Wednesday, June 30, 2004

A photo of Justice Gilbert Posted by Hello

Ode to Tom Crosby

Column By Presiding Justice Arthur Gilbert
I was walking down the street talking to Tom Crosby a few days ago. He was his usual self, railing about a case with which he disagreed. “The issue has the circumference of a medicine ball and they missed it.”
“You are getting excited Tom,” I said.
“Of course I am. I love talking, thinking, shaping and writing about the law. That is something to get excited about.”
“Hey Tom,” I said, “People will think I’m nuts. It looks like I’m talking to myself.”
“I like that,” said Tom. “But not to worry. People probably think you are talking on a cell phone.”
“But I’m not holding a cell phone.”
“I love it. If people don’t think you are a little nuts, or highly unusual, then you are probably not doing your job.”
Here I am walking down the street and talking to Tom Crosby. Newspapers say he passed away last month. Tom would be the first to say not to believe everything you read in the papers, or elsewhere for that matter. If you asked him if that included his own opinions, he would give you his signature Crosby smile, almost sardonic, but not quite, because of the twinkle in his eyes.
“There are exceptions for the exceptional,” he would say.
In the case of the articles about Tom’s passing, I don’t believe entirely what I have read, not because Tom says so, but because here I am talking to him. I hear his voice, his inflections, his wry humor, his contempt for artifice and empty slogans, his insistence on rigorous analysis and thought. People like Tom don’t merely “pass away.” Tom is still there, in your face, challenging you to think and to be honest. His engaging and lovely wife Patty will bear me out on this. I had the good fortune to spend some stimulating and joyful hours with Tom and Patty.

Tom and I were appointed to the California Court of Appeal at the same time, in December of 1982, he to the Fourth District in Orange County, and me to the Second District, Division 6, the new Division in Ventura. We first met at a conference for new appellate justices in Berkeley shortly after our appointments. He often looked like a straight-laced Ivy league type, what with his bow ties, wire-rimmed glasses, sleeveless cardigan vest and reserved bearing. Notice his photo in the Daily Journal Wednesday, January 28, 2004. His folded arms might lead you to believe that he is playing it close to the vest, or that his mind is made up and there will be no changing it. Wrong!. Tom is indisputable proof that looks are deceiving, or that my perceptions are faulty.
Tom knew everything about any case that came before him and everyone else’s cases, including my own. He lectured extensively on a case I wrote on writ practice [with much assistance from our writs attorney, Will Gorenfeld], (Omaha Indemnity v. Superior Court of Santa Barbara Co. (1989) 209 Cal.App.3d 1266.) Tom supplied a stunning analysis, uncovering subtleties that enhanced my insight of the very case I wrote. In remarking about the infrequency with which writ petitions are granted, Crosby with his characteristic wit, reminded judges and the bar that there is a reason our court is not called the Court of Writs. I lavished Tom with praise for his incisive comments. He blushed and changed the subject. He simply could not accept compliments, but was liberal in his praise of others, with one important proviso--you had to deserve it.
He was persuasive even when you disagreed with him. On a visit to Rome he e-mailed his staff that he felt he had convinced the Pope to accept Roe v. Wade. I could go on and tell you about his incandescent brilliance, his ironic humor, his passion for the law, and his healthy obsession with justice. But Tom and his staff speak with far more elegance than I can muster. On his retirement, Tom’s staff, Bill Amsbary, John Gastelum, John Seckinger, and Bob Wolfe put together numerous quotes from Tom’s opinions. They titled it, appropriately, “The Portable Crosby.” Tom did not think he was doing his job if he did not get under one’s skin now and then. Nevertheless, it could also have been titled "The Quotable Crosby."
