Warning. The concluding paragraphs of this column contain scatological references, which some, if not all, discriminating readers will find offensive. We strongly advise discretion for the sensitive and parental oversight for those of tender age.
Last month my column centered on the ripple effect of judicial decisions. My example was Superior Court Judge Stanley Mosk's 1948 decision in which he held that restrictive covenants were unconstitutional. I expressed my admiration for his reasoning and insight. I did not mention his courage (a trait, incidentally, I believe he possessed in abundance), because judges who lack courage to make well reasoned, yet controversial, decisions when called for should look for other work. Such decision making is implied in the job description.
Yet many judges who stake out new ground with a constitutionally based decision are often labeled "courageous" or "irresponsible," depending upon the reader's evaluation of the decision. Judges know this. Though most welcome praise, when they are faced with disapproval of a controversial decision, they simply may shrug their shoulders, an acknowledgement that criticism goes with the territory.
Chief Justice George's first opinion in the In re Marriage cases held the ban on same-sex marriages violated California's state constitution. Courage aside, three concurring members of the court agreed that George made the right decision. George felt compelled to change course and uphold a ban on same-sex marriage when the voters nullified his first opinion with the passage of Proposition 8, which amended California's state constitution to define marriage as occurring only between a man and a woman. It would be wrongheaded to label George's first opinion heroic, and the second one pusillanimous. He ruled as he thought he must. Although George's first opinion does not have the force of law, and may settle in the dust of obscurity, it will endure as an example of a judge doing his job. Far better than having one's name on a building.
But some decisions are steeped in courage. Los Angeles Superior Court Judge Alfred Gitelson decided the controversial "bussing case." He ruled that the Los Angeles Board of Education, as the school district was then called, must end segregation. Judge Gitelson's election was on the horizon when he made the momentous decision that would have mandated bussing of students in Los Angeles. He could have held the matter under submission (no relation to the title of my column) until after the election, but he filed the judgment a short time before the election.
The timing of that decision reflected his integrity and courage. No doubt Judge Gitelson knew his decision would engender a firestorm of protest, but as far as I can determine, up until that time no superior court judge had been turned out of office because of an unpopular judicial decision. I suspect that if Gitelson knew he would be turned out of office, he still would not have postponed the filing of the judgment.
There are other less dramatic ways in which a judge displays courage. It is not easy to summon the strength to admit a mistake or to face up to an embarrassing situation. A judge who dresses down a lawyer in court for a minor gaffe abuses his authority. But what if the shoe is on the other foot and the judge is the one who does something foolish?
The late Ventura Superior Court Judge Ben Ruffner invariably treated lawyers and litigants with courtesy and respect. No one would want to see him in an embarrassing position. An example of the unfair distribution of reward and punishment we so often experience was illustrated by what happened to him one day during a jury trial over which he was presiding. He leaned back in his large swivel chair while aligning the fingers of each hand so that they touched their counterpart in the opposite hand. His eyes were partially closed, not because he was dozing, but because he was listening intently to the testimony. When the tilt of his chair passed the line of equipoise, he toppled over backwards.
The view from the courtroom facing the bench revealed Judge Ruffner's shoes, the soles of which were pointed at the ceiling, and a bare portion of his legs just above his socks. If Ruffner had treated people poorly, there might have been laugher in the courtroom. That was not the case. The eerie silence in the courtroom must have been what astronauts experience in outer space.
Ruffner freed himself from the overturned chair, smoothed his robe, and turned the chair right side up. He then sat in it, rolled it forward so that his arms rested on the writing portion of the bench, and addressed those in the courtroom, figures in a painting, frozen in place. In slow, measured tones, he said, "I do not do that for just any jury."
Judge Bernie Kamins, retired from the Los Angeles Superior Court, often sits by assignment in various courts throughout the state. He had minor surgery in Los Angeles. His stitches were due to be removed when he was sitting by assignment in Santa Clara. He went into an Urgent Care center across the street from the courthouse to have this simple procedure performed. He did not know that this center was solely for pregnant women. When he affixed his signature to the sign-in sheet and heard titters in the background, he knew something was amiss. The receptionist inquired if he were a seahorse. Instead of scurrying for the exit, he extended good wishes to the pregnant ladies in the waiting room. Kamins was not expecting, but the nurse nevertheless removed his stitches.
I suppose these last two examples are more about grace under pressure than real courage. But my next example is about a person who possesses the grit and courage to which we should all aspire. Through mere chance, I encountered this valiant individual at the Los Angeles Music Center last month during the intermission between the second and third acts of Verdi's Rigoletto.
My wife and I went downstairs to the restrooms. As usual, the line from the vestibule into the women's room snaked in uneven circles. It inched forward imperceptibly. I said, as I have innumerable times in the past, "Doubt you will make it before the end of the intermission." "I will make it," she said with the confidence borne of countless successful missions.
I went to the crowded men's room. But no long lines. I expected that I would soon join other men in the vestibule, waiting impatiently for their wives, lovers, sisters, mothers, partners or friends. We would glance nervously at our watches when the lights flicker, indicating intermission is coming to a close.
But this time, things were different. I entered the gleaming white, rectangular men's room. To my left was the long aisle I had seen so many times before. On either side were two rows of approximately fifteen starkly white, waterless urinals, all of them occupied. At the end of the aisle was a right turn into another long aisle, against the far wall of which were fifteen to twenty toilet stalls.
I quickly walked down the first aisle where I saw the backs of a variety of men's jackets. Just as I approached the corner and made my right turn, a toilet stall opened up. I quickly slipped in as the previous occupant stepped out. He and I, adhering to men's room etiquette, avoided direct eye contact.
I closed the stall door. How should I put this? You can be a president, an astronaut, a Nobel Prize winner, an emperor, a rock star… even a judge… it doesn't matter… you still have to pee. Task completed. I opened the door. And there facing me was … a woman!
Our eyes met for a split second. Then in an instant she was in and I was out of the stall. The door closed. I didn't say anything. No one said anything. I went back along the aisle of shining urinals to a wide square room with sinks. I washed my hands and crowded with others at the technically advanced paper towel dispenser, which, despite our frantic hand waving, refused to dispense. I didn't care. My mind was on the woman in the stall, the Joan of Arc, the Madame Curie, the Florence Nightingale, who had the fortitude to march into the men's room in her time of need.
I thought of her opening the stall and hurrying along the long row of urinals to the exit. Sir Walter Raleigh came to mind. I decided to help. With my wet hands behind my back, I raced back down the aisle to the toilet stall where earlier our eyes met. I stood guard, waiting for her to open the door. She did, and our eyes met again.
"I am here to run interference for you to cover for you. I am here for you," I said.
"Let's go," she said. And out we rushed as seemingly one person, me directly in front of her. Once out in the vestibule, we laughed giddily and I brought her over to meet Barbara, who for the first time was waiting for me. I said, "Barbara, I would like you to meet a person of great courage who I deeply admire." I turned to the woman I had ushered out of the men's room and asked, "By the way, what is your name?" She told us and we all shook hands.
This woman of valor I will probably never see again. She said simply and eloquently, "I really had to go, and so I said to myself, 'What's the big deal?' and I just marched in there." We said goodbye and we made it back to our seats for the last act of Rigoletto, which we all watched in comfort.
I then wondered whether I would have the courage in my time of need to walk into a women's room…. Forget it, not easy to write a column from County Jail.