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Jonathan L. v. Superior Court (Cal. Ct. App. - Aug. 8, 2008)

By Shaun Martin

You've got to give Justice Croskey credit. It's rare enough that the Court of Appeal admits that it made a mistake. It's even rarer to go out of your way to admit your mistake. But that's exactly what happens here.

This is the homeschooling case, which I briefly discussed when it initially came out. The Court of Appeal's holding that (in the context of an allegedly abused child) California did not grant parents the right to homeschool one's child -- a conclusion that seemed to flow directly from the relevant statutory dictates -- resulted in a firestorm of controversy. And, as I predicted, after a petition for rehearing was filed, Justice Croskey promptly went to work on amending the opinion.

After the petition for rehearing was filed, he could have simply dismissed the appeal as moot, as the dependency proceedings here had by that time been dismissed. But he didn't do that. He could also have merely limited his holding to state that regardless of whether there was a right to homeschooling, that right doesn't preclude the state from ordering public schooling of an abused child. Which is a conclusion that he not only reaches, and that effectively resolves by itself the present case, but is also, in my mind, exactly right.

But he doesn't do that either. He instead confronts head on the central issue -- the one that had generated so much controversy -- and holds that, in fact, his prior opinion was wrong. That there is a right to homeschool one's child, at least as a matter of pratice (even if the statutes appear to go the other way). Contrary to what he had previously held. And goes to great lengths, in an opinion that explores the subject in great depth and sophistication, to explain why that's the case.

Now, you can take this reversal in one of two ways. First, you could view it as the product of a good faith change of mind in light of additional information that didn't exist when Justice Croskey wrote the initial opinion, combined with an ability and willingness to be forthright and honest in changing one's mind and admitting when you were initially wrong. Alternately, you could view it as a cynical attempt to reverse one's self in light of controversy -- including from the Governator himself -- and to pander to that controversy with a keen recognition that justices on the Court of Appeal are subject to periodic retention elections.

Personally, I'm strongly of the former view. But I gotta admit that even the most neutral and well-intentioned person is probably at least dimly aware of the realities of the latter.

Regardless, I think that this is an admirable opinion. And I applaud both Justice Croskey as well as the rest of the panel.

Full post as published by California Appellate Report on August 08, 2008 (boomark / email).