Mathew Tobriner

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Mathew Oscar Tobriner
Associate Justice of the California Supreme Court
In office
July 2, 1962 – January 20, 1982
Appointed byGovernor Pat Brown
Preceded byMaurice T. Dooling Jr.
Succeeded byCruz Reynoso
Associate Justice of the California Court of Appeal, First District
In office
1959 – July 1, 1962
Appointed byGovernor Pat Brown
Personal details
Born(1904-04-02)April 2, 1904
San Francisco, California, U.S.
DiedApril 7, 1982(1982-04-07) (aged 78)
San Francisco, California, U.S.
Rosabelle Rose (m. 1939)
Alma materStanford University (B.A., M.A.)
Harvard Law School (LL.B.)
University of California, Berkeley (J.S.D.)

Mathew Oscar Tobriner (April 2, 1904 – April 7, 1982) was an American labor attorney, law professor, and Associate Justice of the California Supreme Court from July 2, 1962, to January 20, 1982.

Early life and education[edit]

A native of San Francisco, Tobriner was educated at Lowell High School and was a member of its famed Lowell Forensic Society, the nation's oldest high school debate team, he attended Stanford University, and in 1924 received his A.B. degree with Phi Beta Kappa honors, and the next year his M.A..[1][2] In 1927, he graduated from Harvard Law School magna cum laude and Order of the Coif with a LL.B..[3] In April 1928, he was admitted before the California Bar, he continued his graduate studies at the University of California, Berkeley, where he was awarded a Doctor of Juridical Science in 1932.[4]

Legal and judicial career[edit]

After law school, Tobriner entered private practice and specialized in labor law. In 1928, he founded the firm of Tobriner, Lazarus, Brundage & Neyhart, in San Francisco and Los Angeles where he represented the American Federation of Labor and various unions for over 25 years, except for stints working at public agencies.[5][6][7][8]

Tobriner was active in Democratic Party politics. From 1932 to 1936, during the New Deal administration of President Franklin D. Roosevelt, Tobriner served as chief attorney in the solicitor's office of the United States Department of Agriculture. In 1948, he was state vice-chair of President Harry Truman's re-election campaign. In May 1950, he was northern California chair of the campaign of Congresswoman Helen Gahagan Douglas for the United States Senate.[9]

From 1958 to 1959, Tobriner taught as an associate professor at the University of California, Hastings College of the Law. In 1959, Governor Pat Brown appointed Tobriner as an Associate Justice of the California Court of Appeal for the First District.[10]

In June 1962, Governor Brown elevated Tobriner to Associate Justice of the state Supreme Court to fill the unexpired term of Maurice T. Dooling Jr., who had resigned. In November 1974, Tobriner stood for re-election and was retained.[11] In the 1960s, Tobriner was part of the liberal majority on the court that included Chief Justice Roger Traynor, Raymond L. Sullivan, Raymond E. Peters, and Stanley Mosk.[12][13][14] In 1976, as one of the three members on the California Commission on Judicial Appointments, Tobriner cast the deciding vote in approving the nomination of Rose Bird as the first female Chief Justice of the California Supreme Court.[15]

Notable opinions[edit]

Tobriner's tenure on the state's high court is notable for several decisions he authored in the areas of constitutional law and civil rights, property, contracts and torts.

His 1965 opinion in People v. Dorado, ruling that a person accused of a crime must be advised by the police of a right to remain silent and to obtain counsel, presaged the U.S. Supreme Court's Miranda v. Arizona (1966).[16]

In 1966, Tobriner explained in Morrison v. State Board of Education that gay teachers are entitled to employment in public schools absent a "showing that an individual's homosexuality renders him unfit for the job from which he has been excluded."[17]

In April 1975, Tobriner addressed a case arising out of a labor action. Under California law it was illegal for public employees to strike.[18] Despite the statute, San Francisco city employees picketed city hall and shut down municipal services. After a week, Mayor Joseph Alioto and the San Francisco Board of Supervisors agreed to the strikers' demands;[19] the city controller, however, refused to payout what he believed were illegal salaries. The California Supreme Court ordered the city controller to pay the salaries, with Tobriner's majority opinion finding that contracts secured through illegal strikes are still legally enforceable.[18]

In 1974, Tobriner wrote the decision of Green v. Superior Court, 517 P.2d 1168, that established the doctrine of implied warranty of habitability in residential leases in California, which requires landlords to maintain leased dwellings in a habitable condition.[20]

In 1976, Tobriner wrote the decision of Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976), the ruling that held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient. He famously wrote, "...the confidential character of patient-psychotherapist communications must yield to the extent that disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins ..."

