CERTAINTY AND SOLACE--SO ELUSIVE

They profoundly influence our lives.  They can be found all over the world.  When not fulfilling their mission, they blend in with the general populace so as to be undetectable.  They are young, old, of different ethnicities, political points of view, personalities and dispositions.  They are fat, lean, gregarious, cranky, loquacious or taciturn, sometimes both.  Their cover is so complete that even among themselves they can rarely detect that a stranger is one of them. 

But when they meet and reveal themselves, there is an immediate unspoken mutual sympathy, an instantaneous bond.  They know the emotions, the trials and tribulations (pardon the cliché, yet there is no better way to say it) each has endured from time to time.  Their nods of understanding, their occasional smiles, reflect the unexpressed satisfaction that comes from carrying out their special mission. 

Is there a name for this cult of individuals who mingle among us and deeply affect our lives?  Yes, I know them well, because I was once one of them.  They are called… trial judges.

         For many years, I taught a course at the “Judges College” for newly appointed and elected trial judges, sponsored by the Center for Judicial Education and Research (CJER): “Who’s Afraid of the Court of Appeal – or – the Awesome Power of the Trial Court.”  Appellate courts are limited in their review of trial court decisions by standards of review and the overriding principle that only prejudicial errors warrant reversal. 

         Judicial education today seems primarily geared to the technical aspect of judging: how does a judge compute prison terms when sentencing criminal defendants?  What are the formulas for dividing property in family law cases?  Of course, these skills are necessary.  But what is lacking is a course or two on the philosophical foundation for our system of justice.  Judges and lawyers should know about judicial philosophers like H.L.A. Hart and Ronald Dworkin.  I required the new judges to read Shakespeare’s Measure for Measure.  By the way, this is required reading for readers of this column.  This background opens insight into our system of justice, but it also gives guidance in deciding the hard case, the one for which there is no ready answer.

         This leads me to a book review I wrote for the California Supreme Court Historical Society’s Newsletter, Spring/Summer 2019, edited by Molly Selvin.  The book is Tough Cases: Judges Tell the Stories of Some of the Hardest Decisions They’ve Ever Made (The New Press 2018), a profoundly moving account of judges revealing their inner most feelings and emotions in tough cases.  Their riveting accounts of trials over which they have presided compels me to reveal what I have long suspected and suppressed for years: trial judges have the hardest and most demanding job in the judiciary.  Would appreciate it if you keep this under your hat.

The existential philosophers wrote that all human beings are “condemned” to make choices.  To not make a choice is paradoxically a choice.  Judges, however, have chosen a profession that demands its members make reasoned choices in deciding which side prevails in litigation.  The compelling chapters in Tough Cases reveal what many in the legal profession know but seldom articulate – judges are students who must make decisions.  They rely on the law written in statutes and cases and the arguments of counsel urging the interpretation and application of the law to the facts in the case at hand.  And let’s add intuition and commonsense to the mix.

In Tough Cases, judges share their innermost feelings, their fears and doubts about how to rule.  They reveal their emotions about the effect their decisions will have on litigants and the public.  One thing they have learned: certainty and often solace can be elusive.

Judge George Greer in Florida explains how he arrived at his agonizing decision to terminate life support in the famous Terri Schiavo case.  He weighs the omnipresent emotional conflicts, the opposing pleas of Terri’s parents, and her husband, the evidence of her medical condition, application of the law, and what Terri would have wanted.  How can any one human being make this judgment in light of so many competing points of view?  And in the background, there are pleas of religious and political leaders from all over the world and the cacophony of the press.  Solomon would understand.  Judge Greer received threats and was called a terrorist and murderer by a few members of Congress.  We all know how he ruled, but in so doing he raised a significant point: “As much as you read, and as well as you listen, and as hard as you think about a case, for a good judge there is always doubt.”

Judge Greer tells us he is a “Southern Baptist at heart,” even though the pastor of his church told him to leave the church after his decision.  Whatever his personal religious and philosophical beliefs, Judge Greer was committed to one certainty – the issue in the Schiavo case “was not a religious question; it was a legal question.”  Judge Greer is the epitome of Socrates’ ideal judge.  He did his job. 

Recently appointed Los Angeles Superior Court Judge Michelle M. Ahnn tells the compelling story of her transition from public defender to the bench.  During her first year, seemingly routine matters were as difficult as deciding guilt or innocence, like whom to release on bail?  Many of us grappled with that in the trial court.  Judge Ahnn asks herself whether a female defendant accused of domestic abuse is less of a flight risk than a similarly charged male defendant.  She worries about unconscious biases.  Good for her.  She struck a responsive chord with me when she reveals that making decisions each day compelled her to avoid restaurants with large menus requiring yet more decisions.  Now that her first year has passed, Judge Ahnn makes decisions more easily.  But I know how she feels.  I have been a judge for 45 years and still have trouble deciding which socks to wear each morning. 

Judge Gregory E. Mize served as a superior court judge of the District Court of Columbia.  He presided over a dependency case involving a mother who he concluded suffered from Munchausen Syndrome by Proxy.  Because the mother’s illness placed her minor daughter in danger, Judge Mize awarded custody to the father, and allowed monitored visits with the mother and daughter.  The daughter fared well with therapy, but the mother did not: her illness progressed and a few years later her body was found washed ashore in the Chesapeake Bay.

