People v. Perrone C. , 26 Cal. 3d 49 ( 1979 )

BIRD, C. J., Concurring and Dissenting.

I concur in the opinion of the court. I write separately for the purpose of raising a strong objection to the growing practice of issuing “by the court” opinions.

It is sound policy for this court to keep the use of such opinions to a. minimum.¹ The important issues that come before us should not be decided anonymously. The litigants, their counsel, and the public have the right to know whose words they are reading. “By the court” opinions frustrate the exercise of that right. Further, they run counter to the respected principles of openness in government and personal accountability of public officials. A justice of this court simply should not have the prerogative of undercutting such fundamental democratic concepts.

The practice of issuing “by the court” opinions is subject to the abuse of overuse because there are no clearly established limits for its proper exercise. I appreciate the desirability of giving full recognition to Court of Appeal justices whose opinions are adopted by this court. However, neither judicial etiquette nor judicial ethics decree that such recognition is less than adequate if not conferred anonymously. That observation becomes even more compelling where, as here, the court has augmented its adoption of the Court of Appeal opinion with some significant discussion of its own.

When a balancing test is applied, the dangers of anonymity and overuse clearly outweigh any perceived benefits. I would urge that the balance be struck in favor of openness and that “by the court” opinions be reserved, with few exceptions, for attorney and judicial disciplinary proceedings.

1 I appreciate that there are valid reasons for issuing “by the court” opinions in attorney and judicial disciplinary proceedings. However, outside of the disciplinary context, those reasons do not apply.