It turns out that Justice Goodwin Liu’s statement dissenting from the denial of a petition for review two weeks ago wasn’t the first one ever in California Supreme Court history, as we theorized at the time. But, as far as we can tell, it’s the first one in over 50 years. We have found five dissenting opinions from the denial of a hearing — now called review — from 1917 to 1958. (California did not have an intermediate appellate court until 1905.)
The question now is: how available will Justice Liu’s dissent be? Possibly not very. According to a court spokesperson, under current practice, the dissent will be noted in the court’s minutes, which appear in the official reports advance sheets but not in the bound volumes. It can also be viewed on the court’s online docket for the case, In re Joseph H. But court minutes and online dockets are rather obscure and not conducive to computer searches. Also, the dissenting statement is not available on Westlaw, which means that it will be less accessible than the most routine unpublished Court of Appeal opinion. And, if the dissenting statement is not officially published, rule 8.1115(a) makes it questionable whether it is even citeable to or by a California court.
Justice Liu’s dissent — and any future separate statements concerning the denial of a petition for review — deserve better. Dissenting opinions in general are important. They “speak[ ] to the rest of the court, to courts in other places, to higher courts, to Congress, to future generations.” (Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings (1995) 62 U. of Chi. L.Rev. 1371, 1412.) They can also speak to the appellate bar, giving encouragement to raise an issue again in future petitions for review. Without publication, however, a dissent’s speech is muffled.
There is precedent for publishing dissents from the denial of review. The U.S. Supreme Court does it, sometimes memorably. (See, e.g., Callins v. Collins (1994) 510 U.S. 1143, 1145 [114 S.Ct. 1127, 127 L.Ed.2d 435] (Blackmun, J.) [“From this day forward, I no longer shall tinker with the machinery of death”].) So has the California Supreme Court; that’s how we found the five prior dissents.
One of those five earlier dissents can serve as Exhibit A in favor of a policy of publication. In People v. Rochin, the Court of Appeal rejected a defendant’s challenge to the admission of evidence. The Supreme Court denied a hearing, but Justices Jesse Carter and B. Rey Schauer filed detailed dissents, which are published following the Court of Appeal’s opinion. (People v. Rochin (1950) 101 Cal.App.2d 140, 143-150.) The U.S. Supreme Court granted certiorari and reversed in a landmark opinion that quoted from Justice Schauer’s dissent. (Rochin v. California (1952) 342 U.S. 165, 167 [obtaining drugs from defendant by forcible stomach pumping violated Due Process].)
Not publishing dissents from denials of review might be current policy, but there’s good reason to change the policy or, more accurately, to change the policy back to what it was many years ago. The court’s spokesperson said that “the court will in the coming weeks consider whether to adopt a policy under which such future matters might be published.” During that consideration, the court might want to remember Rochin.