LUCAS, C.J.

I dissent. The litigants in this case have a right of appeal under California Constitution, article VI, section 11, as similar litigants in "public records" cases have had for over 100 years.

We granted review to decide whether the Legislature may, under the Public Records Act, Government Code section 6250 et seq. (PRA or Act), section 6259, subdivision (c) (section 6259(c)), bar review on appeal of superior court orders granting or denying disclosure of records, and restrict review to that available by discretionary writ. The lead and concurring opinions erroneously conclude that the Legislature may do so.

To resolve the question posed, we must construe California Constitution, article VI, section 11 (article VI, section 11), which vests the Courts of Appeal and this court with "appellate jurisdiction." The lead opinion approaches this task in inconsistent fashion.

At times, it views article VI, section 11 as merely defining the powers of the courts, and not as establishing any separate substantive right of litigants. In this respect, the lead opinion suggests the Legislature has authority to foreclose a right to review on the merits and a written opinion — or indeed, any review — in any litigated matter, criminal or civil.

For the most part, however, the lead opinion concedes that the constitutional grant of appellate jurisdiction was intended to confer on litigants "a right to some effective procedural vehicle by which to invoke the constitutionally conferred appellate jurisdiction" (lead opn., ante, at p. 104) — e.g., a right to petition the court to exercise its discretion to review the underlying dispute. But, the lead opinion concludes, article VI, section 11 affords litigants no right to "direct appeal" — i.e., a right to review on the merits and a written opinion "with reasons stated" (Cal. Const., art. VI, § 14). Instead, the lead opinion suggests, the right that article VI, section 11 confers on litigants is very limited: It extends only the right to ask a court to exercise its discretion to hear the dispute; it does not include a right to obtain review on the merits, or a right to a written opinion.

Ultimately, the lead opinion concedes that article VI, section 11 precludes the Legislature from substantially impairing the constitutional powers of the Courts of Appeal or this court. (Lead opn., ante, at p. 110.) That, however, is not the claim in this case. Plaintiffs assert section 6259(c) unconstitutionally impairs their right to review on the merits and a written opinion.

The lead opinion conspicuously, and inexplicably, fails to address the latter aspect of plaintiffs' constitutional claim, i.e., whether they have a right to a written opinion. It impliedly rejects the former aspect of plaintiffs' claim (their right to review on the merits) by asserting that, independently from the Constitution, plaintiffs in this case have a right, under general principles of writ jurisprudence, to merit review whenever, as here, the Legislature establishes discretionary writ review as the sole means of review. (Lead opn., ante, at pp. 113-114.)

This belated and grudging acknowledgment that PRA litigants are entitled to half of what the Constitution grants them of right is both revealing and unpersuasive. The lead opinion cites no authority for its conclusion that PRA litigants are entitled to merit review by discretionary writ — and indeed, no litigant in this matter (nor any party in prior cases presenting the identical issue to this court) has so argued — because the legislative history of section 6259(c) forecloses the lead opinion's theory. That history shows the Legislature did not intend to guarantee review on the merits, but instead contemplated that the Court of Appeals would retain discretion to deny such writs without adjudicating the merits of a claim. In light of this history, if we are to conclude that merit review is guaranteed under section 6259(c), we may do so only on the basis that the section must be read to guarantee merit review in order to preserve the statute's constitutionality. The lead opinion, however, completely refuses to acknowledge the constitutional basis for its conclusion, because to do so would fatally undermine its premise that article VI, section 11, confers on litigants neither a substantive right of merit review, nor a right to a written opinion.

We need not engage in such machinations in order to acknowledge a right to merit review, and we should not deny plaintiffs their constitutional right to a written opinion explaining the court's reasons for its resolution of the merits.

The history of article VI, section 11, as revealed by the intent of its drafters in 1966 and that of the drafters of its antecedent provisions in 1849 and 1879, establishes that the grant of appellate jurisdiction was intended to accomplish two things: First, section 11 defines the power of the court to exercise "appellate jurisdiction." Second, as the lead opinion concedes in parts of its analysis, the antecedents of section 11 reflected an intent, evident from the drafters' repeated reference to a "right of appeal" during the debates at the 1849 and 1879 Constitutional Conventions, that litigants have a constitutional "right of appeal" in matters within the courts' "appellate jurisdiction."

The early debates also clarify the intended scope of the "right of appeal." Despite the lead opinion's assertion otherwise, there is no evidence that the drafters in 1849 and 1879 contemplated that a litigant's "right of appeal" could be satisfied by affording a mere opportunity to seek discretionary writ review. Indeed, the evidence firmly refutes this position: Passages of the debates relied on by the lead opinion, as well as whole portions it neglects to emphasize, demonstrate that the drafters assumed that the "right of appeal" entailed a right to review on the merits, and that a court would not have discretion to dispose of a litigant's "right of appeal" either by declining to consider the merits, or by summarily denying the requested relief without a written opinion. These fundamental assumptions were at the heart of the delegates' debates and ultimately informed their choice of constitutional language.

Moreover, the case law construing article VI, section 11 and its antecedents provides no support for the lead opinion's view, and in fact, disproves it. The lead opinion concedes, as it must, that starting with our earliest decisions, we have repeatedly construed our "appellate jurisdiction" provision as guaranteeing a "right of appeal." Nevertheless, it insists that in so stating, we actually meant no more than that litigants have "a right to appellate review generally" (lead opn., ante, at p. 109) — a right that the lead opinion appears to believe would be satisfied by affording litigants a mere opportunity to seek discretionary writ review. The case holdings, however, are not susceptible to such revisionism. In each relevant decision, and without a single dissent, we found or confirmed the existence of a constitutional "right of appeal" in matters within this court's appellate jurisdiction. Nowhere in any case is there a hint to support the proposition that the constitutional "right of appeal" may be satisfied merely by affording a litigant an opportunity to petition for discretionary writ review, and that the "right of appeal" does not entail guaranteed review on the merits and a written opinion.

Ultimately, the lead opinion is compelled to rely on several cases broadly asserting in dicta that there is no state constitutional right of appeal. As I shall explain, not only are these cases inapposite, but they contain no analysis, ignore the contrary debates and case law, and with one distinguishable exception, do not even discuss article VI, section 11, or its predecessors.

To its credit, the concurring opinion expressly declines to endorse the lead opinion's broad constitutional analysis, and cautions that the Legislature may not have constitutional authority to foreclose appeal — i.e., a right to review on the merits and a written opinion — in favor of discretionary and potentially summary writ review in matters outside the context of the PRA. Significantly, the concurring opinion does not join in the lead opinion's analysis of the 1849 and 1879 constitutional debates and the case law interpreting the resulting provisions. Indeed, it carefully avoids suggesting that when the delegates and justices of this court repeatedly used the phrase "right of appeal," they contemplated a right that would be satisfied by the mere opportunity to seek discretionary and potentially summary writ review.

Nevertheless, the concurring opinion concludes the elimination of "appeal" under the PRA is justified in this case because the Legislature reasonably decided that "review by extraordinary writ, rather than by direct appeal, would better protect the rights afforded by the Public Records Act. . . ." (Conc. opn. of George, J., ante, at p. 123.) I cannot agree with this aspect of the concurring opinion, which is unsupported by analysis or precedent.

The concurring opinion relies heavily on the few other statutory schemes in which the Legislature has eliminated appeal in favor of review by discretionary writ. There have always been exceptions to the general right of appeal conferred by article VI, section 11. For example, our state system has never afforded a constitutional right of appeal from contempt judgments, habeas corpus proceedings, or from inferior courts. Similarly, there has never been a constitutional right of appeal from interim rulings, or determinations of discrete preliminary issues unrelated to the substantive merits of an underlying cause of action. But the "public records cases" decided in this state over the past 100 years have always been treated as cases as to which there is a constitutional right of appeal.

Accordingly, the fact that our decisions recognize the Legislature's long-established authority to preclude appeal in favor of review by discretionary writ in contempt and habeas corpus matters provides the concurring opinion no support, in light of the equally established history affording appeal in "public records cases" before and after adoption of the PRA. Likewise, the fact that there is no constitutional right to appeal rulings on discrete, preliminary issues unrelated to the substantive merits of the underlying cause of action affords the concurring opinion no support because the present case does not involve review of a ruling on a discrete, preliminary issue unrelated to the substantive merits of the underlying PRA litigation. It instead concerns the very essence of the cause of action — namely, whether plaintiffs are entitled to the disclosure they seek.

Given the consistent history of a substantive right of appeal in this state, what are we to make of section 6259(c)? To give maximum effect to the legislative purpose underlying the section, I would read it as barring appeal if (i) a litigant neglects to seek discretionary writ review, or (ii) on discretionary writ review in the Court of Appeal, the litigant is afforded review on the merits and a written opinion with reasons stated. But in my view the statute may not constitutionally be applied to preclude appeal in cases such as this one, in which the litigants first properly sought, but were summarily denied, writ review. Accordingly, I would reverse the judgment of the Court of Appeal, and hold that although section 6259(c) is not unconstitutional on its face when construed as above, it may not constitutionally be applied to bar the appeal in this case.

I. THE STATUTE

As we noted in Times-Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1333, footnote 6 [ 283 Cal.Rptr. 893, 813 P.2d 240], section 6259(c), forecloses appeal and provides exclusively for discretionary writ review in cases of this kind. The section states: "[A]n order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ." (§ 6259(c).)

II. THE RIGHT OF APPEAL UNDER CALIFORNIA CONSTITUTION, ARTICLE VI, SECTIONS 10 AND 11

A. The sections

B. Overview

Plaintiffs contend the grant in article VI, section 11 of "appellate jurisdiction" to the Courts of Appeal and this court also grants to litigants a constitutional right of appeal — i.e., a right to review on the merits and a written opinion. They claim a right to such review of the superior court judgment at issue here, and assert section 6259(c) is unconstitutional to the extent it purports to bar their appeal.

The City of Richmond, and the lead opinion, correctly observe that the bare text of article VI, section 11 explicitly conveys no such right. As the lead opinion concedes, however, neither does the provision foreclose plaintiffs' contention that the Constitution implicitly grants litigants a right of appeal. In such circumstances, as the lead opinion acknowledges, it is proper — indeed, necessary — to consider the intention of the constitutional drafters, in order to determine the extent and scope of the provision. I survey below that constitutional history, and respond to the lead opinion's misconstruction of that history.

C. The 1849 Constitution

1. Appellate jurisdiction

The 1849 Constitution (art. VI, § 4) granted the Supreme Court "appellate jurisdiction" in specified classes of litigation: "[A]ll cases when the matter in dispute exceeds two hundred dollars, when the legality of any tax, toll, or impost or municipal fine is in question, and in all criminal cases amounting to a felony [on] questions of law alone." In addition, the court was granted authority to issue writs "necessary to the exercise of [its] appellate jurisdiction." Finally, the court was granted very limited original jurisdiction, confined to issuance of the writ of habeas corpus.

2. The "right of appeal" at the 1849 Constitutional Convention

The debates of the 1849 Constitutional Convention are set out in Browne, Report of the Debates in the Convention of California on the Formation of the State Constitution (1850) (Browne). As the lead opinion observes, to the extent the debates shed light on the drafters' intent, they assist our interpretation and understanding of the language employed by the drafters. Indeed, we relied on the 1849 debates in our earliest decisions construing former article VI, section 4. ( People v. Applegate (1855) 5 Cal. 295.)

As the lead opinion acknowledges, the 1849 delegates debated limiting the Supreme Court's "appellate jurisdiction" to cases involving at least $200. In the course of that debate, the drafters referred repeatedly to the effect of such a provision on a litigant's "right of appeal." The debates reveal the delegates' intent that the provision defining the Supreme Court's appellate jurisdiction would accomplish two things: First, define the Supreme Court's appellate jurisdiction; and second, affirm the existence of a litigant's "right of appeal."

What did the delegates mean when they repeatedly referred to a "right of appeal"? The lead opinion asserts the drafters intended only to guarantee a right to seek review, and did not intend to guarantee any specific form of review or a right to obtain review, e.g., by appeal, discretionary writ, or otherwise. Accordingly, the lead opinion says, when the delegates argued about a litigant's "right of appeal," they did not intend to convey the idea that a litigant would have a right of review on the merits. In fact, the lead opinion assumes that the drafters intended that the "right of appeal" would be satisfied if a litigant were given the opportunity to petition for discretionary review — even if the court summarily denied the petition without considering the merits.

The record of the debates, however, reveals that when the drafters used the phrase "right of appeal," they intended to convey the essential attribute of what we know the term means today — the right to obtain review on the merits.

Indeed, even the lead opinion's selective quotation from the debates disproves its point. It acknowledges the meaning of the phrase "right of appeal" was "fairly summarized by the remark of one delegate (Mr. Norton) that if such a case were wrongly decided by a trial court, a litigant `should have the right to go to the highest tribunal to get justice' or the `right to go to a higher tribunal and have that decision reversed.'" (Lead opn., ante, at p. 97, quoting Browne, supra, at p. 227.) To like effect, the lead opinion quotes Mr. Lippitt, asserting "that `the poor have just as much right to carry up their disputes, and have them settled by the most competent tribunals, as the richest man in the land.'" (Lead opn., ante, p. 97, fn. 9, italics deleted, quoting Browne, supra, at p. 226.)

This concededly representative language is incompatible with the idea that the right of appeal could be satisfied by the mere opportunity to seek a discretionary writ. It is instead language intended to convey a right to obtain review on the merits. Plainly, Mr. Norton believed that a litigant should be guaranteed a right to go to a higher court to "get justice" or "have that decision reversed" — neither of which could be guaranteed if the litigant had a mere right to seek discretionary review, i.e., if the reviewing court were authorized to deny review without reaching the merits. The same applies to Mr. Lippitt's observations.

