Pioneering California

Although state courts once dominated U.S. law, the growth of the U.S.

as a nation has inevitably cast federal courts as the prime interpreters of an ever-expanding U.S. Constitution. Many overruled state judges resent the trend; many overworked federal judges yearn to curb it. But now that almost every lawsuit is potentially a federal case, how can state courts regain their power and influence?

One practical answer is supplied by the remarkable record of the seven-judge California Supreme Court. The nation's most aggressive and progressive state court is no respecter of dusty precedents. It has tirelessly renewed the law in everything from criminal justice to product liability--and often it has been years ahead of the U.S. Supreme Court.

Founded in the gold-rush days of 1849, the California court seemed destined to become the nation's zaniest tribunal. Justice David C. Terry (1855-59), for example, was a ferocious Mississippian who began honing his bowie knife on assorted victims as a 13-year-old soldier in the Texas War of Independence. After getting elected to the California court on the Know-Nothing ticket, Terry was jailed and convicted for stabbing a San Francisco vigilante. Not only was Terry freed, he became chief justice in 1857 and promptly killed U.S. Senator David C. Broderick in California's most famous duel.*

No. I State Judge. The court is still no ivory tower--and hardly can be in a lavishly litigious state with a booming population that in 25 years has tripled to 18.6 million. In 1965 the court considered 2,553 petitions, held year-round hearings on 165 cases. This year's cases range from conscientious objection (is it an "infamous crime"?), to whether Negroes are correct in charging that California violated the 14th Amendment in 1964 by voting to permit private-property owners to refuse to sell or rent to anyone they do not wish to do business with (TIME, Nov. 5). Last week the court fielded an equally hot issue by approving a reapportionment plan that, in effect, gives Southern California control of the state legislature.

Like federal courts, California's are now centrally administered and answerable to the state's top court. Under former Chief Justice Phil S. Gibson, who retired last year at 72, the state banished overlapping minor courts and nonlawyer judges. In 1960 the voters approved Gibson's pioneering plan to ease aging or incompetent judges out of office (TIME, March 26). But sound organization is only half the story. Equally vital is the quality of California's high court, which currently includes such able men as Justices Mathew O. Tobririer, Paul Peek and Raymond E. Peters. Most important of all is the brilliant legal mind of Gibson's successor, Chief Justice Roger J. Traynor, 65. Traynor, says Illinois' own distinguished Justice Walter V. Schaefer, is "the nation's No. 1 state judge."

As a Berkeley law student, Traynor simultaneously taught political science and edited the California Law Review. He graduated in 1927 with both Ph.D. and J.D. degrees. As a young tax expert, he drafted many of California's revenue laws while teaching at his alma mater; he served as deputy state attorney general and became the state's first sales-tax administrator. In addition, he helped draft the new Federal Revenue Act of 1938.

Appointed to the California Supreme Court at 40, Traynor has since written 775 opinions on every imaginable subject; many of his 156 dissents later became U.S. Supreme Court doctrine. Traynor is aptly called "a law professor's judge"--he writes not only acute, balanced opinions but reams of scholarly law-review articles as well. Most important, he is undaunted by the cautious rule of stare decisis (adhere to precedents). Always he asks: what is the fair, practical policy for today?

Needling Washington. Unlike most state courts, Traynor's is quite willing to reinterpret the federal Constitution when the U.S. Supreme Court appears slow to do so. Speaking for his court in 1948, for example, Traynor boldly ignored an 1883 Supreme Court ruling and tossed out California's antimiscegenation law on the ground that it violated the 14th-Amendment right to equal protection of the laws. Not until 1964 did the Supreme Court reach the same result in McLaughlin v. Florida, and even then it did not quite overrule the 1883 precedent. But virtually all experts predict that Traynor's approach will ultimately prevail.

With Traynor heartily concurring, in 1963 Chief Justice Gibson took California far beyond the Supreme Court's current doctrine that Northern school boards may or may not remedy de facto segregation, as they please. In a still unique state-court reading of the 14th Amendment, Gibson ruled in Jackson v. Pasadena that California school boards can no longer merely refrain from discrimination. "It is up to the school boards," he said, "to eliminate racial imbalance in schools regardless of its cause." In 1963 Traynor spoke for his court in issuing another U.S. precedent: the idea that even non-negligent manufacturers now have "strict liability" to consumers injured by their defective products (TIME, Aug. 6).

