I Am Not a Crook

I am not a crook.  These words were spoken by President Nixon in November of 1973 during the Watergate scandal.  In a telecast to the nation, he tried to assure the American public, and the 400 Associated Press managing editors lobbing questions at him, that he had never profited from his position in public office.

         You will note my opening sentence is not in quotes.  I am borrowing these words from Nixon and adopting them as my own.  I would have much preferred something like "Four score and…" or "We have nothing to fear but…" or "Ask not what you can do for your country…."  But these elevated quotes do not fit my predicament.

         Before I explain, let me tell you the good news.  All of us in the legal profession who are older than 50 are not senile after all.  I have it on good authority that the State Bar does not think so.  My column last month scored the State Bar for suggesting that senior lawyers need to be aware of signs of mental impairment.  My column generated dozens of responses from senior lawyers all over the state.  But we can call off the protest march and throw away the placards.  Pat Kelly, the State Bar president, who I have known for years, and who is older than 50, called me and explained it was all a mistake.

         In an e-mail, Kelly wrote that he "started the Senior Lawyers Working Group to explore ways to help Senior lawyers."  Apparently some young upstart, a witness at the board meeting, suggested "cognitive testing at some age."  No one on the board accepted this recommendation.  And medical experts did not recommend that any test be done at any age.  Kelly wrote, "Thus at this point there is no board proposal to undertake testing at 50 or any other age."  Whew, what a relief!  I am wary, however, of the words "at this point."  But for the time being, I will stay calm.

         Pat and I recently relived our youth when we performed together before a live audience.  He once played guitar with the Beach Boys.  Pat, along with the Big Band of Barristers conducted by Gary Greene, and me accompanying, or should I say pounding on the piano keys ala Jerry Lee Lewis, performed a Beach Boys medley arranged by Jerry Ranger.  Luckily, the audience's thunderous response saved us from compelled confinement for psychological observation.

Ironically, the previous column I wrote highlighted my own cognitive disability.  Retired Judge Arnold Gold called me and, with tongue in cheek, said he caught the mistake I had deliberately slipped into the column to test my readers' intelligence.  With a rhetorical flourish, I said that I was "10 and 5 years older than 50…."  Judge Gold immediately caught the error.  My math was off by 10 years.  But not to worry.  Judge Gold is older than I.  This proves that age enhances wisdom.

One of our country's premier judges, and the oldest sitting judge in the nation, Federal Judge Ruggero J. Aldisert, Chief Judge Emeritus and Senior U.S. Circuit Judge of the Court of Appeals, Third Circuit, is 93, still hears cases, and still publishes.  And he is as brilliant as ever.  The third edition of his masterful work Opinion Writing was published by Carolina Academic Press last year.

But back to why I am not a crook.  It appears that CalPERS, the California Public Employees' Retirement System, believes that I and the thousands of other state employees and our dependents who are in the CalPERS retirement and health insurance program just might be crooks.  They want assurance that our dependents who are on the plan are legitimate subscribers.  Nothing wrong with assuring that the plan's costs are kept in check.  But CalPERS has gone about its task of oversight by requiring its members to prove their dependents are legitimate.  In the case of a spouse who is a dependent, CalPERS requires a copy of the marriage certificate, and a copy of the front page of your 2012 tax return or a recurring bill no older than 60 days that lists your spouse's name, as well as your own name.  And if a member fails to meet these requirements by September 15^th, their dependent will be dropped from coverage.  It does not matter that the "dropped" dependent is perfectly legitimate and that all premiums have been paid for that dependent to be on the plan.  And the cost of obtaining the material required is a burden to be borne of course by the employee. 

         In its zeal to save money, CalPERS has spent money, our money, to hire HMS Employer Solutions, "an independent third-party," to ferret out the scofflaws who are wrongfully listing non-eligible dependents.  CalPERS informs us that HMS "specializes in verifying health plan eligibility and has reviewed verification documentation for hundreds of thousands of dependents for some of the largest employers in the United States."  I wonder who are those large employers. 

         So how much is CalPERS paying HMS?  And will the money CalPERS claims it will save by ridding itself of illegal dependents be more than what it is paying HMS?  Or is this a contingency deal in which HMS makes its bucks by the more dependents it cuts off? And do the geniuses at CalPERS who dreamed up this scheme actually believe that they will win the lawsuit just itching to be filed?  Think it likely that a legally proper dependent may be denied benefits because the employee failed on September 15th to prove to HMS's satisfaction that the dependent is legitimate?  And if the dependent is denied urgently needed medical treatment for which the spouse has paid all necessary premiums to be on the medical plan….  Oh, I shudder to think of the result.  Darn.  It just occurred to me‑if I were assigned to hear such a case, I wouldn't put it past CalPERS or HMS to move to recuse me.

         Needless to say, I am frustrated and need an outlet.  Think I will write a concurring opinion. 

