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celebration of the 150th anniversary of the supreme court

February 8, 2000

Sacramento, California


The Supreme Court of California convened in its courtroom in the B.F. Hastings Building, 1002 2nd Street, Old Sacramento, on February 8, 2000 at 9:00 a.m.

Present: Chief Justice Ronald M. George, presiding, and Associate Justices Mosk, Kennard, Baxter, Werdegar, Chin, and Brown.

Officers present: Frederick K. Ohlrich, Clerk; Brian Clearwater, Calendar Coordinator; and Harry Kinney, Supervising Marshal.


(this transcript has been spread across three pages for viewing convenience)


Page 1:


CHIEF JUSTICE GEORGE:

On behalf of the entire court, welcome to this special session commemorating the sesquicentennial of the California Supreme Court. Before oral argument this morning, we shall hear from four speakers as part of the commemoration of the court’s 150th anniversary.

I first want to thank the California Department of Parks and Recreation for the substantial effort they have undertaken to prepare this building and courtroom for this event. To the best of our knowledge, this room appears very much as it did when it first was used as a courtroom in February 1855.

It looked very different only two months ago — among other things, there was substantial water damage throughout.

It is hoped that eventually the adjoining chambers, as well as this courtroom, will be restored to a condition that will allow regular tours and other commemorative uses of the site. In the meantime, however, we again express our appreciation to the state Department of Parks and Recreation for its beautiful renovation of this courtroom, enabling its history to be preserved for the enjoyment and edification of the public.

Now I should like to turn to this morning’s program. The first speaker is Mr. Jake Dear, a senior staff attorney on my staff, who has served the Supreme Court for some 16 years. He began as an annual law clerk for Justice Mosk, and then worked for Justice Joseph Grodin. After that, he was a senior staff attorney for former Chief Justice Lucas, joining my staff when I became Chief Justice in 1996.

Jake’s real qualification for speaking to you today stems not from his work as an excellent staff attorney, but from a side interest he has developed since the Supreme Court returned to its historic home in the State Building 13 months ago. Let me first give you some background.

The court vacated its historic quarters in San Francisco rather abruptly after the October 1989 earthquake rendered the building uninhabitable. After spending time in an adjacent state facility, and moving to a private building in 1991, the court was able to return to a structure that had been fully renovated in keeping with its historic traditions.

In addition to obtaining and displaying artifacts from the Supreme Court’s past, our efforts focused on a unique project — obtaining photographs of historic courthouses from each of California’s 58 counties. It is, after all, in the individual county courts that cases ultimately heard by the Supreme Court are first filed and decided.

Collecting these portraits turned out to be surprisingly difficult. Requests to courts, chambers of commerce, local and state libraries, county historical societies, and others who might have a desired photograph somewhere on a back shelf, finally resulted in a wonderful display at the State Building of the varied locations in which California’s trial courts have held proceedings over the past 150 years.

This project also stirred interest in the Supreme Court’s own history. As we returned to our historic building, we began to wonder where the Supreme Court had sat during its almost one and a half centuries. As Jake Dear will describe, through a somewhat convoluted chain of events, the Supreme Court has been headquartered in San Francisco for most of its existence, rather than in our state capital, with the executive and legislative branches of state government. Jake began the task of searching for the locations occupied by the court from its inception, studying the available histories of the court, and discovered that these works all fell short in describing the court’s peregrinations, particularly in the second half of the 19th century.

We learned through this research that the court bounced back and forth between locations in Sacramento, San Francisco, and San Jose, moving some 22 times before finally settling down in the San Francisco Civic Center Complex last year. Jake uncovered six previously unknown locations through clever detective work, perseverance, and creative thinking. He reviewed old court records, visited the historical societies in San Francisco, corresponded with knowledgeable individuals in San Jose and Sacramento, visited the state’s archives here in Sacramento, scoured the photographic files of the San Francisco Public Library’s historical records room and the California Historical Society, reviewed city directories (the precursors to today’s telephone books), and generally dedicated an enormous amount of time and thought to tracking down not only every location, but photographs, and in some cases lithographs, of each site. I should mention that Levin, a staff attorney at the Third District Court of Appeal here in Sacramento, who is in the audience today, was of great assistance in this regard.

