Brown v. Superior Court

REYNOSO, J.

The dissenting opinion on denial of rehearing requires a response. (See People v. Love (1961) 56 Cal.2d 720, 756 [16 Cal.Rptr. 777, 17 Cal.Rptr. 481, 366 P.2d 33, 809].) I cannot be deemed acquiescent to the dissent’s view with respect to the procedures used by this court in denying rehearing and making the decision in this case final.

Justices of this court have from time to time dissented to orders denying rehearing to express their views on the merits of the petition for rehearing (see, e.g., People v. Love, supra, 56 Cal.2d 720, 748; Buckley v. Chadwick (1955) 45 Cal.2d 183, 208 [288 P.2d 12, 289 P.2d 242]) or to argue that a modification did not adequately cure the defects of the original opinion (see Olson v. Cory (1980) 27 Cal.3d 532, 569 [178 Cal.Rptr. 568, 636 P.2d 532]; Agnew v. City of Los Angeles (1958) 51 Cal.2d 1, 11-12 [330 P.2d 385]). The dissent in this case, however, is not directed to the merits (the points raised “. . . may or *261may not have merit or justify a rehearing” {ante, at p. 259)) but, rather, raises questions regarding the procedures used in disposing of the rehearing petition and other filings. A majority of this court did of course decide that the issues raised on rehearing were meritless. Nevertheless, the dissent mistakenly suggests that the petition for rehearing was denied summarily without due consideration of the merits, and that the order making the decision final deviated from the “usual practice.”

It is to these implications as to the integrity of the decisionmaking process that my response is directed. This case, being final, is no longer subject to comment on the merits; accordingly, I will limit my response to the collateral, procedural matters raised by the dissent.

This court unquestionably has the power to order its decisions final forthwith. The California Rules of Court provide that the Supreme Court may direct the immediate issuance of a remittitur “For good cause shown, or on stipulation of the parties, ...” (Rule 25(b).)

Noting that one of the real parties disavowed the stipulation filed in this case, the dissent argues there was no “good cause” to make “this appeal” final, but it concedes that the important issues in this case were given “expedited” review throughout these proceedings. (Ante, at p. 260.) With due respect, this case is not the normal “appeal” characterized by the dissent. We treated the appealable judgment in this case as an extraordinary writ proceeding, as is proper in cases where “the public interest requires a more rapid determination of the constitutionality of the . . . statute than can be provided in the normal course of appellate review.” (Brown v. Superior Court (1971) 5 Cal.3d 509, 515 [96 Cal.Rptr. 584, 487 P.2d 1224].) We also determined that this case presented important questions requiring prompt resolution by this court; accordingly, we exercised our original jurisdiction and bypassed Court of Appeal review. (See, e.g., Brosnahan v. Brown (1982) 32 Cal.3d 236, 241 [186 Cal.Rptr. 30, 651 P.2d 274]; Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 808-809 [114 Cal.Rptr. 577, 523 P.2d 617].) Further, as in Brosnahan, we scheduled a special calendar for oral argument. In short, this court made a determination early on that the issues raised in the present case were of public importance and warranted expedited review; thus, this case began with a need for prompt resolution, and ended as it began.

The foregoing amply demonstrates that the majority’s finality order was not motivated by “unspoken” considerations apart from the legal issues. Moreover, in every case we have found on this issue—including the authority cited by the dissent (Assembly v. Deukmejian (1982) 30 Cal.3d 638 [180 Cal.Rptr. 297, 639 P.2d 939]; City of Carmel-By-The-Sea v. Young (1970) 2 Cal.3d 259 [85 Cal.Rptr. 1, 466 P.2d 225, 37 A.L.R.3d 1313])—the decision was made *262“final forthwith” without explanation. (See also Corona Unified Hosp. Dist. v. Superior Court (1964) 61 Cal.2d 846, 854 [40 Cal.Rptr. 745, 395 P.2d 817] [“final forthwith” without explanation; appeal inadequate remedy; proceeding in prohibition by taxpayers challenging validity of statute].) Indeed, the cases in which this court has made its decision final forthwith without explanation (but where the urgency was self-evident) are legion—the most recent of the more than 50 such cases being Brosnahan v. Eu (1982) 31 Cal.3d 1 [181 Cal.Rptr. 100, 641 P.2d 200], Stanton v. Panish (1980) 28 Cal.3d 107 [167 Cal.Rptr. 584, 615 P.2d 1372], Chatterton v. Eu (1980) 28 Cal.3d 123 [167 Cal.Rptr. 593, 615 P.2d 1381], Eu v. Chacon (1976) 16 Cal.3d 465 [128 Cal.Rptr. 1, 546 P.2d 289], Phelps v. Brennan (1976) 16 Cal.3d 508 [128 Cal.Rptr. 423, 546 P.2d 1367], Brown v. Superior Court (1975) 15 Cal.3d 52 [123 Cal.Rptr. 377, 538 P.2d 1137].