In the preface they write: “With Tom Crosby’s retirement, it has been said (in the L.A. Times, no less) that our court may be losing its ‘most gifted writer.’ Words never failed Justice Crosby, but he has been equally good to them in return. More interested in conciseness and clarity than cleverness, he was utterly unmotivated by politics, hidden agendas or ideology. He ably filled the judiciary’s side of the bargain in Justice Gilbert’s ‘match in heaven’ between good writers and readers of judicial opinions. [] While Tom Crosby may not have been infallible, he certainly was unflappable. Whatever he dished out, he took in return. Whether his carefully crafted, deeply felt opinions were decertified, reversed or simply ignored – whether he was the lone dissenter or the target of a blistering riposte from a justice, brief writer or talk radio host—his typical reaction was the muttered: ‘It’ll make you crazy if you let it.’ And he never did. [] It has been our luck to work with a clear-headed, plain-speaking el jefe. Over the years, we have seen Justice Crosby edit—indeed shred our writing. It is now our supreme pleasure, finally, to edit his.”
Tom had much to say on every topic and issue known to human kind. His words reflect his character, wit, imagination, wisdom, compassion and intellect. Here are some gems from “The Portable Crosby.” Some cases have not been published, but Tom’s words live on.
“While a picture might be worth a thousand words, the jury heard at least that many.” (Akers v. Miller 68 Cal.App.4th 1143, 1147 (1998).) “Vincent Van Gogh wrote to his brother in May 1889 that his madness should be viewed ‘as a disease like any other.’ More than a century later, health care insurers still do not share this outlook.” (Warner v. California Physicians Service (1998) G016812, unpublished.) “Considering [the father’s] own claims of poverty, we are puzzled why he has chosen to pay his attorneys (at $250 per hour) to pursue this appeal rather than to pay a much lesser sum to his own children. One hour of his attorney’s time would cover ten months of additional support for each child.” (In re Marriage of Estrada (2001) G02730l unpublished.) “After school and during vacation periods, the streets, beaches, homes and malls are crowded with unattended children. Some of them are lonely; some get hurt or killed; and many are victimized or victimize others. This is all a shame, one of the great failings of our otherwise fabulously wealthy society . . . .” (In re Kamiya (1998) G022140, unpublished.) “[Appellant] did not receive ineffective assistance of counsel; sadly, her son had an ineffective mother.” (In re Cody W. 31 Cal.App.4th 221, 223-224 (1994).) “Whatever hat the contractor may have worn, it simply did not cover an insured head.” (Campobasso v. State Farm Fire & Casualty Co. (1998) G016911 unpublished.)
“[Defendant] was ‘guilty’ of only one thing--constructive possession of an ice-cold 12-pack. A sin, perhaps, in some quarters, but a far cry from the FBI’s ‘most wanted list.’” (Huynh v. Superior Court (2000) unpublished.) “[A]n auto thief, like a second–story man apprehended in the victimized premises, has no standing to assert a reasonable expectation of privacy in the stolen car.” (People v. Melnyk 4 Cal.App.4th 1532, 1533 (1992).) “Counsel in the defense of criminal cases is not held to a standard of miraculous prescience.” (People v. Fatone 165 Cal.A.pp.3d 1164, 1174 (1985).)
“Our rivers may be murky, the air opaque, and the Pacific clouded with sewage and sludge; but Public Resources Code section 21166 is as clear as they once were.” (Dissenting in Fund for Enviornmental Defense v. County of Orange 204 Cal.App.3d 1538 (1988).) “[Plaintiff’s] unseemly haste . . . reminds us of the farmer who pulled up his crops each night to see how they were growing.” (Dynamic Concepts, Inc. v. Truck Ins. Exchange 61 Cal.App.4th 999, 1001 (1998).)
“[T]he performance was in bad taste, but ‘there is no law against bad taste,’ which should ‘be reassuring to much of the modern entertainment industry.’” (People v. Janini (2000) 89 Cal. Rptr. 244, ordered not published.) “The appearance of Halley’s Comet is probably a more common occurrence that a refusal to dismiss a misdemeanor on the prosecution’s motion.” (Mathis v. Superior Court (1984) 203 Cal.Rptr. 65, 69, fn. 2 ordered not published.) “[H]omelessness is a national phenomenon, and it is not the first time it has appeared as an important social problem in this century. The attack must be on the cause, not the victims; for they in the main are no more content with their circumstances than anyone else is.” (Tobe v. City of Santa Ana (1994) 27 Cal.Rptr.2d 386, review granted.) “A cautionary note—we spend too much time trying to make sense out of arbitration agreements precisely because litigants spend too little time in drafting them.” (National Untion Fire Ins. Co. v. Nationwide Ins. Co. (1999) 69 Cal.App.4th 709, 716.)
