in charge of construction. SB 1407 is a law that was passed by the Legislature some years ago that allows the judicial branch to collect fines, fees, portions of those, to put in a kitty so that we can repair and modify and fix courthouses throughout the state. We have 532 facilities. We have over 19 million square feet. Someone told me we are three times the size of the Pentagon. And they were in various states of disarray. Some needed seismic repair, some needed ADA access. So I put judges in charge of overseeing our construction projects and the first thing this group of judges did was hire an independent, outside consultant to look at our in-house construction program and to look at all of our projects and say, "No, you need to fix this. You need to do this." And they told us how to reduce costs and be more efficient.

I feel like I've put judges in charge of our business, such that if you want and you care about a product, then you have the opportunity to shape it. I ask you to step off the sidelines and help if you think you can dedicate your time to this, because all judges are doing this kind of work in addition to the work they do daily on the bench and at night with the homework, in preparation for the bench.

Q: In addition to the administrative side of your job, of course you also hear cases. On the bench, do you have a judicial philosophy and how does that come across in your opinions?

A: I am certainly developing a judicial philosophy. I say that because, even though I'd been a judge for 20 years before I came to this court, you have a different philosophy at the trial court level [where] you are required to make decisions with very little time, and you need to move the case and move the attorneys and move the parties. You have a jury. So, you have little time and you need to make decisions, the best that you can get to under the circumstances.

When you go to the court of appeal, in my mind, you're trying to get it right. You are trying to be objective and trying to think and integrate all the law, but at the same time you are constrained as an intermediate court — realizing that you follow the decisions of the California Supreme Court. You develop a judicial philosophy in that regard.

When you come to the Supreme Court, in my view it's an entirely different philosophy because now we're at a point where there are no clear-cut answers. The only controlling authority is really the high court, the United States Supreme Court. We resolve the most novel, unprecedented, not-a-lot-of-guidance kinds of cases. We look to other states, we look to the Supreme Court. We consider the principles enunciated by the Supreme Court majority. We look to our own courts for cases of stare decisis. But you're in a whole other place where you can actually consider overruling precedent at the Supreme Court.

And I will tell you as a mere appellate justice, it's a pretty heady thought that you can suggest to your peers and get a majority vote to overrule law that stood for 40 years. I guess if you could say the way I'm developing in the two years on the bench, my judicial philosophy at this level is: Proceed with caution, and the law should develop incrementally. Because we cannot know a permutation of the law under what facts it will come. So we don't want to speak broadly, too generally. And I want to tether our opinions to the statute we're talking about, and be careful about what we might be saying as it affects other statutes or case law. I realize the impact, so I'm more careful, I suppose.

Q: One of your first interactions with the justice system was when you were a child. Your family was being evicted because of a redevelopment project. Your mother went to court and she lost that case. Does this experience or other life experiences shape your decisions?

A: They certainly shape my lens in how I see the facts and how I see the development of the law. I'd say what my life experiences have taught me — when you're a child and you're losing your home, you only have a pretty truncated understanding of what that means, but it so vastly undermines the world of your parents. It changes your life. What I realize is the import of the law. How vast it is and how meaningful it is.

The law is like a huge, infinite ocean. But when it applies to you, it's so personal and so important to your own little world that I've come to respect treating people and the law with all the respect and giving them all the benefit of the doubt when they make an argument before the court.

In other words, I'm blessed to sit with justices on my court who listen to even the smallest argument. Who consider even the most implausible argument. They won't necessarily believe it, but they'll certainly hear you and give you an opportunity to explain yourself. Give you consideration. They won't just automatically deny you, and for that I'm grateful.

When I was in the trial courts, I'd get the pro se litigants. And the attorneys, you'd just see the steam coming out of their ears because I would let them speak. My position is, somewhere in there — I know it's inartfully phrased and they could be more direct — but in there they're trying to express themselves. And they're not used to this. So, cut 'em some slack and let them express themselves. Because my mother was that person.

I'm not saying that if she'd had a lawyer she would have been able to prevent eminent domain, but she would have felt her concerns and her life had more value than what she felt of the court's treatment of her at that time.

Q: For the briefs. In your chambers, does your clerk see them first or do you?

