Wednesday, April 15, 2015

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

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