Is there any evidence supporting the lead opinion's premise that the delegates assumed that discretionary writ review would satisfy the right of appeal? No. To the contrary. For example, when Mr. Jones spoke in favor of the amendment to impose a jurisdictional amount requirement, he asserted the Supreme Court should not be forced to "preside over some petty case which some petty justice of the peace has decided." (Browne, supra, at p. 226.) The premise of his argument, and that of all of the other delegates who supported and opposed his view, was that the Supreme Court would lack authority to weed out the important from the insignificant cases, and would thus be burdened with the task of resolving all such cases on the merits. Obviously, if the delegates believed that the court would have authority to dispose of such matters summarily and in its discretion (by concluding, for example, that the matter posed no important question of law or was less deserving than other cases competing for the court's attention), they would not have perceived the so-called "petty" cases as posing any substantial burden on the court.

The lead opinion advances a number of additional arguments in support of its reading of the 1849 debates. As explained below, the lead opinion's analysis is flawed in each respect.

First, the lead opinion divines support for its view by noting that the delegates "appear to have assumed that if as to a particular matter there was no `appellate jurisdiction' — and hence no `right of appeal' — then the trial court's judgment would be final and unreviewable." (Lead opn., ante, at p. 97.) The lead opinion's premise is incorrect. The delegates allowed for "county courts" to review the judgments of inferior trial courts. (Cal. Const. of 1849, art. VI, § 9.) Contrary to the lead opinion, the delegates did allow for review of matters that fell outside the ambit of the "right of appeal" to the Supreme Court.

Second, the lead opinion seeks support for its interpretation of the 1849 drafters' intent in three early cases decided by this court. ( The People v. Turner (1850) 1 Cal. 143; Haight v. Gay (1857) 8 Cal. 297; Ex Parte Harker (1875) 49 Cal. 465.) None of these decisions construed former article VI, section 4's grant of "appellate jurisdiction" to confer only a right to seek discretionary writ review, and none reasonably supports the lead opinion's reconstruction of the drafters' intent.

People v. Turner, supra, 1 Cal. 143, held only that this "court may exercise [its] appellate jurisdiction . . . by means of the writ of mandamus." ( Id. at p. 148.) In other words, Turner, supra, held nothing more than that the court may exercise discretion to grant extraordinary writ relief sought by a party in certain situations. That case says nothing about the present and converse situation, i.e., whether the Legislature may preclude appeal (with its concomitant right to review on the merits, and, as explained below, a written opinion) and limit the parties to discretionary and potentially summary writ review.

The second case relied on by the lead opinion, Haight v. Gay, supra, 8 Cal. 297, is similarly distinguishable, and indeed, as the lead opinion concedes, it contains language helpful to plaintiffs' position. Consistently with the history of the 1849 debates set out above, this court noted that although the Legislature has power to regulate the " mode in which th[e] right [of appeal] must be asserted," it " cannot substantially impair the right of appeal." ( Haight v. Gay, supra, 8 Cal. 297, 300, first italics in original, second added.) A close reading of Haight v. Gay reveals it does not suggest, much less hold, that the Legislature has the power to select freely between discretionary writ review and review by appeal. Haight v. Gay says only that the Legislature may bar review by "writ of error" in favor of exclusive review by direct appeal — a firmly established proposition that says nothing about the present, and opposite question — whether the Legislature may bar review by appeal in favor of exclusive review by discretionary writ.

The third case on which the lead opinion relies, Ex Parte Harker, supra, 49 Cal. 465, did not concern, or even mention, this court's constitutional jurisdiction under former article VI, section 4. The case instead involved simply the district court's original jurisdiction under former article VI, section 6.

Finally, the lead opinion's historical analysis is flawed by its unduly and conveniently narrow scope. It views article VI, section 4, of the 1849 Constitution as the "earliest antecedent of the `appellate jurisdiction' provision of the present State Constitution. . . ." (Lead opn., ante, at p. 95.) By ignoring the true "earliest antecedent" of our present article VI, section 11, the lead opinion treats the 1849 (and 1879) constitutional antecedents as if they had no relevant out-of-state history that might have informed the California drafters or the case law construing the California provisions. I review the relevant history and background below.

In drafting our appellate jurisdiction provision, the delegates consulted the constitutions of every state then in existence. (Browne, supra, at p. 221.) Under the predominant model of the day (and the federal approach), the Legislature was granted express authority to define the appellate jurisdiction of the state's highest court. Under the minority model, followed by a handful of states, the Constitution itself set out and defined the state high court's jurisdiction. All but one of the few states that followed the minority approach vested appellate jurisdiction in its high court in general terms, for example: "The supreme court . . . shall have original jurisdiction in cases relative to the revenue, in cases of mandamus, habeas corpus, and in such cases of impeachment as may be by law directed to be tried before it, and shall have appellate jurisdiction in all other cases." (Ill. Const. (1848) art. V, § 5, italics added; see also Mo. Const. (1820) art. V, § 2; Md. Const. (1776) art. LVI.) The sole exception within the minority group — Louisiana — adopted a more explicit approach, actually listing the classes of cases within the Supreme Court's appellate jurisdiction, for example, ". . ., and in criminal cases on questions of law alone, whenever the punishment of death or hard labor may be inflicted. . . ." (La. Const. (1845) tit. IV, art. 63.) As explained below, our 1849 delegates rejected the prevailing federal approach and adopted the Louisiana version of the minority model.

The convention appointed a special committee of three — Norton, Dimmick, and Jones (the latter a young attorney from Louisiana) — to reconcile divergent approaches to the judicial article. (Browne, supra, at pp. 224, 478.) Thereafter the special committee proposed an appellate jurisdiction provision that was quite clearly modeled after the corresponding provision of the Louisiana Constitution of 1845 (tit. IV, art. 63). Over the objection of Mr. Jones, however, the special committee declined to embrace one significant aspect of the Louisiana scheme — the minimum "amount in controversy" limitation on the Supreme Court's appellate jurisdiction. (See ante, fn. 10.)

When the special committee's report was submitted to the whole convention, an amendment was immediately proposed to limit the Supreme Court's appellate jurisdiction to cases "where the matter in dispute exceeds $200." (Browne, supra, at p. 225.) Thereafter, the debate about the effect of that amendment on a litigant's "right of appeal" ensued. Eventually the amendment was adopted. With this change, the resulting provision (art. VI, § 4 of the 1849 Cal. Const.) substantially mirrored the corresponding "appellate jurisdiction" provision of the 1845 Louisiana Constitution.

This background of the 1849 appellate jurisdiction provision is significant because it demonstrates that the California delegates intentionally departed from the prevailing model, which gave the Legislature complete power to regulate the high court's appellate jurisdiction, and hence could not be construed as affording a constitutional right of appeal. They opted instead for Louisiana's novel approach under which the Constitution fixes the high court's appellate jurisdiction. The decision to follow the Louisiana course becomes all the more significant when we review the history and construction of the Louisiana provision. It shows: (i) the 1845 Louisiana constitutional debates reflected the drafters' understanding that their provision created a "right of appeal"; (ii) as early as 1876 the Louisiana Supreme Court interpreted the Louisiana provision as granting such a constitutional right; and (iii) since at least that date — and continuing to this day — the Louisiana "appellate jurisdiction" provision has been construed to grant a constitutional "right of appeal" (a right that includes review on the merits) even though the guarantee is found only in that state's judicial article, and not in its "Declaration of Rights."

The 1849 California debates show that the drafters of our Constitution similarly intended the appellate jurisdiction provision to confer a "right of appeal," modeled on the Louisiana provision. Contrary to the lead opinion's premise, the relevant history and debates establish that the delegates understood that "right of appeal" meant a right to obtain review on the merits.

D. The 1862 Amendments and the 1879 Constitution

1. Appellate jurisdiction

In 1862, the California Constitution was modified, expanding the list of cases establishing appellate jurisdiction to include "all cases at law . . . in which the demand, exclusive of interest or the value of the property in controversy, amounts to three hundred dollars." Furthermore, the Supreme Court was given appellate jurisdiction in "all cases in equity" as well as "cases at law which involve the title or possession of real estate" and in "all cases arising in the probate courts."

When the Constitution was rewritten by the delegates to the Constitutional Convention of 1879, the list of matters giving rise to the Supreme Court's appellate jurisdiction was both narrowed to exclude cases in equity arising in the justices' courts, and expanded to include "cases of forcible entry and detainer, and in proceedings in insolvency, and in actions to prevent or abate a nuisance. . . ." (Cal. Const. of 1879, art. VI, § 4.) In addition, appellate jurisdiction in criminal cases was clarified to include "all criminal cases prosecuted by indictment or information in a Court of record. . . ." ( Ibid.)

2. The "right of appeal" at the 1879 Constitutional Convention and immediately thereafter

(a) The 1879 debates

The 1879 delegates, like their 1849 predecessors, rejected the prevailing model of the day, under which the Legislature was granted complete authority to control all appeals, and instead retained the scheme under which the Constitution itself defined the appellate jurisdiction of the Supreme Court. Moreover, as noted above, by that time, the antecedent of the 1849 Constitution — the Louisiana Constitution of 1845 — had been construed by the Louisiana Supreme Court as granting a "right of appeal." ( State v. Judge of the Superior District Court, supra, 28 La. Ann. 547, 548.)

The record of the 1879 debates reveals that, like the drafters of the 1849 Constitution, the delegates understood that article VI, former section 4, both defined appellate jurisdiction and also affirmed and defined a litigant's "right of appeal" in all civil and criminal cases within the "jurisdiction list" of former section 4.

Once again, as the lead opinion concedes, the delegates focused initially on defining appellate jurisdiction in terms of the monetary "amount in controversy" in a given case, and the effect of such a scheme on a litigant's "right of appeal." Then, when debating this court's appellate jurisdiction in criminal matters, the delegates focused again on a criminal defendant's "right of appeal." Thereafter, the delegates debated, and ultimately rejected the proposition that there should be a constitutional "right of appeal" from certain judgments of the inferior trial courts to the Supreme Court.

What did the delegates mean by "right of appeal"? Again, the lead opinion asserts they "used the term . . . expansively to encompass all forms of appellate review" (lead opn., ante, at p. 100), and reiterates its construction of the 1849 debates: it claims the 1879 delegates repeatedly used the phrase "right of appeal" to guarantee only a right to seek review, and did not intend to guarantee any specific form of review or a right to obtain review. And once more, the lead opinion assumes the drafters intended that the "right of appeal" would be satisfied if a litigant were given the opportunity to petition for discretionary review — even if the court summarily denied the petition without considering the merits.

i. The right to obtain review on the merits

The record of the debates again disproves the lead opinion's premise. First, the lead opinion points to nothing suggesting that the delegates contemplated that a litigant's constitutional "right of appeal" would be satisfied if the litigant were afforded the mere right to seek discretionary writ review. Indeed, as in 1849, the 1879 delegates' premise was the opposite: when they (i) discussed the various proposals to increase and decrease the dollar amount giving rise to "appellate jurisdiction" in the Supreme Court (2 Willis Stockton, supra, pp. 963-964), (ii) debated changes in the language granting appellate jurisdiction in criminal cases ( id. at p. 964, col. 1), and (iii) debated whether, in certain cases, a justices' court litigant should be allowed a "second appeal" to the Supreme Court ( id. at pp. 976-981), the delegates assumed the Supreme Court would lack discretion to decline to entertain an "appeal" that fell within the court's appellate jurisdiction list, and would have to decide such matters on the merits. Indeed, as noted above in the discussion about the 1849 debates, if the delegates believed the court would have authority to dispose of "appeals" summarily and in its discretion, they would not have perceived the above described proposals as posing any substantial burden on the court. Significantly, the lead opinion cites nothing to suggest the 1879 delegates viewed the "right of appeal" differently from their 1849 predecessors; and as shown above, the 1849 delegates viewed the "right of appeal" as encompassing at least a right to obtain review on the merits.

The lead opinion again perceives support for its position by attributing to the 1879 delegates the "apparent assumption . . . that a trial court's judgment would not be reviewable at all if a litigant was denied a `right of appeal'. . . ." (Lead opn., ante, at p. 100.) And again, the lead opinion's premise is incorrect. The delegates provided for review of matters that fell outside the ambit of the "right of appeal" to the Supreme Court. First, they expressly gave the superior courts "appellate jurisdiction" in cases arising from all inferior courts "as . . . may be prescribed by law." (Cal. Const. of 1879, art. VI, § 5; see also, e.g., 2 Willis Stockton, supra, at p. 964, col. 2 ["Superior Courts shall operate as appellate courts" to review the judgments of inferior trial courts (remarks of Mr. Wilson)].) In addition, as explained above, the delegates expressly provided for original writ jurisdiction in the Supreme Court, which would of course permit discretionary writ review of matters outside the Supreme Court's "appellate jurisdiction" list. (See, e.g., Tyler v. Connolly (1884) 65 Cal. 28, 32-33 [2 P. 414] (conc. opn. of Morrison, C.J.) [although the "right of appeal" conferred by former art. VI, § 4 does not extend to contempt judgments, such judgments are nonetheless reviewable by discretionary writ].) Once again, the lead opinion does not support its conclusion that the drafters contemplated that a mere right to seek discretionary writ review would satisfy a litigant's constitutional "right of appeal."

The 1879 delegates intended to guarantee not simply a right to seek review, but a right to obtain review on the merits in a higher court. If the delegates had intended to guarantee only the amorphous "right to seek review of some kind" attributed to them by the lead opinion, the delegates would have made this unusual construction clear at some point during their extensive debates.

ii. The right to a written opinion "with reasons stated"

In yet another important respect, the 1879 delegates further clarified, and expanded on, what the "right of appeal" entailed. Immediately before the above described debate about article VI, former section 4, the delegates debated and adopted another provision (art. VI, former § 2, 15th sentence) that remains essentially unchanged today (art. VI, § 14, 2d par.).