A: No, of course when we grant review, the case is unbriefed so we set a briefing schedule. Then when the briefing comes in, it goes to the chambers that's handling the case. I assign the cases ahead of time. [After] the case is fully briefed then I make the assignment to whichever attorney will take the case for me.

Q: Are there any best practices you want to encourage for brief writing?

A: At this level, most follow the best practices and of course, they are wonderfully simple. That is: be direct, be clear and give us road maps where you are going in terms of why you are citing a string of cases. Accurately represent the record because we read every word of it. And it doesn't assist to disparage the trial judge or court of appeal panel. Start with your winning arguments. It helps if you can logically arrange your arguments in the brief writing so that we can see the whole picture unfold.

These are simple directives, but they're timeless. We read a lot of briefs. We read a lot of arguments. When we have oral argument on any one day, we'll have six cases at a time. So if you want us to remember salient things about your case, it should be written in a way that is direct. Doesn't cloud the issue. Doesn't hide the issue. Doesn't misrepresent facts. And leave out the extraneous. I know it might be hard to figure out what that is, but it's about being relevant.

Q: Any don'ts?

A: I have some particular don'ts. I do not care for any kind of colloquialism or slang. When I'm reading a brief or points and authorities, or even a draft calendar memo or opinion from my colleagues, I'm pretty literal and I expect it to be literal because the law lives on for, hopefully, 50 years. I don't care for some of the analogies and some language. I'm also a person who believes in keeping it simple and breaking down the sentence. I realize that we could write one long sentence and it could be an entire paragraph. But I don't think that serves the reader well. It doesn't serve the understanding of the case. So I suggest, when you can, to break it down into more impactful sentences.

The thing I would say about oral argument, too, is, I think it's a waste of oral argument to start with analogies and stories that aren't about your case. We're here for the facts and the argument and the law. Sometimes counsel will start with an analogy. You know, we have 30 minutes. I'm only speaking for myself, but I don't find that helpful. Sometimes I think, "What are they talking about in relationship to this case when they have 30 minutes to make the best point they can about their case?"

So that's just my own personal preference. Analogies are good for trial. Good for juries. But you are looking up at seven people who've read the facts, know the law, and have five other cases. And they're really not on for an analogy right now, in my view.

Q: Any other tips for new lawyers?

A: New lawyers should watch old lawyers, experienced lawyers. They should, whenever possible, watch a trial. Watch oral argument. I think it would be helpful to know how cases are handled by experienced people in those arenas. And I suggest reading cases. Reading cases and seeing standards of review. And, I would say, salient facts or good trial court rulings and appellate court cases that are affirmed and why, because once you know the standard of review, once you know to make a good record in the trial court for the court of appeal, it guides how you put on a case. It guides how you might research a case and it guides where you might decide to challenge a court of appeal opinion.

You need to know the standard of review. If it's de novo, it doesn't help that you're arguing the facts. So I think it can put the great puzzle of the law in place if a new lawyer reads enough of the standards of review, making a record, and where their best argument for success lies, whether it's the facts or the law, or if it's not in the law at all and really lies with the Legislature.

Q: For technology, I know the court has the ability to broadcast argument out of the immediate courtroom for overflow, for example, but has there been any other major impact that technology has had on your job?

A: In the courtroom, not yet. We're working on it, but a lot of it is dependent on technology in the trial courts first and in the appeals courts, then in the Supreme Court since we really need the record to be electronic and electronically searchable. We can handle motions and orders electronically and we have, on occasion, for really important cases that are on an expedited timeline. But until we get a record that's electronic and electronically searchable we're not going to see great strides. But once we do have that kind of record, I think we'll see an expedited handling of appeals and petitions for review in Supreme Court cases.

Where technology has made a huge difference, I think, is in my work as chief overall. Wherever I go I carry my iPad and cellphone like everyone else. This job is 24/7. I'll get emails from people at 6 a.m. on Saturday morning and I'll email people at 11:30 at night and get a response back and we share documents. We're always in touch. Either the court is working or my staff at the AOC is working. We're always in touch and we share information on the weekend as things develop. I don't know, frankly, how this job could have ever been done without all the electronic accessories and assists that I have now.

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