True Purposes. For decades, most states so neglected criminal justice that in recent years the U.S. Supreme Court has intervened with a vengeance. Predictably, California is a bright exception. Often in far-reaching opinions by Traynor, the California court has been among the first to modernize the legal definition of criminal insanity (1953), to hold that an indigent whose court-appointed lawyer has botched his job is entitled to a new trial (1963), to ring new safeguards around the use of co-defendant confessions at joint trials (1965), and to defy the odd Supreme Court rule that police may not seize "mere" evidence, such as incriminating letters, unless it is also the loot or tools of a crime, or the means of escape.

In 1956 Traynor gave California another first when he ruled in People v. Riser that prosecutors ordinarily must allow defendants to "discover" (examine) evidence to be used against them at the trial. Characteristically, Traynor went on to enlarge the discovery privileges of prosecutors in 1961 (Jones v. Superior Court). Today, California probably tops all other states in liberal discovery rules. To deny such access, says Traynor, is "to lose sight of the true purpose of a criminal trial, to discover the facts."

In 1942 Traynor held for the court that California courts need not follow the federal "exclusionary rule" that bars evidence gathered in violation of the Fourth Amendment guarantee against "unreasonable searches and seizures."

In 1955, however, Traynor forthrightly overruled himself in People v. Cahan, as the court imposed the exclusionary rule because "other remedies have completely failed" to stop lawless police action. Six years later, the Supreme Court itself followed Cahan and applied the rule to all American criminal courts (Mapp v. Ohio).

Significantly, it was Traynor who also eased the furor over Mapp by arguing in 1961 that the exclusionary rule should not be made retroactive. Its purpose, he noted, was to deter lawless police action from then on--not to help free prisoners who had been convicted on previously admissible evidence. Last year the Supreme Court followed precisely that reasoning in Linkletter v. Louisiana, which ruled out Mapp's retroactivity.

Key Essential. In the same pioneering vein, Traynor suggested in 1961 that a suspect is entitled to a lawyer as soon as the police are prepared to charge him. In 1964 the Supreme Court followed that path in Escobedo v. Illinois, the case that police now fear will eliminate all confessions. Indeed, California's Justice Mathew Tobriner amplified Escobedo last January by holding for the court in People v. Dorado that police failure to advise a suspect of his rights to counsel and to silence voids his confession, even though he may not have asked for a lawyer. Last spring the Supreme Court let Dorado stand by refusing to review it. Meanwhile, in two other cases, the California court has ruled against making Escobedo retroactive.

Not surprisingly, some California prosecutors and police chiefs take an exceedingly dim view of Traynor's court. "All this emphasis on individual rights has made the work of law enforcement more difficult and costly," complains Alameda (Oakland) County's veteran District Attorney Frank Coakley. By contrast, California Bar Association President John Sutro is a Traynor admirer. "You and I would like to see all crooks in jail," says Sutro. "So would Chief Justice Traynor. But this is a government of law not men, and the maintenance of that essential is the difference between our government and tyranny." It is, moreover, what makes a state court vital to U.S. law. "The real danger to law is not that judges may take off onward and upward," says Chief Justice Traynor, "but that all too many of them have long since stopped dead in the tracks of their predecessors."

* Terry then resigned in favor of Chief Justice Stephen J. Field, later California's first U.S. Supreme Court Justice. After the Civil War, in which he became a Confederate general, Terry represented the notorious Sarah Althea Hill in her battles to prove that she had been the wife rather than the paramour of a Nevada millionaire. In 1888, after Terry himself married Sarah, the case came before Supreme Court Justice Field, who was also serving as California's U.S. circuit judge. When Field ruled against Sarah, Terry floored a courtroom bailiff, served six months for contempt. After his release, he attacked Field on a California train and was about to draw his bowie knife when Field's bodyguard shot and killed him. Field went on to serve the longest term in Supreme Court history (34 years, nine months). Sarah spent the next 45 years in an insane asylum.

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