Wednesday, June 30, 2004

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.

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