by Justice William W. Bedsworth
I am the longest serving justice in the history of the Fourth District Court of Appeal, Division Three. I love saying that because it sounds so impressive. And it might be more impressive if the court’s history was longer than an amateur performance of Rigoletto.
Our court was established in 1983. It’s only as old as the internet and mobile phones. You’ve probably driven cars that pre-dated our court. So my “historic” longevity does not quite get me a spot next to Elizabeth II or Willie Nelson.1
The California Court of Appeal goes back to 1905. But our particular part of it, which serves only our county, is a much more recent creation. And that creation is a tale as suited to Quentin Tarantino as to Erwin Chemerinsky.
When I started my career as an appellate lawyer, back in the seventies, our court of appeal was in San Bernardino. You had to drive forty or fifty miles out to Orange Show Road to argue your case in the Fourth District, Division Two.
Orange County’s legislative delegation thought that was too far. But Orange County’s legislative delegation was almost entirely Republican, and they were making their arguments for the creation of a new division of the court for our county to a very Democratic state legislature. I’ve always envisioned the conversation this way:
Orange County Legislator: “We’ve got over two million people, we’re the second largest county in the state, and we have more appeals than any other county in the Fourth District. We need an appellate court.”
Willie Brown (Assembly Speaker): “Wow, two million people! Good for you! That’s impressive. Come back when you’re a Democrat, and we’ll talk.”
They got nowhere.2
Then, late in Jerry Brown’s first eight years as governor, a light bulb went on over his head. He realized: “They’re gonna get a court down there sooner or later. I’m leaving in 1982. Let’s give them their court of appeal now and let ME appoint the justices.”
The result was role reversal. Now the Democrats wanted Orange County to get a court before Brown left, and the Republicans were fighting it. Republicans began dragging their feet, Democrats stomped on the gas pedal. The result was controversial 1982 legislation that created eighteen new appellate judgeships, including a new court in Santa Ana, a new Los Angeles division located in Ventura, and a new court in San Jose.
It passed by the narrowest of margins. Eighteen appellate court judgeships was a huge bonanza and both parties wanted their governor to make those appointments. Some hard decisions had to be made. Individual legislators had to balance what their constituencies were getting out of the new courts against what their party wanted. The creation of eighteen new judgeships statewide—and the uncertainty of a closely contested gubernatorial race in the offing—provided just enough incentive to get the bill passed.
But the fight was far from over. In order to make the bill tolerable to NorCal Democrats, who did not want to give Orange County—the Gibraltar of the Republican Party—a court, its sponsors had included a provision that no public monies would be spent on the new Santa Ana court’s equipment or library; those would be paid for with private donations.3 That made it possible for some Democrats to say, “Yeah. We’re giving them a court, but only because it’s practically free.” Nonetheless, a taxpayers’ group filed suit in Sacramento contending the bill was unconstitutional, hoping to delay things until after the ’82 election.
Here’s how their theory was couched. The bill creating the new courts was passed in September of 1981 and provided it took effect—including the new justices part—in January 1982. This is significant because the state runs on a July 1-June 30 fiscal year. The budget for fiscal 1981 had already been passed when the legislation creating the courts passed and, as plaintiffs pointed out, it included no funds for Orange County justices. That meant there was no money to pay for them. Since it was not covered by the budget, any funding of our court would require new appropriations, and those required a 2/3 vote. Since the legislation was not passed by a 2/3 majority, it was unconstitutional and void. The lawsuit put everything on hold.
In February of 1982, a Superior Court judge in Sacramento agreed the bill was unconstitutional and ordered the governor not to appoint any judges. The governor sought a writ of mandate in the Supreme Court. The Supreme Court took it as an emergency writ, bypassing the appellate courts. That action became Brown v. Superior Court, 33 Cal. 3d 242 (1982).
Four justices of the Supreme Court recused themselves from the Brown case: Mosk, Kaus, Broussard, and Chief Justice Bird. I do not know why.
Four appellate court justices were chosen to replace them. I do not know how.
I know it was not done by the present system of alphabetical listing, and it was not done by seniority or preference for presiding justices. But somehow four appellate court justices were chosen to hear the case along with the three remaining Supreme Court justices.
