Disorder in the Court Comes Out on the Record

Justice Janice Rogers Brown’s sharp dissents on the California Supreme Court have frequently vexed her colleagues, but never has the tension been more public than in People vs. Mar.

The ruling earlier this year limited the use of stun belts -- devices that some criminal defendants have been forced to wear in court so they can be zapped with a jolt of electricity if they disrupt proceedings.

The significance of the ruling attracted wide news coverage, but legal scholars and court analysts were more intrigued by the fine print. Dueling footnotes by Brown, the sole dissenter, and Chief Justice Ronald M. George, who wrote the opinion, provided a rare glimpse into behind-the-scene strains within the court.

Brown’s dissent belittled the court’s research into stun belts and, in particular, its reliance on student comment in a law review. The student work came from St. Mary’s University School of Law, and Brown made fun in a footnote of what she considered the school’s obscurity.

“For those who may not have heard of it,” the footnote read, “St. Mary’s University School of Law is located in San Antonio, Texas.” In the following days, a newspaper ran an article mentioning that U.S. Chief Justice William H. Rehnquist had taught at the school’s overseas campus. Other U.S. Supreme Court jurists also have lectured there.

Someone must have pointed this out to Brown.

Court opinions are not final for at least 30 days, and Brown later modified her dissent by taking out the sarcastic reference to St. Mary’s. She did not yield on her criticism of the majority’s use of student research, however. In another modification, she put italics around the phrase “student comment” in a sentence that criticized the court’s research.

George fired back with a modification of his own. “Of course,” he wrote in a footnote, “it is customary for the opinions of appellate courts to include citations to the published work of student authors.”

It is so customary that Brown herself has done it, he observed. Brown cited “a student Comment in Gonzaga Law Review, a student Comment in the University of Richmond Law Review and a student Note in the California Law Review” in a previous court opinion she wrote, the footnote reported.

“When tension under the surface bubbles up like this, it is so noticeable because it is so out of character of the way courts usually conduct themselves,” said University of Santa Clara law professor Gerald Uelmen.

Convention requires that courts maintain a facade of collegiality, and judges on appellate panels generally insist that they respect each other even if they disagree. The exchange of footnotes in the Mar case appears more personal than collegial.

“It tells us there is some real friction between the chief and Justice Brown,” Uelmen said. Brown’s “gratuitous insult in her dissent ... is the kind of thing that can really get under the skin of the target,” the professor said.

Justices on the state high court were reluctant to discuss the exchange. One justice said tensions on the court should not be made public, and another justice described the footnote battle as “unusual.”

George’s opinion overturned the conviction of a man who had been forced to wear a stun belt while testifying. The ruling made it difficult, if not impossible, for judges to order defendants to wear the devices.

Brown would have upheld the conviction without any comment on the potential dangers of stun belts.

The footnote about St. Mary’s was not the only comment Brown made in her dissent that derided her colleagues.

She also accused her colleagues of “rushing to judgment after conducting an embarrassing Google.com search” and implied that a high school student could have done a better job than the chief justice in preparing the majority ruling.

“A high school student who turned in a research paper with a bibliography like that would be unlikely to get high marks for either the distinction or balance of the authorities cited,” she wrote.

Former Gov. Pete Wilson appointed George and Brown, and both are Republican. But the justices are frequently out of sync on the court.

George is a moderate who is sensitive to the court’s public image and the practical effects of the court’s rulings. He is willing to stick his neck out and rule in a way that might bring him criticism, but he tempers his legal opinions to defuse controversy.

Brown, on the other hand, is often single-minded in expressing her views. Quiet and reserved in person, she can deploy withering prose in trying to discredit the reasoning of the majority. She also is one of the most conservative members of the court on civil cases.

“Justice Brown has an in-your-face style that the chief justice and probably the other justices understandably don’t like,” said Stephen Barnett, a professor at UC Berkeley’s law school. “Sometimes she does go a little far, but I think her approach is refreshing.”

He said the other justices should not take her criticism “personally.”

But Clark Kelso, a professor at McGeorge School of Law, described Brown’s dissent in Mar as “over the top.”

“You can disagree with the majority without having language that suggests somehow that the majority lacks intelligence,” Kelso said.

The case was by no means the first in which George and Brown have sparred. Brown wasn’t on the court long when George asked her to tone down her dissents, a request she rebuffed, court sources say.

In a concurring opinion two years ago, George took Brown to task for the way she had written a majority ruling that overturned an affirmative action program.

Although he agreed with her on the ruling, he accused her of being “less than evenhanded” and of creating “a serious distortion of history” in her statements about affirmative action .

Brown is a loner on the court. Some of the other justices are reluctant to sign her dissents because of their tone, sources said, and she and George communicate by memo.

Kelso said he thought it was appropriate that George had defended the use of student research in response to Brown’s “overkill” dissent, but he added that the court is poorly served by such exchanges.

“The pages of judicial reports are not a place to vent spleen and not a place to highlight personal differences,” Kelso said. “It is a place to say what the law is and how the law should develop.”