Monday, June 04, 2012

Judge Loren Miler Jr.

     It is a week after the New Year's bowl games, and I have gotten them out of my system. Well, not exactly. The Fiesta Bowl keeps haunting me. It was an exciting game, and even though I am not a Stanford University fan (what can you expect from a UCLA and UC Berkeley School of Law graduate?), I cannot get Jordan Williamson out of my mind. With three seconds left, Williamson, the much-sought-after kicker, came out on the field to kick a 35-yard field goal to win the game against Oklahoma. But much like a surefire winning case with only one more key witness to call, it didn't turn out that way. He kicked, but the ball hooked to the left and missed the goal. The score was tied, and in overtime, he once again missed a 43-yard field goal. Oklahoma won. Williamson, sobbing in the locker room, could not be consoled no matter how much his teammates tried to convince him that one person alone is not responsible for the loss, not a particularly persuasive argument in this instance.
     That Williamson’s gaffe occurred in a well-played game, and was not a matter of earth-shattering importance, is beside the point. No one likes to screw up in front of millions of people. So how does a 19-year-old freshman, or anyone for that matter, get beyond this embarrassment that he will remember for the rest of his life?
      I am not sure, but if George Foreman could get over his defeat in the world heavyweight boxing match in Zaire to Muhammad Ali in 1974, I have hope for Williamson. Foreman shook off his corrosive despair, regained the heavyweight title 20 years later, became a minister and good friends with Ali, and promoted a grill on which I have cooked vegetables and turkey burgers.
      However odd it may seem, Williamson's angst over his all-too-human goof got me thinking once again about my dear friend and colleague, Judge Loren Miller Jr., who passed away last month. The pain so many of us felt over our loss of this uniquely warm human and outstanding jurist is of a different and far more profound character than Williamson’s angst. But that is not why I thought of Loren. Loren would have known just how to talk to Williamson. I would bet he would have had Williamson laughing through his tears. Loren would have explained to Williamson that he was human and he has a lifetime ahead of him to accomplish great things and also to screw up now and then as we all do.
     Loren was a judge of incomparable ability who understood human frailty and who put cases and life experiences in perspective. He articulated his philosophy with warmth and humor. Loren knew how to talk to those whose "screw-ups" landed them in prison or jail. He had an unerring sense of what sentence to impose and did it in a manner that gave many defendants hope for the future.
     Loren played football for the University of Oregon. And just prior to the Stanford game, Oregon won their first Rose Bowl championship in 95 years, defeating Wisconsin. There were plenty of goofs during those 95 years. Good things can happen with the passing of time. Loren reminded us that even judges have to face up to their shortcomings. We have higher courts to remind us of that.
     I met Loren when he was first appointed to the Los Angeles Municipal Court. In the summer of 1975, Frances Rothschild was Gov. Jerry Brown’s first appointment to that court. I think she had just passed puberty. She is now an Associate Justice on the California Court of Appeal. On Aug. 18, 1975, now superstar attorney Elwood Lui received a call from Brown appointing him to the municipal court. It must have been a few minutes after the governor called me to inform me of my appointment to the Los Angeles Municipal Court. To this day, Elwood insists that he received the first call. The Governor refuses to shed light on the issue. Apparently, he has a few more important things on his mind.
      Justice Richard Mosk of the 2nd District Court of Appeal, then a successful lawyer, arranged to have his father, Justice Stanley Mosk, swear me in on Labor Day. I think Elwood found out about my impending swearing-in ceremony and arranged to be sworn in the day before me. He still lords it over me that he will always have seniority, even though he is a few years younger. A week or so after that, Loren was appointed to the municipal court.
      Loren, Elwood and I became close friends. I have a group photo of our formal swearing in. Pictured in the photo is Loren, Elwood, me, Justice Frances Rothschild and Presiding Justice Norman Epstein, Gov. Ronald Reagan’s last judicial appointment to that court. It looks like a junior high school graduation photo. We were all in our 30's.