Nevertheless the dissent inexplicably asserts that the majority has broken tradition in this case. In particular, the dissent looks to the body of the opinion in Carmel-By-The-Sea and argues that in that case there were “exigent circumstances” not present here. To the contrary, if one reads the quoted phrase in the context of the whole sentence, it is clear that both Carmel and the instant case “presented ... a question of constitutional magnitude affecting numerous public officials . . . which under exigent circumstances [was] brought to our attention by two public officials . . . .” (City of Carmel-By-The-Sea, supra, 2 Cal.3d at p. 263.) In fact the exigency may have even been greater in this case. First, the above-quoted sentence is clearly a response by the Carmel majority to the dissent’s view, in that case, “that the lawsuit was contrived, that there is no legitimate controversy, [and] that the rights of no individuals are involved. . . .” (Id., at p. 275; Mosk, J., dis.) Secondly, the Carmel court held the statute at issue therein unconstitutional, thereby precluding the possibility of enforcement during the 30-day prefinality period. Here, by contrast, the statute was held constitutional and enforceable, as it would have been from its enactment but for this lawsuit which ultimately proved unmeritorious.

It is also significant that the majority’s finality order was not filed until after amici curiae’s filing and real party’s petition for rehearing were considered. With all respect, I must therefore take issue with the dissent’s assertion that this court’s finality order deprived real party and amici curiae of the opportunity to be heard. A brief chronology of the events following the filing of the decision in this case (see minute order of Nov. 18, 1982, ante, at p. 256) will suffice to show the consideration given the dissenting justices and the parties.

On November 3,1982, two days after this court’s decision was filed, the parties of record filed a stipulation, signed by their respective counsel on November 2, that the decision “may become final forthwith.” As earlier noted, rule 25(b) provides that the Supreme Court may direct the immediate issuance *263of a remittitur “For good cause shown, or on stipulation of the parties, . . Both criteria having been met in this case, a majority of this court voted to accept the parties’ stipulation.

Though at this point all the parties to this litigation had stipulated to immediate finality, thereby waiving their right to seek either rehearing or a modification of the opinion, the dissenting justice was nevertheless of the view that this court’s finality order would preclude consideration of “useful criticism” that might be filed by “the bench, the bar, legal scholars, amici curiae, [or] other interested persons.” (Ante, at p. 258.) In light of the expedited review heretofore given to the important issues in this case, a majority of the justices were not persuaded that the action urged by the litigants, and agreed to by the court, be delayed on the mere speculative possibility of future filings by nonparties. Due to the delay involved in the preparation of the dissent, our finality order was not ready for filing until November 9, 1982.

On that date we received a letter from amici curiae urging that finality of the decision not be accelerated. Amici curiae—not being parties to the action—have no standing to petition for rehearing (rule 27(a) and (b)) and are bound by the general rule that they must “accept[] the case as [they] find[] it and may not ‘launch out upon a juridical expedition of [their] own unrelated to the actual appellate record.’” (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 510-511 [146 Cal.Rptr. 614, 579 P.2d 505], quoting Pratt v. Coast Trucking, Inc. (1964) 228 Cal.App.2d 139, 143 [39 Cal.Rptr. 332].) Nevertheless, this court routinely considers amici curiae briefs suggesting rehearing or modification of the opinion on the court’s own motion. In this case, however, amici did not brief a single issue in support of rehearing. The only legal argument alluded to appears in one sentence which states that the finality of decision urged by the parties would preclude amici “from inviting the court’s attention to . . . serious long range consequences of the opinion’s statement on page 7 to the effect that enactments contained in the statutes at large are ‘Deemed temporary when enacted’; ...” (This argument was later raised in real party’s petition for rehearing and was considered by the court.) Amici’s letter also expressed the intent to “expand” on this point, presumably in a subsequent filing. (Subsequently, the Attorney General, as counsel for petitioner Brown, filed a response urging the court to issue the peremptory writ forthwith.)

The dissent was redrafted to reflect that the majority’s proposed finality order would deny “amici opportunity, during our rule time, of presenting their additional contentions. . .” and “foreclose[] and summarily reject[] amici’s presentation without even considering its possible merits, ...” (Ante, at p. 259.) As noted, there were no “contentions” to consider. Moreover, amici never did file “additional” authorities within the time period prescribed by rule *26427(b) (which expired Nov. 16, 1982—prior to the filing of our order). Though there is no authority in point, it seems doubtful that amici are entitled to more time than allowed parties under rule 27(b) to request rehearing. Further, this court is not required to (nor does it usually) wait expiration of the full 30-day prefinality period (rule 24(a)) before denying rehearing. Under the dissent’s reasoning, amici and other interested persons are deprived of “reasonable time” to request the court to grant rehearing sua sponte in every case in which rehearing is denied within the 30-day period.

Following the revision of the dissent, our order was again ready for filing on November 15, 1982. On that date, however, real party Tweedy filed, inter alia, a motion to strike the stipulation and a request for extension of time to file a petition for rehearing.

