When the Supreme Court last week denied review in In re Joseph H., it made news because it’s a high-profile case (a 10-year-old shot and killed his neo-Nazi father) and it involves an important legal issue (whether a 10-year-old can knowingly waive his Miranda rights). Also of interest is that three justices — Goodwin Liu, Mariano-Florentino Cuéllar, and Leondra Kruger — recorded votes to grant review. Record votes are not common, but they do happen with some regularity, although it’s rather rare for a petition for review to come up just one vote short of being granted.
What’s really noteworthy from a Supreme Court practice standpoint, however, is that Justice Liu not only recorded his vote, but also wrote a dissenting statement from the denial of review. The statement — a long one, signed by Justice Cuéllar but not Justice Kruger — says that the case “raises an important legal issue that likely affects hundreds of children each year: whether and, if so, how the concept of a voluntary, knowing, and intelligent Miranda waiver can be meaningfully applied to a child as young as 10 years old.” The statement also suggests that the “Legislature may wish to take up this issue in light of this court’s decision not to do so here.” (The entire statement can be viewed on the court’s docket.)
U.S. Supreme Court justices will sometimes write dissents from certiorari denials (see, e.g., here) and Ninth Circuit judges occasionally file “dissentals” from denials of en banc review. However, to our knowledge, a dissenting California Supreme Court justice has never before stated reasons for wanting to grant a petition for review. (Let us know if we’re wrong on that.) The court’s Internal Operating Practices and Procedures (paragraph IV(I)) provides that, “[i]n any case in which the petition . . . is denied, a justice may request that his or her vote be recorded in the court minutes” (emphasis added), but it says nothing about dissenting statements.
Justice Liu and Chief Justice Tani Cantil-Sakauye both filed separate statements when the court issued an order to show cause and struck the anti-Citizens United proposition from the 2014 ballot. But that was an interim order. The court has heard oral argument and will soon file an opinion or opinions in the traditional manner.
The closest analogy to the dissenting statement that we know of is the court’s old — and long ago discontinued — practice of at times writing brief, substantive opinions when denying a hearing (now review). In the opinions, published at the end of Court of Appeal decisions, the Supreme Court would sometimes disassociate itself from parts of the Court of Appeal decision. (See, e.g., People v. Bunkers (1905) 2 Cal.App. 197, 210 [“the determination of the question as to whether one who gives a bribe can be an accomplice of the one who accepts the bribe is not essential to the decision in this case, and we are not to be understood as approving that portion of the opinion of the district court of appeal which deals with that question”].) In at least one case, the court went so far as to disapprove an earlier Court of Appeal decision that conflicted with the Court of Appeal decision that was the subject of the petition for hearing. (Millsap v. Alderson (1923) 63 Cal.App. 518, 532.)
Justice Liu’s statement in Joseph H. could signify an important shift in how the Supreme Court operates. Before, a justice might record a dissenting vote to send a message to the appellate bar about the justice’s interest in an issue, but, because such a vote was not accompanied by any publicly available reasoning and was not widely noticed in any event, the message was a muted one. Dissenting statements give justices a significant new option to shape the debate on compelling legal issues or to highlight issues that have yet to be generally regarded as compelling.
The court and the Reporter of Decisions might need to make some adjustments to accommodate this new judicial creature. Will a dissenting statement be citable as persuasive precedent? If so, will it be published in the Supreme Court’s official reports? Will the court revise its Internal Operating Practices and Procedures to recognize the existence of a dissenting statement? Might we also see concurring statements that explain the denial of review, as sometimes happens at the U.S. Supreme Court?
Another thing about Justice Liu’s dissenting statement — it apparently delayed the ruling on the petition for review. Atypically, the order denying review was not issued after the court’s weekly Wednesday conference and thus did not appear on the court’s list of conference actions. (That’s why we didn’t notice the dissenting statement right away.) Instead, it was on Friday that the court denied review and filed Justice Liu’s statement, the last day to which the court had — and could have — extended its time to rule.