Wednesday, October 26, 2016

THE NEXT TRAIN TO ROCKAWAY BEACH

     On Labor Day, 41 years ago, Justice Stanley Mosk swore me in as a judge of the Los Angeles Municipal Court.  Within a few days of this depressing… I mean significant anniversary, the Daily Journal published my 252nd column.  How best to describe the column?  In my imagination, a perceptive reviewer would write:  "An adventurous read of a profusion of topics artistically tied together by a common thread that may escape readers unaccustomed or hostile to subtlety."
          The overriding topic in that column was, in a word, "short."  I am shorter than I was at the beginning of my judicial career four decades ago.  I received supportive comments that it's O.K. to be short… from short people and elderly people who are shrinking.  I also received emails in praise of short opinions.  Significantly, none came from the Supreme Court. 
I wrote about the celebrated Palsgraf case, the premier example of a masterfully written short opinion.  (Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928).)  By coincidence, just at the time my September column appeared, I spoke to a group of young law students at UCLA School of Law who were serving as externs at the Second District Court of Appeal.  As an example of good writing, I read to them the facts in the Palsgraf opinion.  You will recall that a man carrying a small package jumped aboard a train as it was pulling out of the station.  The package, which contained fireworks, fell from his grasp onto the tracks and exploded.  The shock caused scales at the end of the platform to fall on and injure plaintiff Ms. Palsgraf.
The students looked puzzled.  "What are scales?" they asked.  I was dumbfounded.  "Scales?" I asked rhetorically.  "Does anyone here work out in the gym?"  Nods and a few "yeahs."  "Do you ever weigh yourself on the scales?  And doesn't the doctor weigh you on the scales in her office?"  Blank looks from everyone.  It is bad enough that age makes us shorter, but does it make our language archaic?  Then one student accepted my explanation of scales, "O.K., fine, scales weigh you.  But why would anyone want to weigh themselves or anything at a train station?"  I think I settled the issue.  I patiently explained that a passenger might need to weigh his or her valise. 
In my discussion of the Palsgraf case, however, I also had a question.  How could a small package of fireworks falling on the tracks explode with such magnitude that it causes scales at the end of the platform to topple down on poor Ms. Palsgraf?  I had in mind a large Otis scale with a weighing platform at the base, a long neck reaching up to a large round dial with an arrow denoting pounds.
Attorney Michael Sokolich wrote to me that when he was in law school he too wondered about how the fireworks in Palsgraf could explode if a fuse was not lit.  When I was in law school, I was too scared to ask that question of our intimidating professor, Dean Prosser.  Sokolich explains that there used to be types of fireworks that explode on contact with the ground or any hard surface.  An example is "cracker balls," that explode when thrown at a hard surface.  I remember them.  But as Sokolich points out, they were pea-sized and did not have much power.  He posits that the likely explanation is that at the time Palsgraf was decided there was a class of larger fireworks called "torpedoes" that may have been the culprits.  Maybe so, but the package of fireworks that allegedly caused the explosion in Palsgraf was only "about 15 inches long."  Like questions concerning the meaning of life, or why we or our tempers get shorter, we are not likely to know the answer to the Palsgraf fireworks question. 
But I was particularly impressed with Sokolich's wise observation that "older cases . . . are usually models of brevity and clarity.  The same with our statutes, older usually means shorter." 
But getting back to fireworks and torpedoes.  The California Supreme Court has adopted a new policy concerning petitions for review.  The policy was apparently provoked by Vergara v. State of California et al., 246 Cal.App.4th 619 (2016).  The case involved the constitutionality of various provisions of the Education Code.  At the conclusion of the published opinion is a "STATEMENT" by the Chief Justice.  The statement sets forth a policy concerning statements by justices who dissent from the denial of a petition for review.  Those dissenting statements will be published and appended to the original appellate opinion in the Official Reports.  The Chief's STATEMENT reminds us that "an order denying review does not reflect the views of the justices voting to deny review concerning the merits of the decision below." 
Something like this practice is common with United States Supreme Court justices who wish to grant certiorari when their colleagues vote to deny.  Such a justice might write in the order denying certiorari a brief reason why he or she would grant cert.  In Vergara, Justices Liu, Cuéllar, and Chin voted to grant review.  But Justices Liu and Cuéllar wrote published dissents to support, not just their reasons for wishing to grant review, but to criticize the Vergara opinion.  We appreciate insight into why a particular Supreme Court justice believes review should be granted.  But if the dissenting views on a petition for review become tantamount to opinions critiquing the Court of Appeal opinion, the precedential value of the Court of Appeal opinion is diminished. 
Maybe that is what the dissenting justices wish to accomplish, but certainty and predictability suffer.  I fear this rule could morph into something even more scary.  Imagine for a moment that Justice Chin, who also voted to grant review in Vergara, did so because he agreed with the opinion but thought the Supreme Court should speak to the issues.  What if he wrote a dissenting opinion, dissenting from the opinions of Justices Liu and Cuéllar?  Oh dear!  And what if the justices voting to deny review weighed in with opinions of their own? 

It stands to reason that from my perspective this new policy is unnerving.  If one of my published opinions is harshly criticized by one or more dissenting Supreme Court justices wishing to grant review, I will feel like Ms. Palsgraf.  Only it will be the scales of justice that fall on me.  Such an event would be so… so… unforeseeable.  I just might pack my valise and catch the next train to Rockaway Beach.  

