A neighbor told me about a T.V. reality show he saw last week. “They showed you a real court with as many members as a football team holding a hearing about the recall election. One of the judges on T.V. no doubt the star, said the trial court judge ‘sort of missed it on the Voting Rights Act, just between us,’ and everybody laughed.”
I pointed out that all 11 judges on the panel were stars in their own right and other than having 11 members, the panel had little in common with a football team.
“You wouldn’t call the laugh a touchdown?” asked my neighbor.
“Hardly,” I replied. I then pointed out that colloquies between judges and lawyers could be enlightening, fascinating, even humorous, but these exchanges were not performances. I then had to explain the meaning of “colloquy” which my neighbor then tried out in a variety of contexts, and eventually concluded that he and I were having one.
We ended our conversation with his seal of approval for the televised hearing of the 9th’ circuit’s en banc hearings in Southwest Voter Registration Education Project et. al, vs. Costa. He noted that this was one reality show that was interesting, informative, and no one ate any snails or worms.”
The Daily Journal headline drew upon the noble sport of boxing to characterize the laugh line as a “Jab.” The article however, nudged the metaphor toward stand up comedy and the “jab” became a “crack.” The judge on T.V. offered an explanation for his laugh line. “Sometimes, we ask question in oral arguments in order to get lawyers to give answers…. “It doesn’t necessarily reflect our views…We may be just trying to get the lawyer to [elaborate on] the Voting Rights Act, just between us.”
Just between us I found the explanation puzzling. Was the judge on T.V. saying that he really did not think “the trial judge missed it,” but asked the question, merely to draw out the attorney on his views about the Voting Rights Act? The trial judge, with customary class, refused to speculate on what the judge on T.V. meant by the remark, but noted that every judge has his own style. As it turned out the en banc panel concluded that the trial judge got it right in denying the injunction to halt the election and affirmed his judgment.
Lest you read too much into an off handed remark at oral argument, the opinion issued by the en banc panel noted its review was limited and deferential. Whatever the district court’s view of the Voting Rights Act, the district court judge did not abuse “its discretion in holding that the plaintiffs have not established a clear probability of success on the merits of their equal protection claim.” Pg. 8 en banc opinion.
The opinion distinguished between two standards of review, abuse of discretion in reviewing the district court’s denial of the preliminary injunction, and de novo in reviewing the district court’s interpretation of the underlying legal principles. Citing Sports Form, Inc. v. United Press Int’l Inc. 686 F.2d 750, 752 (9th Cir. 1982) the en banc panel noted that “an order ‘will be reversed only if the district court relied on an erroneous legal premise or abused its discretion.” But relying on Bay Area Addiction Research & Treatment. Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999) the panel said “’a district court abuses its discretion when it makes an error of law.”’ Pg. 7. Abuse of discretion occurs when a decision is "arbitrary, irrational, or contrary to law." Singh v. Immigration and Naturalization Services, 295 F.3d 1037,1039 (2002). Does this mean that when a judges makes an error in interpreting the law, that judge acts beyond the bounds of reason? Cannot different judges have differing reasonable interpretations of the law?
Apparently the en banc panel subscribed to this view in reviewing the three judge appellate panel’s opinion on the equal protection claim. The en banc opinion states “[T}hat a panel of this court unanimously concluded the claim had merit provides evidence that the argument is one over which reasonable jurists may differ.” Pg. 8. Whether or not the three judge panel "missed it" This was a laudatory display of collegiality and civility quite apart from whether or not the three judge panel missed it. I am hard pressed to think of any of my own reversals, or even dissents to my own majority opinions where I was characterized as reasonable.
When it comes to criticism I prefer the critic who assumes there is a reasonable answer for an apparent mistake. Instead of saying, "I Got-Cha" this critic assumes that there is a reasonable explanation for the seeming error. Such a critic will acknowledge that in some cases someone can "miss it" with good cause. Take Ex Vice President Dan Quale for example. Orthographers everywhere said he had missed it because he had misspelled potato. But I believe he made an reasonable mistake. I can't say this happened, but maybe Quale's subconscious mind reasoned that because potatoes have "eyes," they would also have toes, hence "potatoe." Or because of his optimism, he could well have been thinking of a feast rather than a famine. This accounts for the "e" which belongs in a basket of potatoes. So let's give Quale the benefit of a doubt and not jump all over his "miss."
Consider, if you will, my own example. I recently wrote an article for California Litigation, published by the State Bar of California, Volume 16 Number 2, 2003. The issue was devoted to appeals. Through exhaustive research I was able to obtain witness statements of the events leading to the injury sustained by Mrs. Palsgraf in Palsgraf v. Long Island Railroad Co, 248 N.Y. 339, (1928). I wanted to show the contrast between the rambling statements of the witnesses (all of whom with the exception of Mrs. Palsgraf remarkably have the same names as notable scientists in quantum mechanics,) and the brilliantly concise statement of facts authored by Justice Cardozo.