Redemption

There is an insidious movement in the legal profession to undermine the elderly.  I read about it in the Daily Journal.  A State Bar panel is poised to require "older" lawyers, beginning at age 50 (the eligibility age for AARP), to take a mandatory continuing education course on recognizing cognitive impairment.  Presumably this is based on the premise that with age comes mental deterioration.  So, if the codgers and mature ladies who must take the course are more likely to be mentally impaired, how will they ….?  (I don’t have to finish the thought, do I?)

         Perhaps the rationale is that at age 50, lawyers are on or approaching the cusp of senility, and can be taught to recognize the symptoms when they strike with full force.  But as I implied in the preceding paragraph, it may be too late by then.

         Whatever the rationale, I take umbrage at this misguided assault on those lawyers who should be revered for their wisdom born from experience and maturity.  No, my age has nothing to do with my indignation.  But is it not likely that the next hapless group to be targeted for age-related cognitive impairment is … judges?  A person younger than I might have written "are … judges."  Why must our American culture, unlike others, idolize youth and disparage the elderly?  I offer a few personal examples to illustrate that senior citizens deserve veneration, not disparagement, and that those of us of mature years make rational decisions.

         Last year you may recall my August column was devoted to a discussion of the Higgs boson to help us understand how the physical universe works.  And this in turn led me to a discussion of our moral universe occasioned by an age-related incident on July 4^th, 2012, the same day of the Higgs boson discovery.  It occurred on the 35th annual Will Rogers 10K-5K 4th of July race. 

         I was signed up for the age 70 to 74 group of runners, or so I thought.  I was reputed to have finished 3^rd in my age group, which entitled me to a bronze medal.  Just after receiving my medal‑‑which resembles a miniature manhole cover and hangs from a patriotic red, white and blue ribbon‑‑I discovered that I had been mistakenly placed in the 75 to 79 group of runners and, in fact, had come in 4^th in the age group to which I should have been assigned.  Only the first three fastest runners are entitled to a medal.  Laggards come in 4th.

         I immediately informed race officials of the mistake and, like a disgraced military officer whose ribbons are ripped off his coat, I tore from my neck my medal and handed it to Mike, the race official.  Mike praised me for my honesty for which I felt no kudos were necessary or warranted.  The guy in my age group who thought he had come in 4^th got the medal he deserved and I slept well that night. 

         So this takes me to July 4^th this year and another age-related incident.  I once again entered the Will Rogers 10K-5K race in Pacific Palisades, this one being the 36th annual.  You see, this year I am in the 75 to 79 age group, one of nine stalwarts.  I thought I had a good chance to legitimately win a medal because, even though I was a year older (and no doubt mentally impaired according to the State Bar), I was in the youngest (not an oxymoron) category in my new age group.  Surely such logic reflects mental acuity, not impairment.

         Like the year before, I opted for the 5K, another example of clear-headed thinking.  At the sound of the gun, I broke into a moderate jog, with a view to conserving my energy for the final mile and the hill that preceded it.  I would hardly term such strategy muddled thinking.  My time for the first mile was almost a minute faster than last year.  I felt buoyed by the likelihood of vindication and redemption.  I came in second.  No matter that the guy who came in first wiped me out.  I accepted my second place silver medal with a degree of humility.  The photo reflects a moderate degree of hubris on my part, while No. 1 graciously looks on. 

Please do not ask my time.  But when I passed the finish line, the winner was on the plane back to Kenya.  Mike, the race official, was there again, and he gave me a high five.  Last year he praised me for my integrity.  This year he praised me for a legitimate win‑‑the product of strategic planning from a senior 10 and 5 years older than 50 and not a drooling idiot. 

Sorry that my resentment shows, but I am seriously thinking about filing an age discrimination suit.  But then I would have to recuse myself from hearing the case, another example of my ability to think things through.  I know, such case is not ripe.  And I have not done well lately with cases in which I am a party.

But I do keep in mental and physical shape.  I read that those who work out with weights and who spend time with animals are stronger in body and calmer in temperament.  Most of you know about my cat Powell about whom I have written extensively.  He is overweight and I have done everything short of starving the poor guy to keep his weight down.  But then it occurred to me how I could simultaneously work out and spend time with my cat.  Pardon the expression, but I thought of a way to kill two birds with one stone.  I do repetitive curls using my stout cat for the bar bell.  While I work up a good sweat, he purrs.  So please do not fret about the mental acuity of our older lawyers and judges. 

Enough said.  Got to go now.  It's time for bingo.

It Did Happen

Dear Readers.  You may ignore the paragraph that follows this one.  It reflects a disingenuous refusal to recognize an anniversary that in fact I wish to acknowledge.  So why include it?  Good question.  I do not have the answer, but I bet a mental health professional does. 

Anniversaries are simply numbers. Celebrations of the past do not provide an escape from the harsh reality of the present. It is now that counts.  But despite how we reckon with our anniversaries, to ignore them is impossible, and to treat them with insouciance is deceptive to others as well as to ourselves.