SHORT IS GOOD

     I am a strong proponent… No, I need a more forceful adjective.  How about “obsessive”?  Yes, …an obsessive proponent, advocate, champion for short opinions.  Is anyone listening?  Not the United States Supreme Court and not many of my distinguished colleagues in our state courts.  We limit the number of pages in briefs that lawyers file in our courts.  Judges should adhere to a similar rule.
We know all the arguments favoring short opinions advanced by a host of commentators, which include Garner, Aldisert, Leflar, and Witkin, to name a few.  With me, it has become an…oh, yes, I already said, "obsession."  "Fixation" probably doesn't add much.  But you get the idea.  But why such an all-encompassing preoccupation?  Recently I experienced an epiphany in an environment far removed from the law.  That lawyers and judges were present had nothing to do with my insight.
         A few months ago musicians and singers, all of whom were in the legal profession, performed a "rock and roll" medley of songs from the 50's and 60's written by famed composer Richard Sherman.  The concert at Disney Hall featured the Los Angeles Lawyers Philharmonic conducted by Maestro Gary Greene, Esq.  The singers included Judge Curtis Kin, Linda Hurevitz, and Ken Freundlich.  The musicians were Bill Ryan on guitar, Eric Schaefer on bass, Jerry Levine on drums, and yours truly on keyboards (a misnomer)‑‑it was only one keyboard, electric (ugh), not a real piano, or, as they call it in the profession, an "acoustic" piano.
Rock and Roll from any era is not my genre.  But playing in this concert was a treat, because it was in honor of the personable and warm-hearted composer Richard Sherman, winner of two Academy Awards, The National Medal of Arts, and numerous other awards.  Richard was present and told me how much he enjoyed the concert. 
The tunes we played included "Pineapple Princess" and "You're Sixteen."  (Don't I wish).  But one tune in particular upset me, "Tall Paul."  The lyrics make a big deal about stupid Paul just because he's tall.  Of course it bothered me because I’m short, not the most impressive attribute to have in high school…when you are sixteen. 
And with advancing age, I'm getting shorter.  I have been called the "incredible shrinking judge."  I have nightmares about the movie "The Fly."  In the final scene of the early 1958 film classic, the hero who has turned into a fly is nearly invisible caught in a spider's web.  I still identify with this creature crying out in his small, high-pitched voice, "Help me, help me." 
So it is possible that my bias in favor of short opinions stems from my height… or lack of it.  Yet that should not detract from my argument that generally shorter opinions more clearly explicate the law than longer ones.  Only, like the plight of the fly, no one appears to hear my cry for shorter opinions, despite the universal acknowledgement that "less is more."  I would amend the maxim of jurisprudence enshrined in Civil Code section 3537 so that it would read: "Superfluity does vitiate."
Some of our nation's great jurists wrote short opinions.  I have often remarked about Justice Cardozo and his famous Palsgraf opinion.  Twenty-seven years ago I wrote in the Daily Journal:
"I don’t think writing comes easy.  It requires effort and commitment to write something of quality.  A good finished product comes from several drafts, whether it be an article, a hate letter or a shopping list.  It’s even harder to write an opinion that is lucid and concise.  Take for example the famous opinion in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928).  It is a paradigm of simplicity and clarity.  Here is the statement of facts:
“‘Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway beach.  A train stopped at the station, bound for another place.  Two men ran forward to catch it.  One of the men reached the platform of the car without mishap, though the train was already moving.  The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall.  A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind.  In this act, the package was dislodged, and fell upon the rails.  It was a package of small size, about fifteen inches long, and was covered by a newspaper.  In fact, it contained fireworks, but there was nothing in its appearance to give notice of its contents.  The fireworks when they fell exploded.  The shock of the explosion threw down some scales at the other end of the platform many feet away.  The scales struck the plaintiff, causing injuries for which she sues.’”
Cardozo pointed out that an over-emphasis on details obscures meaning, and the Palsgraf opinion makes the point with just the right amount of detail.  Yet, even the writing in Palsgraf has been criticized.  I read recently that one critic complained that there was no need to mention two men running for the train.  His point, who cares about the guy who made it to the platform of the moving train without mishap?  He has nothing to do with the case.  The person of interest is the one who was unsteady, requiring the guards' help, which caused him to drop the small package of fireworks.  
Not sure I agree with that assessment.  With an economy of words, Cardozo vividly describes the entire scene.  Two men are running for the train.  The less agile, and probably the taller one, needed help.  In my opinion the scene lacks impact without reference to the shorter, more nimble, of the two men running for the train.  The words paint a picture the reader can visualize. 
Yes, these facts, so clear and concise, are nevertheless puzzling.  How, under these circumstances, could a small package of fireworks explode?  And how could such an "explosion" be of such force to cause scales at the other end of the platform to fall on poor Ms. Palsgraf?  Don’t you have to light fireworks?  Maybe a spark emanated from the engine, or maybe fireworks in the 1920’s were different than the firecrackers I lit as a kid.  Don't spread that last comment around please. 


I can hardly bring myself to say this, but could it be that the Palsgraf opinion is too short?  But then again is it necessary to know how the fireworks exploded?  I mean they did, right?  I have to think about this some more.  Oh gosh, this column is getting too long.  Better stop.  I’ll get back to you.  If I had time, I would have written a shorter column. 

Monday, August 01, 2016

Politic and Cautions

     I have often complained, I mean noted, that contrary to popular belief, judges have little power.  Judges must endure the indignities and constraints that confront all of us.  A few personal calamities prove the point. Like you, I also have to spend 45 minutes on the phone complaining to someone who speaks Sanskrit about my poor internet service. 
          In the middle of the night, when the evening is spread out against the sky like a patient euthanized upon a table, before trash pickup the next day, a miscreant roams through my neighborhood.  He crams trash containers with bags of smelly garbage.  The culprit is either colorblind or deliberately violates the rules concerning the correct bins for recyclables.  He over fills the bins, causing odoriferous waste to land in the street.  Like my neighbors, I am a victim of these marauders, yet they think I can solve the problem.  Fat chance.  I opt for fetid refuse over a confrontation at 3 a.m.
          In one of my columns a few months ago, I wrote about the thief that got away.  My wife Barbara and I heard the thump of a package we were expecting as it hit the threshold of our front door. Shortly after we heard the delivery truck pull away, Barbara opened the door.  A young woman clutching our package was running to a waiting car.  Barbara yelled an unavailing "Stop!"  I wish she would have added "thief" at the end of her futile command.  The young woman jumped into the car which sped off before Barbara could get the license plate number.  I arrived just as the car turned the corner.  I shouted at the top of my lungs….  It's not important what I shouted.  Do children read the Daily Journal? 
          We got even with the thieves, proving that on occasion even a justice gains a measure of justice. The package contained the poems of a new annotated book, The Poems of T.S. Eliot.  That will teach them.  I wonder how the thieves' world view was influenced by themes of despair and futility in “The Waste Land.”  They were ultimately apprehended.  I learned that after pleas of guilty they were given jail time and various conditions of probation.  If I had my say, I would have required the condition that they write an essay on the relation of Eliot's "objective correlative" in his poetry to their own lives.  Our local paper brought home to the community that judges, like everyone else, are victims.  The Palisadian Post wrote a front page article about the incident titled Porch Pirates Nab Poetry Books.  Implicit in the article was the observation that the judge and his wife were powerless to do anything about it.
          Judges are not just subject to the ordinary vicissitudes of life.  They must endure a multitude of professional restraints.  If you recall, in my last column Judge Foote created a disaster when he brought a flying fish to an arbitration hearing.  Years ago I thought about bringing my cat to court.  I decided it would be too controversial if I let him sit on the bench during oral argument.  If he purred into the microphone, litigants might think I was snoring.  Would I face some type of discipline if I let him hang out in chambers with me?  I did not want to risk it.  My staff, under the direction of one of our judicial assistants, Gloria, had his likeness reproduced on a rock.  A few decades ago pet rocks were the rage.  But those were just rocks.  My pet rock is a pet cat rock.  So, in a sense, I have my cat with me at work.  For obvious reasons, I would prefer you not spread this around too much. 
          And judges must be careful about expressing certain opinions that ordinary citizens do all the time.  The recent Justice Ginsburg imbroglio comes to mind.  Her comments about Donald Trump prompted a statement of regret.  “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office.”
          Commentators were quick to criticize Justice Ginsburg's salvo as inimical to the concept "judicial neutrality."  But Professor Chemerinsky wrote in an editorial in the Los Angeles Times that Justice Ginsburg's apology was unnecessary.  Professor Chemerinsky observed that other Supreme Court justices have said and done things that were considered inappropriate.  But the federal code of judicial ethics disallows judges the freedom to take sides in an election.  Chemerinsky argued that these rules do not apply to Supreme Court judges. 
          Despite my great respect for Professor Chemerinsky, I find this argument unpersuasive.  Maybe that is because the California Code of Judicial Ethics prevents me from publicly endorsing or opposing a candidate for public office.  Canon 5A(2).  So I guess I cannot say I agree… or disagree with Justice Ginsburg's assessment.  And by assessment, I will let you, dear reader, decide if I am referring to her initial comment or her subsequent one… or both.  While I ponder these troubling questions, I will pet my pet cat rock. 
A SAD GOODBYE
My Daily Journal columns and some of my other articles and stories have received a wider audience of devoted, but perplexed, readers through the publication of my book Under Submission by the Rutter Group, a division of Thomson West (2008).  This came about through the efforts of William Rutter and Kalman Zempleny, who, after the passing of Bill Rutter, became the Director of the Rutter Group.  We all agreed that proceeds from the sale of Under Submission would go to legal charities.  A few weeks ago, my dear friend Kalman passed away.  So sudden and so unexpected, his death has left his legions of friends in shock and dismay.  We will always remember him for his devotion to excellence in legal education, his unfaltering optimism, his warmth and kindness to all who were fortunate to know him.  Goodbye dear friend.  You made a difference.