Also in 1976, Tobriner also authored the majority opinion in the landmark case of Marvin v. Marvin, 557 P.2d 106 (Cal. 1976),[21] which held that implied contracts may be found in non-marital relationships. In other words, if a couple lives together for a substantial period of time, one of the parties may be required to make payments to the other upon the dissolution of the relationship—commonly called "palimony."[22]

In 1978, as Acting Chief Justice, Tobriner wrote the decision in the products liability case Barker v. Lull Engineering Co., 20 Cal.3d 413 (Cal. 1978), establishing a plaintiff-friendly standard by which a product might be shown to be defective either because it failed to meet ordinary consumer expectations or because the benefits of the product do not outweigh the risks inherent in its design.[23]

Finally, Tobriner wrote the majority opinion in People v. Woody, 394 P.2d 813 (Cal. 1964), overturning a conviction for peyote use by a Native American Church member on First Amendment grounds.[original research?] Weighing the asserted compelling state interest in controlling drug abuse with the Free Exercise Clause, he found that the balance favored constitutional protection of the peyote use and practice, stating:

"On the other hand, the right to free religious expression embodies a precious heritage of our history. In a mass society, which presses at every point toward conformity, the protection of a self-expression, however unique, of the individual and the group becomes ever more important; the varying current of the subcultures that flow into the mainstream of our national life give it depth and beauty. We preserve a greater value than an ancient tradition when we protect the rights of the Indians who honestly practiced an old religion in using peyote one night at a meeting in a desert hogan near Needles, California."

Judicial clerks[edit]

Tobriner had several notable law clerks; these include Jerry Brown, the son of Governor Pat Brown, who had appointed Tobriner to the Court and who was still governor when the younger Brown clerked for Tobriner. Jerry Brown would later serve as Governor of California from 1975 to 1983, and again in 2011, and as Attorney General of California from 2007 to 2011.[24] Another of Tobriner's law clerks, Laurence Tribe, became a professor of law at Harvard Law School and a preeminent expert on United States constitutional law.[25][26] Finally, from 1964 to 1965 Richard M. Mosk clerked for Tobriner, and went on to become a justice of the California Court of Appeal.[27]


In January 1982, Tobriner retired from the high court and his seat was filled by Governor Jerry Brown's appointment of Cruz Reynoso.[28] Tobriner died on April 7, 1982, in San Francisco.[3]

Honors and awards[edit]

Tobriner was awarded an honorary Doctor of Laws from both the Santa Clara University and the University of San Diego;[29] the Hastings College of Law holds an annual lecture in Tobriner's honor.[30][31] The Legal Aid Society of San Francisco, which Tobriner once led, awards an annual "Mathew O. Tobriner Public Service Award."[32][33]

Personal life[edit]

On May 19, 1939, Tobriner married Rosabelle Rose,[34][35][12] they had two sons: Michael Charles Tobriner, who became an attorney in San Francisco, and Stephen Oscar Tobriner, who became a professor of architecture at the University of California.[36][37] Tobriner's grandson, Ben Wildman-Tobriner, is the 2007 World Aquatics Champion in 50-meter freestyle swimming and won a gold medal at the 2008 Summer Olympics.[38][39]