Two decades earlier, in Houston v. Williams (1859) 13 Cal. 24, the court held unconstitutional a statute requiring that "`all decisions given upon an appeal in any Appellate Court of this State shall be given in writing, with the reason therefor, and filed with the Clerk of the Court. . . .'" ( Id. at p. 25.) Justice Field, writing for the court, rejected the statute as an attack on the court's "dignity and independence." ( Ibid.)

The 1879 delegates viewed the "in writing" requirement otherwise. To them, it was necessary to ensure the quality and integrity of appellate court decisions. Hence, they moved to enshrine the invalidated statutory requirement in the Constitution. The following draft language was submitted: "In the determination of causes, all decisions of the Court in bank or in Departments shall be given in writing, and the grounds of the decision shall be stated." (2 Willis Stockton, supra, at p. 950, col. 2.) Speaking on behalf of the provision, Mr. Wilson asserted:

"The importance of requiring the Court to give written opinions cannot be overrated. They not only become the settled law of the State, and are precedents for subsequent cases, but in many causes where the litigation is not ended by the decision of the Supreme Court, and new trials are consequent upon a reversal, the decision of the Supreme Court should be given in writing, and reasons assigned, for they are instructions to the Court below, and are the controlling rule in the subsequent litigation. . . . Undoubtedly [ the requirement of a written opinion] will insure a careful examination of the cases, and result in well considered opinions, because they must come before the jurists of the country and be subjected to the severest criticism. . . . It tends to purity and honesty in the administration of justice." ( Id. at p. 951, col. 1, italics added.) There was no objection to the provision, and it was adopted. ( Id. at p. 957, col. 1.)

From this, two conclusions flow: first, the delegates intended that decisions of the Supreme Court in which a "cause" is determined (but not decisions of the superior court acting in an appellate capacity) must be in writing with reasons stated. Resolution by this court (or now, the Court of Appeal) of an appeal determines a "cause" within the meaning of the "in writing" provision. Accordingly, when the delegates later referred repeatedly to a "right of appeal," it seems plain that they contemplated a procedure that would include the right to an opinion in writing with reasons stated whenever this court (or now, the Court of Appeal) decides an appeal.

Second — and quite apart from the question of whether the delegates intended to grant a "right of appeal" under article VI, former section 4 — the "in writing" requirement first set out in article VI, section 2, and presently existing in article VI, section 14, has independent significance for the review of writ petitions under section 6259(c). It is well established that, in other contexts, an appellate court may summarily deny a petition for an original writ without violating this constitutional provision. ( Funeral Dir. Assn. v. Bd. of Funeral Dirs. (1943) 22 Cal.2d 104, 106 [ 136 P.2d 785].) Nonetheless, past decisions have not considered the application of article VI, section 14, to a statutory scheme such as that established by section 6259(c), in which writ review has been substituted for appeal as the exclusive avenue by which the Court of Appeal reviews the superior court's disposition of an entire cause of action. In the unique context of section 6259(c) — in which resolution of a writ petition decides the entire cause of action — it is contrary to the purpose and language of article VI, section 14, to suggest that a Court of Appeal ruling, resolving the writ petition, does not "determine a cause" within the meaning of this constitutional provision. Accordingly, it would appear that even under the lead opinion's view (i.e., assuming the drafters did not intend to grant litigants what the lead opinion terms a "direct appeal"), a Court of Appeal faced with a writ petition such as this would lack the authority to dispose of it summarily, i.e., without a written opinion.

In conclusion, the record of the 1879 debates reveals that the delegates intended the Constitution's grant of appellate jurisdiction (former art. VI, § 4) to accomplish two things: It established this court's appellate jurisdiction and it also established for litigants a right of appeal — meaning a right to review on the merits and a written opinion with reasons stated — in all cases coming within the court's appellate jurisdiction.

(b) Case law interpreting the 1879 Constitution — Tyler, Jordan Perry

In decisions rendered shortly after the 1879 convention, and thus reflecting an essentially contemporaneous understanding of the drafters' intent, we acknowledged that former article VI, section 4 both established this court's appellate jurisdiction and granted a "right of appeal" (a right to review on the merits and a written opinion with reasons stated) in cases within that appellate jurisdiction. Tyler v. Connolly, supra, 65 Cal. 28 ( Tyler), a decision effectively ignored by the lead opinion, is the most significant. The case involved a $500 fine imposed under a contempt judgment against Tyler. Although established case law recognized a right to challenge contempt judgments by seeking the discretionary writs of habeas corpus, prohibition, and certiorari (see, e.g., Huerstal v. Muir (1880) 62 Cal. 479, 481, and cases cited), Tyler was not content to settle for such discretionary and potentially summary review, and instead asserted his right to "appeal."

For over 30 years, however, the Legislature had prohibited appeals of contempt judgments. ( Tyler, supra, 65 Cal. 28, 30, citing Code Civ. Proc., § 1222 (1872); see also Practice Act, § 493, Stats. 1851, ch. 5, § 493, p. 128.) Accordingly, the respondent moved to dismiss the appeal. In reply, Tyler asserted his "right of appeal" was conferred by the Constitution, former article VI, section 4 ( 65 Cal. at p. 29), and that Code of Civil Procedure section 1222 was unconstitutional.

The issue was thus framed: Even though an opportunity to seek "review" was available by discretionary writ, did the Constitution nevertheless grant Tyler a "right of appeal"? Contrary to suggestions of the lead opinion, when the Tyler court addressed this constitutional issue, it could not have labored under the assumption that discretionary writ review and review by appeal were constitutionally equivalent methods of satisfying a litigant's constitutional "right of appeal." As explained below, the court plainly recognized that the "right of appeal" asserted by Tyler was something different from, and greater than, the mere right to seek discretionary writ review, which might be denied summarily and without considering the merits.

The court rejected Tyler's claimed constitutional right of appeal because the judgment at issue fit nowhere in the jurisdiction list of former article VI, section 4. After quoting that provision, the majority said: "It is argued that because the judgment against Tyler exceeds three hundred dollars, that the appeal is given by the Constitution. But the Constitution does not give an appeal in all cases where the judgment exceeds three hundred dollars; it gives it only when the demand, exclusive of interest, exceeds that sum." ( Tyler, supra, 65 Cal. at pp. 29-30.) The majority in Tyler noted that there is no such "demand for a sum of money in a proceeding for a contempt." ( Id. at p. 30.) The Tyler majority also observed that, although the contempt at issue was criminal in nature, it was "not prosecuted by indictment or information," and hence "its character as a criminal case furnishes no ground for an appeal." ( Ibid., italics added.) The court concluded, "we find no warrant in the Constitution for an appeal in a proceeding for contempt." ( Ibid., italics added.)

The concurring opinion in Tyler, supra, 65 Cal. 28, echoed and amplified these points. Chief Justice Morrison addressed the petitioner's assertion that "the right of appeal is a constitutional right — not to be taken away by the legislature" ( id. at p. 31 (conc. opn. of Morrison, C.J.)), and proceeded to consider "if the right of appeal exists under the Constitution." ( Ibid.) After quoting former article VI, section 4, the Chief Justice concluded that the contempt proceeding was a "criminal proceeding," but that because it was not "`prosecuted by indictment or information. . . .'" ( 65 Cal. at p. 32), it did not fall within the language of former article VI, section 4, and hence there was no constitutional right of appeal in such a case. ( 65 Cal. at p. 32.) Significantly, however, Chief Justice Morrison observed that Tyler had an opportunity to seek review of his contempt judgment through "other modes of relief," namely, discretionary writ review "by certiorari or habeas corpus." ( Id. at pp. 32-33, italics in original.) In other words, the Chief Justice drew a distinction, implicit in the majority opinion, between matters over which the Constitution granted a "right of appeal," and other matters, such as contempt judgments, which are reviewable exclusively by a procedure other than "appeal," i.e., by discretionary writ.

In view of the fact that the contemner in Tyler, supra, 65 Cal. 28, had a right to seek discretionary writ review, it is clear that the Tyler majority generally, and Chief Justice Morrison's concurring opinion in particular, necessarily rejected the theory advanced by the lead opinion today, namely, that the "right of appeal" could be satisfied by affording a litigant the opportunity to seek discretionary writ relief, which might be denied summarily and without considering the merits. Indeed, if the court believed the "right of appeal" would be satisfied by affording an opportunity to seek discretionary writ review, the court would have simply treated the purported appeal as a discretionary writ application. The fact that it did not do so, and instead engaged in an extensive analysis of the "right of appeal" under former article VI, section 4, demonstrates that the court did not equate an opportunity to seek discretionary writ review with a "right of appeal." Reading the court's two opinions together, Tyler reflects the court's understanding, rendered roughly contemporaneously with the drafting and ratification of the 1879 Constitution, that former article VI, section 4, provided a right of appeal — meaning a right to review on the merits and a written opinion, as opposed to a right to seek discretionary and potentially summary writ review — in cases within the list of matters giving rise to the court's appellate jurisdiction.

A few months later, in People v. Jordan (1884) 65 Cal. 644 [ 4 P. 683] ( Jordan), we addressed the Legislature's failure to provide a means for the People to appeal from a superior court's judgment of dismissal after the sustaining of a demurrer to an indictment. Unlike Tyler, supra, 65 Cal. 28, Jordan was a case that was expressly within the Supreme Court's appellate jurisdiction, and as to which there was, accordingly, a right of appeal. Consistently with the history described above, we noted in Jordan that because the matter involved a "criminal case prosecuted by indictment," the court was granted appellate jurisdiction under former article VI, section 4. Significantly, we concluded from this that the constitutional provision was self-executing: "[W]hen a certain jurisdiction has been conferred on this or any court, it is the duty of the court to exercise it; a duty of which it is not relieved by the failure of the legislature to provide a mode for its exercise." ( Jordan, supra, 65 Cal. at p. 646, italics added.) Thereafter, we reiterated our "duty, imposed by the Constitution, of reviewing the proceedings of the court below" ( id. at p. 648), and asserted our power, "as necessarily incident to our jurisdiction," to "establish any appropriate practice for the bringing here [of] a record or proceeding in the court below." ( Ibid.)

In so proclaiming, we were careful to contrast our broad constitutional authority and duty with the more restrictive grant to the federal courts under the federal Constitution. ( Jordan, supra, 65 Cal. at p. 648.) We again stressed our inability to "refuse to exercise a jurisdiction imposed upon this court by the [state] Constitution" ( id. at p. 649), and concluded the court had "inherent" power to establish rules governing appeal in such cases. ( Ibid.) Accordingly, we denied a motion to dismiss the pending appeal ( id. at p. 651), and in a separate decision filed shortly thereafter we proceeded to address and resolve the appeal on the merits. (See People v. Jordan (1884) 66 Cal. 10, 11-15 [4 P. 768] ( Jordan II).)

We followed Jordan, supra, 65 Cal. 644, in People v. Perry (1889) 79 Cal. 105 [ 21 P. 423] ( Perry), which concerned an action to determine which of two persons was entitled to take appointive office. When the claimant who failed to prevail in the superior court appealed to this court, the other claimant moved to dismiss the appeal, arguing the matter was outside this court's appellate jurisdiction. ( Id. at p. 107.) We rejected the argument, stating: "[T]his court retains jurisdiction of the case, notwithstanding the [Legislature] may have changed the procedure, enlarged the remedy, and given it a new name. To hold otherwise would be to admit a power in the [Legislature] to abridge our jurisdiction, and take from the parties the right of appeal, by the easy device of a change of procedure, in many cases, where the right and jurisdiction are unquestioned." ( 79 Cal. at p. 108, first italics in original, second added; see also Estate of Nelson (1900) 128 Cal. 242, 245 [ 60 P. 772] ["The right of appeal is conferred by the constitution, and statutes and rules of procedure for its exercise are to be liberally construed."].)

In Jordan, Perry, and Estate of Nelson, all supra, the respondents sought to dismiss what the lead opinion terms "direct appeals" — i.e., proceedings in which the appellants claimed a right to review on the merits and a written opinion. In each case this court rejected those arguments and held the appellants had a right, derived from our Constitution (former art. VI, § 4), to proceed with the appeal. The lead opinion's strained attempt to read Jordan and Perry otherwise is unpersuasive.

Concerning Jordan, supra, 65 Cal. 644, the lead opinion asserts: "Because the Legislature had not authorized review by extraordinary writ, we did not consider whether appellate review in that form would have satisfied the `appellate jurisdiction' provision of the 1879 Constitution. Significantly, however, we referred to the Legislature's failure to provide `a mode' for the exercise of appellate jurisdiction ( People v. Jordan, supra, 65 Cal. 644, 646), thereby necessarily implying that more than one such mode was possible. . . ." (Lead opn., ante, at p. 101.)

Nothing in Jordan supports the lead opinion's speculation that, had the constitutional adequacy of discretionary writ review been raised, we might have held that the Legislature could relegate the People to the mere opportunity to seek such discretionary review. Nor does the lead opinion's selective quotation support its point. When read in context (see ante, at pp. 144-146), and in view of the fact that the Jordan court denied the motion to dismiss the appeal ( Jordan, supra, 65 Cal. at p. 651) and ultimately addressed and resolved the matter before it on appeal ( Jordan II, supra, 66 Cal. 10, 11-15), it is clear that the court's reference to "a mode" pertained to the procedural rules for presentation of the People's "direct appeal," and was not, as the lead opinion divines, an oblique and veiled hint that the People's right under article VI, former section 4, would be adequately protected by the opportunity to seek discretionary writ review.

Perry, supra, 79 Cal. 105, is likewise mistreated by the lead opinion, which asserts that when the court spoke of the "right of appeal," it really meant to say "appellate review generally rather than . . . the specific procedure known as a direct appeal." (Lead opn., ante, at p. 102.) The difficulty with this analysis is that "the specific procedure known as a direct appeal" was the only procedure at issue in the case. If the Perry court had actually done what the lead opinion asserts it intended to do, the court would have neglected its obligation to address and resolve the sole issue raised by the appellant — his right to appeal, i.e., review on the merits and a written opinion. Judicial decisions are of course authority for what they actually decide; we do not readjust their holdings to incorporate claims not asserted or considered therein. The lead opinion's proposed reinterpretation of Perry is unconvincing.

