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February 8, 2000
Sacramento, California
The Supreme Court of California convened in
its courtroom in the B.F. Hastings Building,
1002 2nd Street, Old Sacramento, on February
8, 2000 at 9:00 a.m.
Present: Chief Justice Ronald M. George, presiding,
and Associate Justices Mosk, Kennard, Baxter,
Werdegar, Chin, and Brown.
Officers present: Frederick K. Ohlrich, Clerk;
Brian Clearwater, Calendar Coordinator; and
Harry Kinney, Supervising Marshal.
(this transcript has been spread across
three pages for viewing convenience)
Page 1:
CHIEF
JUSTICE GEORGE:
On behalf of the entire court, welcome to this
special session commemorating the sesquicentennial
of the California Supreme Court. Before oral
argument this morning, we shall hear from four
speakers as part of the commemoration of the
court’s 150th anniversary.
I first want to thank the California Department
of Parks and Recreation for the substantial
effort they have undertaken to prepare this
building and courtroom for this event. To the
best of our knowledge, this room appears very
much as it did when it first was used as a courtroom
in February 1855.
It looked very different only two months ago
— among other things, there was substantial
water damage throughout.
It is hoped that eventually the adjoining chambers,
as well as this courtroom, will be restored
to a condition that will allow regular tours
and other commemorative uses of the site. In
the meantime, however, we again express our
appreciation to the state Department of Parks
and Recreation for its beautiful renovation
of this courtroom, enabling its history to be
preserved for the enjoyment and edification
of the public.
Now I should like to turn to this morning’s
program. The first speaker is Mr. Jake Dear,
a senior staff attorney on my staff, who has
served the Supreme Court for some 16 years.
He began as an annual law clerk for Justice
Mosk, and then worked for Justice Joseph Grodin.
After that, he was a senior staff attorney for
former Chief Justice Lucas, joining my staff
when I became Chief Justice in 1996.
Jake’s real qualification for speaking
to you today stems not from his work as an excellent
staff attorney, but from a side interest he
has developed since the Supreme Court returned
to its historic home in the State Building 13
months ago. Let me first give you some background.
The court vacated its historic quarters in San
Francisco rather abruptly after the October
1989 earthquake rendered the building uninhabitable.
After spending time in an adjacent state facility,
and moving to a private building in 1991, the
court was able to return to a structure that
had been fully renovated in keeping with its
historic traditions.
In addition to obtaining and displaying artifacts
from the Supreme Court’s past, our efforts
focused on a unique project — obtaining
photographs of historic courthouses from each
of California’s 58 counties. It is, after
all, in the individual county courts that cases
ultimately heard by the Supreme Court are first
filed and decided.
Collecting these portraits turned out to be
surprisingly difficult. Requests to courts,
chambers of commerce, local and state libraries,
county historical societies, and others who
might have a desired photograph somewhere on
a back shelf, finally resulted in a wonderful
display at the State Building of the varied
locations in which California’s trial
courts have held proceedings over the past 150
years.
This project also stirred interest in the Supreme
Court’s own history. As we returned to
our historic building, we began to wonder where
the Supreme Court had sat during its almost
one and a half centuries. As Jake Dear will
describe, through a somewhat convoluted chain
of events, the Supreme Court has been headquartered
in San Francisco for most of its existence,
rather than in our state capital, with the executive
and legislative branches of state government.
Jake began the task of searching for the locations
occupied by the court from its inception, studying
the available histories of the court, and discovered
that these works all fell short in describing
the court’s peregrinations, particularly
in the second half of the 19th century.
We learned through this research that the court
bounced back and forth between locations in
Sacramento, San Francisco, and San Jose, moving
some 22 times before finally settling down in
the San Francisco Civic Center Complex last
year. Jake uncovered six previously unknown
locations through clever detective work, perseverance,
and creative thinking. He reviewed old court
records, visited the historical societies in
San Francisco, corresponded with knowledgeable
individuals in San Jose and Sacramento, visited
the state’s archives here in Sacramento,
scoured the photographic files of the San Francisco
Public Library’s historical records room
and the California Historical Society, reviewed
city directories (the precursors to today’s
telephone books), and generally dedicated an
enormous amount of time and thought to tracking
down not only every location, but photographs,
and in some cases lithographs, of each site.
I should mention that Levin, a staff attorney
at the Third District Court of Appeal here in
Sacramento, who is in the audience today, was
of great assistance in this regard.
