Wednesday, April 15, 2015

Bullish on Certainty

         About 10 years ago, I wrote about an enchanted garden I came upon during a morning jog in my neighborhood.  In the garden were windmills, ponds, fountains, gnomes, toads, toadstools, and, as I recall, an old edition of Shepard's citations.  In the middle of the garden was an unlikely inhabitant, an English bulldog.
         After several moments of careful scrutiny, my keen powers of observation and deduction, perfected after decades of judging, led me to decide that the dog was not real, but ceramic.  Clarification:  By real, I mean a live English bulldog.  Of course, the dog was real.  I judged it to be a "real ceramic" English bulldog.  I concluded the dog was ceramic by characteristics that distinguished it from live dogs.  Live dogs usually move.  And even when dogs are trained to "alert" (not sure that English bulldogs "alert"), the attentive observer can detect subtle signs of life.  The dog's breathing, evidenced by the slight rhythmic movement of the rib cage, is an example.  Of course, there are more obvious clues like panting, which, in the case of bulldogs, is accompanied by drooling.  None of these signs were apparent. 
         Imagine my surprise then when I approached the garden to get a better view.  The "ceramic" bulldog growled and approached me with the resolve of Winston Churchill.  This was not my finest hour and, despite the fence that separated me from the approaching bulldog, I sprinted to the safety of my home.
         I never quite got over my embarrassment until a few weeks ago when I read an article in my neighborhood local newspaper, the Palisadian Post.  It was about an incident involving a ceramic turtle in the same garden.  Next door to the garden lives a live turtle who escaped from his home to court, as in "make love to," the ceramic turtle.  What a relief.  I felt foolish about my misperception, but now I feel better.  If a live turtle can be confused about its own species, I am allowed to be mistaken about a species other than my own. 
From this we learn an important cautionary rule:  A few apparent facts can be deceptive, and lead us to unwarranted conclusions.  With this in mind, courts can establish precedence and give us predictability and certainty.  Right?  Of course not. 
         Despite our best efforts, most of us realize that an expectation of certainty is unrealistic.  If mathematicians can only approximate pi, the ratio of a circle's circumference to its diameter, how can one expect the courts to give us certainty?  The experts call pi an "irrational number."  You're telling me.  And in quantum mechanics, Heisenberg's "uncertainty principle" says it all.  Here we are talking about real small things in the subatomic world.  I am quite uncertain about this stuff, but all I need to do is quote the famous German physicist about his principle:  "It can be expressed in its simplest form as follows:  One can never know with perfect accuracy both of these two important factors which determine the movement of one of the smallest particles- its position and its velocity.  It is impossible to determine accurately both the position and the direction and speed of a particle at the same instant."  (Bohr, Niels; Noll, Waldemar (1958), "Atomic Physics and Human Knowledge," American Journal of Physics (New York: Wiley) 26(8): 38.)  In short, uncertainty is inherent in the nature of things.
         The indeterminate nature of language and the different perspectives that germinate in the human brain and provide competing points of view make certainty in the law an impossible goal.  Take, for example, Yates v. United States, 135 S.Ct.1074 (2015).
         Yates was a fisherman who was alleged to have caught undersized fish, a violation of federal conservation regulations.  Such a violation is a civil offense punishable by a fine or possible suspension of one's fishing license.  A federal officer boarded Yates's fishing boat in the Gulf of Mexico off the Florida coast in a routine investigation and suspected that some of the catch was undersized.  He ordered Yates to take his boat into the harbor where officers could accurately measure the fish to confirm whether or not he violated the law.  On the way back to port, Yates was alleged to have thrown some of the small fish overboard.  He was charged with destroying, concealing, and covering up undersized fish to impede a federal investigation, in violation of 18 U.S.C. Section 1519.  Wait a second, that's a provision of the Sarbanes-Oxley Act of 2002.  That law was enacted to protect investors and restore trust in financial markets following the collapse of Enron Corporation.  That section provides that a person may be fined or imprisoned for up to 20 years if he "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence" a federal investigation.
