Harold Johnson- Columnist
Johnson is an attorney with Pacific
Legal Foundation. A Sacramento-based public-interest
law firm, PLF has a long history of litigating for tax restraint,
including in support of Proposition 13 following its enactment
Johnson represents one of the Sea Scouts challenging Berkeley's
before the California Supreme Court. Mark S. Pulliam, a Pacific
Legal Foundation trustee, is an attorney in San Diego with sons
in the Boy Scouts.
Worth Going Nuclear Over
State Justice Brown would be a champion of freedom on the federal
Senate Republicans go "nuclear" for California
Supreme Court Justice Janice Rogers Brown? Columnist Robert Novak
reported recently that in March, the GOP will use Brown's now-
stalled nomination to the federal bench as a test run for the "nuclear
option" - a strategy to foil Democratic filibusters and
confirm judges with a simple majority vote, through parliamentary
If GOP leaders really do go to the wall for Brown - and succeed
- a bright future awaits her on the U.S. Court of Appeals for
the D.C. Circuit (a post that could position her for an eventual
Supreme Court nomination). But her departure will be a loss for
the law in California.
This daughter of an Alabama sharecropper - this African-American
woman who attended segregated schools in her native state, and
put herself through college and law school in California - offers
testimony to the rewards that can come from character and can-do
But Brown's star power derives from more than her impressive
personal story. She is an intellectual leader of California's
high court and its most articulate voice for limited government
and individual freedom.
A judge's first and
last duty, in her view, is to protect citizens from bureaucratic
bullying. As she puts it, "Courts must
be especially vigilant, must vigorously resist encroachments
that heighten the potential for arbitrary government action."
This pro-freedom bent
was on display in her now-famous dissent in San Remo Hotel
vs. San Francisco, a 2002 case in which a majority
of her colleagues upheld an extortionate fee that San Francisco
slaps on owners of small residential hotels if they want to switch
to tourist use. Most of these business- people are running mom-and-pop
operations, "a relatively powerless group," Justice
Brown observed. Regulators exploit the power disparity by ordering
these hotels to serve the area's armies of homeless or pay City
Hall a massive tribute - in the hundreds of thousands of dollars
- for the "privilege" of being allowed to cater to
Brown argued that
singling out small hotels for social-welfare duty amounts to
seizing private property for public use. The
Fifth Amendment, she reminded her colleagues, forbids government
from forcing "some people alone to bear public burdens,
which, in all fairness and justice, should be borne by the public
as a whole."
She continued: "Private property, already an endangered
species in California, is now entirely extinct in San Francisco." The
city has become a "neo-feudal regime." Brown reprimanded
jurists who ritually give green lights to confiscatory land-use
restrictions: "Once again a majority of this court has proved
that 'if enough people get together and act in concert, they
can take something and not pay for it.' But theft is theft. Theft
is theft even when the government approves of the thievery."
She finished by branding
San Francisco a "kleptocracy" and
condemning its blindness to the fact that "the free use
of private property is just as important as ... speech, the press
or the free exercise of religion."
to official abuses extends to policies of racial favoritism.
In the 2000 case of Hi Voltage Wire Works
vs. San Jose, Brown's majority opinion gave a broad and forceful
interpretation to Proposition 209, California's constitutional
amendment banning race and sex preferences and discrimination
by government. She read the measure to outlaw not just explicit
quotas, but also quotas camouflaged as something else - such
as racial "outreach" or racial "goals" -
because "a participation goal differs from a quota or a
set-aside only in degree."
She quoted Yale Law
School professor Alexander Bickel: "[D]iscrimination
on the basis of race is illegal, immoral, unconstitutional, inherently
wrong and destructive of democratic society." Prop. 209,
she wrote, asserts the vital principle, "equal opportunity
for all individuals" instead of "entitlement based
on group representation."
If Justice Brown leaves for D.C., Gov. Schwarzenegger will face
a challenge: To find a replacement with as strong and eloquent
an allegiance to constitutional government and the judiciary's
role as guardian of our rights. CRO
This piece first appeared in the Orange County Register.
2005 Pacific Legal Foundation