Along the way, Jake Dear also collected pictures of the commissioners of the court, who assisted the justices from 1885 to 1905, when the first three District Courts of Appeal were created, to ease the burden on the Supreme Court. In addition, a variety of newly discovered photographs and documents depicting the justices, the court, the City of San Francisco, and various historic events that affected the court, now are displayed in the court’s hallways. They join a preexisting gallery of historic photographs showing each individual justice of the court, dating back to Serranus Hastings, the first Chief Justice, up to the current members of the court.

One hundred and fifty years truly is not that long a time. As was noted at a recent celebration of Justice Mosk’s record tenure on the court, his more than thirty-five years of service spans almost one-quarter of the court’s history. The composition of the court today includes the 86th justice to serve on the court, Justice Mosk, and the 110th justice to serve, the most recent justice to join the court, Justice Brown—as well as the 27th Chief Justice.

The history of the court sometimes seems a bit tame today compared to the stories of duels and drink and vigilantes in its early days. But what is perhaps most remarkable is that despite frequent moves, constitutional changes, strong personalities, and even earthquakes, the work of the court has continued without a break. It is a testament to our predecessors that through the early and often turbulent days of California, they led the way in establishing the rule of law in our state, helping to create the framework of a strong and independent judiciary that serves the people of California today.

And now, I would like to turn to Jake Dear, who will give you some more detail about the court’s early development.




MR. JAKE DEAR:

Chief Justice and Associate Justices of the court: It is an honor to serve this court. And it is an honor to address you at this commemoration of the court’s sesquicentennial.

Some might maintain that the actual anniversary was a few weeks ago—150 years after the first three justices were elected by the Legislature in San Jose and sworn into office. And others might say that the actual anniversary is about four weeks from now, on March 4—the date on which the court first met as a quorum, an event that was memorialized in the first paragraph on the first page of the court’s first minute book.

Historians may quibble about the precise anniversary, just as people recently have quibbled about the starting date of the new millennium—but I prefer to take a middle ground approach: here we are in this historic courtroom, halfway between the two possible historic date markers, so let’s just split the difference and celebrate the anniversary today.

For the second half of its history to date, the California Supreme Court has been headquartered in San Francisco’s Civic Center. But that relative stability contrasts sharply with the court’s first 75 years, a period in which fire, flood, and politics forced the court to relocate 18 times—including at least two, and possibly three, moves into and out of this very courtroom and chambers. I will focus in these remarks primarily on this first half of the court’s history.

Early in 1850, the Legislature sent the court’s new clerk off to San Francisco to “rent a suitable room” and procure furniture and other essentials for the court’s first term. The Daily Alta California—the leading newspaper of the day—reported on February 27, 1850, that “Mr. Thorpe, [clerk of the court,] has arrived in town to perform the duties of his new office.” The next day, Thorpe went shopping; he purchased supplies, including “1 large Journal full bound,” “4 bottles red ink,” “1 bottle black ink,” “3 gross Gillett’s pens,” “1 Parallel Ruler,” “12 sheets blotting paper,” “2 Hydrostatic Inkstands,” and, of course, “24 sticks red tape.”

Three days later, Thorpe procured quarters at $1,000 for the month. Then, on Monday the 4th of March—six months before California became a state—the court met for the first time in the Graham House on Kearny Street at Pacific Avenue in San Francisco.

The Legislature directed the court to hold its terms in San Francisco through the end of 1851, and thereafter “at the seat of Government.” But it wasn’t clear where the seat of government was — San José, Vallejo, Benicia, Sacramento, and San Francisco all vied for the honor. So, succumbing to inertia, the court simply remained in San Francisco, but it didn’t stay long in its first quarters: the building—which had also become the site for San Francisco’s first City Hall—burned to the ground in one of numerous major fires that struck the city in the early 1850’s.

So the court moved, together with some key parts of city government, a few blocks down Kearny Street to the California Exchange building. A few doors away, at Portsmouth Square, stood the Jenny Lind Theater. By 1852, the theater had fallen on hard times and was for sale. (Perhaps this is because Jenny Lind, the famed Swedish singer for whom the theater was named, never made it out to San Francisco.) When the City of San Francisco tried to purchase the theater for use as city offices, taxpayers sued, claiming the purchase was illegal. After extensive litigation, this court held the purchase to be proper, and the city took possession of the theater.

