Wednesday, October 26, 2016


     On Labor Day, 41 years ago, Justice Stanley Mosk swore me in as a judge of the Los Angeles Municipal Court.  Within a few days of this depressing… I mean significant anniversary, the Daily Journal published my 252nd column.  How best to describe the column?  In my imagination, a perceptive reviewer would write:  "An adventurous read of a profusion of topics artistically tied together by a common thread that may escape readers unaccustomed or hostile to subtlety."
          The overriding topic in that column was, in a word, "short."  I am shorter than I was at the beginning of my judicial career four decades ago.  I received supportive comments that it's O.K. to be short… from short people and elderly people who are shrinking.  I also received emails in praise of short opinions.  Significantly, none came from the Supreme Court. 
I wrote about the celebrated Palsgraf case, the premier example of a masterfully written short opinion.  (Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928).)  By coincidence, just at the time my September column appeared, I spoke to a group of young law students at UCLA School of Law who were serving as externs at the Second District Court of Appeal.  As an example of good writing, I read to them the facts in the Palsgraf opinion.  You will recall that a man carrying a small package jumped aboard a train as it was pulling out of the station.  The package, which contained fireworks, fell from his grasp onto the tracks and exploded.  The shock caused scales at the end of the platform to fall on and injure plaintiff Ms. Palsgraf.
The students looked puzzled.  "What are scales?" they asked.  I was dumbfounded.  "Scales?" I asked rhetorically.  "Does anyone here work out in the gym?"  Nods and a few "yeahs."  "Do you ever weigh yourself on the scales?  And doesn't the doctor weigh you on the scales in her office?"  Blank looks from everyone.  It is bad enough that age makes us shorter, but does it make our language archaic?  Then one student accepted my explanation of scales, "O.K., fine, scales weigh you.  But why would anyone want to weigh themselves or anything at a train station?"  I think I settled the issue.  I patiently explained that a passenger might need to weigh his or her valise. 
In my discussion of the Palsgraf case, however, I also had a question.  How could a small package of fireworks falling on the tracks explode with such magnitude that it causes scales at the end of the platform to topple down on poor Ms. Palsgraf?  I had in mind a large Otis scale with a weighing platform at the base, a long neck reaching up to a large round dial with an arrow denoting pounds.
Attorney Michael Sokolich wrote to me that when he was in law school he too wondered about how the fireworks in Palsgraf could explode if a fuse was not lit.  When I was in law school, I was too scared to ask that question of our intimidating professor, Dean Prosser.  Sokolich explains that there used to be types of fireworks that explode on contact with the ground or any hard surface.  An example is "cracker balls," that explode when thrown at a hard surface.  I remember them.  But as Sokolich points out, they were pea-sized and did not have much power.  He posits that the likely explanation is that at the time Palsgraf was decided there was a class of larger fireworks called "torpedoes" that may have been the culprits.  Maybe so, but the package of fireworks that allegedly caused the explosion in Palsgraf was only "about 15 inches long."  Like questions concerning the meaning of life, or why we or our tempers get shorter, we are not likely to know the answer to the Palsgraf fireworks question. 
But I was particularly impressed with Sokolich's wise observation that "older cases . . . are usually models of brevity and clarity.  The same with our statutes, older usually means shorter." 
But getting back to fireworks and torpedoes.  The California Supreme Court has adopted a new policy concerning petitions for review.  The policy was apparently provoked by Vergara v. State of California et al., 246 Cal.App.4th 619 (2016).  The case involved the constitutionality of various provisions of the Education Code.  At the conclusion of the published opinion is a "STATEMENT" by the Chief Justice.  The statement sets forth a policy concerning statements by justices who dissent from the denial of a petition for review.  Those dissenting statements will be published and appended to the original appellate opinion in the Official Reports.  The Chief's STATEMENT reminds us that "an order denying review does not reflect the views of the justices voting to deny review concerning the merits of the decision below." 
Something like this practice is common with United States Supreme Court justices who wish to grant certiorari when their colleagues vote to deny.  Such a justice might write in the order denying certiorari a brief reason why he or she would grant cert.  In Vergara, Justices Liu, Cuéllar, and Chin voted to grant review.  But Justices Liu and Cuéllar wrote published dissents to support, not just their reasons for wishing to grant review, but to criticize the Vergara opinion.  We appreciate insight into why a particular Supreme Court justice believes review should be granted.  But if the dissenting views on a petition for review become tantamount to opinions critiquing the Court of Appeal opinion, the precedential value of the Court of Appeal opinion is diminished. 
Maybe that is what the dissenting justices wish to accomplish, but certainty and predictability suffer.  I fear this rule could morph into something even more scary.  Imagine for a moment that Justice Chin, who also voted to grant review in Vergara, did so because he agreed with the opinion but thought the Supreme Court should speak to the issues.  What if he wrote a dissenting opinion, dissenting from the opinions of Justices Liu and Cuéllar?  Oh dear!  And what if the justices voting to deny review weighed in with opinions of their own? 

It stands to reason that from my perspective this new policy is unnerving.  If one of my published opinions is harshly criticized by one or more dissenting Supreme Court justices wishing to grant review, I will feel like Ms. Palsgraf.  Only it will be the scales of justice that fall on me.  Such an event would be so… so… unforeseeable.  I just might pack my valise and catch the next train to Rockaway Beach.  

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