Equally unpersuasive is the lead opinion's reliance on In re Jessup (1889) 81 Cal. 408 [ 22 P. 742] ( Jessup). First, contrary to the lead opinion's suggestion, Jessup does not purport to provide an all-purpose definition of our constitutional "appellate jurisdiction." Jessup considered the Legislature's authority to require that a decision of this court to grant rehearing be supported by a vote of five of seven justices. We declared the statute unconstitutional, observing that "`the mere procedure by which jurisdiction is to be exercised may be prescribed by the legislature, unless, indeed, such regulations should be found to substantially impair the constitutional powers of the courts, or practically defeat their exercise.' We concede the power to regulate, but not the power to take away or defeat, the exercise of jurisdiction. And this, in our opinion, the legislature has . . . attempted to accomplish." ( Jessup, supra, 81 Cal. at p. 470, italics added by Jessup court.)

Before reaching that conclusion the Jessup court considered "the extent of the power implied ex vi termini by the phrase `appellate jurisdiction.' That this embraces the right to review the final judgments of the courts of original jurisdiction, — the right, in other words, to reverse, affirm, or modify them, and to enforce by some appropriate mandatory process the judgment of the appellate tribunal, — will scarcely be denied." ( 81 Cal. at p. 465, italics added.) Viewed in context, it seems clear that Jessup's sole focus was on the power granted to the court by the Constitution; it did not purport to define "appellate jurisdiction" outside that limited context or for all purposes, and indeed, its observation that the term "embraces" certain powers would seem to underscore the restricted scope of its inquiry.

Finally, the lead opinion finds Jessup, supra, 81 Cal. 408 "significant also because it further supports the conclusion that a court may exercise `appellate jurisdiction' by means other than direct appeal." (Lead opn., ante, at p. 103.) To the extent Jessup supports that unchallenged (and correct) principle, first articulated in People v. Turner, supra, 1 Cal. 143, it is irrelevant to the present case for the same reason Turner is irrelevant. (See, ante, at p. 132.) The fact that a court may, under its "appellate jurisdiction," exercise discretion to grant extraordinary writ relief sought by a party in certain situations, says nothing about the present and converse situation, i.e., whether the Legislature may preclude "appeal" and limit the parties to seek discretionary writ review. Nothing in Jessup, supra, is inconsistent with the proposition, established in our cases before and after Jessup, that the Constitution grants a right of appeal — i.e., review on the merits and a written opinion — on review from the superior court to the Court of Appeal and this court.

E. The 1904 amendments

1. Appellate jurisdiction

In 1904, the Courts of Appeal were created. The appellate jurisdiction of those courts was established and that of the Supreme Court was modified. The list of matters giving rise to the Supreme Court's appellate jurisdiction was narrowed to provide for "appellate jurisdiction on appeal from the Superior Courts[] in all cases in equity, except such as arise in Justices' Courts; also, in all cases at law which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to two thousand dollars; also, in all such probate matters as may be provided by law; also, on questions of law alone, in all criminal cases where judgment of death has been rendered; the said court shall also have appellate jurisdiction in all cases, matters, and proceedings pending before a District Court of Appeal which shall be ordered by the Supreme Court to be transferred to itself for hearing and decision. . . ." (Cal. Const. of 1879, art. VI, § 4, as amended Nov. 8, 1904.)

That which was taken from the Supreme Court's initial appellate jurisdiction, and more, was given to the appellate jurisdiction of the Courts of Appeal. Those courts were vested with "appellate jurisdiction on appeal from the Superior Courts in all cases at law in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars, and does not amount to two thousand dollars; also, in all cases of forcible entry and detainer (except such as arise in Justices' Courts), in proceedings in insolvency, and in actions to prevent or abate a nuisance; in proceedings of mandamus, certiorari, and prohibition,[] usurpation of office, contesting elections and eminent domain, and in such other special proceedings as may be provided by law (excepting cases in which appellate jurisdiction is given to the Supreme Court); also, on questions of law alone, in all criminal cases prosecuted by indictment or information in a court of record, excepting criminal cases where a judgment of death has been rendered. The said courts shall also have appellate jurisdiction in all cases, matters, and proceedings pending before the Supreme Court which shall be ordered by the Supreme Court to be transferred to a District Court of Appeal for hearing and decision." (Cal. Const. of 1879, art. VI, § 4, as amended Nov. 8, 1904, italics added.)

2. The right of appeal — Gale and Sutter-Butte

We applied the 1904 version of former article VI, section 4, in Gale v. Tuolumne County Water Co. (1914) 169 Cal. 46 [ 145 P. 532] ( Gale), another case essentially ignored by the lead opinion. Like Tyler, supra, 65 Cal. 28, Gale was an attempted appeal from a contempt judgment. And, as in Tyler, supra, the contemner in Gale asserted a constitutional right of appeal under former article VI, section 4, this time on the basis that the contempt judgment was appealable as being a "`case in equity.'" ( Gale, supra, 169 Cal. at p. 51.) The Gale court accepted the premise that "section 4 of article VI of the constitution . . . provides for an appeal from the superior court to the supreme court `in all cases in equity except as arise in the justices' courts,'" but explained that a contempt proceeding is not a case in equity for purposes of the constitutional provision. ( Gale, supra, 169 Cal. at p. 51.) The court conceded that "the right of appeal" is "derived from our constitution" ( id. at p. 52), but observed that because "the constitution nowhere, expressly or impliedly, gives a right of appeal in cases of contempt" ( ibid., italics added), the statute prohibiting appeal of contempt judgments (Code Civ. Proc., § 1222) did not conflict with former article VI, section 4, and was thus constitutional. ( 169 Cal. at p. 52.)

Gale is significant in two respects. First, it reconfirms the court's view (set out in Tyler, supra, 65 Cal. 28) that litigants were granted a constitutional "right of appeal" in matters within the appellate jurisdiction list of former article VI, section 4. Second, and again like Tyler, supra, Gale's analysis of the constitutional right of appeal disproves the lead opinion's thesis that the court used the term "right of appeal" loosely to describe a right of review either by discretionary writ or by appeal. As in Tyler, supra, 65 Cal. 28, the contemner in Gale already had a right to seek discretionary writ review. Accordingly, the Gale court spoke exclusively about what the lead opinion terms "direct appeal," i.e., a right to review on the merits and a written opinion, when it discussed whether the contemner had a constitutional right of appeal.

Almost a decade later we again confirmed the existence and scope of the "right of appeal" in In re Sutter-Butte By-Pass Assessment (1923) 190 Cal. 532 [ 213 P. 974] ( Sutter-Butte). Sutter-Butte was an appeal from a judgment concerning the legality of a tax assessment. As in the present case, the respondent moved to dismiss the appeal, citing a statute that expressly made such matters "` final and conclusive,'" and hence nonappealable. ( Id. at p. 535, italics added.)

As noted above, the same italicized language had been long employed in Code of Civil Procedure, section 1222, and had been interpreted as precluding appeal of contempt judgments and yet permitting the opportunity to seek discretionary writ relief challenging such judgments. (See, e.g., Tyler, supra, 65 Cal. at pp. 32-33 (conc. opn. of Morrison, C.J.); Huerstal v. Muir, supra, 62 Cal. 479, 481, and cases cited.) Accordingly, as in Tyler, supra, and Gale, supra, 169 Cal. 46, the appellants in Sutter-Butte had a right to seek discretionary review to challenge the tax assessment.

But again, as in Tyler, supra, 65 Cal. 28, and Gale, supra, 169 Cal. 46, the appellants in Sutter-Butte, supra, 190 Cal. 532, declined to settle for a mere opportunity to seek discretionary and potentially summary writ review; instead, they asserted a constitutional right of appeal, and claimed the statute precluding appeal was unconstitutional. We found that the statute purported to forbid "appeal," but concluded the statute violated former article VI, section 4, which expressly granted the Supreme Court appellate jurisdiction over, and therefore granted a right of appeal in, such litigation.

The appellants claimed the statute was unconstitutional on two grounds. They asserted "that the validating proceeding provided for by the act in question is in its essence either a suit in equity or one at law involving the validity of an assessment and, therefore, falls within the appellate jurisdiction conferred upon this court and guaranteed to litigants by that constitutional provision which provides that this court shall have appellate jurisdiction `on appeal from the superior courts . . . in all cases in equity . . .; also in all cases at law which involve the . . . legality of any tax, . . . assessment, etc. . . .' (Const., art. 6, § 4.)" ( Sutter-Butte, supra, 190 Cal. at p. 536.) We resolved the question as follows:

"[I]t is the settled rule of law that if the right of appeal is constitutionally granted in any given case such right cannot be destroyed nor delimited by legislative enactment. `The courts of this state derive their powers and jurisdiction from the constitution of the state. The constitutional jurisdiction can neither be restricted nor enlarged by legislative act. An attempt to take away from the courts judicial power conferred upon them by the constitution is void.' ( Pacific Telephone etc. Co. v. Eshelman [(1913)] 166 Cal. 640, 690 [ 137 P. 1119] (conc. opn. of Sloss, J.), italics added.)[] The case last cited, and other cases assembled and referred to therein, recognize that litigants have a constitutionally guaranteed right of appeal in all litigated matters within the express jurisdiction of appellate courts." ( Sutter-Butte, supra, 190 Cal. at p. 536, italics added.)

We continued, in language relied on by plaintiffs in this case: "And if the legislature cannot take away this right by direct enactment neither can it accomplish the same result by any indirect device. While the legislature has, ordinarily, the power to create a new remedy for the enforcement of a right or a defense against a wrong, it cannot, under the guise of creating a new statutory remedy, deprive a litigant of an existing constitutionally guaranteed right to defend, even unto a court of last resort, against the enforcement of an alleged right. This right to so defend, once existing, continues regardless of the form in which the legislature may cast the remedy. In other words, as was said in the case of People v. Perry[, supra,] 79 Cal. 105, 108: `This court retains jurisdiction of the case, notwithstanding the legislature may have changed the procedure, enlarged the remedy and given it a new name. To hold otherwise would be to admit a power in the legislature to abridge our jurisdiction and to take from parties the right of appeal by the easy device of a change of procedure in many cases where the right and jurisdiction are unquestioned.'" ( Sutter-Butte, supra, 190 Cal. at pp. 536-537, italics added.)

We concluded that a "right of appeal" existed on the basis of both grounds advanced by the appellants, i.e., the underlying litigation was a case in equity and a case involving the legality of a tax or assessment.

On the first point, Sutter-Butte, supra, 190 Cal. at page 537 stated: "In other words, the legislature cannot by the creation of a new remedy deprive this court of its constitutional grant of appellate jurisdiction if the right involved in the execution of the remedy is of a character which in its very essence is equitable and was of an equitable nature and character at the time of the adoption of the constitutional provision which gave to this court appellate jurisdiction over the subject matter of the remedy. It follows, therefore, that if the proceeding before us is included in that class of cases, in contradistinction to special proceedings, over which appellate jurisdiction has been given by the constitution the appellants have a constitutionally guaranteed right of appeal of which they cannot be deprived." (Italics added.) We concluded the action was not a "special proceeding," and that it had the "characteristics" of a suit in equity. ( Id. at pp. 537-538.)

We also observed that the appellants had a constitutional right of appeal because the action was "well within the letter and spirit of the constitutional provision which grants to this court and guarantees to litigants the right, beyond legislative control, to an appeal in all cases, either at law or in equity, involving the validity of any tax or assessment." ( Sutter-Butte, supra, 190 Cal. at p. 539.)

In the course of its analysis, the Sutter-Butte court further stressed that the constitutional right of appeal should be broadly construed and enforced so long as the "substance" of the matter appealed from falls within the scope of one of the categories listed in former article VI, section 4. This is so, the court said, even if "at first blush" the appeal does not appear to fall within the list of matters that are appealable under the section. ( Sutter-Butte, supra, 190 Cal. at p. 538.)

The lead opinion attempts to distinguish Sutter-Butte, supra, 190 Cal. 532, on two grounds. First it asserts that because the statute at issue in Sutter-Butte, supra, made the challenged decision "`final and conclusive'" ( id. at p. 535), our decision in that case concerned a legislative scheme that, unlike the PRA, purported to preclude both review by appeal and review by writ. But Sutter-Butte is not thus distinguishable: As noted above, the quoted statutory phrase has long been construed as simultaneously barring appeal, and yet permitting review by discretionary writ.

Second, the lead opinion attempts to distinguish Sutter-Butte, supra, 190 Cal. 532, on the same ground on which it failed to distinguish Jordan, supra, 65 Cal. 644, and Perry, supra, 79 Cal. 105. It asserts that when the Sutter-Butte court repeatedly said the appellants had a constitutional "right of appeal," it meant only that they had "a right to some effective procedural vehicle by which to invoke the constitutionally conferred appellate jurisdiction" (lead opn., ante, at p. 104) — presumably, a right to seek discretionary writ review.

The posture of the Sutter-Butte litigation disproves the lead opinion's strained reading. As noted above, the appellants in Sutter-Butte, supra, 190 Cal. 532, like the would-be appellants in Tyler, supra, 65 Cal. 28, and Gale, supra, 169 Cal. 46, had a right to challenge the tax assessment by seeking a discretionary writ. Also like the contemners in Tyler and Gale, however, they were not content to settle for discretionary and potentially summary review, and instead asserted a right to "appeal" in the face of a statute that foreclosed review on appeal. In this context, when the Sutter-Butte court considered whether the appellants had a right of "appeal," it could not possibly have intended to equate an opportunity to seek discretionary writ review, which right the appellants already had, with the right of "appeal," which the appellants sought. Indeed, if, as the lead opinion claims, the Sutter-Butte court meant only that the appellants had "a right to some effective procedural vehicle by which to invoke the constitutionally conferred appellate jurisdiction," it would have been unnecessary for the Sutter-Butte court to construe the statute as barring "appeal," and to declare the statute unconstitutional. Under the lead opinion's construction, the Sutter-Butte court could have simply treated the purported "appeal" as a writ application. The fact that it did not do so, and instead declared unconstitutional the statute purporting to foreclose "appeal," demonstrates when the Sutter-Butte court repeatedly said the appellants had a constitutional "right of appeal," the court meant a right to obtain review on the merits and a written opinion, and not a mere right to seek discretionary writ review.