Along the way, Jake Dear also collected pictures
of the commissioners of the court, who assisted
the justices from 1885 to 1905, when the first
three District Courts of Appeal were created,
to ease the burden on the Supreme Court. In
addition, a variety of newly discovered photographs
and documents depicting the justices, the court,
the City of San Francisco, and various historic
events that affected the court, now are displayed
in the court’s hallways. They join a preexisting
gallery of historic photographs showing each
individual justice of the court, dating back
to Serranus Hastings, the first Chief Justice,
up to the current members of the court.
One hundred and fifty years truly is not that
long a time. As was noted at a recent celebration
of Justice Mosk’s record tenure on the
court, his more than thirty-five years of service
spans almost one-quarter of the court’s
history. The composition of the court today
includes the 86th justice to serve on the court,
Justice Mosk, and the 110th justice to serve,
the most recent justice to join the court, Justice
Brown—as well as the 27th Chief Justice.
The history of the court sometimes seems a bit
tame today compared to the stories of duels
and drink and vigilantes in its early days.
But what is perhaps most remarkable is that
despite frequent moves, constitutional changes,
strong personalities, and even earthquakes,
the work of the court has continued without
a break. It is a testament to our predecessors
that through the early and often turbulent days
of California, they led the way in establishing
the rule of law in our state, helping to create
the framework of a strong and independent judiciary
that serves the people of California today.
And now, I would like to turn to Jake Dear,
who will give you some more detail about the
court’s early development.
MR. JAKE DEAR:
Chief Justice and Associate Justices of the
court: It is an honor to serve this court. And
it is an honor to address you at this commemoration
of the court’s sesquicentennial.
Some might maintain that the actual anniversary
was a few weeks ago—150 years after the
first three justices were elected by the Legislature
in San Jose and sworn into office. And others
might say that the actual anniversary is about
four weeks from now, on March 4—the date
on which the court first met as a quorum, an
event that was memorialized in the first paragraph
on the first page of the court’s first
minute book.
Historians may quibble about the precise anniversary,
just as people recently have quibbled about
the starting date of the new millennium—but
I prefer to take a middle ground approach: here
we are in this historic courtroom, halfway between
the two possible historic date markers, so let’s
just split the difference and celebrate the
anniversary today.
For the second half of its history to date,
the California Supreme Court has been headquartered
in San Francisco’s Civic Center. But that
relative stability contrasts sharply with the
court’s first 75 years, a period in which
fire, flood, and politics forced the court to
relocate 18 times—including at least two,
and possibly three, moves into and out of this
very courtroom and chambers. I will focus in
these remarks primarily on this first half of
the court’s history.
Early in 1850, the Legislature sent the court’s
new clerk off to San Francisco to “rent
a suitable room” and procure furniture
and other essentials for the court’s first
term. The Daily Alta California—the leading
newspaper of the day—reported on February
27, 1850, that “Mr. Thorpe, [clerk of
the court,] has arrived in town to perform the
duties of his new office.” The next day,
Thorpe went shopping; he purchased supplies,
including “1 large Journal full bound,”
“4 bottles red ink,” “1 bottle
black ink,” “3 gross Gillett’s
pens,” “1 Parallel Ruler,”
“12 sheets blotting paper,” “2
Hydrostatic Inkstands,” and, of course,
“24 sticks red tape.”
Three days later, Thorpe procured quarters at
$1,000 for the month. Then, on Monday the 4th
of March—six months before California
became a state—the court met for the first
time in the Graham House on Kearny Street at
Pacific Avenue in San Francisco.
The Legislature directed the court to hold its
terms in San Francisco through the end of 1851,
and thereafter “at the seat of Government.”
But it wasn’t clear where the seat of
government was — San José, Vallejo,
Benicia, Sacramento, and San Francisco all vied
for the honor. So, succumbing to inertia, the
court simply remained in San Francisco, but
it didn’t stay long in its first quarters:
the building—which had also become the
site for San Francisco’s first City Hall—burned
to the ground in one of numerous major fires
that struck the city in the early 1850’s.
So the court moved, together with some key parts
of city government, a few blocks down Kearny
Street to the California Exchange building.
A few doors away, at Portsmouth Square, stood
the Jenny Lind Theater. By 1852, the theater
had fallen on hard times and was for sale. (Perhaps
this is because Jenny Lind, the famed Swedish
singer for whom the theater was named, never
made it out to San Francisco.) When the City
of San Francisco tried to purchase the theater
for use as city offices, taxpayers sued, claiming
the purchase was illegal. After extensive litigation,
this court held the purchase to be proper, and
the city took possession of the theater.