Years later Judge Mize and the now-grown daughter met.  She became a dental hygienist, has many friends, and lives a happy and productive life.  Many judges have decided heart-wrenching dependency cases and moved on to the next case.  Judge Mize points out he has made thousands of decisions in tens of thousands of cases, yet this case still haunts him.  It prompts him and judges everywhere like him to think about questions that trouble many of us, “questions about our human condition and the limits of the judicial office.”

Remember “Scooter” Libby?  He was an assistant to President George W. Bush and at the same time chief of staff and assistant for national security affairs for Vice President Cheney.  There were rumors and allegations concerning whether Iraq sought to purchase uranium from Niger.  If true, they would support President Bush’s desire to pursue a war against Saddam Hussein.  A former ambassador, Joseph Wilson, was sent to Niger to investigate the truth of the allegations concerning the alleged transaction in Niger.  He reported that the allegations were false.  Shortly thereafter the identity of Wilson’s wife, Valerie Plame Wilson, was revealed to be a CIA employee with a covert position.  Was this leak revenge for embarrassing the president for his contention that Saddam Hussein had weapons of mass destruction?  Following another investigation, Libby was charged with obstruction of justice for lying to the FBI and a grand jury about his knowledge of Valerie Wilson’s CIA employment. 

Judge Reggie B. Walton was a U.S. district judge for the District of Columbia when he was randomly assigned the case.  Judge Walton’s account of the trial grabs the reader by the throat and doesn’t let go.  He points out that the facts of a seemingly routine case can be challenging.  This happens when the facts have political implications, the public is “polarized,” and the accused has generated notoriety.  Add to that, controversial expert testimony, a defendant who does not testify, and motions implicating the federal Classified Information Procedures Act that protects unnecessary disclosure of classified information.  After the jury convicted Libby of some of the charges, how does Judge Walton arrive at the appropriate sentence?  Should letters from Henry Kissinger, Donald Rumsfeld, and John Bolton, to name a few well-known figures, matter?  Despite the political pressures, Judge Walton did what was required of him when he took the oath of office.  He assured that Libby received a fair trial and sentenced him accordingly.  President Bush commuted the prison sentence.  Last year President Trump pardoned Libby.  But that is all beside the point.

In a chapter titled “A Quiet Grief,” Judge Lizbeth Gonzales recalls a case when she sat in the New York City Housing Court.  A father lived with his autistic son in an apartment.  They both appeared in court for the hearing in which the father complained about outstanding repairs not made to his apartment.  The son’s odd behavior in the courtroom prompted Judge Gonzales to call in other agencies to determine if the boy was living in a safe environment.  Those agencies determined the boy was safe.  Years later when Judge Gonzales was sitting in the City Civil Court, she read in the newspaper that the father had slashed the son’s throat and left him to die in the bathtub.  Over the years there had been hearings in family court concerning whether the father should have custody of the son. 

Judge Gonzales shares with us her sorrow and regret over what later happened to the son.  She points out that when the case first came to her, her jurisdiction was limited to rent and housing repairs.  She recognizes that investigators and social workers are bound by protocols and legal constraints.  She agonizes that she could not have done more.  She points out what we all know, judges decide motions, make rulings, adjudicate trials, and do their best to ensure that justice is done.  But they do not have limitless power.  She still wonders if she could have done more to save the son.  And she reveals that “like litigants, and lawyers, we too suffer when things go wrong.”  Judge Gonzales still grieves for the son.  That is why people like her belong on the bench.

The title of a chapter by retired Washington State Superior Court Judge Robert H. Alsdorf lets readers know they are in for a frank discussion about a legitimate concern that judges constantly face, “Can an Elected Judge Overrule Nearly a Million Voters and Survive?”  It reminds me of the apt remark of the late Justice Otto Kaus concerning the political consequences of some judicial decisions: “It is like taking a bath with a crocodile in the tub.”  The end result, however, is the same for all judges… to decide as they must without regard to political consequences.

It is difficult to imagine the convoluted intricacies of the world-famous Elian Gonzalez case. Elian and his mother fled Cuba in a boat that capsized off the shore of Florida.  The mother drowned but Elian was saved.  At the time Judge Jennifer D. Bailey was a family law judge. The case which began as a custody matter before another judge wound up in Judge Bailey’s court when the original judge and others had to be recused.  In what on the surface would be a simple case became complicated by federal law, immigration agencies, and massive public, media and political pressure.  Add to that letters from prominent political leaders, most of whom had not the slightest idea of what the case was about, but demanded the result they wanted.  And there were thousands of people protesting.  Judge Bailey did what was required of her.  She decided the case according to what the law required.  Federal orders to return Elian to his father controlled.  She lost and gained some friends over her decision.  But she concludes by modestly refusing to take praise for resisting political pressure because that “is what judges are supposed to do.” 