Maybe It Will Happen

     That’s one small step… on second thought, a medium step for everyone... but the giant leap‑‑I'll settle for a step‑‑ is yet to come.  Apologies to Neil Armstrong; man and mankind are in the same class, and I prefer human kind.  But no matter whether or not Mr. Armstrong failed to distinguish between the specific and the general.  The California Supreme Court took a step.  It unanimously amended California Rules of Court, rule 8.1105(e)(1) (effective July 1, 2016) so that Court of Appeal decisions will not be automatically depublished when the Supreme Court grants review.  The opinion still may be citable unless and until the Supreme Court says otherwise.  Of course, the Court of Appeal opinion would not be citable to the extent it is inconsistent with the decision of the Supreme Court.
I voted for the change in the survey circulated by the Chief Justice for public comment.  But other than my vote, is it possible?  No, probably not…but just maybe some of the present justices read my first column for the Daily Journal on June 9, 1988, titled It Never Happened.  I criticized the then-current and past practice of depublishing Court of Appeal opinions in general.
None of the current justices were on the Supreme Court when I published my first column.  For all I know, one or two could have been toddlers then, but certainly precocious toddlers.  So maybe they glimpsed it.  At any rate, it is time to take a bigger step and scuttle the outdated practice of depublication.  The word itself shows up as a spelling error.  The shaky rationale for this murky rule is that, although the depublished opinion comes to the right result, the reasoning is wrong.  Need I say more?  Let’s have transparency.  Not to prolong the suspense, here in its entirety is my first column, re‑published three days short of its 28th anniversary:
It Never Happened
Most people don’t know what Court of Appeal justices do, and that includes many trial judges. Generally a Court of Appeal justice writes opinions; “grinds them out” would be a better way of saying it. Henry Ford would approve. The opinions bump along the assembly line and then chug down the road to oblivion. Along the way they are used or misused by attorneys or judges, who sometimes read them.
But deep within the heart of every appellate justice there lies the seed of an occasional masterpiece, a gem that would make Benjamin Cardozo turn green with envy. It starts with a case that fortuitously comes your way. Something special occurs during this random encounter. You begin to feel ideas growing and developing in your brain.
The Unseemly and Grotesque Stage
During an appropriate period of gestation, the ideas coalesce into a concept. When the concept fights and claws its way out of your brain and plops in a heap on the page, you know you are ready to write the first draft of the opinion. When you’re done, that draft is wiggling with life but not ready for public consumption.  It is unseemly and grotesque, like the mutant baby in the cult film classic “Eraserhead.”
But it’s your baby, and you nurture it and shape it, draft after painstaking draft. And then you know, as if by instinct, that the opinion is ready. It shimmers with clarity and reason. Magnanimously, you acknowledge that the brief on the winning side was persuasive, but the opinion has your signature- figuratively and literally. The opinion reflects your style, your panache, your essence.
Shortly after the publication of your chef d’oeuvre, you happen to attend a cocktail party given by the local bar association. You try to avoid an attorney known for his unctuous fawning, but when he starts praising your new opinion, you find his conversation engaging and stimulating. You tell him in a modest, self-effacing tone that you hope the opinion will be useful. You think it might be unseemly to tell him that you know the opinion illuminates the law, gives it meaning and purpose, that it persuades and sparkles with reason and insight.
I have experienced this. But it’s hard to talk about because it never happened. No, I don’t mean I imagined it. I don’t mean I’m crazy and hallucinating. It's much more than that. I mean the state Supreme Court depublished it. Someone up there simply pulled the switch on an opinion that had just begun to bask in the light of recognition.
The ostensible reason for this ignominious termination is that the opinion reached the right result, but for the wrong reason. Maybe so, but the recent use of depublication on such a wide, unprecedented scale means that there is a large group of justices writing poorly reasoned opinions. I suppose the depublication rule helps stem the flood of cases inundating the California Reports, but it also keeps ideas locked in the closet.
No Useful Purpose
Whatever the reason for the rule, it serves no useful purpose. Why hide the reasoning of an opinion, whether good or bad, from the rest of the world? If the Supreme Court does not care for an opinion, it can decertify it. The opinion may lack precedential value, but at least it exists as an object of either enlightenment or of ridicule. Another interpretation of the law is at least accessible to scholars, lawyers or collectors of the bizarre and occult.
Decertifying instead of depublishing opinions will not increase the Supreme Court’s caseload. It will, however, permit the expression of all ideas and will serve an important educational function for the bar and the public. And, who knows, the spurned opinion just might become the law in the next millennium.
I’m not holding my breath that the rule will be changed in the near future. If it does not change soon, one of my colleagues suggested that we publish all the depublished cases. That’s a brilliant idea. I just may start an underground publishing firm that will publish only depublished cases. I’ll call the company East’s Oxymoron Publishing Co.- “Cases That Can Get You in Lots of Trouble if You Cite Them.”
  Better yet, maybe we can change the rule so that justices on the Court of Appeal rather than the Supreme Court will have the last word on the whether a case is published or depublished. I can just imagine what would happen with such a rule. Assume I have decided not to publish a case, but the Supreme Court wants it published.
“Oh please, publish this case,” the Supreme Court asks me.
“No,” I answer. “I don’t think it really merits publication.”
“But it’s so good, you have crystallized your ideas into a succinct, readable treatise on this complex issue of law. There is a desperate need for your opinion. Its publication will be a significant contribution to the people of this state, and the legal profession.”

“Well…I’ll think about it.”

Wednesday, July 20, 2016

Flying Fish Don't Play

     It has been awhile since I have written about Judge Learned Foote and many of you have inquired about him.  He has diligently avoided controversy.  Intense scrutiny of public figures these days makes this a difficult task.  Up to now Judge Foote had succeeded in keeping out of the public eye.  But unwittingly he became embroiled in a matter over which I believe he had little control.  I leave it to you, dear reader, to judge for yourself. 

         It began with a settlement conference gone awry.  The underlying case grew out of an employment dispute involving defendant, a writer known as Kipling, and six struggling singers in search of a day job.  Kipling employed them as "serving men" and at first was impressed with them.  He wrote a poem celebrating his pleasure with their work:

"I keep six honest serving men.
They taught me all I knew;
Their names are What and Why and When
And How and Where and Who.”

         In their evening hours, Kipling's servants were able to get singing gigs at various venues, including the Los Angeles County Superior Court's annual dinner dance.  They also auditioned for the television show, America's Got Talent.  It did not go well.  Two of the group began singing "Where or When."  But, as you can imagine, the other members objected.  Then other members refused to sing "Who Can I Turn To?"  It turned into a melee when it came to "How High the Moon."

         Who, What and Where were tired of trying to break into show business.  They gave up singing and attended night law school.  How, Why and When were doing more work than before because Who, What, and Where were too tired from studying to do their share of work.  How, Why and When could not adequately cover for them.  A disenchanted Kipling fired all six of them.  They filed a wrongful termination suit.  The case settled for an undisclosed amount with an agreement that Kipling not publish a new poem about six deceitful serving men who taught him nothing. 
         Wouldn’t you know it, no sooner was the case over, the six began squabbling among themselves about how to divide the settlement proceeds.  How brought an action against Why and hired Who to represent him.  Why hired What to represent him and cross-complained against When.  Where, just having passed the bar, represented When.
         Judge Foote held a settlement conference.  I won't hold you in suspense.  It turned out to be a disaster.  Judge Foote wanted to bring his service cat to the court as a calming influence, but thought better of it.  Recent events served as a caution to judges bringing animals into the courtroom.  But he thought it would not be controversial to bring his pet flying fish to the settlement conference.  He reasoned the fish's graceful movement in the tank would be soothing to all the parties.  In case you are wondering, Judge Foote had never witnessed the fish actually fly.  And it did not occur to him that flying fish obviously would be a sore point for the parties.  The conference began inauspiciously. 

