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. 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. 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. 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. 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. 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.
Notable opinions 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. In 1963, Tobriner's opinion in
Tunkl v. Regents of the University of California established a six-factor test to determine whether a contract relates to the "
public interest," such that a contract or provision therein may be found invalid as contrary to public policy. 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). 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." In April 1975, Tobriner addressed a case arising out of a labor action. Under California law it was illegal for public employees to strike. 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. 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. 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), 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." 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. 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. 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 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 from 2011 to 2019, and as
Attorney General of California from 2007 to 2011. 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. Finally, from 1964 to 1965
Richard M. Mosk clerked for Tobriner, and went on to become a justice of the California Court of Appeal.
Retirement In January 1982, Tobriner retired from the high court and his seat was filled by Governor
Jerry Brown's appointment of
Cruz Reynoso. Tobriner died on April 7, 1982, in San Francisco. == Honors and awards ==