Remember at the beginning of this review I wrote that trial judges have the most difficult job in the judiciary?  I also facetiously suggested you keep it under your hat.  Just in case anyone took me seriously, let us publicly praise trial judges and acknowledge their significant contribution.  The engrossing narratives in Tough Cases remind all of us: “always seek and speak the truth.”

INSIGHTFUL LOOK AT STATE CONSTITUTIONAL LAW

A few months ago, my colleague Justice Yegan and I gave a talk at a CJER institute for appellate research attorneys.  We discussed our opinions about opinion writing.  Not easy to present without being opinionated.  Of course, the justices for whom the research attorneys work have the final word (pardon the expression).  Therefore the success with which we impressed or depressed the audience is difficult to assess.  I leave to the readers of appellate opinions the judgment (again pardon the expression) about how successful we were in subverting from within.

Now a well-earned plug.  These institutes and programs designed by CJER staff, judges, and justices, and those of CJA, are significant factors contributing to California’s premier judiciary.  Justice Yegan and I attended one of the valuable programs at the institute.  It featured a talk by Federal Judge Jeffrey Sutton who sits on the Sixth Circuit Federal Court of Appeals.  The subject was a book he recently wrote, “51 Imperfect Solutions: States and the Making of American Constitutional Law.”  Oxford University Press, 2018. 

Judge Sutton is an engaging speaker, warm, self-effacing, and down to earth.  He clerked for Supreme Court Justices Powell and Scalia.  He is an expert on state constitutional law and has written and lectured extensively about this and other subjects at Harvard and other law schools.  I found it interesting that at his senate confirmation hearing in 2003, he was confirmed by a vote of 52 to 41.  Perhaps the more liberal senators anticipated conservative rulings.  They were partially wrong and partially right.  In Thomas More Law Ctr. v. Obama (6^th Cir. 2011) 651 F.3d 529, he ruled in favor of the Affordable Health Care Act.  But in Obergefell v. Hodges (2015) 135 S.Ct. 2584, the Supreme Court reversed his majority opinion upholding legislation to ban same-sex marriages.

Judge Sutton spoke highly of our own state Supreme Court Justice Goodwin Liu who wrote in the Yale Law Journal 2019 an engrossing review of Sutton’s book.  I knew of Liu’s interest in the subject.  In 2017 he delivered the William J. Brennan Lecture on state courts and social justice at N.Y.U. School of Law.  Justice Liu’s lecture can be found in the New York University Law Review, Vol. 92, Nov. 2017, No. 5. 

Many judges bristle when labeled liberal or conservative, me included.  The opinions we write are the product of our best efforts to explain our reason for a decision that we think comports with the law.  We leave it up to commentators and others to characterize our opinions as they perceive them.  Yet, with apologies to Judge Sutton and Justice Liu, I was at first surprised by their mutual interest in the value of state constitutional law.  But in the abstract of his article, Liu praises Sutton for inviting us “to understand state constitutionalism not solely or primarily as a liberal ratchet, but instead as a structural feature of our governmental system that modulates the timing, process, and substance of individual rights enforcement.”

However Judge Sutton may have decided certain cases, Justice Liu points out that “Sutton’s account of state constitutionalism is neither liberal nor conservative.”  “Judge Sutton treats state constitutional debate in a diverse democracy and mitigating the risks of winner-take-all decision-making by the U.S. Supreme Court.” 

This calls to mind an article a few months ago in the Los Angeles Times by Jonathan Turley, a constitutional law professor at George Washington University.  The article “Don’t Pack the Supreme Court, Unpack It” argues in favor of an expansion of the U.S. Supreme Court to 19 members.  Turley’s scheme involves, among other things, limiting a president’s appointment to the high court until the 19 number is achieved.  Turley’s legitimate concern is that under the present system a single “swing vote” decides a case that may have a profound and lasting effect on our nation.  That one crucial vote for a particular case makes our high court a “court of one.”  I agree.  No single judge should have that power.  You can quote me on that. 

While I am not holding my breath that Professor Turley’s thesis will come to fruition in the immediate future, Justice Liu’s illuminating analysis of Judge Sutton’s thesis helps alleviate some of my concerns about an undue concentration of judicial power.

I hope to discuss in future columns Judge Sutton’s and Justice Liu’s analysis of state constitutional law.  But what I particularly commend for your attention is Liu’s discussion in part III of his piece in the Yale Law Journal, “State Courts and School Segregation.”  Liu discusses a recurring theme in federal constitutional law that the states through their legislatures, governors, and courts are also the policy villains in segregation cases.  Liu illustrates that this is not always the case.

Justice Liu then offers an insightful discussion concerning what Judge Sutton might have said had his book included a narrative on school segregation.  Liu gives examples of a “significant body of state decisions rejecting the legality of segregation when the Supreme Court decided Plessy v. Ferguson in 1896.”  Sutton’s admiration for Liu’s incisive analysis indicates he concurs.

Justice Liu tells us the core of Sutton’s book: “[T]he richness of judicial federalism is most evident when state and federal courts are engaging in a single discourse, interpreting similar texts or principles in their respective constitutions within a common historical tradition or common framework of constitutional reasoning.”  This approach gives all courts a richer storehouse from which to draw in deciding constitutional questions.