Within a few months of the decision upholding the city’s purchase, the court moved—again with much of city government—into the refurbished theater. Presumably, the theater’s saloon, four billiard tables, and six bowling alleys were removed to make room for offices. The basic character of the neighborhood was little changed, however: next door remained the infamous El Dorado saloon, widely known as “a free-wheeling den of iniquity that catered to a not-altogether-reputable clientele.”

In 1854, the court abruptly packed up and moved to San Jose for about nine months — and then it just as abruptly packed up again and headed off to Sacramento, taking up quarters in this very site. Today’s next speaker, Lawrence Schei, will describe the circumstances surrounding these two and other related moves.

The court’s time at this site was certainly eventful, and even though not always decorous, it reflects the rough-and-ready nature of the period. Consider the story of the court’s seventh Reporter of Decisions, Harvey Lee, who worked in or around these premises in the late 1850’s.

Unlike his predecessors, Lee was appointed not by the court, but by the Legislature. The court was not very happy with this new arrangement, and there was some concern that Lee was not up to the job. Justice Steven Field later commented that Lee’s work was so defective that the judges sought to have the new law repealed and the appointing authority returned to the court. A former dean of Boalt Hall School of Law picked up the story in a 1926 article:

“This [led] to a bitter feeling on [Lee’s] part toward the judges, and in a conversation with Mr. Fairfax, the clerk of the court, [Lee] gave vent to it in violent rage. Fairfax resented the attack, an altercation ensued, and Lee, who carried a sword cane, drew his sword and ran it into Fairfax’s body, inflicting a serious wound in the chest just above the heart. A second wound, not so serious as the first, followed, and Fairfax drew his pistol as Lee raised his sword for a third thrust.”

“[Fairfax] was about to shoot [in self-defense], but, restrained by the thought of Lee’s wife and children, let the pistol drop.” Evidently, this was widely circulated news, and it was said that “All California rang with the story of this heroic act.” I’m hoping that our current reporter and our brand-new clerk/administrator, both of whom are, thankfully, appointed by and therefore accountable to the court, will kindly reenact this scene outside after the morning session.

This and similar anecdotes (including, for example, Supreme Court Justice David Terry’s near-lynching by San Francisco vigilantes, after he knifed one of them in the neck) illustrate the rather unrefined times in which the first justices found themselves. But it would be a mistake to assume that the court was, as a general matter, populated by trigger-happy frontiersmen. From the start, the vast majority of justices were peaceful, albeit colorful, men (of course, all men) of impressive education, vast experience, and highest intellect — and the opinions they produced soon commanded nationwide respect for the institution. Indeed, decisions by Steven Field and other justices of the times still often stand as leading examples on the points resolved.

But back to local history. In 1857, the court moved temporarily a few blocks from here. It returned to this site a couple years later, and remained, except perhaps during the great flood, until moving to the newly constructed capitol building.

In 1872, the Legislature passed a statute requiring that the justices and court personnel must “reside at and keep their offices in the City of Sacramento.” Perhaps this planted nonconformist ideas in the justices’ heads, because only two years later, the court began keeping offices at, and holding many of its regular sessions in, San Francisco, on Clay Street. Then in 1874, the Legislature validated the court’s practice, permitting the court to sit in San Francisco part of the year, so long as the local government paid for the court’s accommodations. Later, the Legislature specified that the court should also travel regularly to hold hearings in both Sacramento and Los Angeles as well — a practice that continues to this day.

The impetus for this movement of the court’s headquarters from Sacramento back to San Francisco is unclear, but it appears that weather, water, and whisky had a lot to do with it. When the delegates to the 1879 Constitutional Convention considered proposals to require the court to hear all sessions “at the Capital of the State” (meaning Sacramento), the relative merits of the Sacramento, Los Angeles, and San Francisco sites were strongly contested.

In favor of Sacramento it was argued that the court should be based at the seat of government, and that the main alternative, San Francisco, was prone to earthquakes. Opponents claimed that Sacramento had the highest death rate of any city of its size in the world, and its climate and whisky were bad.

