Tuesday, February 02, 2016

Who Am I to Judge?

Many years ago I was a superior court judge.  I squint to look back to that distant time.  A cloudy image comes into focus and I can see through the lens of recall my presiding over a contentious marital dissolution action.  The financial and custody issues were complex.  The attorneys were experienced and competent.  After several days of trial, counsel and I were in chambers discussing stipulations that would reduce trial time.  We all remarked that this was a difficult case requiring me to decide novel and challenging issues. 
         For some reason I said something that is OK for judges to think, but not always to say, in public:  "Who am I to judge?"  Regret followed my words with the swiftness of a Proposition 47 petition for review.  I had no rewind button to pull the words back.  Both counsel smiled and said in near unison, "If not you, who else?" 
         That gave me comfort.  And decades later, in 2015, Pope Francis repeated the same words, "Who am I to judge?"  So did Albert Pierpoint, England's last official executioner.  England officially abolished the death penalty in 1969.  Pierpoint was interviewed on NPR this past year.  His father and grandfather had been hangmen, and he carried on the family tradition.  Pierpoint was well spoken and even showed respect for his "clients" as he carefully positioned the noose around their necks.  He did not inquire about the crimes they had committed.  They already had been found guilty.  He remarked that however heinous their crimes may have been, he asked himself, "Who am I to judge?" 
         2015 is a good year to reflect on how we judge.  Last month marked the 100th anniversary of the publication of Einstein's general theory of relativity.  In complex mathematical equations, we, I mean, one or two persons, understood that absolutes were gone.  Gravity was the warping of time and space.  I don't understand it either, but I always knew that nothing in the law was absolute.  Heisenberg's "uncertainty principle," known in the world of quantum mechanics, applies in the legal world. 
         That is why it is healthy for judges now and then to ask themselves, "Who am I to judge?"  This question acknowledges that there is rarely only one answer to a problem.  Last week, Chief Justice Tani Cantil-Sakauye noted in her eloquent remarks at the Italian lawyers reception honoring the Supreme Court that there are often two reasonable but different solutions to a legal issue.  Differences in opinion can and should be resolved with civility and open mindedness.
         Judges also realize that their obligation to decide cases and to write coherent, well reasoned opinions requires them to interpret the law so that litigants and the public have a reasonable notion of certainty, however illusive that ideal is.
         The recent case of In re D.M. [2015 DJDAR 12660] illustrates how challenging and difficult this goal can be.  Does spanking young minor children with a sandal (or a shoe as referenced by the trial judge and the dissent) constitute the infliction of "serious physical harm"? 
         The juvenile court in this dependency action thought it did.  The majority thought the trial judge applied the wrong standard in assuming jurisdiction and remanded the case for the juvenile court to "consider–evidence relevant to the genuineness of mother's disciplinary motive, the necessity of her punishment or the reasonableness of its severity."  The dissent argued, among other things, that even if this is a "close case," substantial evidence requires deference to the trial judge's findings.  It noted that the juvenile court judge said that "'[h]itting children with shoes is not a proper form of discipline, and it's physical abuse.'" 
         However one may view this case, he or she would be hard-pressed to say that the majority or the dissenting view is unreasonable.  I believe this is true even though one might reasonably quibble about whether or not the sandal in this case could be fairly characterized as a shoe.  I guess it depends on the sandal. 
         Judges are often required to decide cases that evoke sympathy for the losing side.  The expression of sympathy and compassion for such litigants is human and fitting in appropriate cases.  This disposition has a close affinity with the "Who am I to judge?" mind set.  My colleagues in Donorovich-Odonnell v. Harris (2015) 241 Cal.App.4th 1118 displayed sensitivity and humanity in an opinion involving terminally ill patients.  The case involved Penal Code section 401, which makes it a crime to aid, advise or encourage one to commit suicide.  Terminally ill plaintiffs and a physician sought a judicial declaration that the statute was inapplicable to a physician prescribing a lethal dose of drugs to mentally competent and terminally ill patients who wished to die. 
         The appellate court affirmed the trial court and ruled, among other things, that the plaintiffs did not have a fundamental constitutional right to the relief they sought.  The court stated, "We have great compassion for plaintiffs."  Nevertheless, it was compelled to conclude that physician aid in dying is a matter for the Legislature.  I cannot say whether or not the court's expression of compassion was a comfort to the plaintiffs, but the court's sincere expression helped explain to the public that judges are human, yet must rule according to rules and not merely as they please. 
         Donorovitch cited a similar case I wrote in 1992, Donaldson v. Lungren, 2 Cal.App. 4th 1614.  The opening sentence reads:  "Plaintiff Thomas Donaldson wishes to die in order to live."  Donaldson suffered from a malignant brain tumor.  He sought to have an assisted suicide so that his body could be cryogenically preserved until a cure for his condition could be found.  At that time he hoped that medical advances could bring his body back to life.  Like our colleagues in In re D.M., we expressed sympathy for plaintiff, but had to rule against him.  This may have been small comfort to Donaldson, but he and the public knew how and why we had to rule as we did despite our sympathy.
         Reasoned discourse gives the law its dignity and stature.  Forceful advocacy need not be antithetical to civility.  To achieve this goal, a sentence was recently added to the oath of office for the State Bar.  A new admittee must swear or affirm "as an officer of the court to strive to conduct myself at all times with dignity courtesy and integrity."
         Jerry Levine, a senior partner at Holland and Knight, and a great drummer with the Big Band of Barristers, remarked to me about the new oath during a break at one of our gigs.  We are the only band in the world whose members talk about law during their breaks.  "Strive?" he asked rhetorically. 
         He has a point.  Striving is usually a precondition to achieve anything worthwhile.  I propose a further amendment to the oath of office.  Delete the words "to strive."
         So a few days ago I finished my workout at the gym.  I showered, combed my graying hair, got dressed for work, went to the counter at the juice bar, and ordered my favorite breakfast power drink.  It's a blueberry special.  The ingredients are, you guessed it, blueberries, a banana, protein power, almond milk and other healthy goodies.  Rodrigo, the owner, saw me coming and immediately began preparing the drink. 
         I sat down next to a young woman who was deeply engaged, "texting."  I said "hello" to a friend sitting on the other side of me and then grabbed the glass filled with purple liquid next to me.  Rodrigo prepares drinks in a flash.  But the drink tasted different this time.  Whoops!  I had taken a swig of the young woman's drink.  Oh dear.  I put down her glass as Rodrigo handed me my drink.  "I drank this lady's drink," I said to Rodrigo.  "I know," he said.  We were laughing.  "What shall we do?"  I asked.  Rodrigo took her drink off the counter, poured it out, and made her a new one.  He placed it on the counter before her.  She was oblivious, still texting.
         I offered to pay for the drink.  Rodrigo refused.  I told him how foolish I felt.  He said, "No big deal.  Anyone could have made that mistake… but who am I to judge?"

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