Nevertheless, however a court arrives at a decision, and whatever series of prior decisions and mores influence that decision, we seldom achieve a comfortable degree of certainty about how a court will rule.

I cannot resist the temptation to speculate how the redoubtable Judge Posner would look upon the thesis advanced by Judge Sutton and Justice Liu.  In an interview with Adam Liptak in the New York Times on his retirement in 2017, Posner seemed to have repudiated his earlier emphasis on social utility and economics as principles of his jurisprudence in favor of a more liberal, free-wheeling “pragmatic” jurisprudence.

Judge Posner stated that over the years his views changed, and in deciding cases he came to forget about the law and instead asked what is a sensible resolution of the dispute.  If there is a legal obstacle in the way of a sensible resolution, Posner argues it is often easy to avoid. 

This view of the law drives my colleague Justice Perren nuts.  But I think Judge Posner’s current hypothesis is not as radical as it seems.  In fact, judges may unconsciously decide difficult cases in this fashion.  They all must write a coherent opinion in which they make a rational and plausible argument to support their point of view.  Despite his outspoken views, Posner is not “lawless.”  And I think Posner would applaud Judge Sutton and Justice Liu.  Their approach to constitutional issues gives Posner and all judges more tools to craft “a sensible resolution.”  Justice Perren and I briefly discuss Judge Posner’s approach in an interview I conducted about him in an oral history of Court of Appeal justices.  Soon to be seen on YouTube.

A MORAL DILEMMA

          I recently met with a friend, an elderly attorney who is even older than I.  Short digression concerning the previous sentence: my experience leads me to believe that most everyone would have written or said the grammatically incorrect “older than me.”  That’s what I usually encounter, even with college professors.  Fowler’s Modern English Usage, 2^nd edition, notes this error.  Also see Strunk and White’s The Elements of Style, 4^th edition, p. 12: “A pronoun in a comparison is nominative if it is the subject of a stated or understood verb.  Sandy writes better than I.  (Than I write.)”  I detest this example. 

Incidentally this brings up another concern that does not rise to the level of the moral dilemma I will presently discuss.  But how is it appropriate to act when in conversation with a friend, an acquaintance, or anyone for that matter, they use the grammatically incorrect “me”?  Do we correct them or let it pass?  Does it matter if the person involved is a close friend and there are just two of you, or does the dynamic change when others are present?  I let it pass on all occasions.  And by the way how about the related and grammatically incorrect “It’s me”?  Fowler gives “It’s me” a pass as a current, acceptable colloquialism.  I agree.  Who wants to be friends with someone who says “It’s I,” or worse “It is I”?

Now, where were we?  Oh, yes, my elderly attorney friend, who you will soon come to understand must remain anonymous.  So for clarity I shall refer to him as Lester – Lester the lawyer.  Over hot tea and biscuits served by his caretaker, he discussed his recent project.  Incidentally, he has this annoying habit of digressing now and then, no doubt a characteristic of the aged, but he has “all his marbles,” as they say, and his dilemma gave way to another – mine.

Lester has written a novel about a murder case he handled many decades ago.  It is based on facts.  (By the way the phrase “true facts” is redundant.  So is the phrase “actual facts.”  “False facts” is obviously a contradiction and a misnomer.  Facts simply are.)  The facts in Lester’s novel do not include confidential communications between Lester and his client.  The facts in his novel are those that were reported in newspapers and police reports shown to the press. The prosecutor was interested in a plea bargain because his case was weak.  Defendant opted for trial. 

While the jury was assembled, and before the judge called the first prospective juror into the jury box, the prosecutor discovered his key witness, a weak one at that, had disappeared.  Rather than proceed, the prosecutor moved to dismiss the case, with the hope that he could refile sometime in the future.  Lester asked me to confirm his belief that his novel did not violate ethical boundaries.  Because Lester and I know that judges may not give legal advice, I mumbled “interesting.”  So far so good. 

For the impatient reader, we are nearing the moral dilemma upon which this gripping column is based.  Lester posed a conundrum that had not occurred to me.  What if a detective who worked on the case read the novel?  What if the detective dug up the files on the case and did some further investigation?  There is no statute of limitations on murder and it is likely jeopardy did not attach.  What if DNA evidence, an unknown criminal investigation tool when the case was filed, could nail the defendant today?  Could Lester be subject to liability in a civil case should this occur?  And here is the moral dilemma. 

But first a minor digression.  People v. Axell (1991) 235 Cal.App.3d 836 was the first DNA case in California.  I concurred in that opinion.  Supposedly I know something about DNA evidence.  Notice I said supposedly.  And now the moral dilemma.  It does not concern Lester and the possible imaginary civil law suit that might be brought against him.  It is about me and the novel I wish to write. 

My novel is about the fictional lawsuit that is brought against Lester when his novel prompts further investigation on the case that nails his client.  Great idea, don’t you think?  My publisher loves the idea.  So this will be my original novel, but the origin of the idea for my novel was occasioned by Lester confiding in me. 

