Livingston’s piece was based on his survey of the court’s last 100 majority opinions. The Recorder ranked the justices according to how many majority opinions they produced and how fast they complete them. That narrow focus, however, ignored the central function of a court of last resort as well as numerous aspects of the justices’ nonmajority opinion responsibilities – all of which, if considered, cast doubt on the soundness of The Recorder’s conclusions.
Consider the story’s opening discussion about Antonio Robles, the defendant who had been released from prison by the time the court had, according to the article, "finished wrestling with the legal theories" that produced a search and seizure opinion in his favor. Noting that this was not the first time in the defense lawyer’s experience that one of his clients had obtained a pyrrhic victory, The Recorder was apparently suggesting that the court should adjust its production schedule to guarantee that the parties in the case will reap a benefit from the court’s opinion.
But as is often said (and as the petition for review criteria provide), except in death penalty cases, the court’s job is not to correct error, but to clarify the law, decide issues of statewide importance, and resolve conflicts. Given that role, it is far more important that the court take the time it needs to reach the right decision so it can maximize the possibility that the trial courts and courts of appeal will not commit error and cause hundreds or thousands of litigants in similar cases to suffer an injustice.
In a court of last resort, reaching the right result through careful reflection is paramount to rushing a decision out the door in time to benefit a single litigant. While one must never forget that cases involve real litigants, it is unfair to suggest, as The Recorder did, that the court must ram a case through solely to provide relief in an individual case. Indeed, in search and seizure cases, the defendant often will have completed his sentence before his case is decided in the court of appeal – well before a petition for review even arrives at the Supreme Court. Accordingly, although it is unfortunate that the court’s reversal came too late for Mr. Robles, the responsibility for detecting and reversing casespecific errors in time to benefit litigants like him lies with the lower courts. Were our Supreme Court to become a court of error in all cases (rather than only in the hundreds of death penalty cases that represent a substantial part of its docket), the court would lose much of its raison d’etre.
The story’s narrow focus on which justices "score" highest in the production of majority opinions also failed to account for many variables in the process. To his credit, Livingston did note some – the reassignment of cases and the time a justice may devote to prepare dissents or for oral argument. But he also ignored others, which, when considered, preclude drawing meaningful conclusions from his survey.
For example, a case that receives six or seven votes for review and upon which all justices agree as to both outcome and rationale takes little time to decide. But a case that receives only the fourvote minimum and that presents difficult questions and generates more internal debate takes much longer – it may even produce many separate and substantial opinions. In The Recorder’s survey, though, each of these cases carries the same "weight." The survey thus favored those cases in which the majority author obtains a quick or easy majority, and disfavored those who do not. At bottom, the message seems to be, "Compromise more."
Another unanalyzed aspect of the court’s work was the reassignment process. One justice may spend months studying the issues and preparing a draft opinion only to learn that he or she cannot garner a majority. If that justice holds to his or her position, the case will be reassigned to a justice in the "new" majority, whose filed opinion may be based heavily on the former majority opinion. In The Recorder’s survey, the "new" majority author obtains the "credit" for an opinion that may not have required much of his or her time, while the justice who may have spent the most time on the case receives none.
The Recorder also ignored the important (some say the most important) task of deciding the more than 5,000 petitions for review filed each year. Deciding which of the several hundred cases presented each week are reviewworthy may be as important as deciding how to decide cases already accepted – particularly when a published court of appeal decision, if left unreviewed, will bind all of our trial courts. Yet, in The Recorder’s opinionproduction survey, a justice who takes a more active (and therefore timeconsuming) interest in monitoring the reviewworthiness of petitions receives no credit.
Still another variable that The Recorder ignored are the hundreds of habeas corpus petitions filed each year. Some of these may require a 100page or more internal memorandum to analyze the issues – oftentimes involving the extremely complex and difficult area of federal exhaustion – but will result in a simple, oneline order. If any justice takes longer than his or her colleagues to get to the bottom of these petitions, majority opinion production may suffer.