And here is one that for some odd reason was ordered depublished by the Supreme Court. “There is a [deplorable] trend in the Court of Appeal to abandon the application of judicial responsibility by taking cues from Supreme Court depublication practices.” (People v. Salgado ordered not published. Not to worry, the case endures in 266 Cal.Rptr. 887 fn. 1.)
The foregoing is a mere sample of Justice Crosby’s legacy. His passion for grammar equaled his passion for the proper application of legal principles. He railed against the “indefensible comma,” and loathed the word “that.” And so Tom, we will still carry on our conversations and I can take comfort in knowing that . . . whoops, I mean in knowing you will always be with us. Good-bye dear friend.

An Unnatural Act

Column- April 2004 by Presiding Justice Arthur Gilbert
Last month I performed an unnatural act -- not an easy admission for anyone to make, let alone a judge, I mean a state judge. Federal judges are a different story. Today, persons often perform unnatural acts to receive a judicial appointment, a practice that presumably continues if they pass Senate confirmation. But after that rare occurrence, a federal judge’s principled sensitivity to the electorate is commendable but not crucial. With state judges, however, it is crucial, in fact, it's mandatory.
My transgression occurred almost a month ago to the day. I ran the Los Angeles Marathon. O.K. “ran” is a gross exaggeration. On the other hand “crawled” is too self-effacing though closer to the truth. Let’s go with the neutral “finished” as in “I finished the L.A. Marathon!”
That 24,000 foolish people decided to subject their bodies to relentless torture for 26.2 miles in 90 degree weather does not make the run any less abnormal, nor give legitimacy to this crime against nature. How far is 26.2 miles? Imagine running to Catalina without the ocean, and then add two tenths of a mile. The 10, 000 people who entered and did not finish the L.A. Marathon, either because they had passed out or dropped out, were perhaps fortunate. The rest of us soon got used to the ambulances racing by with sirens wailing.
The 17th century philosopher Descartes spoke of the mind-body dichotomy. Whatever your religious or philosophical orientation, I will let you in on a little secret about the body: it is not a temple. It is not a cathedral. It is not even a chapel. It’s a machine, a mechanism with moving and stationary parts. And as any idiot or consumer lawyer knows, machines break down; they fall apart. Savvy manufacturers put warning labels on their products. Our Maker put one on every human body. It says that under no circumstances should this body run more than 20 miles at any one time. I do not put a 100 watt bulb in a lamp that says do not use more than a 75 watt bulb in this lamp. It is obvious the body’s warning label was put there for a reason, yet I am not sure why I ignored it.
While the body is running it burns glycogen and fat for energy, but at around 20 miles most bodies run out of these fuels. That is when you hit what is euphemistically called “the wall.” It is an apt metaphor because you feel like Humpty Dumpty after the fall, runny and uncontained. Well what can you expect when the body needs fuel and it is out of gas? I have been told that such a body feeds off its own muscle in desperation. That I did this to my body was unassailable proof that the first part of Descartes' theorem, "I think therefore I am," did not apply to me.
When I hit 13 miles, every rational part of my body said, “there is no way you or any other semi-rational human being can do another 13 miles.” My body became obstinate and contentious. All its organs went on strike. The cells that made up these organs formed cells of resistance. Like the strikers at Ralphs, they tried to shut down the store. And like the strike itself, it was all about medical benefits. And like the strikers at Ralphs, they lost. Their cogent point was that medical benefits don’t do much good for a dead person. The organs and cells tried to reason with the brain. “What the hell is the matter with you?” they cried. The brain mumbled something stupid about a medal, or was it something about a stupid medal? No matter, but through the auditory canals they heard me talking with my running companion who figured out why we were doing this. "We are doing this for the medal," he said. Then he corrected himself and repeated the sentence with an adjective in front of “medal” that would have made Richard Nixon or even Sandra Tsing Loh proud. We high fived. The unthinking brain won.