To help me focus on my dilemma I consulted with my trainer Michael Haupers in the gym.  After all, he is an expert on physiology, the functions of our various muscle groups, and tailoring programs that meet the needs of individual clients.  He said “go for it.”  But as an added precaution, I decided to consult a seer who is familiar to regular readers of my column, the hoary, the venerable, Miss Anne Thrope.

You may recall Miss Anne lives in a rundown mansion of yesteryear, in the Hollywood Hills.  Her dwelling resembles the dilapidated estate of Norma Desmond, the forgotten silent film star played by Gloria Swanson in the classic 1950 movie Sunset Boulevard.  Miss Anne sleeps most of the time, but during her few waking and near-waking hours she may utter enigmatic yet profound insights.  I visited her this past week at twilight.  It was my hope that an early evening visit might be the most productive.  Her caretaker, who bears a striking similarity to lawyer Lester’s caretaker, ushered me into her darkened bedroom.

I leaned over her frail body covered by thick satin covers under an imposing canopy that lay oppressively over the bed.  I was encouraged to see that Miss Anne occasionally appeared to open her eyes now and then.  I related to her my predicament.  Her prune-like face contracted slightly as her raisin-like eyes squinted.  She whispered something about time, and her caretaker said “twilight.”  She whispered, “Nietzsche.”  I do recall she was reputed to have had an affair with Nietzsche in the late 1890’s and a brief dalliance with Chester Arthur before that. 

But what on earth would the existential German philosopher Nietzsche have to do with… and then I recalled his work Twilight of the Idols.  I tried to remember his thesis, something about rationality to fulfillment, and passion being integral to the human condition, and far superior to faith.  In advancing his thesis, he harshly criticized the great thinkers of the past, including Plato and Aristotle.  He argued their beliefs and arguments were not just wrong but morally reprehensible.  That we should pursue our passions and goals without reference to conventional morality.  Oh dear, I was too conventional to go that far. 

Even though I am not anyone special, I thought about how people who knew me would think about me after my demise. I mentioned to Miss Anne that for all his accomplishments, Woodrow Wilson was a proponent of segregation; Thomas Jefferson and many early presidents had slaves.  And the revered jurist Holmes wrote the Buck decision (Buck v. Bell (1927) 274 U.S. 200).  And artists who revolutionized culture were not always the most admirable people in the world.  Wagner was anti-Semitic.  And Picasso used and abused women.

I quieted down, and then she whispered, “Picasso said, ‘Art is the lie that tells the truth.”’

So am I going to go ahead with my novel?  I’m thinking about it.

OUR SELMA

          “Our Selma” is an apt description of this person we so love and respect. This affectionate possessive was how retired Supreme Court Justice “Kay” Werdegar referred to Selma Moidel Smith in an article for the Daily Journal on March 12, 2019, honoring the awe-inspiring Selma.  (Selma would never stand for “awesome.”)  It just occurred to me that many people of great character and intelligence prefer informality.  For example, I have it on good authority that Justice Werdegar likes to be called “Kay,” and Selma Smith prefers “Selma.” That they refer to me as “Art’ or “Arthur” is beside the point.  I remember Justice Werdegar when she was first in her class in law school.  I was afraid to even look at her, let alone call her “Kay.”  Now I can speak to both of them, even though they are both first in a multitude of classes.

          In Justice Werdegar’s Daily Journal article, she wrote about a new research travel grant established by the California Supreme Court Historical Society in honor of Selma.  The grant gives law and graduate students the opportunity to study archival materials relating to California legal history. Justice Werdegar wrote a wonderful piece about “our Selma.”  And in her article she mentioned that Selma’s 100^th birthday was coming up in the ensuing weeks.  Now what was that date?  Oh yes, it is… TODAY!!! April 3^rd, SELMA’S 100^th BIRTHDAY.  My column day, Monday, fades into insignificance compared to this special day.  Thanks to my editor Ben who approved.

          Selma and I met several years ago when she was just a kid in her 80's.  She was then, and still is editor in chief of California Legal History, the annual scholarly journal of the California Supreme Court.  Selma and I met when I was asked to write a profile for the journal.  It was one of my best pieces, not because I wrote it, but because Selma was my editor. Her tactful suggestions reflected that she was an uncommonly astute and discerning editor.  Nothing has changed.  Her ear and sensitivity to tone and style contribute to the journal’s impressive quality.  I wrote other profiles under Selma’s watchful eye, including one of Justice Werdegar.  Of course, I was a nervous wreck.  Selma refused my offer to be my senior research attorney at the Court of Appeal. 

          Before I try to summarize the gargantuan list of Selma’s accomplishments, I would like to concentrate on one in particular.  It is in keeping with how one can be a nervous wreck around Selma, despite her warm, friendly, unassuming nature.

          In addition to all her accomplishments, Selma is a “serious” composer.  And in keeping with this special birthday, Selma told me last week she has written 100 piano and instrumental pieces.  She is listed in the International Encyclopedia of Women Composers (1987).  Her music has been performed at the National Museum of Women in the Arts in Washington, D.C., and by the Big Band of Barristers and the Los Angeles Lawyers Philharmonic under the direction of Gary S. Green at Walt Disney Concert Hall. 

