April 9, 2013

A majority majority opinion and a majority concurring opinion

As scheduled, the Supreme Court yesterday filed its opinion in People v. Carbajal. There are three opinions — the lead opinion, authored by Justice Liu and signed by four other justices; a concurring opinion by Justice Kennard, signed by one other justice; and a concurring opinion by Justice Baxter, signed by three other justices. (Justices Kennard, Baxter, Werdegar, and Liu signed just one opinion. Chief Justice Cantil-Sakauye and Justice Corrigan signed both Justice Liu’s and Justice Baxter’s opinions. Justice Chin was in a particularly agreeable mood; he signed on to all three opinions.) A concurring opinion by a majority of the court has happened before, but it’s still unusual.

The difference between the 5-justice lead opinion and the 4-justice concurring opinion seems to be in the guidance given to trial courts for future similar cases. But which opinion should the trial courts be guided by? Probably both, because the “guidances” in the two opinions don’t seem to conflict. If you have to pick one opinion to follow, however, go with Justice Liu’s; even Justice Baxter’s 4-justice concurring opinion refers to Justice Liu’s 5-member group as “the majority.”

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