     Both Loren and Elwood dared me to write a column about one of our shenanigans at California's premier Judges College in Berkeley. The college presented newly appointed judges with an intensive two-week course on a variety of subjects that were invaluable training for new judges.
     We were serious students. But after class was another matter. Loren's expertise in short sheeting was legendary, a skill he demonstrated with consummate artistry one evening. As witness to this feat, accomplished with stunning deftness in a matter of 25 seconds, I can assure you it was performed in the evening after court hours. I will not reveal the well-known judge who was my roommate and who, along with his bed, was the object of the short sheeting. The unsuspecting judge was momentarily out of the room when the skillful maneuver was performed. Because of the oath Loren administered to me, I swore not to reveal the trap that had been set. I went to bed early that night and fell asleep before my roommate quietly prepared for bed. After slipping between the covers of his adjoining bed, he swore so loudly that he woke me up. Can you believe that? Well, he got over the incident. And when he learned Loren was the perpetrator, he thought he must have deserved it.
     Loren lived to see a better world. He mentioned to me that his grandfather was a slave. His father, the renowned judge, writer, editor and lawyer, Loren Miller, won many civil rights cases, including Shelley v. Kraemer (1948) 334 U.S. 1, which abolished restrictive racial housing covenants.
     A firm commitment to justice is firmly ingrained in the DNA of the Miller family. Loren was a judge of unscrupulous fairness. He applied the law and imposed tough sentences when required, but at the same time had a heart. He was compassionate and kind. Even the most hardened felons who received tough sentences at his hand revered him.
     Loren's daughter Superior Court Judge Robin Miller Sloan and his son Michael, a public defender, and daughter Nina, a school teacher, carry on the tradition of their father and grandfather. Their father set a great example. We can take heart that Loren lives on through them and through what he has taught us. Along with his commitment to the rule of law was his recognition that judges, though charged with awesome responsibility, are simply human, and that justice and compassion are compatible.
     Good-bye Loren. We will not forget you.

The Past Provides Myth and Reality

I can’t believe it. My last two columns were about the so called Top 100 whatever lawyers, judges, taxidermists, you name it. I received more e-mails on these columns than any previous columns, except the ones I have written about cats. One cannot imagine how many hundreds of cat lovers there are in the legal profession, except for a few who find the feline species abhorrent. Well, what do you expect from judges?
I had hoped that, at last, we are done with the “tops,” and the “best,” and the “greatest,” when just last week I received the slick 47-page magazine supplement to The Los Angeles Times, “Southern California’s BEST LAWYERS-The Definitive Guide to Legal Representation in Southern California.” Let us hope that this column, Part III, will be the last in the series.
The “best” in the magazine greatly outnumber the Top 100 lawyers that I mentioned in my last two columns. Some lawyers were both in the Top 100 and Best Lawyers lists. Some made one list, but not the other. I wonder why. They all deserve praise, but the manner of selection still puzzles me despite the comprehensive explanation in a box at the bottom of page 12. The box is entitled “METHODOLOGY.” It explains that selection is “based solely on a vote of [the lawyer’s] peers.” It is a relief to know that “listings cannot be bought," and that “no purchase is required to be included.” Does this include the full page photos of lawyers in smartly tailored suits and warm engaging smiles informing the reader of the benefits they derive from the firm’s representation?
I do not doubt that the “Best Lawyers” magazine in fact does list highly competent lawyers. I just think the list of the “best” or the “top” is not comprehensive. There are plenty of first-rate lawyers who are not mentioned in either list. Whether deserved or not, the advantage to being on a list of "the best," "the brightest," "the most wonderful" is that it satisfies the ego and helps business. Lists and marketing have replaced love and marriage as inseparable.
The same principle applies to law schools. Are the best Harvard, Yale, Stanford, Berkeley Law-Boalt Hall….? If I were to rate smaller, less known law schools, I would put the Monterey College of Law on the top of the list. Two weeks ago, I journeyed to Monterey, California to participate in the law school’s Heisler Moot Court program. The yearly event, named after legendary civil rights lawyer Francis Heisler, was held in the World Theater on the Cal State campus. Several hundred people in the community witnessed a spectacular display of appellate advocacy by the students.