            I have been in attendance at many of these performances.  I recall that a concert on the celebration of Selma’s 95^th birthday, when attorney Helen Kim, who is also a marvelous concert pianist, played numerous Selma Smith piano compositions.  These included a variety of pieces: waltzes, tangos, beguines, mazurkas, and gavottes revealing the talents of both the composer and pianist.  I almost forgot the nervous breakdown part.  On numerous occasions, I played several solo bars of a Selma Smith composition called “Selma’s Samba” with the Big Band of Barristers.  So why nervous? Selma was in the audience. 

            If you have a few weeks to spare, you can read Selma’s curriculum vitae.  It is so extensive that it has a table of contents.  Over 40 single-spaced pages highlighting her accomplishments that include an array of articles, panels, authorships, panel discussions.   

          I can give you a summary of Selma’s remarkable career by quoting in part a summary prepared by the Fellows of the American Bar Foundation on the occasion of presenting Selma with their inaugural Life Fellow Achievement Award (February 2016):

            “Selma was admitted to the bar in January 1943 at the age of 23, is legendary.  The Women Lawyers Association of Los Angeles awarded her its first and only honorary life membership in recognition of her years of commitment and service, including two terms as president.

“The National Association of Women Lawyers has honored her with its Lifetime of Service Award and in 2005 with the creation of its annual Selma Moidel Smith Law Student Writing Competition in women and the law.  In 1953, Selma was appointed a charter member of the National Board of the Medical College of Pennsylvania, serving two years as president.

“At the American Bar Association, Selma is one of 100 women lawyers selected nationwide for the Women Trailblazers in the Law Oral History Project.  In the ABA Senior Lawyers Division, she served as editorial board chair of Experience magazine and on the governing council and in other offices.  She is a Life Fellow of the American Bar Foundation. 

“Internationally, her paper on legal education (advocating clinical training in law schools), presented by invitation at the 1948 Conference of the International Bar Association at The Hague, was adopted by resolution.  She has held many posts with the International Federation of Women Lawyers.   She was decorated with La Orden del Mérito Juan Pablo Duarte by the Dominican Republic in 1956. 

“[As I mentioned before,] Selma is editor-in-chief of California Legal History, the annual scholarly journal of the California Supreme Court Historical Society, where she is a board member.  In 2007, she initiated a law student writing competition in California legal history which she continues to conduct each year.  At her 95th birthday celebration in April 2014, the Society renamed the competition in her honor.  Selma is listed in Who’s Who in America and in the first and later editions of Who’s Who of American Women (1958) and Who’s Who in American Law (1977).”

            Whew!  Sounds like the biography of dozens of highly accomplished people. And one other thing.  Selma is a great dancer.  She glides gracefully on the dance floor to her own music. 

            So Selma, we thank you for the inspiration and joy you bring to so many.  You are a treasure and we love you.  Happy Birthday.     

TAKE A BREATH

Sometimes we come across a mistake in a pleading or document, and we know that the mistake is, shall we say, unmistakable, obviously inadvertent or a typo.  Courts on occasion have been known to use commonsense and not allow an adverse party to profit by such a mistake.  For example, when a recurring clause in a contract refers to the consideration as “$600,000,” and one clause reads “$6,000,000,” courts will use what I call the “give me a break” test and not allow a party to profit by another party’s blunder where there is no prejudice.  Even when the mistake is not obvious to a reader unfamiliar with the facts of a case, when appropriate, the court will write an opinion that does not permit an adversary to reap the benefits of a gaffe from the opposing side.

In Afewerki v. Anaya Law Group, 868 F.3d 771 (2017), a creditor sued a debtor in state court for an amount that was $3,000 more than the amount owed and with an interest rate that was 0.315 percent too high.  The debtor sued the debt collection lawyers and the creditor in federal court for the false representation of the amount due, alleging a violation of the Federal Fair Debt Collection Practices Act and California’s Rosenthal Fair Debt Collection Practices Act. 

The district court granted summary judgment to the defendant creditor and the debt collection lawyers on the ground that the errors were not material.  The Ninth Circuit disagreed with the district court’s reasoning that the errors were immaterial, but nevertheless affirmed because the errors were inadvertent and cured within the two-week time limit of the federal act. 

The Afewerki court acknowledged that no California case has decided whether such an error that is cured promptly is nevertheless a violation of the state Rosenthal Act.  But it reasoned that with the speedy cure of the violation, California would likely conclude the creditor and its lawyers are not liable.  This is a reasonable result.  The debtor is not being sued for money he does not owe.  But he did have to hire an attorney to straighten things out after a default judgment was entered against him.  Strict adherence to statutory language is often required, but not in every instance.  That’s why we have courts. 

So what about mistakes in punctuation or, more specifically, commas?  I recall some grammarians and style manuals admonish not to use a comma before “and” or “or” in a series: “The opinion was tedious, boring, soporific and incomprehensible.” Susan Wessling, the New York Times senior editor for editing standards, says, “A goal of punctuation is to make a sentence as clear as possible, and in most cases that final comma isn’t necessary for understanding the relationship of all items in a series.” 

