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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