So maybe I did it for the medal. You wear it around your neck like a noose or the Nobel prize. I thought wearing it over my robes would add to the solemnity and dignity of oral argument, but the Judicial Performance Commission disagreed. My training group "The LA Leggers" also gave finishers a pin in the shape of the numbers, ”26.” But I can’t say these trinkets were worth the last 6 miles to the finish line, particularly the pin which reminded me of my IQ. The unadulterated torture and suffering I endured for those miles had Mel Gibson bidding on the film rights.
There must have been some other reason I had imposed this agony on myself. Perhaps it had something to do with my age, a laudation commemorating the number of years I have spent on earth. They correspond to the number of an interstate highway that makes its way through the United States. A song written by Bobby Troup pays tribute to this great highway which became famous with the Nat King Cole recording in 1947.
"If you ever plan to motor west, travel my way, take the highway that's the best. Get your kicks on Route 66! It winds from Chicago to L.A. More than 2000 miles all the way. Get your kicks on Route 66! Now you go thru St. Looey, Joplin, Misssouri and Oklahoma City is might pretty. You'll see Amarillo . . . Gallup, New Mexico: Flagstaff, Arizona: don’t forget Winona, Kingman, Barstow, San Bernardino." Hey, hold on--wait a minute---back up to New Mexico-keep going-- just one more word, that's it--"Gallup," sounds like—is . . . maybe I am the horse who needs one last gallop before heading for the pasture, or the glue factory.
Or maybe I ran because of an article in the last winter issue of “Gavel to Gavel,” the Los Angeles Superior Court Judicial Magazine. Why do they call it “Gavel to Gavel?” I have been a judge for nearly 30 years and not once have I, or have any of my colleagues, ever used a gavel. But no matter. When I was on the Los Angeles Superior Court, our magazine was a mimeographed bulletin done by the typing class at Le Conte Jr. High School. Now they have a slick magazine with feature articles and pictures. An article about judicial athletes by Judge Rita Miller may have induced me to enter the race. It's not enough that the Los Angeles Superior Court makes more money than anyone else, or so they claim, but many of its judges run marathons in record times, over and over again. One judge performed a wedding ceremony at mile 6 of the L.A. Marathon and then ran with the wedding party to the finish line. If I had performed the wedding ceremony, by the time I crossed the finish line, I could have presided over the couple's custody battle in their divorce proceedings.
But there are uplifting aspects of the marathon. You see parts of the city you have never been to before and you come to realize there is no "bad" section of town. People from a variety of cultures and ethnic backgrounds become united in a grand celebration that honors the city and the thousands of people who challenge their minds and bodies to complete the race no matter what the time. Vast numbers of people along the way cheer you on, long after the winners have gone home, showered and caught the next flight back to Kenya. The feeling of goodwill buoys you along despite the anchor of painful charley horsed muscles trying to pull you down. Cheering crowds drawn together in goodwill and harmony defeat the adversity of the run, and promote mutual respect and tolerance. Even lawyers speak to one another with civility and affection. At mile 16 two lawyers even stipulated to a continuance, although that was after they discovered they worked in the same firm.
From this experience I have found a solution to the problem of crime which I pass on to Police Chief Bratton. Not to worry about the lack of funding for more officers. Simply have a marathon each day and crime will be eliminated from our city. Of course the people running might die, but that's another story.
I also recommend that running a marathon be a mandatory part of the bar exam, and a requirement for all sitting judges. It mellows you, makes you empathetic and more attune to human suffering. Depositions would be less contentious, trials less stressful and arrogant posturing unnecessary. It would give judges on all courts a healthy sense of humility. Yes, even the United States Supreme Court. But for Justice Scalia. I would recommend a triathlon.
I realize that some of us are getting older than others, and if you are like me with bad knees, this run is no picnic. But to quote the character Crouch in Larry Gelbart's play, "The Sly Fox," I can still run but the scenery goes by slowly." Whether slow or fast, finishing the marathon is like finishing a trial. True, not all trials are won, and not all judgments are affirmed, but once trial begins, whether you are a judge or lawyer, you see it to the end, and that is no mean accomplishment whatever the result,. The analogy would fit perfectly except for one significant difference. There is no way to settle in the middle of the marathon. But if it is 90 degrees on the day I run the 2005 L.A Marathon, I just might find a way.