         At trial, Yates moved for a judgment of acquittal on the Section 1519 charge.  Yates argued that Section 1519's reference to "tangible object" subsumes objects used to store information, such as computer hard drives, not fish.  The district court denied Yates's motion, and a jury found him guilty of violating Section 1519.  The 11th U.S. Circuit Court of Appeals affirmed the conviction, concluding that Section 1519 applies to the destruction or concealment of fish because, as objects having physical form, fish fall within the dictionary definition of "tangible object."
         Justice Ruth Bader Ginsburg, writing for the majority, reversed.  She noted that although dictionary definitions of the words "tangible" and "object" bear consideration in determining the meaning of "tangible object" in Section 1519, they are not dispositive.  Whether a statutory term is unambiguous "is determined [not only] by reference to the language itself, [but also by] the specific context in which that language is used, and the broader context of the statute as a whole."   Identical language may convey varying content when used in different statutes, sometimes even in different provisions of the same statute. True, a fish is tangible; you can see it, smell it, and eat it.  But the Sarbanes-Oxley Act is directed to corporate and accounting deception and cover-ups.  The majority held that the tangible objects covered by Section 1519 are those used to record or preserve financial information, not fish.
         Justice Elena Kagan, joined by Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, wrote the dissent.  She thought the majority was on a fishing expedition.  "In my view, conventional tools of statutory construction all lead to a more conventional result:  A 'tangible object' is an object that's tangible," and destroying evidence is destroying evidence whether it is a fish or a document.  Justice Kagan concludes with the suggestion that the majority probably think Section 1519 "is a bad law‑‑too broad and undifferentiated, with too-high maximum penalties."  This gives "prosecutors too much leverage and sentencers too much discretion."
         One can argue that both versions make sense and quotes from Oliver Wendell Holmes support the majority and the dissent.  For the majority, "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used."  (Towne v. Eisner, 245 U.S. 418 (1918).)  For the dissent, "I don't care what the Legislature meant, what did it say?"  (I am pretty sure Holmes said this, but I can't remember where or when.)   I see both points of view, but, if anyone cares what I think, under the "give me a break test," I side with the majority. 
         And this takes me to People v. Grimes, 60 Cal.4th 729 (2015), a death penalty case decided just prior to the appointment of the current new Justices Mariano-Florentino Cuéllar and Leondra Kruger.
One of the issues in Grimes prompted a vigorous dissent by Justice Goodwin Liu.  Should the high court have invited additional briefing concerning the application of harmless error to an issue not briefed by the Attorney General?  Justice Liu argued the Attorney General was not entitled to a second bite of the apple and had forfeited the issue.  But now Justices Cuéllar and Kruger, along with Justices Kathryn Werdegar and Liu, voted to grant rehearing. 
         That a new mix of justices may bring new perspectives and see the issue differently than those sitting on the court a few months earlier is not a calamitous descent into chaos.  It merely highlights that judicial interpretation of our Federal and State Constitutions and the law in general is dynamic and evolving.  Often the change in precedent is incremental, but it can also be abrupt and startling. Depending on one's philosophy, and the case at hand, this can be good or bad.  Brown v. Board of Education and Citizens United v. Federal Election Commission come to mind. 
Precedent is often a useful guide to help us plan for the future.  But no matter how hard judges strive to provide certainty in their application of the law, we must acknowledge that it is in the nature of things that this goal is illusive and often unattainable. 
         In case anyone cares how I would have voted on the Grimes case...I 'm not certain.  

It's All About Me

          A front page story in The New York Times last week titled, "Lawsuits' Lurid Details Draw an Online Crowd," by Jodi Kantor, caught my attention.  It begins, "Intimate, often painful allegations in lawsuits‑‑intended for the scrutiny of judges and juries‑‑are increasingly drawing in mass online audiences far from the courthouses where they are filed."  I began to sweat.  Recently I was the plaintiff in a celebrated lawsuit.  The lawsuits referenced in The New York Times article involved sexual harassment and gender-related suits.  But my lawsuit was…shall we say, not particularly sensational.  You will not find the word "sex" or any of its derivatives in the complaint, interrogatories, depositions or testimony.  I calmed down a little, and thought about removing the adjective "celebrated" from my earlier description.  But we prevailed, and the result is beneficial to the public and to judges, so I am sticking with "celebrated." 