Within a few months of the decision upholding
the city’s purchase, the court moved—again
with much of city government—into the
refurbished theater. Presumably, the theater’s
saloon, four billiard tables, and six bowling
alleys were removed to make room for offices.
The basic character of the neighborhood was
little changed, however: next door remained
the infamous El Dorado saloon, widely known
as “a free-wheeling den of iniquity that
catered to a not-altogether-reputable clientele.”
In 1854, the court abruptly packed up and moved
to San Jose for about nine months — and
then it just as abruptly packed up again and
headed off to Sacramento, taking up quarters
in this very site. Today’s next speaker,
Lawrence Schei, will describe the circumstances
surrounding these two and other related moves.
The court’s time at this site was certainly
eventful, and even though not always decorous,
it reflects the rough-and-ready nature of the
period. Consider the story of the court’s
seventh Reporter of Decisions, Harvey Lee, who
worked in or around these premises in the late
1850’s.
Unlike his predecessors, Lee was appointed not
by the court, but by the Legislature. The court
was not very happy with this new arrangement,
and there was some concern that Lee was not
up to the job. Justice Steven Field later commented
that Lee’s work was so defective that
the judges sought to have the new law repealed
and the appointing authority returned to the
court. A former dean of Boalt Hall School of
Law picked up the story in a 1926 article:
“This [led] to a bitter feeling on [Lee’s]
part toward the judges, and in a conversation
with Mr. Fairfax, the clerk of the court, [Lee]
gave vent to it in violent rage. Fairfax resented
the attack, an altercation ensued, and Lee,
who carried a sword cane, drew his sword and
ran it into Fairfax’s body, inflicting
a serious wound in the chest just above the
heart. A second wound, not so serious as the
first, followed, and Fairfax drew his pistol
as Lee raised his sword for a third thrust.”
“[Fairfax] was about to shoot [in self-defense],
but, restrained by the thought of Lee’s
wife and children, let the pistol drop.”
Evidently, this was widely circulated news,
and it was said that “All California rang
with the story of this heroic act.” I’m
hoping that our current reporter and our brand-new
clerk/administrator, both of whom are, thankfully,
appointed by and therefore accountable to the
court, will kindly reenact this scene outside
after the morning session.
This and similar anecdotes (including, for example,
Supreme Court Justice David Terry’s near-lynching
by San Francisco vigilantes, after he knifed
one of them in the neck) illustrate the rather
unrefined times in which the first justices
found themselves. But it would be a mistake
to assume that the court was, as a general matter,
populated by trigger-happy frontiersmen. From
the start, the vast majority of justices were
peaceful, albeit colorful, men (of course, all
men) of impressive education, vast experience,
and highest intellect — and the opinions
they produced soon commanded nationwide respect
for the institution. Indeed, decisions by Steven
Field and other justices of the times still
often stand as leading examples on the points
resolved.
But back to local history. In 1857, the court
moved temporarily a few blocks from here. It
returned to this site a couple years later,
and remained, except perhaps during the great
flood, until moving to the newly constructed
capitol building.
In 1872, the Legislature passed a statute requiring
that the justices and court personnel must “reside
at and keep their offices in the City of Sacramento.”
Perhaps this planted nonconformist ideas in
the justices’ heads, because only two
years later, the court began keeping offices
at, and holding many of its regular sessions
in, San Francisco, on Clay Street. Then in 1874,
the Legislature validated the court’s
practice, permitting the court to sit in San
Francisco part of the year, so long as the local
government paid for the court’s accommodations.
Later, the Legislature specified that the court
should also travel regularly to hold hearings
in both Sacramento and Los Angeles as well —
a practice that continues to this day.
The impetus for this movement of the court’s
headquarters from Sacramento back to San Francisco
is unclear, but it appears that weather, water,
and whisky had a lot to do with it. When the
delegates to the 1879 Constitutional Convention
considered proposals to require the court to
hear all sessions “at the Capital of the
State” (meaning Sacramento), the relative
merits of the Sacramento, Los Angeles, and San
Francisco sites were strongly contested.
In favor of Sacramento it was argued that the
court should be based at the seat of government,
and that the main alternative, San Francisco,
was prone to earthquakes. Opponents claimed
that Sacramento had the highest death rate of
any city of its size in the world, and its climate
and whisky were bad.
Other delegates asserted that the court should
at least regularly hold sessions at Los Angeles,
because that city — described as a “great
community composed of agriculturalists”
— was bound to grow in size and stature,
and was “about the only place in the State
where you can get wine that is not adulterated.”