“A stipulation in proper form is binding upon the parties if it is within the authority of the attorney. (See Palmer v. City of Long Beach, 33 Cal.2d 134, 141-144 [199 P.2d 952]; Brock v. Superior Court, 29 Cal.2d 629, 634 [177 P.2d 273, 170 A.L.R. 521].) Unless contrary to law, court rule or public policy, a stipulation is also binding upon the court. (Capital National Bank v. Smith, 62 Cal.App.2d 328 [144 P.2d 665]; 1 Witkin Cal. Procedure (2d ed. 1970) Attorneys, § 125, p. 138.)” (Bechtel Corp v. Superior Court (1973) 33 Cal.App.3d 405, 411-412 [109 Cal.Rptr. 138].)

In an affidavit and memorandum attached to the motion to strike, Tweedy declared that his counsel, “acting without [his] knowledge, without his consent, and against his wishes, signed and filed a [stipulation] that purports” to waive his appellate remedies. Without expressing any opinion as to whether Tweedy’s showing was sufficient to overcome the “strong presumption” that an attorney acts with authority and within the scope of his employment (1 Witkin, Cal. Procedure (2d ed. 1970) Attorneys, § 108, p. 119)—and without intimating any impropriety on the part of distinguished counsel—we allowed Tweedy to disavow the stipulation in light of his declared intent to file a petition for rehearing “to draw to this Court’s attention important issues not considered.”

In this regard, Tweedy requested an extension of time until December 15, 1982, to file a petition for rehearing. Yet, he was able to file a petition for rehearing on November 16—the last day before expiration of the normal 15-day period prescribed in rule 27(b). The petition was reviewed by all the justices and, after due consideration, denied.

I must respectfully, but strongly, take issue with the dissent’s assertion that “the majority . . . summarily denied that petition without according it the appropriate consideration heretofore given to petitions filed with this court.” (Ante, at p. 259.) The petition for rehearing was disposed of in accord with the *265usual internal practice of this court. (See Cal. Supreme Court Pending Case Service, Special Report, pp. 1001-1004; Oakley & Thompson, Law Clerks and the Judicial Process (1980) pp. 77-82; Goodman & Seaton, Foreword: Ripe for Decision, Internal Workings and Current Concerns of the California Supreme Court (1974) 62 Cal.L.Rev. 309, 312-316.) Immediately after filing, the petition was recorded, internally processed, and assigned to a justice’s staff for preparation of a memorandum. After a thorough analysis of the issues raised for the first time on petition for hearing (but see County of Imperial v. McDougal (1977) 19 Cal.3d 505, 513 [138 Cal.Rptr. 472, 564 P.2d 14]) and the contentions regarding alleged defects in our opinion, the memorandum concluded that real party’s contentions—new or rehashed—were meritless and did not warrant a rehearing. The memorandum and the petition were distributed to the justices, and a conference was scheduled for the afternoon of November 18. The court, of course, sits in bank to decide matters brought before it. In most matters, this court has full discretion, upon concurrence of at least four justices, to decide whether or not to grant a hearing (or rehearing) in any particular case. (See generally Mosk, Foreward: The Rule of Four in California (1975) 63 Cal.L.Rev. 2.) In this case, a majority of the court decided—after consideration of the briefs and discussion of the merits and issues summarized in the conference memorandum—that rehearing should be denied. This is not unusual as the vast majority of petitions for rehearing are denied. As earlier noted, there is no requirement that the petition for rehearing be denied after expiration of the 30-day period prescribed in rule 24(a).

The procedures used in this case fully conformed to this court’s internal practice. No one has suggested that the petition would have received more careful consideration had it been considered at a later conference, or that two days was insufficient time to review the merits. Moreover, a delay in scheduling the conference would have produced this result: a minority of the court would have prevailed, by delay, in their position against immediate finality.

In sum, the court exemplified a bend-over-backwards stance throughout these proceedings, and the litigants and amici were afforded a “reasonable opportunity to be heard” (Metropolitan Water Dist. v. Adams (1942) 19 Cal.2d 463, 476 [122 P.2d 257]), notwithstanding the dissent’s contrary suggestion. This court at all times acted in accordance with its rules—both internal and codified—in considering the respective positions of the litigants and amici. With respect to real party’s petition for hearing, each justice had full opportunity to review the petition and conference memorandum, consider the merits, and discuss the matter at conference. The question is not one of “precipitancy” but of thoroughness of review. (Compare, for example, the procedure on rehearing commonly employed in the Court of Appeal where no memorandum is prepared and no conference held; rather, each justice reads the petition and *266signs his or her vote—for or against rehearing—on the cover of the petition, often on the same day it is filed.)

The minute order I filed as Acting Chief Justice on November 18, 1982, makes clear the position of the majority in this case. The constitutional challenge to the statute having been found unmeritorious by this court (after expedited review), a majority of the court having been convinced that no issue raised on petition for rehearing (by the only party to do so) warranted rehearing, and the other parties having waived their right to request rehearing or modification by stipulation (or, in the case of amici, by failing to file a brief within the time prescribed by rule 27(b)), there was no legal reason to further delay “implementation of responsibilities that our Constitution entrusts to the Legislature.” (Minute order of Nov. 18, 1982, ante, at p. 256.)