I am glad she said “in most cases.”  In the April 2014 edition of the American Scholar, the editors picked what they considered the ten best sentences in literature.  The one they picked from Jane Austin’s Pride and Prejudice reads, “For what do we live, but to make sport of our neighbors, and laugh at them in turn?”  And take a look at O’Connor v. Oakhurst Dairy, 851 F.3d 69 (2017).

O’Connor’s opening paragraph explains: “For want of a comma, we have this case. It arises from a dispute between a Maine dairy company and its delivery drivers, and it concerns the scope of an exemption from Maine's overtime law.  26 M.R.S.A. § 664(3).  Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law's protection. But, as it happens, there is no serial comma to be found in the exemption's list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.”

The clause in question, “Exemption F,” concerns which employees are exempt from receiving overtime pay.  The clause states that overtime law does not apply to employees who perform “[t]he canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” certain food products.  The reader who has not fallen asleep yet will note that the drafters of the statute followed the rule about omitting the final comma.  The court goes on to say, “Each party recognizes that, by its bare terms, Exemption F raises questions as to its scope, largely due to the fact that no comma precedes the words ‘or distribution.’”  (O’Connor, p. 72.)

That is why the delivery workers contend they are entitled to overtime pay and are not exempt.  Though true that delivery drivers distribute the food products, they do not pack them.  If they were to be excluded, the clause in question would have had a comma after the word “shipment,” and would have read that the overtime exemption applies to employees whose work involves the “packing for shipment, or distribution of” certain food products.

          If that had been the case, the opinion would have been a lot shorter.  But in a lengthy opinion the court drew upon legislative intent.  It concluded that despite the absence of a comma, the drivers were eligible for overtime pay and were not exempt employees.  I almost fell into a coma reading the tedious opinion about the “missing” comma. 

          Guess what?  An amendment to the Maine statute now reads that the overtime provision does not apply to employees who are involved in “[t]he canning; processing; preserving; freezing; drying; marketing; storing; packing for shipment; or distributing of” various food products.  Notice the semi-colons, not mere commas.  And I have it on good authority that our stalwart Reporter of Decisions Lawrence Striley prefers the serial comma.  He told me so.

          Wonder how the drivers are responding to the amended statute.  So much for what the court thinks the legislature meant.  I recall the great Justice Holmes said something like, “I do not care what the legislature meant; what did it say?”  My judicial assistant Bonnie Edwards insisted I correctly quote Justice Holmes: “We do not inquire what the legislature meant; we ask only what the statute means.”  More eloquent.

A few weeks ago, I discussed with my friend, attorney John Blumberg, what I vaguely recalled were the facts of the O’Connor case.  I had forgotten the case name and asked him if he had the cite handy.  Instead, he sent me the following paragraph as an example of what courts think about punctuation.

The court's reliance on the comma is misplaced.  "[P]unctuation is not decisive of the construction of a statute."  (Costanzo v. Tillinghast, 287 U.S. 341, 344 (1932); see also Barrett v. Van Pelt, 268 U.S. 85, 91 (1925) [“‘Punctuation is a minor, and not a controlling, element in interpretation, and courts will disregard the punctuation of a statute, or re-punctuate it, if need be, to give effect to what otherwise appears to be its purpose and true meaning’”]; Lessee of Ewing v. Burnet, 36 U.S. 41, 54 (1837) [“Punctuation is a most fallible standard by which to interpret a writing; it may be resorted to when all other means fail; but the Court will first take the instrument by its four corners, in order to ascertain its true meaning: if that is apparent on judicially inspecting the whole, the punctuation will not be suffered to change it"].)  Under this rule of construction, the court has not hesitated in the past to change or ignore the punctuation in legislation in order to effectuate congressional intent.  (See, e.g., Simpson v. U.S., 435 U.S. 6, 11, fn. 6 (1978) [ignoring punctuation and conjunction so that qualifying phrase would modify antecedent followed by comma and the word “or”]; Stephens v. Cherokee Nation, 174 U.S. 445, 479-480 (1899) [ignoring punctuation so that qualifying phrase would restrict antecedent set off by commas and followed by the word “and”].)

This all goes to show that law can never be certain because language and its partner, grammar, seldom provide certainty.  Ambiguity is the lifeblood of the courts.  Without it we in the legal profession would be out of work.

In the September 2017 edition of The Economist, an article titled “Comma Chameleon” mentions the comma dilemma that occurred in the O’Connor case.  One sentence in the article demonstrates how I treat commas.  “The comma, however, was originally intended not as a grammatical mark, but a place to pause for a breath.”

That is how I use commas.  And to you dear reader who read this entire column, I advise, take a breath, but never be breathless.  The consequences can be significant, but I hope not deadly.  Apologies to Jean-Luc Godard. 

BLIND AS A BAT

          At the end of a day last week I sat back in the ergonomic chair in my chambers, closed my eyes, and thought about all the people who would be upset with what I planned to write about in this column.  This pleasant reverie was interrupted by the jarring sound of screams coming from my assistant Bonnie’s office just outside my chambers.  Suddenly a bat flew into my chambers and Bonnie quickly shut my door.  She and other court staff yelled through the door, “A bat was flying in the hallway and it flew into your chambers.  We shut the door so it wouldn’t get out.”  “Thanks a lot!” I yelled back.  Bonnie shouted through the door, “Sorry I can’t stay to help.  I have an appointment.”  Someone else shouted, “Don’t let it bite you.  They carry deadly diseases.”