But another delegate argued that “the
climate down there is very hot, and a man soon
gets lazy who lives in it. . . . And it would
not be very long, if you have the Supreme Court
down there, before you would see the Chief Justice,
and . . . General Howard [a proponent of Los
Angeles], walking arm in arm under huge Panama
hats, hunting a cool place.” He summed
up: “It will not do.”
Champions of San Francisco asserted that it
was the center of commerce, and its weather
was superior to that of Sacramento. One commented
that if the court were based in Sacramento,
“[t]he Judges will be seen some of these
days coming out of the Court-room in a boat.
. . .” Another asserted: “It is
the hottest place outside of —_ the one
down below that we read of. . . . If you put
it in the Constitution that the Court shall
sit . . . here in regular session all Summer,
they will have to be regular salamanders.”
But this testimony was impeached by a strong
suggestion of bias. A Sacramento delegate stated:
“Now, my colleague, Senator Herrington,
. . . vilifies Sacramento to an extent which
I think is not warranted. I can account for
that. The gentleman has made some effort to
get into good society here, and has been barred
out. . . . I think what hurts my colleague,
is the fact that the ladies of Sacramento have
failed to appreciate him, and notice him.”
Ultimately, the drafters of the new Constitution
left open the question of where the court should
sit, and the court continued to use Clay Street
in San Francisco as its headquarters, and continued
to hear oral argument at that site as well as
in Sacramento and Los Angeles.
In its first two decades after returning to
San Francisco, the court was based at five different
sites, mostly in the heart of the city. The
turn of the 19th century found the court located
in the Emporium Building on Market Street (we
suspect, but have not verified, that it was
situated in the women’s shoes department).
It was still located there in April of 1906,
when the great earthquake and fire gutted all
but the shell of that structure. The court moved
immediately to temporary quarters, and began
the daunting task of rebuilding. Our own library
records show that the court accepted an offer
from a legal publisher to replace its numerous
library books at “special fire prices”
calculated on “the basis of their cost
. . . plus a commission of 10 percent.”
After relocating twice more, the court finally
found a permanent home in 1923, when it moved
for the first time into its present quarters
at 350 McAllister Street.
Since the early 1940’s, the court’s
chambers on McAllister Street—subsequently
named the Earl Warren State Building—have
been home to some of the greatest justices to
serve on the court. Justice, and soon Chief
Justice, Phil Gibson served from 1939 until
1964; he was renowned for modernizing the courts.
Justice, and later Chief Justice, Roger Traynor
served from 1940 through 1970—and became
one of the most respected and followed jurists
in the history of the United States. Justice
Raymond Peters, known for his sharp mind, served
14 years on the court after first dedicating
more than 20 years to the Court of Appeal. Justice
Mathew Tobriner, another intellectual in the
mold of Traynor, served two decades, from 1962
to 1982. And just recently, we have celebrated
the longevity record of Justice Stanley Mosk,
who served with the last three of these justices,
and who, after more than 35 years, still graces
this court with his wit and wisdom—may
that continue for a long time.
In October 1989, the venerable Earl Warren Building
suffered substantial damage in the Loma Prieta
earthquake. Stairwell walls buckled, bookcases
pitched out their heavy contents, and a large
bronze ceiling light fixture crashed to the
floor right next to the Chief Justice’s
desk. The court moved immediately into provisional
quarters, and then to other temporary quarters,
while it waited for renovation of the Earl Warren
Building. In early 1999, it finally returned
to the Earl Warren site, moving for at least
the 22d time in its 150-year history.
Which brings us to today. From its rather humble
and fitful beginnings, the California Supreme
Court has grown to preside over the largest
judicial system on earth—it is far larger
than the federal judiciary, or that of any country—and
it has become one of the most respected and
influential courts in the nation.
This well-traveled court is now firmly rooted
and serves the people from its historic and
beautifully renovated quarters in San Francisco.
But it seems especially appropriate that we
celebrate the court’s sesquicentennial
here, in the oldest existing court site, where
we can see, touch, and indeed smell the court’s
past, and where we can imagine, if not feel,
the presence of the real people who worked in
and for this court in its infancy, some 15 decades
ago.
Thank you.
(For further detail and sources, together
with photographs and drawings of the described
sites, see Dear and Levin, Historic Sites of
the California Supreme Court, 4 California Supreme
Court Historical Society Yearbook (1998-1999)
- and on this website at "Historic
Sites"
Please proceed to Page 2
Celebration
of the 150th Anniversary of the Supreme Court
(complete .PDF file)
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