Tuesday, February 02, 2016

I May Be Wrong, But …

Admission.  For decades I have been violating federal copyright law.  If a case had been filed against me, the number of complaints would be… who knows?  Numbers go on for infinity.  I have sung “Happy Birthday” in a variety of ensembles and venues, including the courthouse in which I preside.  It is beside the point that I sing it poorly.  I read in the Los Angeles Times that a company, Warner/Chappell, was charging for the use of the song “Happy Birthday to You.”  According to the article by Christine Mai-Duc, in 1988, Warner/Chappell paid $15 million to buy Birch Tree Group, the successor to Clayton F. Sunny Co., which “claimed the original disputed copyright.”  Chief Federal District Court Judge George King ruled that the alleged writers of the lyrics to “Happy Birthday to You” did not assert a copyright claim, and that companies collecting royalties for the song were not entitled to the monies they collected.  I guess the lyrics are in the public domain.  Whew! 
This brings up a philosophical question.  Was my past conduct wrongful?  Without question, many types of wrongful conduct remain so forever.  Some might argue that my past conduct in singing “Happy Birthday To You” was wrongful at the time.  But I would like to think that Judge King’s ruling establishes that I was never in violation of the copyright law, despite perceptions to the contrary.
This can be a particularly sensitive issue with judges.  Case in point.  Rhinehart v. Municipal Court (1983) 143 Cal.App.3d 18, my first published case.  Defendant in a criminal case had been granted several continuances at his request. The trial court empanelled a jury on the last day to try the case over the defendant’s objection.  Voir dire was completed and the jury was selected and sworn.   Then the trial judge continued the case for seven days because of a shortage of judges to hear the evidence.  The appellate department of the superior court granted a writ petition prohibiting the municipal court from proceeding on the ground that defendant’s speedy trial rights had been violated.  Think so?  I didn’t and reversed the superior court.
Do not bother looking for the case in the official reports because you won’t find it.  You will find, however, Rhinehart v. Municipal Court (1984) 35 Cal.3d 772 in the official reports.  That is the Supreme Court decision that, in effect, reversed my opinion by affirming the decision of the appellate department of the superior court.  Can you imagine?  In a unanimous opinion authored by Chief Justice Bird, our high court held that the defendant had not been brought to trial within the meaning of the speedy trial statute.  That was because the trial judge had indicated he had empanelled the jurors solely to avoid dismissal under the speedy trial statute.  The lack of available trial judges to hear the case was no excuse. 
I fought that “feeling lonely and mighty low” emotion.  I saw the point, and accepted with “infinite resignation” the Supreme Court’s decision. 
But in People v. Hajjaj (2010) 50 Cal.4th 1184, in a unanimous opinion written by Chief Justice George, our high court reevaluated the Rhinehart decision.  In Hajjaj, on the last day to bring the case to trial under the speedy trial statute, a courtroom became available.  The problem was that the courtroom was in a distant courthouse and it was 4:15 p.m.  The parties could not get to the courthouse until the next day.  The high court ruled that as a practical matter defendant could not be brought to trial on the last day.  It reversed the Court of Appeal and held that Hajjaj’s speedy trial rights had been violated.
Before reading Hajjaj, I thought just maybe Rhinehart might be disapproved.  Then I would have been right all along and would have posed the same philosophical question about singing “Happy Birthday To You.”  I was about to write “no such luck.”  But having re-read Rhinehart and Hajjaj, I agree with their holdings.  The statute says what it says, and “court congestion” is no excuse to deny a defendant his speedy trial rights. 
In Rhinehart, a significant part of the trial, jury selection, had occurred.  But the trial judge admitted he empanelled the jury to avoid dismissing the case.  Should he have kept his big mouth shut?  Absolutely not.  The integrity of our judicial system depends on the openness and candor of trial and appellate judges to give frank, thoughtful reasons for their decisions. This helps advance the law and fosters respect for our system of justice.  Reversal of a trial court or appellate decision should not, in most cases, be an embarrassment.  Nor should a “loss” in the trial or appellate courts, in most cases, be the cause of mortification. How counsel deals with the client is another story.  No one said the practice of law was easy.  Some day we will talk about the cases where discomfiture is earned.
The issue in Rhinehart could be visited again by our “new” Supreme Court.  And I hope not to speculate or give a second thought about what the court may or may not say about Rhinehart or Hajjaj.  And the question of my being right or wrong at whatever point in time will truly be meaningless.
But I am not so sanguine about the holding concerning “Happy Birthday to You.”  Judge King’s ruling concerned the lyrics and music to “Happy Birthday To You.”  But according to the Times article, King said that “a copyright filed by the Summer Co. in 1935 granted the rights only to specific piano arrangements of the music, not the song.”   Come to think of it, I have nothing to worry about.  I only play my own arrangements of the song.  Maybe I should copyright it.   

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