          Gilbert v. Chiang, 227 Cal.App.4th 537 (2014) involves an issue of constitutional interpretation. Article VI, section 17 of the California Constitution states in part:  "A judge of a court of record may not practice law and during the term for which the judge was selected is ineligible for public employment or public office other than judicial employment or judicial office .…"  My brilliant legal counsel Elwood Lui at Jones Day argued that a retired judge could seek public employment during the time period that coincided with the judge's term of office.  Lui convinced the appellate court that a retired judge is no longer a judge of a court of record and therefore the section does not apply to such a judge.  In a beautifully crafted opinion by Justice William Rylaarsdam, the 4th District Court of Appeal agreed.  This case, like the title to a popular ballad of the 1950's, proves that language as well as "spring can really hang you up the most." 
On the opposing side, the deputy attorney general, a formidable advocate and a gentleman, argued I had no standing.  To prove the point, he tried to impeach me during my deposition.  He asked me if I had other interests.  I thought he was talking about my music.  I launched into a recitation of the bands and venues I had played.  Which reminds me:  time for a plug.  I will be backing The Singers in Law, Sunday, March 22, 2015, 8:00 p.m., at Vitello's, upstairs in the E Spot Lounge, 4349 Tujunga Ave., Studio City.  Imagine, everyone is a lawyer except Barbara Gilbert, who many years ago was a court reporter.  Come early for dinner.  The singers are John Blumberg, Kenneth Freundlich, Linda Hurevitz, and Barbara Gilbert.  The instrumentalists are Jerry Levine on drums, Bill Ryan on guitar, Eric Schaefer on bass, and a certain piano player.
So back to the deposition.  I enlightened the deputy attorney general with my interest in music, but he had something else in mind.  He impeached me with a column I had written years ago.  In it I said, "I had no plans to retire in the immediate future."  My palms began to sweat, but I gathered my composure and blurted out, "That was years ago and I was not under oath."   Whew! 
Gilbert v. Chiang allows all the judges in California to continue their service to the public after retirement from the bench.  So thanks to Elwood Lui, I, along with all those other judges, know that public employment is an option upon retirement no matter what our term of office may have been.  The uncertainty of how section 17 would be interpreted by the courts made it risky for a judge to retire and then seek an interpretation of the section.  Thus, my complaint raised a "justiciable controversy" that was ripe for "judicial resolution." 
Now that it's over, I would advise that you scuttle any plans to discuss with Elwood Lui the travails of having me as a client.  When needed, attorney-client privilege comes in handy.  
          I have authored thousands of opinions over my judicial career.  And through Gilbert v. Chiang, I also have derived satisfaction having my name as a plaintiff on a significant case.  I suppose I should be content, and I do not wish to sound envious, or covetous.  But unlike some other judges, I never have had my name on a large physical object, like an obelisk, a monument, a bridge or a building.  My colleague Justice Perren, as a trial judge, was so instrumental in implementing procedural reforms in juvenile delinquency proceedings that Ventura County named a complex of buildings after him, the Judge Steven Z. Perren Juvenile Justice Center. 
          Once I asked a supervisor on the Los Angeles County Board of Supervisors to lobby his colleagues to name something after me.  The best he could offer was the men's room at Union Station.  Commuters at the station objected and the motion was not brought before the board.  I had noticed an interchange off the Century Freeway bears the name "The Judge Harry Pregerson Interchange."  In the past I speculated in this column whether the Pregerson name on the interchange had anything to do with his presiding over the lawsuit challenging the construction of the Century Freeway. 
          And then it occurred to me that I wrote the opinion in Friedman v. City of Beverly Hills, 47 Cal.App.4th 436 (1966).  The opinion upholds the right of the city of Beverly Hills to give preferential parking to residents.   Why couldn't the city of Beverly Hills name something after me?  This past month, I, along with famed trial lawyer Tom Nolan, was honored at an elegant dinner at the Montage Hotel at the Fifth Annual Beverly Hills Bar Association Litigation Awards Dinner. 
          That is when I came up with the idea.  I am not pushy.  I do not expect the city of Beverly Hills to affix my name to some fashionable building on Rodeo Drive.  I will settle for a passenger loading zone at the Montage Hotel.  Do you think it was tacky for me to mention it when I received the Ronald M. George Award for Judicial Excellence?   The bar's Chief Executive Officer Marc Staenberg told me he is looking into