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Robe 2Have you ever sensed that your doctor or your lawyer just doesn’t seem to have the commitment, or perhaps the time, to explain his or her advice to you? Kind of like those politicians who, when asked to explain their position on some particular issue, dodge the matter completely and respond, “Trust me, I know what I’m talking about.” If that can even be characterized as a . . .  response.

Well, courts often do exactly the same. Justice may not be blind, but it often sure expects us to be.

The California Judicial System

California has three levels of state courts (not to be confused with federal courts also physically sitting in the various states, including California).

The “lower” California trial courts are where cases are “tried,” where witnesses are sworn in and testify before juries or before a single judge sitting in place of a jury, and where Perry Mason and Ben Matlock worked their magic, plied their trade, and, in the process, compiled their perfect batting averages.

California “intermediate” courts are known as the Courts of Appeal. These are where the losers at trial below, the ones who weren’t represented by Mason or Matlock, have an automatic right of appeal. If they timely appeal, the California Courts of Appeal must hear their appeal, usually before a three judge panel (appellate judges in California are actually referred to as “justices”) that has a certified copy of the record below and hears written and oral argument from the lawyers, but no witnesses and no juries. The California Courts of Appeal issue written decisions, sometimes written by one of the three justices, but often written by one of the lead justice’s clerk, recent law school graduates (although reviewed and signed by each of the justices). If the California Courts of Appeal reverse the trial court, the case is usually sent back to the lower trial court for further proceedings.

The California Supreme Court, the single “highest” court in the California land is, also an appellate court, most often hearing appeals from the California Courts of Appeal. However, unlike the California Courts of Appeal that must hear timely initiated appeals, the California Supreme Court, comprised of seven justices, decides in its sole discretion by majority vote of those seven justices which appeals to hear and which appeals to turn away–without hearing the appeal. If the California Supreme Court declines to hear an appeal, that is the end of the line unless a federal question of law is involved in the case, such as an alleged violation of a federally enacted law or a provision of the U.S. Constitution, in which event a party may then appeal the case to the U.S. Supreme Court, which also has the discretion to hear or decline to hear the appeal.

The Frustrating Absence Of Any Reasoned Explanation

Like those doctors, lawyers and politicians, the California Supreme Court almost never gives any explanation for its opinions, in this case the refusal to accept for hearing the appeal in question. In the case of those doctors, lawyers and politicians, an unhappy patient, client or constituent has other recourse. There are other doctors, lawyers and, yes, even politicians, although that may take an election and the consensus of other voters.

With the California Supreme Court, however, there are simply no other options (barring a federal question of law in the case). This is so no matter how important the case is to one or more of the parties. For example, in the case of the Santa Clarita foster parents whose ward was taken away from them after six painful years of resisting that outcome, and about which injustice (in my opinion) I recently wrote here, the California Supreme Court declined to hear the foster parents’ appeal with no more than the seven cold and calloused words, “The Court declines to hear the appeal.” The Court did not even tell the foster parents to have a nice life.

Like Sam Cooke, Emboldened By Bob Dylan, So Aptly Put It, “A Change Is Gonna Come”

But a long overdue change in this approach, and attitude, may finally be coming. Justice Goodwin Liu, the most recent appointment to the California Supreme Court, appointed by Governor Jerry Brown, has written lengthy and blistering dissents in two recent cases in which the California Supreme Court declined to hear the requested appeal without explanation. Not only did he think the appeals should have been accepted for hearing, but he thought the parties were entitled to an explanation of why the appeal was being rejected.

So do I, in every instance. It’s a matter of courtesy and respect. And it’s the job of the justices to provide that courtesy and respect in every case. Don’t you think the California Supreme Court owed those foster parents a reasonable and a reasoned explanation why their appeal to recovery custody of their ward was not going to happen? (An appeal to the U.S. Supreme Court may be forthcoming in that case.)

I believe the Court’s behavior in this regard is both deplorable and indefensible. Every citizen is entitled to know the reasoning behind his or her fate. If the Justices are too busy to prepare that explanation, they have law school graduate clerks who can draft the explanation for the Court’s approval. If the clerks are overworked, the Court can hire some more. Our law schools are turning out plenty of young lawyers who would love to clerk for the California Supreme Court.

Kudos to Justice Liu. Let’s hope other members of the Court will take notice. Wouldn’t their reasons provide instruction and insight for our trial courts, our lawyers, and perhaps our U.S. Supreme Court as well in the case of further appeals to that Court. And, after all, aren’t you and I interested in knowing just what’s under those robes?


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  • Jose Sigal

    Believe it or not Ronaldo it is still soooo much better than Mexico and other countries. Hopefully it will be fixed a lot more with judges like Justice Liu.

    • Yes, Pepe, it is of course much better than the judicial systems in any number of other countries, but here we expect still better than what we have. Justice Liu is very bright and very refreshing. The question, as in the case of many in the legislative branch of the government, is whether he will be warn out by the system before he can improve the system! Thanks for commenting. I wonder if it may have been the “judicial” robe that caught your attention! 🙂

      • Jose Sigal

        Of course not Ronaldo, it’s was the legs.

        • I’m a leg man too, but then I know what’s under the robes. 🙂