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150th Anniversary
(con't)
Page 3:
CHIEF JUSTICE GEORGE:
Thank you very much, Professor Babcock.
Mr. Kent Richland is a former supervising attorney
in the California Attorney General’s Office,
and in the State Public Defender’s Office.
He served as a staff attorney for Justice Otto
Kaus when Justice Kaus was on the Court of Appeal.
He is founding partner in Greines, Martin, Stein
& Richland, one of the two largest civil
appellate firms in California. He is a former
president of the California Academy of Appellate
Lawyers, a fellow of the American Academy of
Appellate Lawyers, a member of the Board of
Trustees of the Los Angeles County Bar Association,
and president of the California Supreme Court
Historical Society.
Membership in that society is open to persons
interested in the history of the court, and
the Society among other activities produces
books and regular newsletters that contain a
wealth of information about this court’s
past. We also are pleased to have with us today
the Society’s very able executive director,
Mr. James Pfeiffer. And now we shall hear from
Mr. Richland.
MR. KENT RICHLAND:
Chief Justice George, Associate Justices of
the Supreme Court and honored guests: I am pleased
and honored to address you at this special session
commemorating the 150th anniversary of the court.
Meeting in this historic courtroom brings to
mind J.P. Hartley’s famous remark, “The
past is a foreign country. They do things differently
there.” For while today we occupy the
same physical space as our 19th-century forebears,
the temporal space in which they lived was,
indeed, quite another country.
In his panoramic rumination on mid-19th century
California, A Cast of Hawks, Milton Gould focuses
on perhaps the most notorious denizen of this
courtroom, Supreme Court Justice David Terry.
In the 1850's, when Justice Terry served on
this still-infant court, both law and order
were in very short supply, particularly in San
Francisco, the toughest town on the West Coast.
Because the civil authorities couldn’t
control the gangs of hoodlums who roamed the
streets preying on ordinary citizens, a vigilante
movement arose; at its peak, the Vigilance Committee
comprised an army of almost 5,000 armed men—the
largest military force in the West.
Notwithstanding their shared law enforcement
objectives, the vigilantes presented a political
problem to Justice Terry and his ally, Governor
Neely Johnson. For in those days immediately
preceding the Civil War, Californians were bitterly
divided on the slavery issue. Governor Johnson
and Justice Terry, both of whose origins were
in the South, were vigorously pro-slavery, while
the members of the Vigilance Committee were
overwhelmingly Unionist and anti-slavery. Johnson
and Terry planned to turn California into a
slave state, but the well-armed private army
that was the Vigilance Committee presented a
major impediment. In 1856, Governor Johnson
dispatched Justice Terry to San Francisco as
his emissary to try to get the vigilantes to
disband.
Now, Justice Terry was not someone you would
get from central casting if you were looking
to fill the role of Supreme Court justice. When
he was elected to the court in 1855, he was
32 years old. He was well over six feet tall,
weighed more than 220 pounds, and was known
for his hair-trigger temper. Uncommonly blunt
in both his personal affairs and his opinions,
it was said that during oral argument he would
take out his pistol and lay it on the desk.
Like his colleague Chief Justice Hugh Murray,
he was never without his large Bowie knife.
Not surprisingly, Justice Terry’s delicate
diplomatic mission to San Francisco ended abruptly:
A street brawl with several vigilantes culminated
with Justice Terry plunging his Bowie knife
into the neck of one Sterling A. Hopkins, an
officer of the Vigilance Committee. Justice
Terry was immediately arrested by the vigilantes
and imprisoned. For six weeks Hopkins hovered
precariously between life and death. Then, miraculously—and
to the relief of all—he recovered. Perhaps
most relieved were the vigilantes, who realized
that it would be the worst sort of public relations
to have to try and execute a sitting justice
of the California Supreme Court. The vigilantes
tried Justice Terry for lesser crimes, convicted
him, and summarily released him from custody.
Justice Terry was unchastened by this experience.
Indeed, his vehement pro-Southern views led
a few years later to the infamous duel in which
he shot and killed California’s highly
respected (and staunchly Unionist) Senator David
Broderick. And Justice Terry’s own death
several decades later was equally violent: He
was shot dead at the train station in Lathrop,
California, by a United States Marshal who was
trying to protect then United States Supreme
Court Justice Stephen Field, Justice Terry’s
former colleague on this court, after Justice
Terry physically attacked Field because of a
legal dispute involving a woman of dubious character,
who had recently become Terry’s new wife.
But I digress.
When Justice Terry returned from his imprisonment,
it was to this very courtroom, where he was
greeted with an enormous backlog of work. It
seems that during his absence, one of the other
three justices, Solomon Heydenfeldt, had been
vacationing in Europe. The remaining justice,
Chief Justice Murray, had been left to amble
about these chambers by himself and, because
there was no quorum present, he essentially
shut down the court during the entire period.
