November 25, 2013
At the recent Appellate Judges Education Institute (AJEI) Summit in San Diego, Justice Goodwin Liu shared his views regarding dissents during a well-attended panel discussion. The panel was moderated by Ninth Circuit Judge Margaret McKeown, and also included as panelists Judge James Wynn of the Fourth U.S. Circuit Court of Appeals and Justice Eileen Moore of the California Court of Appeal, Fourth District, Division Three. You may recall that Justice Liu, though still relatively new to the California Supreme Court, has been recognized as one of the justices most likely to pen dissenting opinions and concurrences.
Justice Liu began his remarks by explaining that a judge must learn to live with disagreement, which is a regular part of service on any appellate court. He said it is important for a judge to be “careful” when considering whether to dissent. Such a judge also should be humble; after all that jurist has not persuaded a majority of the court that his or her views are correct. He also counseled restraint because a dissent exacts a cost in terms of disharmony on the court. In addition, once a judge has declared an intention to pen a dissent, other members of the court no longer have an incentive to alter their majority opinion to suit the views of the dissenting judge. Finally, it is no small matter that the majority might well respond to the dissent in their opinion, thereby creating binding authority that expressly rejects the views of the dissenting judge. (Justice Liu noted that, perhaps in part due to these considerations, he has dissented only 10 times and has written separately a total of 24 times during his tenure on the Court.)
Justice Liu explained that, in light of the above considerations, an appellate judge should have a “special reason” to dissent. It is usually not worth it to dissent simply because the judge disagrees with the majority’s fact-driven judgment call. On the other hand, when the issue is one of principle, he said, a judge has an obligation to “speak up.” (He gave as an example his dissent in People v. Aranda (2012) 55 Cal. 4th 342, where the majority held it was harmless error in a criminal matter not to instruct the jury on the “beyond a reasonable doubt” standard.) Justice Liu said that another reason to dissent is when the dissenting judge believes the principle espoused in the majority opinion should be construed narrowly and should not necessarily be applied to a different set of facts. (As an example, he pointed to his dissent in People v. Schmitz (2012) 55 Cal. 4th 909, in which the majority held a warrantless search of a parolee seated as a front-seat passenger extends to the entire contents of the automobile in which he was a passenger. Justice Liu posed the question whether the holding applied to containers within the vehicle, and the majority limited its opinion by stating they were not addressing containers.) Dissents can also be used, Liu said, as “letters” to the U.S. Supreme Court to encourage the grant of certiorari (or to the Ninth Circuit in habeas cases), and likewise can be letters to the Legislature to urge a change in a governing statute.
Justice Liu also said there is a role for dissents in the development of the law. He observed that someone from another court might find the dissent’s analysis of the issue persuasive. Dissents can also be used, he said, to plant the seeds for renewing the fight another day. (The late Chief Justice Roger Traynor, to whom Liu has sometimes been compared, occasionally employed dissents for this purpose.) But Justice Liu said such dissents are “few and far between.” He explained it is hazardous to dissent “for posterity” unless the judge wants to dissent often. (Justice Liu gave as examples Justice Blackmun’s opposition to the death penalty in his dissent from the denial of certiorari in Callins v. Collins (1994) 510 U.S. 1141, in which he said “[f]rom this day forward, I no longer shall tinker with the machinery of death,” as well as Justice Souter’s disagreement with the Supreme Court’s 11th Amendment immunity jurisprudence, set forth in his dissent in Seminole Tribe of Florida v. Florida (1996) 517 U.S. 44, and elsewhere.) Justice Liu emphasized that the dissenting judge must apply the majority opinion as precedent in the next case raising the same issue. Otherwise, the rule of law will be undermined.
Justice Liu added that collegiality is vital on an appellate court. He said the California Supreme Court’s conferences are extremely collegial, and are about trying to “get to yes.” The Court, he said, focuses on substance and a reader will not find much colorful language in its opinions because the justices intentionally keep the temperature of their debates low. To preserve this collegiality and to be an effective jurist, he said it is important that a dissenting judge place his colleagues’ opposing viewpoints in the best possible light before showing why they are mistaken. It is important, he explained, to assume all differences between majority and dissenting opinions are matters of reasonable disagreement. (In this spirit, when crafting the recent majority opinion in Sonic-Calabasas A., Inc. v. Moreno, S174475, he addressed the points made by the dissent in detail—he explained that he thought it important to treat the dissent with seriousness and respect.)
Finally, regarding the public attention that a dissenting opinion can garner, moderator Judge McKeown asked Justice Liu if he reads the blogs. He responded, “we try not to, but it’s unavoidable.”