F. The 1928 amendments

1. Appellate jurisdiction

In 1928, the provision of former article VI, section 4, governing the jurisdictional amount in controversy in the Supreme Court was eliminated. The provision otherwise retained "appellate jurisdiction on appeal from the superior courts" in the various matters listed in the 1904 amendment. The jurisdiction of the Courts of Appeal was set out in a new provision, former article VI, section 4b. The dollar amount provision giving rise to that court's jurisdiction was also eliminated, and replaced with a grant of "appellate jurisdiction on appeal from the superior courts . . . in all cases at law in which the superior courts are given original jurisdiction. . . ." The rest of the jurisdiction list was retained, and one new matter added, providing for jurisdiction in cases of "removal from office." 2. The right of appeal — Byers, the Trede dictum, and Modern Barber The first important case following the 1928 constitutional amendment was Byers v. Smith, supra, 4 Cal.2d 209 ( Byers), which concerned an appeal from a proceeding removing an official from public office. At issue was whether the Court of Appeal properly stayed execution of the judgment pending appeal. We concluded it properly issued the stay, and again followed the "self-executing" rationale of Jordan, supra, 65 Cal. 644, and expressly applied the holding of Sutter-Butte, supra, 190 Cal. 532: "[W]here jurisdiction is conferred by the Constitution, the power is conferred to adopt such measures and rules as will render the constitutional grant effective and operative, otherwise the legislature might by mere inaction defeat the will of the people expressed in the fundamental law. But the legislature has not the power, either through direct enactment or indirect device, to destroy or abridge the right of an appeal constitutionally granted. ([ Sutter-Butte, supra,] 190 Cal. 532.)" ( Byers, supra, 4 Cal.2d at pp. 213-214, italics added.)

Eight years later, in Trede v. Superior Court (1943) 21 Cal.2d 630 [ 134 P.2d 745] ( Trede), we considered a writ proceeding in which the petitioner sought a stay pending appeal. Although the right of appeal was plainly not in issue (indeed, the applicable statute granted appeal), we nevertheless said, in a brief and ill-considered dictum that has gained currency through uncritical repetition: "There is no constitutional right to an appeal; the appellate procedure is entirely statutory and subject to complete legislative control." ( Id. at p. 634.) For this proposition, which clearly conflicts with all the foregoing case law and constitutional history, nothing was cited whatsoever.

Ordinarily, such an abrupt and wholly unsupported dictum would be accorded the little weight it deserves. The lead opinion, however, embraces Trede's dictum as dispelling "[a]ny lingering uncertainty about whether the `appellate jurisdiction' provisions of the 1849 and 1879 Constitutions conferred on civil[] litigants a right to a direct appeal. . . ." (Lead opn., ante, at p. 105.)

There was no "uncertainty" — lingering or otherwise — to dispel. As demonstrated above, neither the words of the drafters nor the subsequent decisions of this court provide any foundation for the lead opinion's premise that when the drafters and justices of this court spoke of a litigant's "right of appeal," they contemplated that the "right of appeal" did not guarantee review on the merits, but would instead be satisfied by affording a litigant the right to seek discretionary and potentially summary writ review.

Five years after Trede, supra, we returned to the issue, again in dictum, this time in Modern Barber Col. v. Cal. Emp. Stab. Com., supra, 31 Cal.2d 720 ( Modern Barber). Because the City of Richmond relies heavily on Modern Barber, and despite the lead opinion's assertion that "extensive analysis [of that case] is not warranted" (lead opn., ante, at p. 108), a full description of the Modern Barber case is necessary.

In 1935, the Legislature enacted the Unemployment Insurance Act (Stats. 1935, ch. 352, p. 1226 et seq.), mandating that certain employers make contributions to a newly created unemployment fund. The California Employment Stabilization Commission (Commission) found the petitioner, the proprietor of a barber college, to be an employer under the act, and ordered him to make certain contributions pursuant to the act. Section 45.11(d) of the act barred writ review of the Commission's findings, forcing the petitioner to first make the challenged contributions and then sue to recover contributions made, after which review would be available on appeal. Despite this statutory scheme, the petitioner sought immediate writ relief, arguing his remedy on appeal was inadequate. He asserted a constitutional right to seek discretionary writ review.

We held that the Legislature could constitutionally bar the use of mandamus to challenge the tax before the taxpayer paid it, even though the Constitution granted this court original appellate jurisdiction to issue mandamus. ( Modern Barber, supra, 31 Cal.2d at pp. 726-727.) Modern Barber did not hold that the Legislature had precluded, or could preclude, a taxpayer from obtaining review on appeal of the validity of the tax in a postpayment tax refund proceeding. Instead, as noted, Modern Barber involved a purported right to seek and obtain discretionary writ relief.

The City of Richmond suggests that Modern Barber's discussion of the Legislature's power to create and define statutory rights, and to specify the "methods and means" of enforcing those rights, sheds light on the present constitutional challenge to section 6259(c)'s provision for review exclusively by writ. In resolving the petitioner's writ application in Modern Barber, we rejected the argument that the power given to the courts to issue writs of mandate (under former art. VI, §§ 4, 4b 5) conferred on the petitioner a constitutional right to seek that relief in any case in which a court would deem such relief appropriate. We expressly rejected the argument that "the Legislature has no power to define [or] curtail . . . the circumstances under which [such writs] may be issued" ( Modern Barber, supra, 31 Cal.2d at p. 726), explaining:

"The fallacy in this argument lies in the failure to distinguish between jurisdiction to grant the remedy and the right which is to be vindicated. Except as the Constitution otherwise provides, the Legislature has complete power to determine the rights of individuals. (See Delaney v. Lowery [(1944)] 25 Cal.2d 561, 568 [ 154 P.2d 674].) It may create new rights or provide that rights which have previously existed shall no longer arise, and it has full power to regulate and circumscribe the methods and means of enjoying those rights, so long as there is no interference with constitutional guaranties. . . . The mere statement in the Constitution that a court has the power to grant certain remedies, however, does not mean that the rights which those remedies were intended to protect have been fixed in the Constitution as of the time of its adoption and are thereafter immune from legislative change or regulation." ( Modern Barber, supra, 31 Cal.2d at pp. 726-727, first and second italics added, others in original.)

We went on to note: "`Statutory changes are almost perpetual. New rights are created under which new equities arise. These make new cases in equity, of which the courts at once take cognizance. The jurisdiction of courts of equity is not thereby enlarged. Neither is it diminished when by statutory changes some rights cease to exist and certain cases which courts of equity once entertained can no longer arise. . . .'" ( Modern Barber, supra, 31 Cal.2d at p. 728, quoting Spreckels v. Hawaiian Com. Sugar Co. (1897) 117 Cal. 377, 381 [49 P. 353].)

As the City of Richmond suggests, this aspect of our discussion in Modern Barber makes clear that the Legislature is free to create a new statutory scheme, or revise an existing one, in a way that defines rights and the method by which litigants may seek to vindicate those rights under the statutory scheme. Doubtless the Legislature has had this authority before and since Modern Barber. But, contrary to the City of Richmond's suggestion, this principle does not resolve the question in this case, because, by its own terms, Modern Barber makes clear that the Legislature may exercise its authority only insofar as it does not "interfere with constitutional guarantees." That is precisely plaintiffs' claim here.

The City of Richmond also asserts Modern Barber stands for the proposition that there is no constitutional right of appeal, and hence section 6259(c) works no "interference with constitutional guarantees." As explained below, although dictum in Modern Barber states there is no constitutional right of appeal, that dictum is of no weight.

The dictum in Modern Barber was as follows: "The fallacy of petitioner's position is again exposed when we consider the law governing appeals. . . . In interpreting [ former article VI, sections 4 and 4b], the courts have held that the Legislature has the power to declare by statute what orders are appealable, and unless a statute does so declare, the order is not appealable. ( Gale v. Tuolumne County Water Co., [ supra,] 169 Cal. 46; see Trede v. Superior Court, [ supra,] 21 Cal.2d 630, 634; cf. Byers v. Smith, [ supra,] 4 Cal.2d 209 [express constitutional right of appeal in cases involving removal from public office]; In re Sutter-Butte By-Pass Assessment, [ supra,] 190 Cal. 532 [express constitutional right of appeal in cases involving legality of tax assessments].)" ( Modern Barber, supra, 31 Cal.2d at p. 728, parenthetical statements in citations in original, italics added.)

There is an undeniable tension between Modern Barber's above italicized dictum and its simultaneous citations to and descriptions of Byers and Sutter-Butte, both of which, in the court's own words, involved an "express constitutional right of appeal." On closer examination, the better argument rests with the latter cases, recognizing a constitutional right of appeal in some matters.

As the lead opinion recognizes, the first case cited in support of Modern Barber's dictum, Gale, supra, 169 Cal. 46, 50, involved an attempted appeal from a contempt judgment — a matter that, by long-established authority, was not included in the grant of constitutional appellate jurisdiction under former article VI, section 4, and hence did not afford a constitutional right of appeal. (See, e.g., Tyler, supra, 65 Cal. 28, 30-31.) Indeed, as noted above, properly construed, Gale stands for the proposition that the Constitution confers a right of appeal — but not from contempt judgments. The second case cited, Trede, supra, 21 Cal.2d 28, 30-31, is discussed ante, at page 155. As noted there, Trede did not involve a matter over which the Legislature had barred appeal; instead, it was a writ proceeding in which the petitioner sought a stay pending a statutory appeal. Accordingly, neither Gale, supra, nor Trede, supra, stands for the broad proposition that the Legislature may control or ban appeals in any case it chooses, or that there is no constitutional right of appeal, i.e., review on the merits and a written opinion. Moreover, as noted above, the last two cases cited by Modern Barber — Byers, supra, and Sutter-Butte, supra, both of which involved matters included in former article VI, sections 4 and 4b's lists of litigation giving rise to appellate jurisdiction — hold just the opposite, i.e., there is a constitutional right of appeal in cases included in the "appellate jurisdiction lists" of former article VI, sections 4 and 4b.

In light of this analysis, Modern Barber, supra, 31 Cal.2d 720, must be read consistently with Sutter-Butte, supra, 190 Cal. at pages 536-537, and Byers, supra, 4 Cal.2d at pages 213-214, as standing for the proposition that the Legislature has authority to reshape and redefine statutory rights and remedies, "so long as there is no interference with constitutional guaranties" ( Modern Barber, supra, 31 Cal.2d at p. 726). This proviso, as noted in Sutter-Butte, supra, and as confirmed in Modern Barber, supra, contemplates a right of appeal — i.e., review on the merits and a written opinion — in certain matters within the constitutional appellate jurisdiction of the Courts of Appeal and this court, and it bars legislation that substantially interferes with that right.

The lead opinion's contrary and novel construction of Modern Barber is unpersuasive. It asserts that "although [ Modern Barber did not] purport to overrule our earlier decisions in Byers, supra, 4 Cal.2d 209, and Sutter-Butte, supra, 190 Cal. 532, [it] did appear to suggest that the `constitutional right of appeal' mentioned in those cases extended only to proceedings specifically mentioned in the constitutional grant of appellate jurisdiction, and not to proceedings encompassed by the jurisdictional grants phrased in more general terms." (Lead opn., ante, at p. 108, italics in original.)

This interpretation of the relevant constitutional provisions finds no support in the debates of 1849 or 1879, and it is directly contrary to Tyler, supra, 65 Cal. 28, at pages 29-30 (maj. opn.) and pages 29-30 (conc. opn. of Morrison, C.J.), in which we plainly stated that proceedings encompassed by the jurisdictional grants "phrased in more general terms" (i.e., "criminal cases prosecuted by indictment or information" or cases "in which the demand . . . amounts to three hundred dollars") did indeed trigger a constitutional right of appeal. Moreover, the lead opinion's construction mires itself in layers of unresolvable quandary.

The lead opinion's interpretation of Modern Barber, supra, 31 Cal.2d 720, would mean that under present article VI, section 11, there is a constitutional right of "direct appeal" to this court in capital cases (but no others) because capital cases are still "specifically mentioned in the constitutional grant of appellate jurisdiction." At the same time, however, the lead opinion insists that present article VI, section 11, merely "serves to establish and allocate judicial authority, not to define or guarantee the rights of litigants. Indeed, the provision nowhere mentions direct appeals or a `right of appeal.'" (Lead opn., ante, at p. 91.) One of these propositions must be wrong. The lead opinion cannot infer from article VI, section 11, a right of "direct appeal" to this court in capital cases, and at the same time maintain that the same provision merely "allocates judicial authority," and does not define or guarantee the rights of litigants.

Moreover, if the lead opinion were to elect to resolve this dilemma consistently with its own suggested interpretation of Modern Barber, supra, 31 Cal.2d 720, and hence acknowledge a constitutional right of appeal in capital cases, it would find itself in an even tighter spot. The first sentence of present article VI, section 11, grants exclusive jurisdiction to this court in capital cases; the second sentence grants to the Courts of Appeal exclusive jurisdiction over all noncapital judgments — i.e., all other criminal judgments, and all civil judgments of the superior court. In regard to the respective courts' powers and litigants' rights, it is difficult to understand how the general constitutional grant of jurisdiction to the Courts of Appeal has an effect different from the specific grant of capital judgment jurisdiction to this court. In other words, if the lead opinion is willing to concede that the first sentence of article VI, section 11, by implication grants a right of appeal in capital cases within this court's appellate jurisdiction, why is it unwilling also to concede that the second sentence by implication grants a right of appeal in other litigation within the Court of Appeal's initial appellate jurisdiction? The lead opinion does not answer.