JUDGE FOOTE:  "Who represents the plaintiff?"
WHO:  "That’s correct, Your Honor."
JUDGE FOOTE:  "What?"
WHAT:  "Yes, Your Honor."
JUDGE FOOTE:  "I beg your pardon." 
WHAT:  "I represent the defendant."  
JUDGE FOOTE:  "What’s your name?"
WHAT:  "That’s correct Your Honor." 
HOW:  (Sarcastically under his breath)  "He's got the names right, only he doesn't know it." 
JUDGE FOOTE:  "How's that?"
HOW:  "I'm the client.  Can we talk about the case?"
JUDGE FOOTE:  (To How)  "Who are you?"
WHO:  (Responding)  "That's me."
JUDGE FOOTE:  "What?"
WHAT:  "Yes?"
JUDGE FOOTE:  "What?"
WHAT:  "You just said my name."
JUDGE FOOTE:  "When?"
WHERE:  "He's a cross-defendant and should be dismissed from the case."
JUDGE FOOTE:  "Why?"
WHY:  (Turning to his lawyer What)  "Should I answer?"
WHAT:  "I'll answer for you."  (To the judge)  "We would just like to settle Your Honor."
JUDGE FOOTE:  (Sarcastically)  "When?"
WHEN:  (To Where)  "He called me."
JUDGE FOOTE:  "What?"
WHAT:  "Yes?"
JUDGE FOOTE:  "What is your name?"
WHAT:  "What."
JUDGE FOOTE:  (LOUDER)  "I said, what is your name?"
WHAT:  (Meekly)  "What."
JUDGE FOOTE:  (Exasperated, turning to Who)  "What is his name?" (pointing to What)
WHO:  "It is."
JUDGE FOOTE:  (Turning to What)  "O.K., what's his name?" (pointing to Who)
WHAT:  "Who."
JUDGE FOOTE:  "Him."  (No answer)  "Can anybody help me here?"
WHY:  "Judge, I thought you were supposed to help us." 
JUDGE FOOTE:  "I can't help you if I don't know your names."
WHY:  "We gave you our names."
JUDGE FOOTE:  (Sarcastically)  "Oh, I must have missed something.  Tell me your name."
WHY:  "Why."
JUDGE FOOTE:  "Because I'd like to know.  Each of you please give me your names so I can properly address the parties and counsel."
WHERE:  "Where."
JUDGE FOOTE:  "Here."
WHEN:  "When."
JUDGE FOOTE:  "Now."  (Out of control)  "This is worse than an Abbott and Costello routine."
There was a stunned silence.
WHO:  "That remark was uncalled for."
JUDGE FOOTE:  "You're probably right.  Maybe the Marx Brothers would have been better."
WHO:  "You can't help us settle this case, Your Honor."
JUDGE FOOTE:  "Why?"
WHY:  "Don't ask me."
WHAT:  "I agree with my client."
JUDGE FOOTE:  "What?"
WHAT:  "Yes?"
JUDGE FOOTE:  "You're right."

         It was at this point that an exasperated Judge Foote pounded the table with his fist.  This so startled the fish, that she flew out of her tank and began flying over the heads of the astonished parties and counsel.  Luckily she flew back into the tank. 
         To relieve the tension, the litigants and counsel could not help themselves and perversely began singing "On the Road to Mandalay."  They lodged a complaint with the Judicial Performance Commission.  The commission called a special session.  Judge Foote wisely left his flying fish at home. 
         The presiding member of the commission asked the prosecuting attorney the order in which the witnesses would testify.
         She answered, "Who's on first."
         The presiding commissioner said, "That is what I'm asking you."
         What then said, "You are asking me?"

         Judge Foote breathed a barely detectable sigh of relief. 

Conversing with Justice Richard Mosk

     Recently we lost one of our leading jurists, Justice Richard Mosk, and I lost a dear friend.  His professional accomplishments are well known, but I was fortunate to know him as a person.  I spoke in favor of his confirmation to the Court of Appeal before the Commission on Judicial Appointments.  I have introduced him at dinners honoring him and written about his many achievements.  He was Dr. Johnson and I was his Boswell.  
         I wrote the introduction to an oral history of Richard, published in 2012 by the Supreme Court Historical Society. The interviewer is his son Matthew, a prize winning investigative journalist.  Richard talks about his remarkable life that makes the reader want to linger on the page.  In an engaging style, he reminisces about his friendships and acquaintances with presidents, governors, and ambassadors.  He reveals canny political astuteness.  He discusses his many successes with candor and humility‑‑his work on the Warren Commission, the Christopher Commission, the Iran-U.S. Claims Tribunal, Chair of the Rating Administration of the Motion Picture Association.  He modestly ascribes to chance his accomplishments.  If chance has favored Richard on occasion, his keen intelligence and extraordinary ability have turned those chance encounters into notable achievements.  If you compliment him, you will hear a barely audible "thanks," and he changes the subject. 
Richard was one of our most respected appellate justices.  His opinions were beautifully crafted and shined with lucidity.  His style was powerful, yet appropriately restrained.  His sense of justice is always apparent. 
        Richard and I met on opposite ends of a hotly contested case about 47 years ago.  From this hard-fought litigation, there developed a friendship that grew deeper throughout the years.  Does that happen during litigation today?  I loved to get his goat by characterizing his client as a large, greedy corporate conglomerate.  I described my client as a manufacturer of environmentally friendly motor homes.  Our clients had entered into a joint venture that ended in a contentious contract dispute that gave rise to protracted litigation.  It ultimately ended well for both sides.
The loss of a dear, close friend like Richard is difficult to bear.  But there is comfort in his palpable and continued presence in my life.  You may have had a similar experience with the loss of someone close to you.  Richard and I still have our discussions and occasional heated, yet friendly disagreements, seasoned by his sharp intellect and wicked sense of humor.
I was preparing my remarks for his funeral when he asked if I intended to discuss an incident that occurred on the flight we took to Detroit to depose an important witness in the motor home litigation.  The flight attendant had spilled a drink on Richard.  That memorable contretemps exposed a facet of his personality.  "Should I mention this at your funeral?"  Richard answered, "Of course."  For historical accuracy, however, he insisted I refer to the "flight attendant" as a "stewardess."  "That was what they were called in the late 1960's," he argued.  He agreed that the word "stewardess" was sexist and offensive, but the reference to a term in vogue at a particular time in history did not imply an endorsement of the term.  “'Stewardess' can always be placed in quotes,” he said. 
I saw his point, but reminded him that I would be speaking, not writing, and that I would be uncomfortable using the word "stewardess."  Richard acknowledged my uneasiness.  But because he would not be speaking at his own funeral, and I would, he opted for me saying "stewardess."  Thanks, Richard.  I suggested a compromise.  I would relate our conversation and express the two points of view.  He found that acceptable and said, "Perfect, they all will think you are nuts."  By the end of the trip, Richard and the "flight attendant" made up.
Our conversation then took another path because it was relevant to the current discussion about how we essay persons and events in our historical past.  Alexander Hamilton's visage was in danger of eradication from the $10 bill in favor of a woman's.  Mr. Hamilton, our first Treasury Secretary, does not look so good from today's vantage point.  The same may have been said during his own time.  Political analyst and NPR commentator Cokie Roberts wrote in the New York Times that Hamilton was "a philandering liar."  She takes him to task for getting himself killed in a duel with Aaron Burr.  His family was left penniless.  Roberts would wipe Hamilton’s face off the $10 bill and replace it with his wife's, Elizabeth.  During Hamilton’s lifetime, Elizabeth stood beside him during the scandal brought about by his affair with another woman and saved his political career.  And after his death, Elizabeth, in her penurious straights, founded an orphanage that still exists.
Certainly there is legitimate criticism that can be leveled against Hamilton by the standards of any age.  Also in the New York Times, Nobel Prize winning economist Paul Krugman agrees.  But he also agrees with authors Stephen S. Cohen and J. Bradford DeLong who, in their book “Concrete Economics,” dub Hamilton “the true father of the American economy.”  After the Revolutionary War, Hamilton’s 1790 manifesto “First Report on Public Credit” argued that the federal government assume all debts incurred by the states during the Revolutionary War.  In doing so, the United States was able to establish itself as a national government that would prove to be a reliable borrower.  And, I would add, it helped make our country a strong international power.
Do we evict Hamilton from the $10 bill?  Do we refuse to see the musical that bears his name?  And what do we do about presidents we revere as heroic figures who owned slaves?  Washington and Jefferson, among others, come to mind.  And should we remove Woodrow Wilson’s name from the School of Public and International Affairs at Princeton because of his unacceptable views about race? 
I asked Richard for his assessment about Hamilton.  He and I agree with Krugman.  Despite Hamilton’s appalling character flaws, we should keep him on the $10 bill.  He and other great figures in American history were not perfect, but their contributions were significant.  But, without question, we favored booting Andrew Jackson off the front of the $20 bill.  It is fitting that Jackson, a racist, should be replaced by Harriet Tubman.  She was diminutive in stature, but colossal in the fight for civil rights.  She was responsible for freeing hundreds of slaves.  And she furthered the cause as a spy for the Union during the Civil War.  She later continued the battle for women’s suffrage.

