lender is liable for “statutory penalties and attorney’s fees”
How later courts described this case
- lender is liable for “statutory penalties and attorney’s fees”
Written by the judges who cited it.
The opinion
MOSK, J.
I concur, and agree completely with Justice Richardson’s opinion.
Since Bank relies on a 1959 opinion of the Attorney General, issued during my tenure in that office ( 34 Ops.Cal.Atty.Gen. 288 ), I am for a second time in the same predicament as Mr. Justice Jackson in McGrath v. Kristensen (1950) 340 U.S. 162, 176 [ 95 L.Ed. 173, 184-185 , 71 S.Ct. 224 ]. (See Smith v. Anderson (1967) 67 Cal.2d 635, 646 [ 63 Cal.Rptr. 391 , 433 P.2d 183 ].) Ten years before, as Attorney General of the United *850 States, Justice Jackson had rendered an opinion contrary to the conclusion he reached as a justice of the Supreme Court. He offered an explanation which I adopt, in substance, as my own:
“I concur in the judgment and opinion of the Court. But since it is contrary to an opinion which, as Attorney General, I rendered in 1940,1 owe some word of explanation. 39 Op.Atty.Gen. 504.1 am entitled to say of that opinion what any discriminating reader must think of it—that it was as foggy as the statute the Attorney General was asked to interpret. . . . Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504 , recanting views he had pressed upon the Court as Attorney General of Maryland in Brown v. Maryland, 12 Wheat. 419 . Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, ‘The matter does not appear to me now as it appears to have appeared to me then.’ Andrews v. Styrap [Eng.] 26 L.T.R.(N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: ‘My own error, however, can furnish no ground for its being adopted by this Court. . ..’ United States v. Gooding, 12 Wheat. 460, 478 . Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary—‘Ignorance, sir, ignorance.’ But an escape less self-depreciating was taken by Lord Westbuiy, who, it is said, rebuffed a barrister’s reliance upon an earlier opinion of his Lordship: T can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.’ If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.”
I also find appropriate the quotation employed by Mr. Justice Rutledge in Wolf v. Colorado (1949) 338 U.S. 25, 47 [ 93 L.Ed. 1782, 1795 , 69 S.Ct. 1359 ]: “ ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’ ”