Although no doubt Justices Terry and Heydenfeldt
were disconcerted by the fact that no court
business got done while they were away, it was
probably a good thing that Chief Justice Murray
did not take it upon himself to decide cases
all by himself. For Chief Justice Murray is
best known for his infamous opinion in People
v. Hall (1854) 4 Cal. 399, in which he concluded
that for purposes of a statute barring the testimony
of Indians and Blacks in any proceeding against
Whites, a Chinese person was to be considered
an Indian or Black and therefore was likewise
disqualified from testifying.
What are we to learn from these events of the
early years of this court’s existence?
There are several lessons. One is the evanescence
of times and mores. As John F. Kennedy noted,
“History is a relentless master. It has
no present, only the past rushing into the future.
To try to hold fast is to be swept aside.”
The California of the 1850's seems another world
entirely, and the exploits and attitudes of
Justice Terry and Chief Justice Murray thankfully
seem possible only in an exotic culture bearing
the most tangential connection to our current
society.
Another lesson is the remarkable strength and
resiliency of this court. Although born in turbulent
times and no stranger to controversy throughout
its existence, this court, which began as a
small appellate tribunal serving the relatively
parochial needs of a population of 93,000, continues
150 years later at the apex of one of the largest
appellate systems in the world, and as the primary
promulgator of law for a population of more
than 35 million, in the most complex, sophisticated
and technically advanced jurisdiction ever known.
But there is an even more timeless lesson to
be gleaned from this tale of the early years
of this court. That is: Whether you are vacationing
in Europe or incarcerated in a vigilante prison
on attempted murder charges, if you are away
for six weeks, you will have a pile of work
on your desk when you get back.
CHIEF JUSTICE GEORGE:
Thank you very much, Mr. Richland. Our special
session will conclude with some closing remarks
from Justice Brown—appropriately so, in
view of her distinguished service here in Sacramento
in all three branches of our state government,
culminating in her service as a justice of the
Court of Appeal for the Third Appellate District,
before she joined the California Supreme Court
in 1996.
JUSTICE BROWN:
Thank you Chief.
I am honored to be able to speak on behalf of
the court at its 150th birthday party and delighted
that all of you are here to share the occasion
with us. This has been an extraordinary program.
Shakespeare said, “[The] past is prologue.”
H.J. Mueller muses that history is poetry and
the poetry of history consists in its truth.
“It is the fact about the past that is
poetic.” The playwright and the historian
are both right.
I want to thank the participants in this morning’s
program who have evoked this court’s rich
history with passion, poetry, and truth. We
have certainly had our share of colorful characters
and moments of high drama, and our speakers
today have made our story live. And those stories
about perseverance, independence and courage
— and even eccentricity — are the
touchstones from which we shape our visions
of the future. Holmes said that knowing our
history is not a duty; it is only a necessity.
Sometimes, though, history seems oddly familiar.
Or, as the French say, the more things change,
the more they remain the same. Consider this
brief survey of the press coverage of the court’s
first hundred years.
On April 6, 1855, the same year the court moved
into the B.F. Hastings Building, the daily Alta
California published an editorial entitled “Contempt
of Court.” The paper gleefully congratulated
the Legislature for passing a law overturning
the court’s recent decision in Johnson
v. Gordon (1854) 4 Cal. 368, in which the court
held the United States Constitution gave no
authority to the Supreme Court of the United
States to exercise appellate jurisdiction over
the state courts. According to the Alta’s
editorial page: “The doctrines laid down
in this opinion were so novel and so startling,
that in some they caused surprise, in others
alarm, in all contempt.” The newspaper
applauded the Legislature for pulling off “the
coolest contempt of court ever committed.”
Of course, given the way things have turned
out, the Legislature might want to reconsider.
Curiously, eight years later the same paper
lamented that the $8,000 annual salary proposed
for justices of the Supreme Court was inadequate.
Said the paper’s editorial writer on March
8, 1863: “This upon reflection must be
regarded as very poor economy. First class talent
cannot be procured for this stipend. The office
of a judge in this state is no sinecure. . .
. One of the greatest elements of prosperity
is an able, upright, and brilliant judiciary.
We can have such only by paying for it.”
But here we are. Able, upright and brilliant
jurists, and still underpaid.
And in a surprisingly sympathetic tone, the
Sacramento Union reported, on December 4, 1869,
on the first case to be heard in the Supreme
Court courtroom at the capitol. The day before,
Judge Sanderson had heard the habeas corpus
case of Nellie Smith and Anna Keating —
a case brought to test the validity of the city
ordinance providing that women shall not exhibit
themselves in a drinking saloon after midnight.