I look forward to future conversations with Richard.  I anticipate disagreements along the way.  They keep me on my toes.  And I will let him know if I get tickets to "Hamilton."    

The Illusion of Power

     I watched the news the other day.  (Seventy years ago that sentence would make little sense.)  A commentator spoke about the abuse of congressional and judicial power.  This prompted me to ponder the meaning of power in general.  An insight in the form of a rhymed couplet popped into my brain, “Conclusion:  Power, an illusion.”  Authorship unknown. 
         Example in mythology:  The satyr, half human, half goat, salivating with lust, chases the nymph through the forest.  The chase itself may give a false impression of the satyr’s power.  If he catches the nymph, he may be able to exert his power over her.  But the satyr is subject to a much more compelling power, the compulsion, the overpowering need to catch the nymph, and maybe eat a tin can or two.  Of course, the satyr cannot escape responsibility for whatever crime he may commit against the nymph . . . unless he has a terrific lawyer, and a persuasive psychiatrist. 
         And this takes me back to faulty notions about judicial power.  Oh dear.  It just occurred to me that the satyr discussion in the preceding paragraph may not be the most apt analogy for a transition.  So do me a favor.  Just forget about the preceding paragraph and keep out of your mind comparisons between satyrs and judges.  OK?  If you find this minor inconvenience an insuperable burden, please put the column aside.  I will catch you next month.
         To continue with those still with us, take it from me, judges have little or no power.  The assembled lawyers stand at attention when the judge “takes” the bench for oral argument.  The judge says, “You may be seated.”  That is not power.  Nor is it a sign of power that lawyers laugh at a judge’s humorless jokes at a bar meeting.  What about deciding a case, you may ask?  Nothing to do with power.  That is simply a judge doing her job.
         Judges who look like judges were thought by some to carry an aura of power and respect.  What kind of appearance or look is that?  Not the one I see when I look in the mirror.  But you know what I mean, the elderly gray-haired judge (so far that’s me), who is tall, gentlemanly, kindly, wise, all knowing (not me) that was portrayed in 1940’s movies. 
         When I was the supervising judge of the Los Angeles Traffic Court many decades ago, some actors were being filmed for a Hanes Hosiery commercial in one of the empty courtrooms in the building.  I knew one of the actors and popped into the courtroom to say hello.  Numerous male actors, wearing judicial robes, were dancing around the courtroom in their stocking feet.  If judges were supposed to be middle-aged males with silver hair and have a distinguished looking profile, they fit the bill.  I was the only judge in the room who didn’t look like a casting director’s vision of what a judge should look like.  As for dancing around the courtroom in one’s stocking feet….well, that’s an entirely different story. 
         But whether a judge looks like a judge or not, in many ways, a judge has less power than the average citizen.  Drive down the freeway and some jerk cuts you off.  No matter who you are, it is best practice not to flip the person off.  It is mandatory not to do so if you are a judge ….  "Just say no."  A commercial truck parks behind you in a near empty parking lot early in the morning and blocks you.  You nicely ask the driver to move a few feet.  The driver says “no” or simply shrugs his shoulders and refuses to move.  
         That happened to my colleague Justice Perren last week.  He even said “please” to no avail.  He considered his options and filed them in the rejection basket.  He called the company to complain.  Don’t hold your breath. 
         I understand Justice Perren’s frustration.  A young woman and I happen to work out at the gym during the same early morning hour.  I have a compulsion to ask her a question, but … I feel constrained to do so.  She wears this backless workout outfit and, wait a second, don’t go there.  Let me finish.  Now you know why I told you to forget the satyr discussion.  Oh wonderful, I brought up the very thing we all agreed we would forget.  She has a tattoo on her back between her shoulder blades.  But it is not the depiction of a scene, or a flower, or cryptic insignia.  It is a printed paragraph of a few sentences.
         The writing is small requiring one‑‑OK, me‑‑ to get unacceptably close to read it.  I squinted from a respectful distance and tried to read it without getting arrested.  I can’t make it out.  I think it’s the Second Amendment.  But I am pretty sure she is not packing a gun, not with that gym outfit.  Yes, I could just ask what the paragraph says.  I don’t know… I may be asking for trouble.  I can see the headlines.  Judge accosts young woman in gym.  I don’t need it.
         But wait a minute.  We already determined I don’t look like a judge.  I could ask her, “Excuse me, but I couldn’t help noticing….”  True, she might say “none of your business and quit looking at my back.”  But she wouldn’t even know I am a judge.  I think I may ask her.  If I do, I will report back and let you know what happened. 


         I know one person who could never ask the young lady the question I wish to pose, Judge Merrick Garland.  He actually looks like a judge.  And he has a perfect name for a judge.  And he is one of the finest judges one can imagine.  And there is Congress.  And this takes us back to false notions of power.  Do not let those senators fool you.  They are not doing their job. 

Do I Dare To Eat a Peach?