These substantial analytical problems arising from the lead opinion's interpretation of Modern Barber, supra, 31 Cal.2d 720, can be avoided by simply construing that case consistently with the case law that preceded it — in other words, as recognizing a right of appeal (meaning a right to review on the merits and a written opinion) in certain matters within the constitutional appellate jurisdiction of the Courts of Appeal and this court. As explained above, Modern Barber properly should be so construed. (See ante, at p. 158.)

3. Post-modern Barber case law

Unfortunately for the development of the law in this area, some decisions since Trede and Modern Barber have uncritically repeated the dicta of those cases to the effect that there is no constitutional right of appeal. (See, e.g., Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 705 [ 238 Cal.Rptr. 780, 739 P.2d 140]; Steen v. Fremont Cemetery Corp. (1992) 9 Cal.App.4th 1221, 1226 [ 11 Cal.Rptr.2d 780]; In re Taya C. (1991) 2 Cal.App.4th 1, 6-7 [ 2 Cal.Rptr.2d 810]; County of Monterey v. Mahabir (1991) 231 Cal.App.3d 1650, 1653 [ 282 Cal.Rptr. 924]; Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1088 [ 201 Cal.Rptr. 194]; Agricultural Labor Relations Bd. v. Abatti Produce, Inc. (1985) 168 Cal.App.3d 504, 509 [ 214 Cal.Rptr. 283], disapproved on other grounds in Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc., supra, 43 Cal.3d 696, 699; Woodman v. Ackerman (1967) 249 Cal.App.2d 644, 649 [ 57 Cal.Rptr. 687]; In re Conley (1966) 244 Cal.App.2d 755, 759 [ 53 Cal.Rptr. 321]; City of Los Angeles v. Schweitzer (1962) 200 Cal.App.2d 448, 452 [ 19 Cal.Rptr. 429]; Efron v. Kalmanovitz (1960) 185 Cal.App.2d 149, 157 [ 8 Cal.Rptr. 107].) When this progeny is presented as a string citation in briefs or judicial opinions, it conveys an illusion of solid authority. As explained below, however, all of these cases are distinguishable, and in each the statement is misleading dictum. As the lead opinion concedes (lead opn., ante, at pp. 109-110), none of the cases involved a legislative attempt to bar appellate review (i.e., review on the merits and a written opinion) of a final judgment of the superior court and to relegate litigants to discretionary and summary writ review.

Most of the cited cases involved nothing more than an attempt by a litigant to take an interlocutory appeal. ( Steen v. Fremont, supra, 9 Cal.App.4th 1221, 1226-1230; In re Taya C., supra, 2 Cal.App.4th 1, 5-6; Woodman v. Ackerman, supra, 249 Cal.App.2d 644, 649; City of Los Angeles v. Schweitzer, supra, 200 Cal.App.2d 448, 452; Efron v. Kalmanovitz, supra, 185 Cal.App.2d 149, 157.) It has been long established, however, that there is no constitutional right to do so. Other cases are distinguishable on other grounds. In County of Monterey v. Mahabir, supra, 231 Cal.App.3d 1650, 1652, the purported appellant waived its right to appeal an award of attorney fees when it voluntarily dismissed the underlying action with prejudice. The court in In re Conley, supra, 244 Cal.App.2d 755, 761, dismissed a purported appeal from the juvenile court in a case concerning Vehicle Code infractions — litigation over which the Constitution has never provided for an appeal to the appellate court. (See post, fn. 45.) In the remaining cases ( Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc., supra, 43 Cal.3d at p. 705; Agricultural Labor Relations Bd. v. Abatti Produce, supra, 168 Cal.App.3d 504 [disapproved in Tex-Cal, supra]; Reisman v. Shahverdian, supra, 153 Cal.App.3d 1074, 1088), appeal was granted by statute.

The significance of the statements made in these cases is further eroded by the fact that with one distinguishable exception the decisions do not even mention article VI, section 11, or its predecessor, former article VI, sections 4 or 4b.

In addition, a number of cases have included statements to the effect that the Legislature has complete power to regulate appeals. Some assert the Legislature has complete power over appellate rights. Others state the Legislature has power to decide what "orders" are appealable, or that an order is not appealable unless declared to be so by the Constitution or by statute. Some assert the Legislature has power to decide what "judgments" are appealable. And there are cases stating the Legislature has power to withdraw the right of an appeal by retroactive legislation, thus destroying the right to an appeal already taken.

Like the cases asserting in dicta that there is no constitutional right of appeal, each of these cases is distinguishable. None concerned a legislative attempt to substitute review by discretionary and potentially summary writ for review by appeal in litigation falling within the constitutional "appellate jurisdiction" of this court or the Courts of Appeal, and hence the broad statements, although correct on the facts of each case, do not apply to the present situation. And again, the significance of these cases is further diminished by the fact that none even mentions the relevant constitutional provision, article VI, section 11, or its predecessor, article VI, former sections 4 or 4b.

G. The 1966 constitutional revisions

Article VI, former sections 4, 4b, and 5, remained essentially unchanged between 1928 and 1966. In 1966, on the recommendation of the California Constitution Revision Commission, the voters adopted present article VI, which as noted above covers the original (§ 10) and appellate (§ 11) jurisdiction of the courts. Before addressing the effect of the revisions, at this point it is helpful to summarize the decisions construing article VI, former sections 4 and 4b.

Setting aside the unsupported dicta in Trede, supra, 21 Cal.2d 630, and its progeny, the historical record of the debates considered in conjunction with the decisions construing former article VI, sections 4 and 4b, establishes the following propositions: First, the provisions established the appellate jurisdiction of the courts, and imposed a constitutional duty on the part of the appellate court to entertain an appeal within the court's appellate jurisdiction ( Jordan, supra, 65 Cal. 644, 646). Second, the provisions also established a litigant's constitutional "right of appeal" (e.g., Sutter-Butte, supra, 190 Cal. 532, 536, 537, 539; see also Tyler, supra, 65 Cal. 28, 29-30 (maj. opn.); id., 31-33 (conc. opn. of Morrison, C.J.)) — i.e., a right to obtain review on the merits and a written opinion. Third, although the Legislature may impose reasonable regulations and procedures governing a litigant's constitutional right of appeal, it has no power to provide by statute that an appeal may not be taken from a final judgment in a case in which the Constitution grants appellate jurisdiction to the Courts of Appeal or this court ( Sutter-Butte, supra, 190 Cal. 532, 536, 537, 539; Byers, supra, 4 Cal.2d 209, 214; see also Modern Barber, supra, 31 Cal.2d 720, 728), nor may the Legislature "substantially impair" the right of appeal ( Haight v. Gay, supra, 8 Cal. 297, 300; Jessup, supra, 81 Cal. 408, 470).

1. Appellate jurisdiction under the 1966 revisions

In 1963, the Legislature established the California Constitution Revision Commission to refine and propose revisions to the Constitution. (See Cal. Const. Revision Com., Proposed Revision (Feb. 1966) p. 12.) As we have observed, the drafters "contemplated few substantive changes in article VI." ( Mosk v. Superior Court (1979) 25 Cal.3d 474, 496 [ 159 Cal.Rptr. 494, 601 P.2d 1030].)

When the commission turned its attention to the appellate review sections of article VI, it proposed to vest the Courts of Appeal with direct appellate jurisdiction and to make the appellate jurisdiction of the Supreme Court "discretionary, except in death penalty cases, thereby conforming to a long-standing practice of the Supreme Court to refer the types of cases enumerated in the existing Section 4 to district courts of appeal." (Cal. Const. Revision Com., Proposed Revision, supra, at p. 81.) The commission then proposed to streamline the appellate jurisdiction provisions of former sections 4, 4b, 4e, and 5, into a new article VI, section 11, which was ultimately adopted by the voters in November 1966. As noted above, article VI, section 11 vests this court with "appellate jurisdiction when judgment of death has been pronounced. With that exception courts of appeal have appellate jurisdiction when superior courts have original jurisdiction[] and in other causes prescribed by statute. . . ."

The commission staff's comment regarding the proposed change noted: "Some of the existing sections contain detailed references to instances of appellate jurisdiction. The commission deleted those references as unnecessary in the Constitution except in death penalty cases where, because of the extreme nature of the penalty, jurisdiction was given to the Supreme Court." (Cal. Const. Revision Com., Proposed Revision, supra, at p. 91.)

2. The right of appeal under the 1966 revisions — Hawes

Nothing in the working documents of the commission, or its report to the Legislature, suggests that it addressed, much less intended to modify, the established principle that the constitutional grant of appellate jurisdiction also confers a litigant's right of appeal. Nor did the ballot materials submitted to the voters suggest the proposed new section yielded any such change. (Ballot Pamp., Proposed Amends. to Cal. Const. with Arguments to Voters, Prop. 1-a, Gen. Elec. (Nov. 8, 1966) pp. 1-2; see generally, Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 16 [ 26 Cal.Rptr.2d 834, 865 P.2d 633] [examining ballot pamphlet to determine voters' intent].)

The lead opinion's review of the 1966 revisions conveniently fails to acknowledge that, as noted above, the drafters "contemplated few substantive changes in article VI." ( Mosk v. Superior Court, supra, 25 Cal.3d 474, 496.) Certainly, the drafters would have considered abrogation of the constitutional right of appeal — a right recognized in at least seven prior decisions of this court and repeatedly emphasized by the 1849 and 1879 convention delegates — as a "substantive change." It therefore seems patent that the drafters did not intend to abrogate that established right sub silentio. Nor would it be reasonable to conclude that the drafters unintentionally abrogated the right. Clearly, then, "the right of appeal" "survived" the 1966 revision of article VI.

The lead opinion asserts it finds no decision after 1966, "affirming the existence of a `right of appeal' under the State Constitution, nor do we find references to the `appellate jurisdiction' provision as limiting the Legislature's authority to determine which superior court judgments and orders are reviewable by direct appeal and which by extraordinary writ or other mode of review." (Lead opn., ante, at p. 109.) Addressing the second point first, it is obvious why the lead opinion has found no case addressing whether the Legislature may constitutionally substitute discretionary writ review for review on appeal of an entire cause of action: There has never been such a decision ( before or after 1966) because, with the possible exception of a few narrow statutes listed post, at page 179, the Legislature has heretofore not acted as it has done in this case, i.e., barred appeal and substituted discretionary writ review as the sole means of reviewing a judgment of the superior court resolving a cause of action within the original jurisdiction of the superior court.

On the first point, the lead opinion overlooks a key Court of Appeal decision rendered after the 1966 revision of article VI, and consistent with the proposition that the Constitution continues to afford a right of appeal in cases like this. In People v. Hawes (1982) 129 Cal.App.3d 930 [ 181 Cal.Rptr. 456], the defendant — a district attorney — was removed from office on charges of misconduct. He appealed, and the People moved to dismiss the appeal on the ground it was not authorized by statute.

The Court of Appeal held the appeal authorized by article VI, section 11, of the Constitution. It noted that appellate jurisdiction over removal proceedings was expressly granted to the Courts of Appeal in the 1928 amendment to former article VI, section 4b, and that we held in Byers, supra, 4 Cal.2d 209, 214, that under the former section "[t]he constitutional grant of appellate jurisdiction . . . was self-executing, not dependent for its vitality on the existence of implementing legislation." ( People v. Hawes, supra, 129 Cal.App.3d at p. 934.) The court also observed that the ballot materials submitted to the voters concerning the 1966 revision suggested no "design . . . to alter the scope of appellate jurisdiction over removal proceedings as conferred by its predecessor," and that the language of the revision "reveals no intent to diminish the compass of appellate jurisdiction in respect to removal proceedings and we are satisfied that none was intended. Elimination of express mention of removal proceedings from the 1966 revision had no substantive effect as removal proceedings are clearly encompassed within the general language of the 1966 revision." ( Id. at p. 935.)

The Hawes court concluded: "Under article VI, section 11, except where judgment of death has been pronounced, the Court of Appeal has appellate jurisdiction when superior courts have original jurisdiction. The superior court has original jurisdiction over the trial of an accusation [citation]. We conclude jurisdiction over this appeal is authorized by California Constitution, article VI, section 11. That provision is self-executing ( Byers v. Smith, supra, 4 Cal.2d at pp. 213-214)." ( People v. Hawes, supra, 129 Cal.App.3d at p. 935.)

The fact that the court went on to note that "in addition to constitutional jurisdiction," there was, contrary to the People's view, "statutory authorization for the defendant's appeal" ( 129 Cal.App.3d at p. 935), does not diminish the clear thrust of the Hawes opinion. After acknowledging the statutory authorization, the court reaffirmed that in the matter before it, "no statutory authority [for appeal] was required ( Byers v. Smith, supra, 4 Cal. 2d at pp. 213-214)." ( People v. Hawes, supra, 129 Cal.App. 3d at p. 936.) When we read Hawes as a whole, it reiterates, under the 1966 revisions, the holding of Byers, supra, 4 Cal.2d 209, that in matters over which "[appellate] jurisdiction is conferred by the Constitution" ( id. at p. 213) the Constitution grants a "right of an appeal" ( id. at p. 214) that must be afforded whether or not there is statutory authority for the appeal.

The lead opinion then turns to a sampling of the numerous cases cited ante, at pages 109-110, in which this court or the Court of Appeal has said, "there is no constitutional right of appeal and that the right of appeal is wholly statutory in origin." (Lead opn., ante, at p. 109; see also id. at p. 108.) The lead opinion "recognize[s] that none of these cases is directly on point," but asserts "they nonetheless represent a significant consensus of judicial thinking on this topic over the past 30 years." (Lead opn., ante, at p. 110.)