Other delegates asserted that the court should at least regularly hold sessions at Los Angeles, because that city — described as a “great community composed of agriculturalists” — was bound to grow in size and stature, and was “about the only place in the State where you can get wine that is not adulterated.” But another delegate argued that “the climate down there is very hot, and a man soon gets lazy who lives in it. . . . And it would not be very long, if you have the Supreme Court down there, before you would see the Chief Justice, and . . . General Howard [a proponent of Los Angeles], walking arm in arm under huge Panama hats, hunting a cool place.” He summed up: “It will not do.”

Champions of San Francisco asserted that it was the center of commerce, and its weather was superior to that of Sacramento. One commented that if the court were based in Sacramento, “[t]he Judges will be seen some of these days coming out of the Court-room in a boat. . . .” Another asserted: “It is the hottest place outside of —_ the one down below that we read of. . . . If you put it in the Constitution that the Court shall sit . . . here in regular session all Summer, they will have to be regular salamanders.” But this testimony was impeached by a strong suggestion of bias. A Sacramento delegate stated: “Now, my colleague, Senator Herrington, . . . vilifies Sacramento to an extent which I think is not warranted. I can account for that. The gentleman has made some effort to get into good society here, and has been barred out. . . . I think what hurts my colleague, is the fact that the ladies of Sacramento have failed to appreciate him, and notice him.”

Ultimately, the drafters of the new Constitution left open the question of where the court should sit, and the court continued to use Clay Street in San Francisco as its headquarters, and continued to hear oral argument at that site as well as in Sacramento and Los Angeles.

In its first two decades after returning to San Francisco, the court was based at five different sites, mostly in the heart of the city. The turn of the 19th century found the court located in the Emporium Building on Market Street (we suspect, but have not verified, that it was situated in the women’s shoes department). It was still located there in April of 1906, when the great earthquake and fire gutted all but the shell of that structure. The court moved immediately to temporary quarters, and began the daunting task of rebuilding. Our own library records show that the court accepted an offer from a legal publisher to replace its numerous library books at “special fire prices” calculated on “the basis of their cost . . . plus a commission of 10 percent.”

After relocating twice more, the court finally found a permanent home in 1923, when it moved for the first time into its present quarters at 350 McAllister Street.

Since the early 1940’s, the court’s chambers on McAllister Street—subsequently named the Earl Warren State Building—have been home to some of the greatest justices to serve on the court. Justice, and soon Chief Justice, Phil Gibson served from 1939 until 1964; he was renowned for modernizing the courts. Justice, and later Chief Justice, Roger Traynor served from 1940 through 1970—and became one of the most respected and followed jurists in the history of the United States. Justice Raymond Peters, known for his sharp mind, served 14 years on the court after first dedicating more than 20 years to the Court of Appeal. Justice Mathew Tobriner, another intellectual in the mold of Traynor, served two decades, from 1962 to 1982. And just recently, we have celebrated the longevity record of Justice Stanley Mosk, who served with the last three of these justices, and who, after more than 35 years, still graces this court with his wit and wisdom—may that continue for a long time.

In October 1989, the venerable Earl Warren Building suffered substantial damage in the Loma Prieta earthquake. Stairwell walls buckled, bookcases pitched out their heavy contents, and a large bronze ceiling light fixture crashed to the floor right next to the Chief Justice’s desk. The court moved immediately into provisional quarters, and then to other temporary quarters, while it waited for renovation of the Earl Warren Building. In early 1999, it finally returned to the Earl Warren site, moving for at least the 22d time in its 150-year history.

Which brings us to today. From its rather humble and fitful beginnings, the California Supreme Court has grown to preside over the largest judicial system on earth—it is far larger than the federal judiciary, or that of any country—and it has become one of the most respected and influential courts in the nation.

This well-traveled court is now firmly rooted and serves the people from its historic and beautifully renovated quarters in San Francisco. But it seems especially appropriate that we celebrate the court’s sesquicentennial here, in the oldest existing court site, where we can see, touch, and indeed smell the court’s past, and where we can imagine, if not feel, the presence of the real people who worked in and for this court in its infancy, some 15 decades ago.

Thank you.


(For further detail and sources, together with photographs and drawings of the described sites, see Dear and Levin, Historic Sites of the California Supreme Court, 4 California Supreme Court Historical Society Yearbook (1998-1999) - and on this website at "Historic Sites"


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Celebration of the 150th Anniversary of the Supreme Court (complete .PDF file)





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