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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