So I will “out with it.”  My column this month, June 2013, marks the 25^th anniversary of my first column for the Daily Journal in June 1988 entitled, It Never Happened.  Twenty-five years-a mere number, but….as a kind of commemoration, I resort to a ploy I already used this past year, the reprise of an old column. This time the very first one I wrote. It is true that this same column is the first one that appears in my book, “Under Submission,” Thompson Rutter (2008), a 20 year compilation of my Daily Journal columns.  So far the book "sold" several (a euphemism for “a few”) thousand.  Whether every reader devoured the book in its entirety, is beside the point.  What matters is that all the profits go to legal charities. 

Therefore as a document of historical significance, I offer my very first Daily Journal column.  It speaks of an antediluvian practice rarely used today. 

It Never Happened

Most people don’t know what Court of Appeal justices do, and that includes many trial judges. Generally a Court of Appeal justice writes opinions: “grinds them out” would be a better way of saying it. Henry Ford would approve. The opinions bump along the assembly line and then chug down the road to oblivion. Along the way they are used or misused by attorneys or judges who sometimes read them.

         But deep within the heart of every appellate justice there lies the seed of an occasional masterpiece, a gem that would make Benjamin Cardozo turn green with envy. It starts with a case that fortuitously comes your way. Something special occurs during this random encounter. You begin to feel ideas growing and developing in your brain.

The Unseemly and Grotesque Stage

During an appropriate period of gestation, the ideas coalesce into a concept. When the concept fights and claws its way out of your brain and plops in a heap on the page, you know you are ready to write the first draft of the opinion. When you’re done, that draft is wiggling with life but not ready for public consumption.  It is unseemly and grotesque, like the mutant baby in the cult film classic “Eraserhead.”

         But it’s your baby, and you nurture it and shape it, draft after painstaking draft. And then you know, as if by instinct, that the opinion is ready. It shimmers with clarity and reason. Magnanimously, you acknowledge that the brief on the winning side was persuasive, but the opinion has your signature- figuratively and literally. The opinion reflects your style, your panache, your essence.

         Shortly after the publication of you chef d’oeuvre, you happen to attend a cocktail party given by the local bar association. You try to avoid an attorney known for his unctuous fawning, but when he starts praising your new opinion, you find his conversation engaging and stimulating. You tell him in a modest, self-effacing tone that you hope the opinion will be useful. You think it might be unseemly to tell him that you know the opinion illuminates        the law, gives it meaning and purpose, how it persuades and sparkles with reason and insight.

         I have experienced this. But it’s hard to talk about because it never happened. No, I don’t mean I imagined it. I don’t mean I’m crazy and hallucinating. It's much more than that. I mean the California Supreme Court depublished it. Someone up there simply pulled the switch on an opinion that had just begun to bask in the light of recognition.

         The ostensible reason for this ignominious termination is that the opinion reached the right result, but for the wrong reason. Maybe so, but the recent use of depublication on such a wide, unprecedented scale means that there are a whole group of justices writing poorly reasoned opinion these days. I suppose the depublication rule helps hold back the flood of cases inundating the Supreme Court, but it also keeps ideas locked in the closet.

No Useful Purpose

         Whatever the reason for the rule, it serves no useful purpose. Why hide the reasoning of an opinion, whether good or bad, from the rest of the world? If the Supreme Court does not care for an opinion, it can decertify it. The opinion may lack precedential value, but at least it exists as an object of either enlightenment or of ridicule. Another interpretation of the law is at least accessible to scholars, lawyers or collectors of the bizarre and occult.

         Decertifying instead of depublishing opinions will not increase the Supreme Court’s caseload. It will, however, permit the expression of all ideas and will serve an important educational function for the bar and the public. And, who knows, the spurned opinion just might become the law in the next millennium.

         I’m not holding my breath that the rule will be changed in the near future. If it does not change soon, one of my colleagues suggested that we publish all the depublished cases. That’s a brilliant idea. I may start an underground publishing firm that will publish only depublished cases. I will call the company East’s Oxymoron Publishing Co.- “Cases That Can Get You in Lots of Trouble If You Cite Them.”

         Better yet, maybe we can change the rule so that justices on the Court of Appeal rather than the Supreme Court will have the last word on whether a case is published or depublished. I can imagine what would happen with such a rule. Assume I have decided not to publish a case, but the Supreme Court wants it published.

         “Oh please, publish this case,” the Supreme Court asks me.

“No,” I answer. “I don’t think it really merits publication.”

“But it’s so good, you have crystallized your ideas into a succinct, readable treatise on this complex issue of law. There is a desperate need for your opinion. Its publication will be a significant contribution to the people of this state, and the legal profession.”

“Well…I’ll think about it.”

Current edifying note- It was rumored that the Supreme Court tried to depublish this column, but I got it out before the vote.

Perhaps the pen (word processor) is a mighty instrument for change.  I checked the 2102 Court Statistics Report issued by the Judicial Council.  In fiscal year 1993 our supreme court depublished 109 cases.  God knows what percentage were mine.  In fiscal year 2011 it depublished only 11.   And guess what?