Finally, the story barely mentioned the impact that a justice’s work on dissenting opinions may have on majority opinion production. In the case of a frequent dissenter like Justice Kennard, that impact can be substantial. At the same time, no one can seriously suggest that dissenting is not important work. Not only are dissents vital to understanding the tensions in the law, but they frequently form the basis for future developments – indeed, in the last decade alone, the Legislature has adopted three of Justice Kennard’s dissents (in Neary v. Regents, 3 Cal. 4th 273 (1992), Walnut Creek Manor v. Fair Employment & Housing Commission, 54 Cal. 3d 245 (1991), and Droeger v. Friedman, Sloan & Ross, 54 Cal. 3d 26 (1991)) as the law of California. The Recorder’s focus on majority opinion production, however, failed to acknowledge this phenomenon or the essential role that separate opinions play in Supreme Court decision making.
While Livingston’s survey left much to be desired, Greg Mitchell compounded the problem a few days later by launching illconsidered snipes at Justice Kennard. For example, as "evidence" that Justice Kennard’s questioning "leaves lawyers little time to press their case and get feedback from other justices," Mitchell cited her questioning during the Sept. 7 argument in Aas v. Superior Court, S071258, a case that involves the availability of economic damages in construction defect cases. Mitchell suggested that Justice Kennard wasted everyone’s time by questioning one of the lawyers about a "supposed procedural defect" concerning the ripeness of the case for a merits determination.
But that "supposed" "defect" involved the potentially dispositive question of whether writ review – which Aas involves – is proper. More than a quarter century ago, the court held in People v. Municipal Court (Ahnemann), 12 Cal. 3d 658, 660 (1974), that writ review is generally unavailable to resolve questions concerning the admissibility of evidence, unless an appeal will be inadequate or the underlying issues are of great and immediate importance. Aas, however, involves a trial court’s ruling on a motion in limine that does appear to involve the admissibility of evidence, yet the court of appeal never analyzed the Ahnemann question. Students of the law should be thankful that Justice Kennard studied the case closely enough to ensure that if the court decides the merits, it will have done so because it has concluded that the Ahnemann exception applies.
Perhaps Mitchell’s most unfair criticism was his parting shot, in which he chided Justice Kennard for failing to pay heed to the Neary majority’s "maxim" that "Courts exist for litigants. Litigants do not exist for courts." Justice Kennard dissented in Neary, expressing the belief that the courts exist for the public as well as for the litigants, and that only in the rarest of instances should a court of appeal reverse a trial court judgment pursuant to a settlement. The U.S. Supreme Court (per Scalia, J.) unanimously agreed with that view in U.S. Bancorp Mort. Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), when it prohibited vacatur of district court judgments pursuant to stipulation. And since January, Justice Kennard’s view has been the law of California, now embodied in Code of Civil Procedure section 128(a)(8).
More significantly, the California Supreme Court rejected the Neary majority’s maxim when it came to its own decisionmaking process. In State ex rel. State Lands Commission v. Superior Court, 11 Cal. 4th 50 (1995), the court unanimously held that Neary’s presumption in favor of stipulated reversals of trial court judgments does not attach to court of appeal decisions, in part because those decisions, unlike trial court judgments, sometimes establish binding precedent. As Justice Armand Arabian explained, when the court grants review of a court of appeal decision and the parties then settle, the Supreme Court should not willynilly grant a motion to dismiss review, effectively eliminating a precedent. In other words, the appellate courts – and most pointedly, the Supreme Court – exist primarily for the courts – and only secondarily for the litigants.
This was precisely Justice Kennard’s point. It is also the point that seems to have gotten lost in both Livingston’s survey and Mitchell’s harsh criticisms. Why they chose to ignore it and instead focus on far less relevant considerations – knowing full well that the justices make an easy target because the canons of judicial ethics preclude a response to criticism – is a mystery.