These cases, far from representing a consensus of "judicial thinking," are instead examples of something that courts should avoid. They are but mechanical incantations of a so-called "rule" without bothering to consider whether it is supported by anything other than a prior opinion that said the same thing. (See Hyde v. United States (1912) 225 U.S. 347, 391 [ 56 L.Ed. 1114, 1135, 32 S.Ct. 793] (dis. opn. of Holmes, J.) [observing that "ideas become encysted in phrases and thereafter for a long time cease to produce further analysis"].) As noted above, with one easily distinguishable exception none of the listed cases even cited the relevant portions of the state Constitution that it purported to construe. (See ante, fn. 34.) In short, the cited cases are examples of judicial regurgitation, not judicial thinking.

Next, the lead opinion "also note[s] that courts in other states with constitutions containing `appellate jurisdiction' provisions similar to article VI, section 11, . . . have rejected the contention that this language confers on litigants a right of direct appeal. (See, e.g., Appeal of O'Rourke (1974) 300 Minn. 158 [ 220 N.W.2d 811].)" (Lead opn., ante, at p. 110.)

By focusing on Minnesota, the lead opinion conveniently ignores the best and most compelling out-of-state evidence. As explained above, our 1849 "appellate jurisdiction" provision was modeled after the 1845 Louisiana Constitution. The record of the Louisiana debates shows that the delegates intended their provision to grant a right of appeal. Moreover, since 1876 the Louisiana courts have construed their provision as granting a right of appeal, meaning a right to review on the merits. (See ante, at pp. 135-136.) Instead of acknowledging this significant point, the lead opinion casts about for case law in harmony with its reconstructed view of California constitutional history and case law. As explained below, however, there are numerous problems with the lead opinion's reliance on Appeal of O'Rourke.

As a initial matter, it may be questioned whether the "appellate jurisdiction" provisions of the California and Minnesota Constitutions are in fact analogous, and whether, given the procedural posture of the purported appeal in Appeal of O'Rourke (1974) 300 Minn. 158 [ 220 N.W.2d 811] ( O'Rourke), that decision is persuasive authority for the question posed here. More important, however, assuming these significant threshold problems may be overlooked, O'Rourke itself demonstrates that Minnesota's interpretation of its appellate jurisdiction provision is inapposite and unpersuasive authority in this case.

First, the court in O'Rourke, supra, 220 N.W.2d 811, was not faced with a record showing the drafters' intent that the Minnesota provision established a litigant's right of appeal. Second — and again, unlike California — O'Rourke, supra, makes it clear that earlier Minnesota case law construing the appellate jurisdiction provision did not find a right of appeal (i.e., review on the merits and a written opinion), but instead, only the right to seek discretionary review in the nature of certiorari. (See cases discussed in O'Rourke, supra, 220 N.W.2d 811, at pp. 818-820; see also id. at p. 821, fn. 12.) Indeed, in summarizing the relevant cases, the O'Rourke court explained they "demonstrate that the court was asserting its constitutionally independent power of review, subject to reasonable legislative regulation, as distinguished from admitting its constitutional duty to accept an appeal in any case." ( Id. at p. 818, italics in original.)

The California cases on this crucial latter point are precisely opposite: In Jordan, supra, 65 Cal. at page 646, we construed our appellate jurisdiction provision (Cal. Const., former art. VI., § 4) as self-executing, and said: "[W]hen a certain jurisdiction has been conferred on this or any court, it is the duty of the court to exercise it; a duty of which is not relieved by the failure of the legislature to provide a mode for its exercise." ( 65 Cal. at p. 646, italics added; see also Byers, supra, 4 Cal.2d at pp. 213-214 [appellate jurisdiction provision is self-executing]; People v. Hawes, supra, 129 Cal.App.3d 930, 935 [same].)

For these reasons, the lead opinion's reliance on out-of state cases such as O'Rourke, supra, 220 N.W.2d 811, is misplaced.

Next, although it finds for litigants no right of appeal in article VI, section 11, the lead opinion acknowledges that the provision imposes some "restrictions on the Legislature's authority to allocate appellate review as between direct appeals and extraordinary writ petitions." (Lead opn., ante, at p. 110.) The lead opinion proceeds to address that issue, however, only from the perspective of the power of courts, and not from the perspective of the rights of litigants. It asserts: "If it could be demonstrated in a given case, or class of cases, that, for whatever reason, the Courts of Appeal or this court could not effectively exercise the constitutionally granted power of appellate review by an extraordinary writ proceeding, then such a proceeding could not constitutionally be made the exclusive mode of appellate review." ( Ibid., italics added.)

As the lead opinion recognizes immediately thereafter, however, "[n]o such claim is made here" (lead opn., ante, at p. 110), and thus the last quoted passage does not address the question posed in this case. The sole issue raised by plaintiffs is whether their constitutional rights are satisfied when they are relegated to review by discretionary writ. Plaintiffs do not claim section 6259(c) precluded the Court of Appeal from reviewing the matter on the merits and issuing a written opinion; instead, their claim is based on the fact that section 6259(c) does not guarantee such review.

Although it faults the concurring opinion for avoiding the difficult constitutional issue addressed herein (lead opn., ante, at pp. 114-115), the lead opinion itself never clearly analyzes whether plaintiffs have a constitutional right under article VI, section 11, to review on the merits and a written opinion. On the latter point, the lead opinion's resolution of the issue is patently unacceptable: It simply ignores plaintiffs' claimed right to a written opinion. On the former point (right to merit review) the lead opinion implies the issue need not be resolved because general principles of writ jurisprudence guarantee a right to merit review on petition for extraordinary writ in PRA disclosure cases. As explained below, this purported holding is foreclosed by the legislative history of section 6259(c).

The lead opinion announces: "When an extraordinary writ proceeding is the only avenue of appellate review, a reviewing court's discretion is quite restricted. Referring to the writ of mandate, this court has said: `"Its issuance is not necessarily a matter of right, but lies rather in the discretion of the court, but where one has a substantial right to protect or enforce, and this may be accomplished by such a writ, and there is no other plain, speedy and adequate remedy in the ordinary course of law, he [or she] is entitled as a matter of right to the writ, or perhaps more correctly, in other words, it would be an abuse of discretion to refuse it."' [Citations.] Accordingly, when writ review is the exclusive means of appellate review of a final order or judgment, an appellate court may not deny an apparently meritorious writ petition, timely presented in a formally and procedurally sufficient manner, merely because, for example, the petition presents no important issue of law or because the court considers the case less worthy of its attention than other matters." (Lead opn., ante, at pp. 113-114, italics added.)

As explained, post, footnote 55 and page 179, there are very few statutory schemes in which "writ review is the exclusive means of appellate review of a final order or judgment" of the superior court. Assuming the lead opinion's assessment of writ jurisprudence is correct as to those few other schemes — and hence litigants seeking discretionary writ relief under such schemes have a general "writ law"-based right to review on the merits — it does not follow that the same general principle applies in the context of the PRA.

It is not surprising that the lead opinion cites no authority for its italicized statement, because there is none. Neither party in this case argues that plaintiffs had a right, under general principles of writ law, to guaranteed merit review of their earlier writ petition to the Court of Appeal. In fact, although the precise issue raised here has been twice previously before this court, no party or amicus curiae has ever suggested what the lead opinion asserts, i.e., that general principles of writ jurisprudence guarantee merit review of a discretionary writ petition under section 6259(c). It is clear why no prior judicial decision and no prior PRA litigant has advanced the lead opinion's novel theory: The legislative history of section 6259(c) forecloses it.

As we noted in Times-Mirror Co. v. Superior Court, supra, 53 Cal.3d 1325, the Legislature did not intend to guarantee review on the merits in PRA litigation, and in fact contemplated that "writ review might occasionally result in a summary denial rather than an adjudication on the merits." ( Id. at p. 1335, italics added.) Analyses prepared by the Judiciary Committees of both houses of the Legislature in 1984 and 1990 confirm Times-Mirror's assessment of the Legislature's intent. Indeed, even the history selectively relied on by the lead opinion proves that point. As the lead opinion concedes, an analysis prepared for the Assembly Judiciary Committee explains the amendment was designed to "clarify that courts can rule quickly on substantive issues." (Assem. Com. on Judiciary, Background Sheet re: Sen. Bill No. 2272 (1989-1990 Reg. Sess.) June 8, 1990, italics added.) If the drafters intended to convey the idea that writ review would be guaranteed rather than merely permitted, they would have used a mandatory word like "must" instead of the permissive word "can."

Given this history, the lead opinion cannot reasonably purport to hold that litigants in PRA disclosure matters have a right, found in general principles of writ jurisprudence, to have discretionary writ petitions under section 6259(c) reviewed on the merits. The legislative history — from all four Judiciary Committees that considered the 1984 provision and the 1990 amendment — discloses that, at most, the Legislature intended not to preclude, but to allow review on the merits; it did not intend to guarantee review on the merits, but instead understood that writ review might occasionally result in a denial without adjudication on the merits. ( Times-Mirror Co. v. Superior Court, supra, 53 Cal.3d 1325, 1335.)

If a right to merit review in PRA disclosure cases is to be found, it must rest on a constitutional basis. For the reasons outlined above, the lead opinion errs by failing to recognize a litigant's constitutional right of appeal, i.e., a right to review on the merits and a written opinion.

Moreover, the lead opinion's conclusion creates a special anomaly in this case. Under its novel theory, plaintiffs had a general "writ law"-based right to merit review when they earlier sought discretionary writ relief in the Court of Appeal. But because the lead opinion erroneously ignores the second aspect of plaintiffs' constitutional claim (their right to a written opinion) neither plaintiffs, nor this court, can know whether plaintiffs actually received the merit review to which they are entitled, or, just as important, whether the Court of Appeal's merit review (assuming it occurred) was legally correct. Plaintiffs in this and future cases are implicitly told to simply trust that the Court of Appeal has engaged in, and will engage in, legally correct merit review. As explained above, the right to a written opinion with reasons stated was enshrined in the Constitution to avoid just this kind of unseemly consequence.

In summary, the lead opinion would allow the Legislature to transform this Court and the Courts of Appeal into writ courts exclusively, so long as the power of the courts is not significantly impaired — a caveat that, under the lead opinion's analysis, affords no protection for litigants' rights. As noted above, under the lead opinion's analysis, there is no principled reason why this rule would not apply even to defendants convicted of capital crimes. Moreover, under the lead opinion's analysis, the same rule would also apply to all civil litigants. Accordingly, neither a defendant ordered to pay damages in a contract dispute, nor a probate plaintiff who unsuccessfully challenges a will, nor a defendant ordered to pay punitive damages, nor a plaintiff whose meritorious civil rights claim is erroneously rejected, nor a governmental entity ordered to disclose documents under the PRA, would have a constitutional right to appeal the adverse judgment of the superior court. We should reject this radical position, and conclude, in light of the foregoing history and case law, that article VI, section 11 grants a constitutional right to review on appeal — i.e., review on the merits and a written opinion — of judgments that arise from the original jurisdiction of the superior court.

III. APPLICATION OF THESE PRINCIPLES TO THIS CASE

A. The right of appeal in the present case

The present litigation arose from the original jurisdiction of the superior court, and is hence within the appellate jurisdiction of the Court of Appeal and this court. (See art. VI, § 11.) It is not a matter over which the Constitution has traditionally declined to authorize appeal (e.g., appeals from contempt judgments, habeas corpus proceedings, and inferior courts) nor is it a matter involving review of interim rulings or determination of discrete preliminary issues, rather than review of an entire cause of action.

The concurring opinion would add one further exception to this list. It concludes that PRA actions such as this are properly within the class of matters over which there is no right to review on appeal. (See conc. opn. of George, J., ante, at pp. 122-123.) It fails, however, to provide a basis for its proposed holding.

Before revision of article VI in 1966 and adoption of the PRA in 1968, actions such as the present one were routinely treated as within the constitutional appellate jurisdiction of the Courts of Appeal and this court. Under century-old statutes governing public records disclosure that preceded the PRA, litigants sought from the superior courts writs of mandate directing disclosure of public information, and the Courts of Appeal and this court routinely entertained appeals from superior court judgments granting or denying writs of mandate in such cases. After revision of article VI in 1966 and enactment of the PRA in 1968, and until adoption of section 6259(c) in 1984, the Courts of Appeal continued to routinely entertain appeals from superior court judgments granting or denying writs of mandate in such cases.

Thus, our decisions have long treated "public records cases" as giving rise to direct appeals — unlike the types of actions in the cases relied on by the concurring opinion. Tyler, supra, 65 Cal. 28, and In re Crow (1971) 4 Cal.3d 613 [ 94 Cal.Rptr. 254, 483 P.2d 1206], found no right of appeal because our Constitution and case law have, since the earliest days of statehood, treated judgments of contempt, and applications for a writ of habeas corpus, as not subject to appeal. Reliance on these cases is thus inappropriate because they involve actions whose constitutional and statutory history is wholly different from that of PRA actions.

The concurring opinion also relies on three cases involving review of "certain discrete issues arising" during the course of litigating an underlying cause of action. (Conc. opn., of George, J., ante, at p. 122, italics added, citing McCorkle v. City of Los Angeles, supra, 70 Cal.2d 252, 257 ( McCorkle); People v. Brown, supra, 6 Cal.4th 322, 334-335 ( Brown); People v. Chi Ko Wong, supra, 18 Cal.3d 698, 709-714 ( Chi Ko Wong).)

In each case, a preliminary issue unrelated to the substantive merits of the underlying cause of action was made reviewable by discretionary writ and not on appeal (even from a subsequent final judgment). The statute in McCorkle, supra, 70 Cal.2d 252, barred review on appeal of the preliminary issue whether personal jurisdiction was established; the statute in Brown, supra, 6 Cal.4th 322, barred review on appeal of the preliminary issue whether the trial court should have disqualified itself on a statutory ground, and the statute in Chi Ko Wong, supra, 18 Cal.3d 698, barred review on appeal of the preliminary issue whether a defendant was properly held fit for trial in superior court. (See ante, fn. 55.)

