In May 1992, the Stacy and Rodney Cornette were driving on the Antelope Valley Freeway when they were struck by a car that had blown a tire, and pushed into oncoming traffic, where they were struck by a pick-up truck. A Lancaster jury has decided that California taxpayers should be responsible for $5.6 million in damages, because the agency, Caltrans, designed the highway with a 45-foot median instead of a 45-foot median and a concrete barrier. (Caitlin Liu, “Couple in Fiery Crash Win $6-Million Verdict”, Los Angeles Times, Mar. 13; Heather Lake, “Couple win $5.6 million award in crash”, Antelope Valley Press, Mar. 14). However, it’s the story of the interplay between the California courts and legislature which is the interesting part of this.

California law prohibits lawsuits against governmental entities for design decisions:

Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.

This makes a lot of sense: the check upon design decisions that the public is unhappy with is the political process. Perhaps a society can decide that it wants design decisions reviewed by lay juries, but here, the California legislature decided not to do so.

However, the California courts were unhappy with this. In 1969, the California Law Revision Commission requested the legislature to amend the statute to create an exception for designs that actually result in a dangerous condition–an exception that would swallow the rule. The legislature refused to accede. So the California Supreme Court, on its own initiative, created such an exception to the statute in the case of Baldwin v. State of California (1972) 6 Cal.3d 424. The Cornettes’ case was allowed to proceed under this exception. (The legislature passed a 1979 amendment to the law in an attempt to ameliorate Baldwin, but at the end of the day, juries still get to second-guess government design decisions and allocate taxpayer dollars.)

The charge of “judicial activism” is often hurled about as a pejorative to any decision the speaker doesn’t like. But can we agree that it’s judicial activism when a court adopts a statutory interpretation that the legislature expressly rejected?