The women argued the ordinance conflicted with
the equal protection clause of the Fourteenth
Amendment of the United States Constitution.
But the city attorney argued that the ordinance,
“like all other laws, merely placed restrictions
on one for the benefit of many.” That
was not so uplifting a cause as the one led
by Clara Shortridge Foltz, but still a claim
for the rights of women.
In 1886, when an unpopular decision concerning
riparian rights (Lux v. Haggin (1886) 69 Cal.
255) led to vociferous calls for the resignation
of the justices, the San Francisco Call came
stoutly to the court’s defense in an editorial
published on June 18 of that year. Chastising
the “infamous plan of dragging the Supreme
Court into politics,” which the Call said
was being advocated by papers like the Chronicle,
Examiner, and Alta, the Call ridiculed “these
journalistic wiseacres” who with “their
usual pretensions to a universality of knowledge,
sum up the law of the case in a line and abuse
the majority of the Supreme Court in a paragraph”
and “stigmatize as ignorant and stupid”
the judges who had devoted months “of
weary labor to a patient study of the law.”
And then there is the long-running and apparently
endless debate about where the Supreme Court
should have its headquarters. One editorial,
appearing in the Alta California on January
20, 1865, takes a somewhat jaundiced view of
the reason for the opposition of the City of
Sacramento to the court’s removal to San
Francisco. According to the Alta California,
the Sacramento Union opposed the removal of
the Supreme Court because it feared “there
may be less demand for drinks, and fewer boots
to black.” (Parenthetically, I should
say I do not think the writer was accusing the
justices of being heavy drinkers. He seems to
have been referring to the lawyers who would
come to town to appear before the court.) On
the other hand, the Marysville Express had complained
that “the removal of the court would necessitate
the removal of the State Library,” which
the Express said was needed as much for the
benefit of the Legislature as the court. The
Alta conceded that point was “good in
theory,” but noted:
“The Library would be a great assistance
to our legislators, provided these gentlemen
made a practice of seeking wisdom among its
shelves. But when have they done so?
Books in certain cases, it cannot be denied
would be of great service in framing of enactments,
but the trouble about them is, they can neither
buzz nor buttonhole. The ‘lobby’
has an advantage over them which cannot be overcome.
Champagne can make more converts to a given
opinion, any day, than Blackstone.”
The court did move to San Francisco, but
the controversy was still very much alive in
1957 when the Sacramento Bee reported Governor
Goodwin J. Knight’s favorable reaction
to “the growing movement to return the
state supreme court from San Francisco to Sacramento.”
The article noted that no new law would be needed
since the Constitution specifies the court shall
be located in Sacramento, and cited in support
reports in recent weeks that Chief Justice Phil
Gibson favored returning the court to Sacramento
to “do away with the expensive and exhausting
practice of holding court periodically in Los
Angeles and Sacramento as well as in San Francisco.”
(Sacramento Bee (Feb. 22, 1957) p. 1, col. 4.)
Apparently, that was only a rumor. Almost 50
years later, the court remains in San Francisco.
After 150 years, we may perhaps be entitled
to feel some confidence that — despite
our ups and downs — the court’s
existence is secure. In 2050, we hope the court
will be able to return to the B.F. Hastings
Building to celebrate its 200th anniversary.
You are all invited. I am reminding you now
to save the date. Mark your calendars because
Justice Mosk will be very disappointed if you
are not here.
Finally, on behalf of all the members of the
court and the court’s staff, I want to
thank the people of Sacramento for being generous
and gracious to the Supreme Court of California
during the whole of its 150-year history. And
I do not think it was only because you thought
we would give a boost to the local economy.
I promise. If I ever get three more votes, we’ll
be back!
Thank you.
CHIEF JUSTICE GEORGE:
Thank you very much, Justice Brown. In accordance
with our custom at special sessions, it is ordered
that the proceedings at this commemorative session
be spread in full upon the minutes of the Supreme
Court and published in the Official Reports
of the opinions of this court.
Thank you. It is time for the calling of the
calendar, and there is one more historical fact
that I want to mention. The calendar will be
called for the first time by Frederick Ohlrich,
the new Clerk/Administrator of the California
Supreme Court. The entire court and its staff
is very pleased to have Fritz join us. He developed
a statewide and national reputation for excellence
in court administration at his previous position
as court executive of the former Los Angeles
Municipal Court. He started at the Supreme Court
only one week ago, and improvements in our operations
already are being seen. We all are looking forward
eagerly to the historic changes that we know
he will make. Welcome.
(Derived from Supreme Court minutes and 22 Cal.4th.)
Celebration
of the 150th Anniversary of the Supreme Court
(complete .PDF file)
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