Justice Janice Brown is a justice in the old tradition of actually abiding by the Constitution, and is of a strongly libertarian bent. What follows are a few choice quotes from Janice Brown.
"[a]rbitrary government actions which infringe property interests cannot be saved from constitutional infirmity by the beneficial purposes of the regulators." -- Santa Monica Beach, Ltd. v. Superior Court (1999)
"Theft is still theft even when the government approves of the thievery...The right to express one's individuality and essential human dignity through the free use of property is just as important as the right to do so through speech, the press, or the free exercise of religion." -- San Remo Hotel v. City and County of San Francisco (2002)
Attempting to smear her, the AFL-CIO has generously provided a splended listing of some of her best decisions. Here are some of the most atrocious things that Brown has done, according to the AFL-CIO:
- Banning Affirmative Action. Brown authored an opinion that effectively ended meaningful affirmative action in California. Hi-Voltage Wire Works, Inc. v. City of Jan Jose, 12 P.3d 1068 (2000). Brown's opinion was severely criticized, both on and off the court, for its harsh rhetoric and its suggestion that affirmative action resembled racist and segregationist laws that predated landmark civil rights laws.
- Denying Effective Remedies to Victims of Unlawful Discrimination. Brown would have barred administrative agencies from awarding compensatory damages for emotional distress in race discrimination cases. Konig v. Fair Employment and Housing Comm'n, 50 P.3d 718 (2002). While couching her decision in separations of powers language, Brown disparaged administrative agencies and implicitly questioned their ability to fairly assess damages, saying that "administrative agencies [are] not immune to political influences, [and] they are subject to capture by a specialized constituency." 50 P.3d at 732. Brown was the only justice to take this position.
- And in Aguilar v. Avis Rent-a-Car, 980 P.2d 846 (1999), Brown authored a dissenting opinion that would have struck down, on First Amendment grounds, an injunction that instructed a supervisor not to use racial epithets against Latino employees. The injunction was issued by a trial court judge after the employer was found liable by a jury for maintaining a discriminatory hostile work environment for Latino employees.
- Barring Civil Rights Claims. Brown dissented in a civil rights case and said the plaintiff's race and age bias claims should have been thrown out as preempted by federal banking law. Peatros v. Bank of America, 990 P.2d 539 (2000).
- Allowing Mandatory Arbitration Agreements Even If Employees Must Pay for the Cost of Arbitration. Brown authored an opinion saying that she would allow employers to require employees to agree to compulsory arbitration of employment claims (such as discrimination claims or unpaid overtime claims) even if those agreements allowed arbitrators to impose some or all of the cost of the arbitration on the employee. Armendariz v. Foundation Health Psychcare Servs., 6 P.3d 669 (2000). The majority of the court ruled that a mandatory arbitration agreement containing such a provision would be invalid, because it would discourage employees from exercising their right to bring claims against their employers.
- Protecting Private Property Rights at the Expense of Affordable Housing Measures. Brown dissented from a decision that upheld the City of San Francisco's determination that the owner of a residence hotel needed to retain affordable housing or contribute to an affordable housing fund as a condition of converting its property to a tourist hotel. Brown wrote a sarcastic and blistering dissent, calling the city's decision "theft," "extortion" and an unconstitutional "taking" of the hotel owner's private property. San Remo Hotel v. City and County of San Francisco, 41 P.3d 87 (2002). Brown's opinion shows that she is skeptical of government action when it impacts private property rights—a view which, if adopted, would put at risk many consumer, environmental and worker protection measures.
- Protecting Private Property Owners from Expressive Activity on their Property. Brown authored an opinion that took a narrow view of the California Constitution's free speech protections, imposing a "state action" requirement as a condition of those protections, even though such a requirement does not appear in the language of the California Constitution. As a result, tenants in a huge residential apartment complex were barred from distributing a tenant newsletter to their neighbors. Golden Gateway Center v. Golden Gateway Tenants Ass'n, 29 P.3d 797 (2001). Employers are now using the decision to try to keep union organizers away from their workplaces.
- Chilling E-mail Communication with Employees. Brown dissented from a ruling that a company could not sue an ex-employee under the tort of trespass after the ex-employee sent e-mails critical of the company to his former co-workers. The court majority said the company could not sue because there had been no actual damage or disruption to the company's e-mail system. Brown would have allowed the lawsuit even in the absence of such damage. Intel Corp. v. Hamidi, 71 P.3d 296 (2003). Had Brown's view been adopted, companies throughout California could have used trespass laws to shut down group e-mail contact from outside individuals or organizations.
- Denying Schoolteachers Timely Information About Their Employment Status. In Kavanaugh v. West Sonoma County Union High School, 62 P.3d 54 (2003), Brown authored a dissent that would have allowed school districts to notify teachers of their status well after they began work, meaning that new hires could be subjected to "bait-and-switch" tactics by school employers. The court majority ruled that applicable statutes require school districts to notify teachers of their status (e.g., temporary, probationary, etc.) on their first day of work. Knowledge of this status is important because different categories of teachers have different levels of job security.
- Undermining Health and Safety Protections. Prior to joining the California Supreme Court, Brown served on the California Court of Appeal. There, she authored an opinion that would have invalidated a state law that required paint companies to help pay for screening and treatment of children exposed to lead paint. Brown's opinion was later overturned by the California Supreme Court. Sinclair Paint Co. v. Board of Equalization, 49 Cal. App. 4th 127 (1996), rev'd, 937 P.2d 1350 (1997).
It would be difficult to make a stronger case for Justice Brown than the AFL-CIO has done here by this bullet-point listing. In opposing "affirmative action", Brown is supporting property rights and the right of freedom of association. Likewise in opposing the gravy-train that comes from "discrimination lawsuits", expecially when "emotional distress" is claimed.
Brown supports the right of companies to refuse to pay for the costs of employee-disputes; it is one thing to say that employees have a right to bring a claim against their employers, and entirely another to say they have a right to force their employers to pay for the cost of bringing those claims. Judge Brown rightly argued that forcing the Remo Hotel to contribute to an "affordable housing fund", as a condition of allowing it to convert its property to a tourist hotel, was theft, extortion, and unconstitutional taking. She is also rightly argued that freedom of speech doesn't mean the right to freedom of speech on someone else's property: no-one has the right to step on my property and start "freely expressing themselves", whether my property is my yard or my business.
Even her argument in favor of allowing Intel to sue a former employee for sending e-mails critical of Intel to then-current Intel employees was justiable: the e-mail server which the then-current employees used was the property of Intel; after the former employee was asked to stop trespassing on Intel's property, they had every right to sue him (whether or not the damages could be significant is another matter). Furthermore, in focusing on damage to the e-mail system, those from whom Brown was dissenting were attempting to make an end-run around the fact that costs are subjective.
Likewise, Brown supports property rights in opposing laws requiring paint companies to help pay for screening children exposed to lead paint. Should the companies that make knives, oven burners, mercury thermometers, gasoline, and other things that children shouldn't be around also be required to pay for the treatment of children who were exposed?