The newly-constituted ad hoc Supreme Court reversed the trial court and upheld the legislation. The majority were three Jerry Brown appointees, and Gerald K. Brown, from San Diego, who was not only an appointment by Jerry’s father Edmund G. “Pat” Brown, but a member of the Fourth District Division One—whose workload would be reduced by the new court—and therefore kind of a homer. The dissent were three Reagan appointees.
The decision was handed down on November 1, 1982. On November 2, Republican George Deukmejian was elected governor. Now Republicans really had a reason to keep fighting. Their guy would get to make the appointments in Santa Ana if they could stretch this out. They hired new counsel, petitioned for a re-hearing, and asked for time for new counsel to prepare.
This was brilliant. It was mid-November; if they’d gotten just two weeks for counsel to prepare and then set the hearing in December, nothing the Supreme Court did would be final for thirty days and by that time Brown would be out and Deukmejian would be in. The Republicans figured they’d snatched victory from the jaws of a packed court.
Not quite. They filed their request for a rehearing on the last day possible, November 17. On November 18, by another 4-3 vote, the Supreme Court denied the request to substitute new counsel, denied the request for an extension of time, and denied the petition for re-hearing. And they made those denials “effective forthwith.” Justice Richardson’s dissent to this ruling was so scathing that Justice Reynoso wrote a RESPONSE to it—something I believe to be unique in the annals of Supreme Court practice.
So Jerry Brown got to appoint the first four justices to Division Three. Almost as he walked out the door, he appointed—to no one’s surprise—the four youngest liberals he could find: Jack Trotter, 48; Tom Crosby, 42; Sheila Sonenshine, 38; and Ed Wallin, 40.4
His strategy worked brilliantly. Except for Trotter—who decided he’d rather own the state than work for it and so left in 1987 to help found JAMS—they all stayed 13-17 years. Brown’s vision for the future of Orange County worked out perfectly.
Of course, to get that far, they had to get through the Commission on Judicial Appointments. This is a three-member commission that must approve gubernatorial appointments at the appellate level. It is made up of the Chief Justice, the senior presiding justice of the district affected, and the Attorney General.
And the Attorney General was Governor-elect George Deukmejian. All four appointments were approved by a 2-1 vote, Attorney General Deukmejian voting no.
But we’re not done with birthing pains yet. Remember, there was no funding in the legislation for the Orange County court. When the wonderful old red sandstone courthouse on Santa Ana Blvd. couldn’t pass earthquake muster, there was no place to house it.
The first meeting of Division Three’s justices was held in Jack Trotter’s kitchen. Honest. Their first oral arguments were in the Santa Ana City Council chambers.
Eventually, funding came through and the court was moved into the Sun West Bank building at 600 W. Santa Ana Blvd. I had the honor of having a case on which I represented the appellant State of California as part of their very first session of oral arguments at that location. I was thirty seconds into my prepared remarks when my future colleague Justice Wallin asked me a question not raised in the briefing: “Mr. Bedsworth, is this issue even appealable?”
My heart sank. In doing so, it apparently bumped into my stomach because I felt a wave of nausea. I said the only thing I could say. “I don’t know, your Honor. Obviously, I thought it was.”5
The court stayed in the bank building for five years. But one day, the peripatetic Justice Crosby’s noon walk took him to 925 N. Spurgeon Street, where they were building a small office building. Tom got to talking to the building’s owner, and they decided it would make a nice courthouse. That’s how we ended up in what the Los Angeles Times mistakenly took to be a “converted Victorian home” in Santa Ana.
We rented that lovely space from 1989 to 2008, but we outgrew it as we gradually increased to eight justices. Collegial decision-making is better face-to-face. Tone of voice and body language can go a long way toward softening differences of opinion, and rather than have us housed in two buildings, the state built our present home.
If you’re an appellate lawyer, as I was, this is heaven. We have lovely quarters, a spectacular staff of attorneys who are not recent law-school graduates but of seasoned practitioners who would gravitate to academia if our job wasn’t available. And I get to work with wonderful colleagues, people who really care about the court and its work. They are committed to following the law and do not let their ego or their own view of orthodoxy get in the way.
I’ve been trying to leave this place for years, but I love it too much. They may have to take me out in a wheelbarrow.
BEDS NOTES
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at william.bedsworth@jud.ca.gov.