What an absolutely wonderful opinion by Justice Kruger.
The issue involves the distinction between prohibitory and mandatory injunctions. As Justice Kruger cogently and concisely) explains:
"In California, a long-established set of rules governs stays of injunctive orders — that is, orders to do something or to refrain from doing something. What rule applies depends on which kind of order it is. An injunction that requires no action and merely preserves the status quo (a so-called prohibitory injunction) ordinarily takes effect immediately, while an injunction requiring the defendant to take affirmative action (a so-called mandatory injunction) is automatically stayed during the pendency of the appeal. In this case we consider how these rules apply to an order requiring a local legislative body, the San Bernardino County Board of Supervisors, to remove and replace one of its members."
Justice Kruger's analysis persuasively explains (1) why prohibitory injunctions are traditionally treated differently than mandatory injunctions, and (2) the inherent difficulties in deciding whether any particular injunction is prohibitory versus mandatory. It's an incredibly well-written discourse on precedent and why the various cases come out the way they do -- alongside a concession that, in many of these cases, there are pretty good arguments for the thing coming out the other way.
But what's most impressive, in my mind, about Part II of the opinion is its subtle foreshadowing. As I was reading Part II of the opinion, I often said to myself: "Okay, this all makes sense, but it's also sort of silly. Why not just make whether there's a stay depend upon the respective equities, as opposed to some arcane and difficult-to-apply distinction between prohibitory versus mandatory injunctions?" An idea that Part II of the opinion never actually floats, but that naturally arises in the reader anyway.
At which point, Part III of the opinion says precisely that. The unanimous opinion says that while none of the parties have asked the Court to abolish the distinction, it might make sense to do so, and suggests that the Legislature might want to take up the issue. Perhaps moving to what some other states (and the federal system) have done: just make the whole thing discretionary.
I've always thought that the most powerful way of making an argument -- as well as the most difficult -- is to advance a position in a way that makes the recipient (whether a judge, jury, or whomever) believe that s/he's come up with the right answer on their own. That way you get maximum buy-in.
But even though that's always been my theoretical take on things, I'm seriously dubious of my ability to actually pull it off. Like, ever.
Yet I think Justice Kruger does it here. The structure of the opinion is masterful. It makes total sense, and subtly leads the reader to exactly where she wants 'em to be.
Nicely done.