         I feel like "a patient etherized upon a table."  Sorry, but lately T.S. Eliot has been on my mind.  I will explain later.  But first, let's talk about my last month's January column, A *@#!ing New Year's Resolution.  You enthusiastically responded to my query concerning quotes that involve what some would consider objectionable words.  Should we sanitize them or quote them verbatim despite their vulgarity? The votes were overwhelming in favor of a direct quote.  Only three nays.
         Noted Appellate Attorney Jon Eisenberg was in the yea category.  His view about those who sanitize quotes is simply stated:  "Quote verbatim.  If people are offended, fuck 'em."  Well, I do have carte blanche to quote anyone who emailed me, don't I?  Nevertheless, out of a sense of comity, and an aversion to being sued, I asked everyone who wrote me for permission to quote them, and they all responded that I could… as best I can remember.  Mr. Eisenberg wrote:  "You may attribute.  Abso-fucking-lutely."  He added this enlightening exegesis concerning his colorful phrase.  It is called "expletive infixation," the "insertion of an expletive into a word for purposes of intensification."  He suggested I insert one in my next published opinion.  My immediate reaction:  "Abso-fucking-lutely" not. 
Mr. Eisenberg is in good company.  Justice Harlan in Cohen v. California 403 U.S. 15 (1971) wrote for the majority reversing the conviction of defendant for disturbing the peace.  The defendant appeared in the Los Angeles County courthouse wearing a jacket bearing the words "Fuck the Draft."  If the casual reader missed the quote, it was in bold in the opinion. 
In his opening paragraph, Justice Harlan pointed out, "This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance."  Rather than again repeating the defendant's "distasteful mode of expression," his "vulgar allusion to the Selective Service System," Justice Harlan in his concluding paragraph wrote:  "It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be Reversed."
In Board of Education v. Pico 457 U.S. 853 (1982), the majority held that a school board exceeded constitutional limitations in removing certain books from school libraries.  Rejecting summary judgment in favor of the school district, the high court reasoned that issues of fact must be presented to determine whether the school board abused its discretion and remanded the case for trial.  One of the dissenters, Justice Powell, appended to his dissent a list of the books at issue in the case in which our special word has prominence in a variety of contexts.  He provided a generous list of examples.  Among the books are Soul on Ice by Eldridge Cleaver, A Hero Ain't Nothin' But a Sandwich by Alice Childress, The Fixer by Bernard Malamud, and Slaughterhouse Five by Kurt Vonnegut.  Horrors!  Looks like we have come a long way since 1982.
Getting back to comments I received, another prominent appellate attorney, Robert Gerstein, drew upon Cole Porter to cast his vote in favor of verbatim quotes.  "Good authors, too, who once knew better words now only use four-letter words writing prose… anything goes."  Gerstein opines, "So, why fight a trend."  
         Attorney Stephanie Charles, in elegant prose, wrote of her reaction when she stumbled upon the "forbidden word" in my last column.  "I can hardly believe my eyes—this is never seen.  The verbal liberation, the freedom of expression, the unleashing of the Id!  Never mind the teacup generation, the snowflakes that melt when exposed to offense.  Let them cry and protest.  Let them run to their safe places, wherever they may be.  They will not control your (or my) behavior.  My vote is in favor of adoption of the resolution."
         Justice Nora Manella wrote, "Count me as a vote for the real thing.  In this brash and vulgar world, only those living in a convent can credibly claim to have been insulated from coarse language.  The principal rationale for hiding offensive words is the no-longer-tenable suggestion that they are just too shocking for the average reader to digest.  One may deplore crude language, but quoting it neither endorses nor exalts it.  I am not unsympathetic to those who think the world would be a better place with less vulgarity.  I share the sentiment.  But if the defendant's actual words were 'Everyone on the fuckin' floor or I'll blow your fuckin' heads off,' saying he 'requested the bank patrons assume a prone position or risk an untimely demise' seems silly."
         Presiding Justice Judith McConnell pointed out that "it is important to accurately quote whatever was said since the offensive nature of the language used is part of the story we are telling."
         Judge Theresa Canepa wrote:  "Hear hear for your article!  I agree‑‑say what we mean, and mean what we say.  People should learn to cope with the real meaning of real words.  So for that New Year's resolution‑‑if people don't like it, then 'give 'em hell, Harry!'"
         Attorney Thomas Bourke recalled how a verbatim quote in an employment harassment case in which he represented the plaintiff made all the difference.  In his argument before an appellate panel, Bourke told the court that the supervisor's actual words were "What the fuck do you have against Harry?"  (I made up the name Harry.)  The defense attorney sanitized the statement with, "Well, how are things going?"
         Many readers wrote me to voice opinions about the use of vulgar language in general.  Civil Service Hearing Officer Jan Frankel Schau recognizes the importance of a verbatim quote in writing and rendering a decision, but in general she advises, "[L]eave it off your vocabulary.  Make your second language music instead."  Good advice, but even in music, one cannot avoid controversy.  Stretching the boundaries of tradition invariably results in complaints of vulgarity in some quarters. 
         My colleague Justice Steven Perren had this to say: "I spent more than a moment on one point:  the full spelling of the expletive.  Your points are valid.  My reaction:  it lessened the impact of the article.  You joined the ranks of the "'Potty Mouthed.'"  A conundrum.  In making your point, you arguably make the point to retain the silly practice.  You dropped the "'F Bomb.'"  Curiously, I think that not using the word makes it stronger.  Everyone knows it; everyone says it (gender to the contrary notwithstanding).  The spelled out word has lost its impact and has simply become a word used by those unable to go beyond four letters in objecting, decrying or rebuking another of his/her ideas.  The symbolic word seems more powerful:  I really mean it!"
         Retired San Diego Superior Court Judge Edward B. (Ned) Huntington wrote of his ambivalence:  "I'm a red-blooded, all-American male and a golfer, who uses the aforementioned 'word' in all of my everyday life.  I often mutter it in my daily use of this computer that tends to cause waaaaay toooo many 'operator errors' in its everyday functioning.  It's truly a word with which I've grown up – playing rugby, golf and fishing – however, I have to admit that when I saw the word in actual life-size print, it created quite an unexpected shock.  It surprised me to have such a reaction since I basically concur in your underlying thesis."
         Research Attorney Kathleen Berglund offered thoughtful comments about vulgar and offensive words.  She notes that many people, including those successful in business, "are all too disposed to use vulgar and offensive language.  They have no filters; they say and do what they want, and they may also think that using the 'f' word makes them sound tough, even authoritative.  But truncating the word won't change any of that, in my opinion.  If the word is truncated in whatever context it appears (including, even, in our appellate court opinions), most readers today will just laugh and think, 'Look at those ninnies, they can't even write the 'f' word!'"  "'Ha!'"  Ms. Berglund suggests "a national dialogue on offensiveness, vulgarity, and gracelessness generally—not to be confused with over-sensitivity.  Have we become so narcissistic, as a people, that throwing the 'f' bomb around at will has become acceptable, even standard behavior?  I hope not.  But that is the open and frank discussion we need to have.  Truncating the word, and thereby creating a sort of 'safe zone' for the reader, will not help to solve the problem."
            Attorney John Gilmore wrote:  "When I became officially allowed to practice law on January 16, 1962, the word over which you agonize meant something evil and menacing.  That is, even though it was a swear word that derived from an act of pleasure and, on occasion, procreation.  Now, it has lost its oomph.  Calling someone a 'f.....g a.....e' does not have the same force and effect as, 'You are a jerk.'  The f bomb is a dud.  So formerly offensive words, called 'swear' words, are being replaced by those in standard dictionaries of 54 years ago.  If one uses 'jerk' at an appropriate time and place, there is no thought of slovenly hiding behind swearing to make a point.  Just direct, straight talk to that point."
         Attorney Chris Moore prefers "the unrestricted use of Anglo Saxon expletives not be used in polite speech or writing."  He posits that "the coarsening of speech deprives these vigorous words of the very meaning and impact they deserve.  Having served in the Navy, I know that 's---' and 'f----' have many uses.  Used too often, though, they become just more all-purpose words that don't require thought, like 'swell,' 'gosh' or 'great,' and signify nothing."
         Attorney Martin Pulverman did not beat around the bush and gave me sound advice. "I prefer not to see noxious words.  I never heard my father utter a cuss word.  I didn't hear one from my mother until I was 16.  It is better that way.  You have no problem expressing a point of view without the use of offensive comments or objectionable, unpleasant and distasteful phrases.  Please keep it that way."
         Thank you all for writing.  Sorry I could not include everyone's comments in this column.  They were all enlightening. 
But let's get back to T.S. Eliot who has been on my mind.  I ordered two copies of a new annotated book, The Poems of T.S. Eliot.  They were delivered on our doorstep two weeks ago Sunday morning. 
My wife Barbara and I heard the thump of the package as the delivery person dropped it at our doorstep.  Barbara went downstairs to get the package.  As she opened the door, a young woman was running down our outside stairs clutching the package.  Barbara yelled an unavailing "Stop!"  I wish she would have added "thief" to the end of her entreaty.  The young woman jumped into a car parked at the curb with its engine running.  It sped off before Barbara could get the license plate number.  I arrived just as the car turned the corner.  I shouted at the top of my lungs….  You know, there is something unseemly about quoting oneself.