  1. ^ "Stanford Has Seventeen Men at Harvard Schools". The Stanford Daily (70 (21)). 28 October 1926. Retrieved September 15, 2017.
  2. ^ Tobriner, Mathew O. (1924). "Business practices of cooperative marketing associations (M.A. thesis)". Stanford University. Retrieved September 15, 2017.
  3. ^ a b "California Supreme Court Justice Mathew Tobriner dead at 78". United Press International. April 7, 1982. Retrieved September 15, 2017.
  4. ^ Tobriner, Mathew O. (May 1932). "Industrial stabilization and the Sherman act (Ph.D. thesis)". University of California. Retrieved September 15, 2017.
  5. ^ "A.F.L. Acts to Foil Growers". San Bernardino Sun (46). California Digital Newspaper Collection. 24 May 1941. p. 1. Retrieved September 15, 2017. Mathew Tobriner, A.F.L. western counsel.
  6. ^ "CIO Workers Pledge Back Canned Vote". Madera Tribune (151). California Digital Newspaper Collection. 26 August 1946. p. 1. Retrieved September 15, 2017.
  7. ^ "Key Lines Idle Despite Order". San Bernardino Sun (60 (17)). California Digital Newspaper Collection. 20 September 1953. p. 45. Retrieved September 15, 2017. Mathew O. Tobriner, attorney for the striking AFL Carmen's Union
  8. ^ "SP Embargo On Less Than Carloads As RRs Swamped". Madera Tribune (66). UPI. 13 August 1958. p. 1. Retrieved September 15, 2017.
  9. ^ "Tobriner to Help Douglas Campaign". Madera Tribune (30). 4 May 1950. p. 12. Retrieved September 15, 2017.
  10. ^ Newman, Roger K. (2009). The Yale Biographical Dictionary of American Law. New Haven, CT: Yale University Press. p. 545. Retrieved September 15, 2017.
  11. ^ "Complete National, California Election Returns". The Stanford Daily (166 (33)). 6 November 1974. p. 2. Retrieved September 15, 2017.
  12. ^ a b "Mathew Tobriner; Justice for 19 Years on Coast High Court". New York Times. Associated Press. April 9, 1982. Retrieved September 17, 2017.
  13. ^ Bell, Jonathan (2011). California Crucible: The Forging of Modern American Liberalism. Philadelphia, PA: University of Pennsylvania Press. p. 240. ISBN 081220624X. Retrieved September 15, 2017.
  14. ^ "Reagan Appoints New Judge". Desert Sun (210). California Digital Newspaper Collection. 8 April 1970. p. 22. Retrieved September 15, 2017.
  15. ^ "Rose Bird Now Chief Justice". Desert Sun. California Digital Newspaper Collection. UPI. 26 March 1977. p. A1. Retrieved September 15, 2017.
  16. ^ People v. Dorado (1966), 62 Cal.2d 342. Retrieved September 15, 2017.
  17. ^ Morrison v. State Board of Education (1966), 1 Cal.3d 214. Retrieved September 15, 2017.
  18. ^ a b City and County of San Francisco v. Cooper, 534 P.2d 403, 13 Cal. 3d 898, 120 Cal. Rptr. 707 (1975).
  19. ^ "Mayor's Action Settles Strike". Desert Sun. California Digital Newspaper Collection. UPI. 22 August 1975. p. A1. Retrieved September 20, 2017.
  20. ^ Green v. Superior Court (1974), 10 Cal.3d 616, 517 P.2d 1168. Retrieved September 15, 2017.
  21. ^ Marvin v. Marvin, 557 P.2d 106 (1976).
  22. ^ Pleck, Elizabeth H. (2012). Not Just Roommates: Cohabitation After the Sexual Revolution. Chicago, IL: University of Chicago Press. p. 153. ISBN 0226671038. Retrieved September 15, 2017.
  23. ^ "Barker v. Lull Engineering Co., 20 Cal.3d 413 (Cal. 1978)
  24. ^ "Jerry Brown". California Department of Justice. Archived from the original on 2009-11-19.
  25. ^ Tribe, Laurence H. (1982). "Remembering Mathew Tobriner". Cal. L. Rev. 70: 876. doi:10.15779/Z382J0S. Retrieved September 15, 2017.
  26. ^ Gelin, Deborah (March 15, 1977). "Time Names Law Professor As Major Shaper of Future". Harvard Crimson. Retrieved September 15, 2017.
  27. ^ "Division Five: Associate Justice Richard M. Mosk". California Court of Appeal, Division Five. Retrieved September 15, 2017.
  28. ^ "Around the Nation: Hispanic Judge Accepted For California Top Court". New York Times. January 20, 1982. Retrieved September 15, 2017.
  29. ^ Office of Public Information (March 28, 1980). "News release: Calif. Supreme Court Justice Tobriner to Headline USD School of Law 25th Anniversary, April 14" (PDF). University of San Diegeo. Retrieved September 15, 2017.
  30. ^ Grodin, Joseph R. (Spring–Summer 2012). "The Mathew O. Tobriner Memorial Lectures at UC Hastings" (PDF). California Historical Society Newsletter: 6. Retrieved September 15, 2017.
  31. ^ "Mathew O. Tobriner Memorial Lectures". University of California, Hastings College of the Law. Retrieved September 15, 2017.
  32. ^ "Armstrong wins law service award". Santa Clara Magazine. Winter 2003. Retrieved September 15, 2017.
  33. ^ "Media advisory: Chief Justice George Receives Tobriner Public Service Award" (PDF). California State Courts. June 26, 2006. Retrieved September 15, 2017.
  34. ^ "Obituary: Rosabelle Rose Tobriner". San Francisco Chronicle. December 2, 2012. Retrieved September 15, 2017.
  35. ^ "Awards for Mt. Zion Women". The Jewish News of Northern California (117 (22)). California Digital Newspaper Collection. 26 May 1967. p. 3. Retrieved September 15, 2017.
  36. ^ "Law and Mediation Office of Michael C. Tobriner". The Tobriner Law Firm. Retrieved September 15, 2017.
  37. ^ Nho, Jane (October 14, 2013). "Sanford Hirshen, UC Berkeley professor emeritus of architecture, dies at 78". Daily Californian. Retrieved September 15, 2017. Stephen Tobriner ... a UC Berkeley professor emeritus of architecture.
  38. ^ "USA Swimming - Athletes - Ben Wildman-Tobriner". United States Olympic Committee.
  39. ^ "Best moments of the Olympics". Daily Californian. July 9, 2012. Retrieved September 15, 2017.

Selected publications[edit]

Further reading[edit]

External links[edit]

See also[edit]

Legal offices
Preceded by
Maurice T. Dooling Jr.
Associate Justice of the California Supreme Court
Succeeded by
Cruz Reynoso
Preceded by
Associate Justice of the California Court of Appeal, First District
Succeeded by