The present case does not involve review of a ruling on a discrete, preliminary issue unrelated to the substantive merits of the underlying PRA litigation. It instead involves the very heart of the cause of action: Are plaintiffs entitled to the disclosure they seek?

The cases and statutory schemes relied on by the concurring opinion are thus inapposite. None of them involves disposition of a cause of action traditionally entitled to review on direct appeal. None of them supports the concurring opinion's position that the Legislature may, at its own discretion, constitutionally foreclose review on appeal of an entire cause of action for disclosure of documents under the PRA.

Because (i) the present litigation arose from the original jurisdiction of the superior court, (ii) the "public records cases" have never, in over 100 years, been treated as a matter over which the Constitution has declined to authorize appeal, and (iii) the PRA litigation at issue here concerns review of an entire cause of action rather than mere interim rulings or determination of discrete preliminary issues unrelated to the substantive merits of an underlying cause of action, it follows that plaintiffs have a constitutional right of appeal — i.e., review on the merits and a decision in writing with reasons stated — from the judgment of the superior court denying their application for a writ of mandate seeking disclosure of public information under the PRA.

B. Constitutional validity of section 6259(c) on its face and as applied in this case

As an initial matter there is no basis in logic or fact for the lead opinion's assertion that "the Legislature's reason for eliminating direct appeals is readily apparent. Had the Legislature not abolished direct appeals in PRA cases, parties seeking review by extraordinary writ would be required in each case to demonstrate the inadequacy of appeal. . . ." (Lead opn., ante, at p. 113.) The Legislature could have easily avoided this problem by simply specifying that a litigant would be permitted to opt for writ review in lieu of appeal, or that a litigant would be permitted to appeal only if review by writ was first sought and denied summarily. (Cf. Welf. Inst. Code, § 366.26, as amended by Stats. 1994, ch. 1007, eff. Jan. 1, 1995.) Alternatively, the Legislature could have given PRA appeals priority, or, as one of the interested entities commenting on the amendment of section 6259(c) in 1990 suggested, it could have specified that appellate review would be available, albeit without an automatic stay of disclosure pending filing of an appeal. (See Assem. Com. on Judiciary, Analysis of Sen. Bill No. 2272 (1989-1990 Reg. Sess.) Aug. 15, 1990, p. 3; Sen. Com. on Judiciary, Analysis of Sen. Bill No. 2272 (1989-1990 Reg. Sess.) Apr. 3, 1990, p. 4.) Contrary to the lead opinion's assertion, the Legislature was not "forced" to eliminate "direct appeals" in order to achieve its goal.

In any event, the Legislature decided that actions under the PRA should be subject to immediate and final review by extraordinary writ. Of course, it is our duty to honor, insofar as permitted by the Constitution, the Legislature's intent in that regard. (See, e.g., Brockett v. Spokane Arcades, Inc. (1985) 472 U.S. 491, 504, 506 [ 86 L.Ed.2d 394, 406, 407-408, 105 S.Ct. 2794] [applying "normal rule that partial, rather than facial, invalidation is the required course," and severing from overbroad statute any meaning that would result in unconstitutional application; court noted such "[p]artial invalidation" was consistent with legislative intent]; Barrows v. Municipal Court (1970) 1 Cal.3d 821, 827-828 [ 83 Cal.Rptr. 819, 464 P.2d 483] [construing otherwise valid statute as inapplicable to constitutionally protected conduct]; In re Cox (1970) 3 Cal.3d 205, 223 [ 90 Cal.Rptr. 24, 474 P.2d 992] [same]; People v. Freeman (1988) 46 Cal.3d 419, 424 [ 250 Cal.Rptr. 598, 758 P.2d 1128] [same].)

The Legislature's goals can be achieved by construction of the statute without destroying the constitutional right of appeal. I would find no facial constitutional infirmity insofar as section 6259(c) requires all litigants who seek review on appeal of a superior court order granting or denying a writ of mandate or prohibition in an action for disclosure under the PRA to first timely seek writ review as described in section 6259(c). As a practical matter, most litigation under the PRA would come to a speedy and final resolution at that stage. If a litigant neglects to seek writ review or to present to the Court of Appeal an adequate record supporting the claim for relief, or if, on writ review in the Court of Appeal, the litigant is afforded the substance of the procedural protections to which he or she would be entitled on appeal (i.e., review on the merits and a decision in writing with reasons stated), that litigant may properly be precluded by section 6259(c) from subsequently pursuing the same challenge on appeal.

In other words, the Legislature may place conditions on the constitutional right of appeal. The construction described above (akin to an "exhaustion" requirement) advances the Legislature's legitimate interest in speeding review in PRA disclosure actions while constituting an insubstantial legislative impairment of the right. (Cf. Welf. Inst. Code, § 366.26, as amended by Stats. 1994, ch. 1007, eff. Jan. 1, 1995 [enacting "exhaustion" requirement as condition of appeal, as suggested in In re Matthew C., supra, 6 Cal.4th at p. 400, fn. 13].)

This construction is necessary, however, because a statute may not constitutionally deny a litigant the procedural rights that are guaranteed on appeal when, as in this case, the litigant timely sought and was summarily denied writ relief from the superior court's order granting or denying disclosure under the PRA. In such a case a litigant has furthered the legislative objective by providing the courts an early opportunity to correct any alleged error. But, because the petition has been summarily denied, the litigant has not been afforded constitutional right to review on the merits (art. VI, § 11), and has been denied the constitutional right to a written opinion with reasons stated (Cal. Const., art. VI, §§ 11, 14). Because plaintiffs in this case sought writ review in conformity with the statute in the Court of Appeal and then in this court, and because the Court of Appeal summarily denied writ relief and we summarily denied review of that decision, section 6259(c) cannot constitutionally be applied to bar plaintiffs' subsequent appeal. Both the lead and the concurring opinions err by concluding otherwise.

C. Impact on appellate jurisdiction and workload

Contrary to suggestions of the lead and concurring opinions, the opportunity for appellate review after denial of writ relief should not significantly, if at all, slow the speedy resolution of PRA actions by writ. (See ante, at pp. 177-179 fn. 60.) At the same time, contrary to suggestions by the City of Richmond, I doubt that the availability of review on appeal will substantially burden the Courts of Appeal. For many years before enactment of the PRA, and for the first 16 years thereafter, these matters were subject to appeal but posed no apparent special burden on the appellate courts. (As noted ante, fn. 59, during 1968-1984, published appeals in such matters averaged only about one case per year.)

The City of Richmond offers a related argument, on which the lead opinion does not overtly rely. The City of Richmond claims that "in numerous statutes the Legislature has precluded review by appeal," and it suggests such schemes would be cast into doubt by a conclusion that plaintiffs have a right of appeal in this case. It lists (i) contempt orders (Code Civ. Proc., § 904.1, subd. (a)(1)(B)); (ii) orders assuming jurisdiction over a law practice (Bus. Prof. Code, § 6180.13); (iii) superior court orders on petitions for discovery under the Fair Employment and Housing Act (§ 12963.5, subd. (d)) and under state civil service disciplinary procedures (§ 19574.2, subd. (h)); (iv) certain court orders regarding enforcement of zoning regulations (§ 65908); and (v) certain superior court determinations on incorporation of bridge and highway districts (Sts. Hy. Code, §§ 27107, 27108).

Assuming for purposes of analysis that the existence of these statutory schemes is relevant to our interpretation of the Constitution, they do not support the City of Richmond's view. The first category is clearly inapposite: The statute precluding appeal of contempt judgments conforms to the well-established rule, which predated the 1879 Constitution by almost 30 years, that judgments of contempt are not appealable under the present and past versions of article VI, section 11. (See Tyler, supra, 65 Cal. 28, 30-31, and cases cited.) The remaining four schemes involve narrow questions of administrative and public law. At least some of them concern review of interim rulings or discrete preliminary issues, rather than review of an entire cause (see ante, fns. 33 55), and hence they do not interfere with the right of appeal. None of them poses a threat to the efficiency of the appellate courts, and hence the city's list hardly constitutes a parade of horribles.

Contrary to widely held assumptions that statutes such as the one at issue here (barring appeal from a final judgment or order of the superior court concerning a matter originating and pending in the superior court) are common, in fact they are exceptionally rare. Indeed, this is why, as the lead opinion repeatedly observes, no prior case has addressed the precise question of whether the Legislature may constitutionally substitute discretionary writ review for review on appeal of an entire cause of action. There has been no such case prior to this one for the simple reason that, with the possible exception of one or more of the narrow statutes listed above, the Legislature has heretofore not acted as it has done in this case, i.e., barring appeal and substituting discretionary writ review as the sole means of reviewing a judgment of the superior court resolving an entire cause of action within the original jurisdiction of the superior court.

It is true that in many schemes, the Legislature specifies that certain orders or judgments are reviewable by writ, but in those situations, the order or judgment is also reviewable in due course on appeal if the writ is summarily denied, pursuant to the usual civil and criminal rules permitting review on appeal of all orders or judgments below. (See Code Civ. Proc., § 906 [appellate court "may review . . . any intermediate ruling, proceeding, order or decision"]; Pen. Code, § 1259 [appellate court may "review any question of law involved in any ruling, order, instruction, or thing whatsoever . . . which affected the substantial rights of the defendant."].) Accordingly, our acknowledgment that the Constitution affords a right of appeal in cases such as this would affect only a handful of statutory schemes.

The concurring opinion, apparently conceding this point, speculates that the Legislature, at some distant date, may want to eliminate the constitutional right of appeal in certain extremely narrow situations in order to achieve increased efficiencies. Specifically, it asserts the Legislature might decide to eliminate appeal in favor of discretionary writ review in "criminal appeals in which the only issue raised . . . concern[s] a minor discrepancy (of a few days or less) as to the credit to which the defendant was entitled in the computation of his or her sentence." (Conc. opn., of George, J., ante, at p. 123.) The concurring opinion objects to the holding proposed herein, insofar as it would bar the Legislature from taking that heretofore not contemplated step.

Assuming for purposes of analysis that such conjecture is a relevant or proper consideration in our interpretation of the Constitution, the concurring opinion's point is easily answered as follows:

First, constitutional rights are not always convenient or efficient; often they impose on government burdens that would not otherwise exist if the state were allowed to pursue the most efficient means of accomplishing its goals. But as a general matter, we do not subject constitutional rights to the kind of cost-benefit analysis employed by an economist. Indeed, few rights would withstand such review. For example, under the efficiency-based approach suggested in the concurring opinion, we might allow the Legislature to bar jury trial whenever a defendant faces imprisonment for "a few days or less" — as opposed to applying the well-established rule that, under the California Constitution, a litigant has a right to a trial by jury in any case in which he faces any length of imprisonment. (See Mills v. Municipal Court (1973) 10 Cal.3d 288, 298 [ 110 Cal.Rptr. 329, 515 P.2d 273]; see also Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1243 [ 265 Cal.Rptr. 144, 783 P.2d 731] [1879 Constitutional Convention delegates "expressed their intent that the right to trial by jury be preserved for any defendant who might lose his liberty by a sentence of imprisonment, however short . . . ." (Italics added.)].) I thus reject the concurring opinion's suggested "efficiency exception" to constitutional analysis as a radical and dangerous innovation.

A second and related point is that, to the extent the policy interests of efficiency may militate in favor of allowing the Legislature authority to replace appeal with discretionary writ review in some situations, this presents a question for future revisers of the California Constitution, and not for this court. Our Constitution is a living document that has been amended hundreds of times. Indeed, article VI, section 11 and its antecedents have been amended eight times since 1849, most recently just this year. (See lead opn., p. 93, ante, fn. 3.) If at a future date, the appropriate entities conclude it is proper or necessary to grant the Legislature the concededly limited authority envisioned by the concurring opinion, such an amendment may be enacted. Until then, however, courts must construe the Constitution as they find it.

Finally, beyond these basic interpretive weaknesses, and contrary to the concurring opinion's suggestion, the Legislature is not precluded from enacting innovative statutes designed to address the efficiency concerns that motivate the concurring opinion. The Legislature might, for example, designate an agency to adjudicate "minor" sentencing matters, and condition the right of appeal on prior exhaustion of such remedies. Alternatively, or in addition, the Legislature might require such appellants to seek review by discretionary writ before proceeding to appeal (cf. ante, pp. 178-179). In other words, the Legislature presently has constitutional authority to operate flexibly in this area, even though it lacks authority to simply abolish such appeals.

The concurring opinion offers no principled basis on which to conclude that the Legislature has constitutional authority to eliminate appeals in PRA litigation, or any other narrow class of cases outside the traditionally recognized exceptions to the right of appeal. (See ante, at p. 174.)

IV. CONCLUSION

Article VI, section 11 confers a "right of appeal" — i.e., a right to review on the merits and a written opinion — in cases such as this. I cannot agree with any significant analytical step used by the lead opinion to reach its contrary conclusion. Nor does the concurring opinion support its position that PRA actions are excepted from the general constitutional right of appeal.

Although the Legislature may not substantially impair the constitutional right of appeal in litigation such as this, it may condition the right on a litigant's prior "exhaustion" of writ review. In order to give maximum effect to the legislative purpose of section 6259(c), I would read that statute as properly precluding appeal when a litigant neglects to seek writ review, or when, on writ review in the Court of Appeal, the litigant is afforded the substance of the procedural protections to which he would be entitled on appeal, i.e., review on the merits and a written opinion "with reasons stated" (Cal. Const., art. VI, § 14). But the statute may not constitutionally be applied to bar appeal in cases, such as this one, in which the litigant first properly sought, and was summarily denied, writ review. Accordingly, I would reverse the judgment of the Court of Appeal with directions to entertain the appeal on the merits.

Mosk, J., concurred.