Cosmic Doppelgӓnger

Two weeks ago I appeared before the Commission on Judicial Appointments to speak as a “Witness in Support" of an outstanding candidate for appointment to the Court of Appeal, Judge Martin Tangeman.  My interest in all judicial appointments is keen, but this one was especially important to me.  The appointment was to Division 6 of the Second Appellate District, where I hang out.  Over the years my colleagues, Justices Yegan and Perren and I have reviewed Tangeman's superior court decisions.  I pointed out to the Commission that his statements of decision read like well-crafted opinions and that his warm affable nature would make him an ideal colleague.
It was no surprise that at the conclusion of the hearing the vote for confirmation was unanimous. Chief Justice Cantil-Sakauye administered the oath of office and I am pleased to report that Justice Tangeman is now part of the Division 6 aggravation…I mean aggregation.
I had a scare when I glanced at the program for the confirmation hearing.  I was not listed as a speaker.  Someone named Arthur L. Gilbert, an obvious impostor, masquerading as the Presiding Justice of Division 6, was listed as the first “Witness in Support."  I do not have a middle initial, and, if I did, it would be a more impressive letter like X or Q.  Francis X. Bushman and Robert Q. Lewis come to mind, names that mean nothing to people under the age of 70.
Nevertheless, I was determined to be the first “Witness in Support" of Judge Tangeman.  When the Chief Justice called “Arthur L. Gilbert" to step up to the podium, I waited a moment to see if the miscreant posing as me had the audacity to appear.  The Chief looked directly at me.  I had no choice but to approach the microphone and announce that I would be speaking in place of Arthur L. Gilbert.  I tried to make light of the awkward situation by suggesting that if the legal community was determined to saddle me with the initial “L," it could perhaps stand for “legal," or what I prefer, "lovable."  The Chief took the matter under submission. 
Arthur L. Gilbert has been dogging me ever since I became a justice on the Court of Appeal over 33 years ago.  Every now and then I am referred to as Arthur L. Gilbert‑‑in an article, a news report, a law review article lambasting me, or, on rare occasions, praising me.  I let it go by.
 But that the irritating letter “L" should make its appearance at Judge Tangeman's confirmation hearing jolted me from lethargy. My name and I were no longer content to be pushed around by a mere letter.  I launched a investigation to determine the origin of the annoying "L."  I am grateful to noted appellate lawyer Benjamin Shatz who sent me a post from the SoCal blog:  "State Bar records show that there once was a California lawyer named 'Arthur L. Gilbert' ‑‑but he was admitted in 1921 and is now deceased.  His bar number was 34(!).  PJ Arthur Gilbert was admitted in 1964 and his bar number is 34622."
There has to be some significance that Arthur L. Gilbert and I have "34" in our first two bar numbers.  I made an appointment with a renowned board-certified numerologist.  Just before leaving for my appointment with the numerologist, my mind began to meander, wander, and wonder, as it is often wont to do.  They say that when one lets his or her mind wander, and I suppose also wonder, it often solves problems.
I couldn't help but think about the varied careers of the 34,588 lawyers that practiced between the years beginning with Arthur L. Gilbert's legal career and my own.  And then I thought about the person Arthur L. Gilbert.  What kind of guy was he?  Did his friends call him Art?  In grammar school, did they call him “Art the fart"?  I was sure he was a good guy.  And that got me thinking about Justice Tangeman at his confirmation hearing.
In addressing the commission, Justice Tangeman expressed how humbling it was to receive this appointment.  His heartfelt comments caused me to reflect back on my own confirmation hearing when I became the Presiding Justice of Division 6 in 1999. And then a sudden flash of enlightenment struck me with the force of a Proposition 47 decision… yet to be decided by the California Supreme Court.  I realized I was on the wrong track.  I immediately canceled the appointment with the numerologist who is now threatening to take me to small claims court.  Let me explain.
At my confirmation hearing, I was so impressed with the singular honor given me, and the awesome responsibility of my new position, that I questioned whether I was, in fact, the appointee.  I told the commission that I had read that scientists in the field of quantum mechanics who have investigated string theory have theorized that there could be as many as 10 dimensions in the universe, not just our ordinary four.  And this hypothesis leads to the possibility of an infinite number of multiple universes that duplicate us and everything we are doing. 
The same hearing we were participating in was taking place in a parallel universe, maybe an infinite number of universes.  But there could be slight variations in these parallel universes that sometimes make them almost, but not exactly, identical.  I have trouble explaining the rule against perpetuities, so do not count on me to explain, let alone understand the complex mathematics that underlie this plausible theory. 
I thought someone named Albert Gilbert was supposed to have received the appointment.  But through a cosmic error, I received the appointment.  At my hearing, I apologized to Albert Gilbert and expressed regret that in the universe where my hearing was taking place, I had received his appointment.  Nevertheless, I had no intention of giving it up.  He simply was not going to be Division 6's PJ.  That's the way the cosmic cookie crumbles.  Nevertheless, in a spirit of compromise, I did not object to him being Division 6's PJ in his screwed-up parallel universe. 
But the epiphany that occurred to me after thinking about Justice Tangeman's hearing is that the likely person from the parallel universe who thought he should be the Presiding Justice of Division 6 was not Albert Gilbert.  Of course, it was Arthur L. Gilbert.  Why else would the confirmation program list his name?  And what about the number 34?  Apparently, Arthur L. is not happy with the way things have turned out and he is letting me know it.  Yes, he's deceased.  But every school kid knows that Einstein has proven that time and space are relative.  In Arthur L.'s universe, his confirmation hearing may have taken place minutes ago or is about to take place in the future.  Whatever.  It's aggravating, but I am not angry.  I bet Arthur L. would be far better at the job than I.  It must be driving him nuts.  But somehow, underneath it all, I sense he is reasonable.  Perhaps there is some way we could meet in a time warp and come to an accommodation.
And, just think, we could set an example for the current presidential candidates. 

Tuesday, February 02, 2016

Do I Dare To Eat a Peach?



