In the late nineteenth and early twentieth centuries, the California Supreme Court employed legal staff — then called “commissioners” — quite differently from how it uses chambers attorneys and law clerks today. Controversy surrounding that former system led to creation of the Court of Appeal. The story unfolds like a Gilbert & Sullivan operetta:Among other things, this article helps with an episode in Roscoe Pound's career that puzzled me, his service as Commissioner of Appeals of the Nebraska Supreme Court from 1901 to 1903.
The Supreme Court, regularly traveling up and down the state hearing oral arguments in San Francisco, Sacramento, and Los Angeles, was chronically unable to keep pace with an increasing influx of direct appeals from numerous trial courts. After the Legislature directed the court to hire “commissioners” to help with its workload, a few thousand opinions authored and signed by the court’s new staff were published in the California Reports — and approximately 700 more were published, along with hundreds of other unreported Supreme Court opinions, in the reports of “California Unreported Cases.” There were public accusations of overreaching by the staff commissioners and abdication of judicial responsibility by the justices, culminating in major litigation by a disgruntled appellate lawyer — ultimately upholding the court’s authority to use legal staff. The hired staff commissioners and elected justices played musical chairs, trading places numerous times — appearing to confirm criticisms that they were inappropriately interchangeable. Meanwhile, and amidst growing calls for the state to create an intermediate appellate court, the Supreme Court remained backlogged even with help from the staff commissioners. Finally, after nearly two decades, there was an agreement to jettison the criticized staff commissioner system, and to forbid its use ever again — paving the way for the voters’ acceptance of a constitutional amendment to create the California Courts of Appeal. When the music stopped, all remaining staff commissioners became appellate court justices.