I had participated in this program a few times in the past, and I once again joined my colleagues, Justice Patricia Bamattre-Manoukian and retired Monterey Superior Court Judge Richard Silver to sit on the appellate panel for the 25th year of this unique moot court. What has remained constant over the years is the student's high level of competence. Their inventive professors, Joel Franklin and Michael Stamp, never at a loss to create an intriguing problem, crafted a legal case involving a national mandatory vaccination program. Does this program override the rights of members of a church, the religious tenants of which are opposed to vaccinations? And can this law run afoul of the Commerce Clause? Professors Franklin and Stamp, and the articulate students who presented both sides of the case, gave us a preview of how our National Health Care Bill may be argued before the United States Supreme Court.
My trip to Monterey also gave me the opportunity to spend some time with my friend, Blaine Gibson, whose father Phil Gibson was California’s preeminent Chief Justice. Signed photographs from Gibson’s friends, Presidents Kennedy and Johnson, including his entire cabinet, Chief Justice Earl Warren, and other dignitaries line the walls of the warm hacienda-style home in Carmel where Blaine grew up. Over wine and cheese, Blaine and I talked about what the court was like during the forties and fifties.
However more complex our society is today, I fail to see why it can take more than 70 pages to write, often in impenetrable prose, a United States Supreme Court opinion or a Supreme Court opinion of any individual state. Perhaps these courts are burdened with so many cases that time does not allow for a briefer legal analysis. Oliver Wendell Holmes' and Benjamin Cardozo's opinions were tightly written; clarity and substance prevailed.
The same can be said of opinions authored by California’s two great Chief Justices Phil Gibson and Roger Traynor. In Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, Gibson, writing for a unanimous court, held it a violation of equal protection for a school district to gerrymander school zones to achieve segregation. He said it in five pages. In Sei Fujii v. State of California (1952) 38 Cal.2d 718, Gibson wrote the majority opinion, striking down as a violation of equal protection the California Alien Land Law, which prevented an alien Japanese from owning land. He took a few more pages, 17 1/2, to write this historic opinion. And Justice Jesse Carter's 14-page concurring opinion eloquently refutes the dissent's charge that the majority "desire to make the law what [it thinks] it should be." (Id. at p. 738.)
Gibson was our Supreme Court's supreme administrator. He persuaded the Legislature to transfer the authority to draft rules of appellate procedure and ultimately all the rules of practice and procedure to the Judicial Council. He created the Judicial Performance Commission and wrote 670 opinions. Unlike what is de rigeur today, Gibson sought to avoid the spotlight and publicity. He did not aspire to a "best" list. He let his work speak for itself and left the court in better condition than when he joined it.
I hope I have not distorted the past through the lens of nostalgia. In many significant ways, the law has progressed, and we recognize rights that had long been denied our citizens. Philosopher and critic Marshall McLuhan posited that we romanticize earlier ages and make them into art forms. Take the “West,” for example. There may have been lonesome cowboys sitting around evening campfires giving voice to inarticulate thoughts through the mournful notes of their harmonicas. But the laconic Marlboro Man was a myth invented by characters like those in Mad Men, a creation of Madison Avenue. It is unlikely that he was the archetype for those who herded unruly cows crammed together on the dusty plain. (I probably got that image from a movie but no matter.) Instead, the Marlboro Man was on a plane en route to film a commercial that sought to sell nicotine against the backdrop of an ersatz past. Mel Brooks, on the other hand, got it right in Blazing Saddles. We know the consequences of bacon and beans around the fireside. Similar consequences often flow from giving primacy to marketing over ability.
Some aspects of the past, however, serve as a useful model for the present. Our two great California Justices Phil Gibson and Roger Traynor proved that the best can rise to the top without a list or an advertisement.