     I feel like "a patient etherized upon a table."  Sorry, but lately T.S. Eliot has been on my mind.  I will explain later.  But first, let's talk about my last month's January column, A *@#!ing New Year's Resolution.  You enthusiastically responded to my query concerning quotes that involve what some would consider objectionable words.  Should we sanitize them or quote them verbatim despite their vulgarity? The votes were overwhelming in favor of a direct quote.  Only three nays.
         Noted Appellate Attorney Jon Eisenberg was in the yea category.  His view about those who sanitize quotes is simply stated:  "Quote verbatim.  If people are offended, fuck 'em."  Well, I do have carte blanche to quote anyone who emailed me, don't I?  Nevertheless, out of a sense of comity, and an aversion to being sued, I asked everyone who wrote me for permission to quote them, and they all responded that I could… as best I can remember.  Mr. Eisenberg wrote:  "You may attribute.  Abso-fucking-lutely."  He added this enlightening exegesis concerning his colorful phrase.  It is called "expletive infixation," the "insertion of an expletive into a word for purposes of intensification."  He suggested I insert one in my next published opinion.  My immediate reaction:  "Abso-fucking-lutely" not. 
Mr. Eisenberg is in good company.  Justice Harlan in Cohen v. California 403 U.S. 15 (1971) wrote for the majority reversing the conviction of defendant for disturbing the peace.  The defendant appeared in the Los Angeles County courthouse wearing a jacket bearing the words "Fuck the Draft."  If the casual reader missed the quote, it was in bold in the opinion. 
In his opening paragraph, Justice Harlan pointed out, "This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance."  Rather than again repeating the defendant's "distasteful mode of expression," his "vulgar allusion to the Selective Service System," Justice Harlan in his concluding paragraph wrote:  "It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be Reversed."
In Board of Education v. Pico 457 U.S. 853 (1982), the majority held that a school board exceeded constitutional limitations in removing certain books from school libraries.  Rejecting summary judgment in favor of the school district, the high court reasoned that issues of fact must be presented to determine whether the school board abused its discretion and remanded the case for trial.  One of the dissenters, Justice Powell, appended to his dissent a list of the books at issue in the case in which our special word has prominence in a variety of contexts.  He provided a generous list of examples.  Among the books are Soul on Ice by Eldridge Cleaver, A Hero Ain't Nothin' But a Sandwich by Alice Childress, The Fixer by Bernard Malamud, and Slaughterhouse Five by Kurt Vonnegut.  Horrors!  Looks like we have come a long way since 1982.
Getting back to comments I received, another prominent appellate attorney, Robert Gerstein, drew upon Cole Porter to cast his vote in favor of verbatim quotes.  "Good authors, too, who once knew better words now only use four-letter words writing prose… anything goes."  Gerstein opines, "So, why fight a trend."  
         Attorney Stephanie Charles, in elegant prose, wrote of her reaction when she stumbled upon the "forbidden word" in my last column.  "I can hardly believe my eyes—this is never seen.  The verbal liberation, the freedom of expression, the unleashing of the Id!  Never mind the teacup generation, the snowflakes that melt when exposed to offense.  Let them cry and protest.  Let them run to their safe places, wherever they may be.  They will not control your (or my) behavior.  My vote is in favor of adoption of the resolution."
         Justice Nora Manella wrote, "Count me as a vote for the real thing.  In this brash and vulgar world, only those living in a convent can credibly claim to have been insulated from coarse language.  The principal rationale for hiding offensive words is the no-longer-tenable suggestion that they are just too shocking for the average reader to digest.  One may deplore crude language, but quoting it neither endorses nor exalts it.  I am not unsympathetic to those who think the world would be a better place with less vulgarity.  I share the sentiment.  But if the defendant's actual words were 'Everyone on the fuckin' floor or I'll blow your fuckin' heads off,' saying he 'requested the bank patrons assume a prone position or risk an untimely demise' seems silly."
         Presiding Justice Judith McConnell pointed out that "it is important to accurately quote whatever was said since the offensive nature of the language used is part of the story we are telling."
         Judge Theresa Canepa wrote:  "Hear hear for your article!  I agree‑‑say what we mean, and mean what we say.  People should learn to cope with the real meaning of real words.  So for that New Year's resolution‑‑if people don't like it, then 'give 'em hell, Harry!'"
         Attorney Thomas Bourke recalled how a verbatim quote in an employment harassment case in which he represented the plaintiff made all the difference.  In his argument before an appellate panel, Bourke told the court that the supervisor's actual words were "What the fuck do you have against Harry?"  (I made up the name Harry.)  The defense attorney sanitized the statement with, "Well, how are things going?"
         Many readers wrote me to voice opinions about the use of vulgar language in general.  Civil Service Hearing Officer Jan Frankel Schau recognizes the importance of a verbatim quote in writing and rendering a decision, but in general she advises, "[L]eave it off your vocabulary.  Make your second language music instead."  Good advice, but even in music, one cannot avoid controversy.  Stretching the boundaries of tradition invariably results in complaints of vulgarity in some quarters. 
         My colleague Justice Steven Perren had this to say: "I spent more than a moment on one point:  the full spelling of the expletive.  Your points are valid.  My reaction:  it lessened the impact of the article.  You joined the ranks of the "'Potty Mouthed.'"  A conundrum.  In making your point, you arguably make the point to retain the silly practice.  You dropped the "'F Bomb.'"  Curiously, I think that not using the word makes it stronger.  Everyone knows it; everyone says it (gender to the contrary notwithstanding).  The spelled out word has lost its impact and has simply become a word used by those unable to go beyond four letters in objecting, decrying or rebuking another of his/her ideas.  The symbolic word seems more powerful:  I really mean it!"
         Retired San Diego Superior Court Judge Edward B. (Ned) Huntington wrote of his ambivalence:  "I'm a red-blooded, all-American male and a golfer, who uses the aforementioned 'word' in all of my everyday life.  I often mutter it in my daily use of this computer that tends to cause waaaaay toooo many 'operator errors' in its everyday functioning.  It's truly a word with which I've grown up – playing rugby, golf and fishing – however, I have to admit that when I saw the word in actual life-size print, it created quite an unexpected shock.  It surprised me to have such a reaction since I basically concur in your underlying thesis."
         Research Attorney Kathleen Berglund offered thoughtful comments about vulgar and offensive words.  She notes that many people, including those successful in business, "are all too disposed to use vulgar and offensive language.  They have no filters; they say and do what they want, and they may also think that using the 'f' word makes them sound tough, even authoritative.  But truncating the word won't change any of that, in my opinion.  If the word is truncated in whatever context it appears (including, even, in our appellate court opinions), most readers today will just laugh and think, 'Look at those ninnies, they can't even write the 'f' word!'"  "'Ha!'"  Ms. Berglund suggests "a national dialogue on offensiveness, vulgarity, and gracelessness generally—not to be confused with over-sensitivity.  Have we become so narcissistic, as a people, that throwing the 'f' bomb around at will has become acceptable, even standard behavior?  I hope not.  But that is the open and frank discussion we need to have.  Truncating the word, and thereby creating a sort of 'safe zone' for the reader, will not help to solve the problem."
            Attorney John Gilmore wrote:  "When I became officially allowed to practice law on January 16, 1962, the word over which you agonize meant something evil and menacing.  That is, even though it was a swear word that derived from an act of pleasure and, on occasion, procreation.  Now, it has lost its oomph.  Calling someone a 'f.....g a.....e' does not have the same force and effect as, 'You are a jerk.'  The f bomb is a dud.  So formerly offensive words, called 'swear' words, are being replaced by those in standard dictionaries of 54 years ago.  If one uses 'jerk' at an appropriate time and place, there is no thought of slovenly hiding behind swearing to make a point.  Just direct, straight talk to that point."
         Attorney Chris Moore prefers "the unrestricted use of Anglo Saxon expletives not be used in polite speech or writing."  He posits that "the coarsening of speech deprives these vigorous words of the very meaning and impact they deserve.  Having served in the Navy, I know that 's---' and 'f----' have many uses.  Used too often, though, they become just more all-purpose words that don't require thought, like 'swell,' 'gosh' or 'great,' and signify nothing."
         Attorney Martin Pulverman did not beat around the bush and gave me sound advice. "I prefer not to see noxious words.  I never heard my father utter a cuss word.  I didn't hear one from my mother until I was 16.  It is better that way.  You have no problem expressing a point of view without the use of offensive comments or objectionable, unpleasant and distasteful phrases.  Please keep it that way."
         Thank you all for writing.  Sorry I could not include everyone's comments in this column.  They were all enlightening. 
But let's get back to T.S. Eliot who has been on my mind.  I ordered two copies of a new annotated book, The Poems of T.S. Eliot.  They were delivered on our doorstep two weeks ago Sunday morning. 
My wife Barbara and I heard the thump of the package as the delivery person dropped it at our doorstep.  Barbara went downstairs to get the package.  As she opened the door, a young woman was running down our outside stairs clutching the package.  Barbara yelled an unavailing "Stop!"  I wish she would have added "thief" to the end of her entreaty.  The young woman jumped into a car parked at the curb with its engine running.  It sped off before Barbara could get the license plate number.  I arrived just as the car turned the corner.  I shouted at the top of my lungs….  You know, there is something unseemly about quoting oneself.