The facts in Palsgraf you may recall involved a man trying to board a train that was leaving the station. He ran for the moving train and the conductor leaned out of the train to give him a hand. As the man was pulled on board by one guard and pushed from behind by another, a package he was carrying under his arm which contained fireworks became dislodged and fell on the tracks causing the fireworks to explode. The shock of the explosion caused some scales that were on the platform to fall on Mrs. Palsgraf who was waiting for her train to take her to Rockaway Beach. In her declaration she stated, "I bought a ticket to go to Rockaway Beach in Jersey, to visit mine granddaughter. I was minding mine own business, watching for a train, and that's all when suddenly—boom! Was an explosion—you wouldn't believe. Something fell on me everything hurts."
A perspicacious reader, Orange County Superior Court Judge Ron Bauer faxed me his comments on the article. His disarming note praised me for my "clever wit." He went on to say that "[P]articularly subtle is the proof of Mrs. Palsgraf's post-accident dementia. Nothing else could explain her reference to a tip to 'Rockaway Beach in Jersey.' Before her mishp, she knew that rockaway Beach is on Long Island. That's why she was taking the Long Island Railroad, which does not go to Jersey. Insurance Investigator Heisenberg would have no uncertainty about this."
This was a powerful observation. A mere perusal of the New York Subway map gleefully supplied to me by my colleague Justice Steve Perren made Judge Bauer's point unassailable. But what struck me about Judge Bauer's comments, was his readiness to supply a reasonable explanation for the apparent mystery. Instead of shouting from the roof tops that someone missed it, whether it be Mrs. Palsgraf, the transcriber of her comments, or even myself, Judge Bauer offered a possible explanation. I immediately set to work to discover the source of the comment. Indeed, I even wrote to Judge Bauer. Here is the salient part of my letter to him.
"Your fax prompted me to do additional research on the apparent confusion of Mrs. Palsgraf (she objects to Ms..) Your geographical insights are unassailable. New Jersey is east of Rockaway Beach which is located in Long Island. From what I could determine Mrs. Palsgraf was not senile. Although uneducated, she was wise and practical. Indeed, she selected the lawyer who represented her in the personal injury suit against the railroad. She insisted that her trial lawyer associate an appellate counsel, Matthew Wood. This is a savvy woman.
At first I believed the confusion stemmed from the placement of the words "in Jersey." Mrs. Palsgraf, having come from the old country, had an accent. I thought the sentence should have read, "I bought a ticket in Jersey, to go to Rockaway Beach to visit mine granddaughter." Unfortunately, like trying to probe the mysteries of life's enigmas, the solution here was not so simple. First of all,
Mrs. Palsgraf did not live in New Jersey. She lived in Rockaway Beach . And her granddaughter lived in New Jersey.
So what is the explanation? Mrs. Palsgraf had been shopping in Rosedale and had purchased a lovely porcelain doll for her granddaughter. To add a few facts to Justice Cardozo's famous opening sentence, Mrs. Palsgraf was standing on the platform of defendant's railroad at the Rosedale station while waiting for a train to take her back to her home in Rockaway Beach, a mere nine stops away. Once home, she intended to freshen up and wrap the doll in colorful paper she had purchased the day before in Rockaway Beach. How she intended to get to New Jersey I cannot say. She could have taken the Staten Island Ferry, or the A train, or a combination of the two. Whether she was a fan of Duke Ellington I cannot say. I have included various maps which I trust elucidate these points.
With these facts in mind, we can better understand Mrs. Palsgraf's statement. Her English was limited, and her singular intent to visit her granddaughter when the injury occurred was uppermost in her mind. Add to that the shock from the trauma she had suffered, her statement is reasonable under the circumstances. She bought the ticket to go to Rockaway Beach, but her ultimate destination was "Jersey" where her beloved granddaughter lived.
To avoid confounding future discerning readers such as yourself, I should perhaps delete the reference to "Jersey" in my piece. The problem there is that the reader will have the impression that Mrs. Palsgraf's granddaughter lives in Rockaway. But such an omission could produce an angry response from the granddaughter who now lives in a retirement community in Florida, and similar response from her daughters, sons, and grandchildren.
By the way one of the daughters who lives in Beverly Hills, California Mrs. Einstein, supplied me with much helpful information about her mother. She seemed more interested in discussing the up coming recall election. We both had strong views about the recall. But we made a pact with one another. I remember our exact words, "I won't tell if you don't tell."