          The bat was flying all over my chambers.  Its cold, creepy body brushed against me several times.  Yikes!  “Blind as a bat” is apt.  I guess its radar was askew.  Peter, one of my research attorneys, Susan, the librarian, Shawna, the CHP officer, and Patricia, our chief clerk, came in to help.  The bat had a thing for Patricia.  He wouldn’t leave her alone.  But we eventually coaxed him/her(?) to leave through an open window.  Was this extraordinary experience with the bat a prophetic warning sign that I not write the column I had planned?

          I was so shaken that I did not begin my column until the next day.  I read in Friday’s January 4^th Daily Journal a refreshingly short article with a long title “Dear Justices: You Have Strayed from Traditions of Legal Literature,” written by attorney James P. McBride.  Mr. McBride railed against what he sees as the alarming trend of appellate justices writing “unreadable, dense, wordy” opinions, loaded with footnotes and “long windy explanations.”

Oh dear, I am compelled to agree with Mr. McBride.  I have written opinions that cause me to fret over whether I have just drafted an “unreadable tome.”  When that happens, I go back and begin the laborious editing with Ockham (or Occam if you prefer) looking over my shoulder, sharpening his razor.  And that often takes longer than writing a longer opinion.  It was Pascal not Ernest Hemingway who wrote to his friend that he would have written him a shorter letter if he had had the time.  I know my research is correct, because my good friend and colleague Justice Hoffstadt also quoted Pascal in his January 16^th Daily Journal column, “Judicial Opinions Must ‘Show Their Math.’” Hoffstadt also reflects on the value of Mr. McBride’s article.

An appellate opinion is simply an explanation for a decision.  I think Mr. McBride would accept that definition even though he quotes an old army slogan “don’t explain.”  What I think he means is that an opinion should not be an argument that must refute every challenge to that argument.  And an opinion is not and should not be a law review article.  That we can leave to the law professors.  Some cases require a more extensive discussion than others.  But often what is written in 60 pages can be written in 15 or 20.  Justices Holmes, Cardozo, and our own Traynor accomplished this goal. 

After reading the opinions of these exceptional jurists, and trying my best to write readable opinions, I drafted a primer to remind myself and colleagues who may be interested.  It is quite possible you have read it sometime in the past. 

Notes to Myself and Others

From Under the Ground

(Apologies to Dostoevsky)

or In Pursuit of Goals

However Short We May Fall of Them –

(Or is it However Short of Them We May Fall?)

          The following self-imposed rules concerning writing opinions (which also apply to writing briefs) are reminders, which I forget more often than I wish to admit.  “You” means me or any judge, attorney, litigant, or anyone who may be interested.

          1.  Start with the briefs.  Many are excellent but some are deficient.  Therefore, approach them the way you would a sleeping tiger or a calm river – with caution.  The gently flowing water may have treacherous undercurrents.  The cases cited are not always pertinent to the issues, and the issues are not always fully developed. 

          2.  The opinions should succinctly state the following:

                  A.  The nature of the case.  “Bay 0. Wolfe appeals the denial of his motion for summary judgment.”  “Grendel Schwartz appeals his conviction of mayhem.”

                  B.  The issues or questions to be decided.

                  C.  The holding.  We are not writing a mystery novel, so we should immediately tell the reader that the butler did it.  In some cases, we may want to state the holding in the very first sentence.  For example: “Here we hold that a police officer may stop an automobile for investigation if the officer has a reasonable suspicion that a passenger in the automobile has committed an offense.”

                  D.  Facts – pertinent ones only, please.  To ensure that you have stated them with scrupulous care and objectivity, check and recheck the record and transcript.  The briefs may direct you to transcript page numbers in support of a particular version of the facts.  These references are often helpful, but sometimes they are misleading.  Facts in one section of the transcript may contradict facts in another.

                    E.  Discussion.  Give reasons for the holding.  Each issue should be discussed separately under a separate numerical heading in the discussion section.  This avoids repetition, makes for easier reading, and keeps the issues distinct in your mind and in the reader’s mind.  Support your conclusion with cases, statutes, and, above all, logic.  Make certain that each case you cite stands for what you say it does.

                    F.  Disposition.  We usually affirm or reverse.  If we remand, we must give clear, specific instructions to the trial court.

          3.  Sometimes a troubling issue cannot be analyzed thoroughly unless you write a draft to agree and a draft to disagree with the issue.  After reading both versions, you will often know how to resolve the issue.

          4.  The opinion should be interesting and persuasive.  It must be free from obscurity and ambiguity.  “Plaintiff rented the store.”  Was plaintiff the lessor or the lessee?  “They are ridiculing judges.”  Are the judges the victims or are they just acting naturally?

          5.  Write with the reader in mind.  Assume most readers know nothing about the case.  Your job is to explain to the reader what the case is about.  Although rudimentary points should not be labored, they may be necessary as stepping stones to later points.

          6.  Write in a style that is crisp, concise, and sparkles with clarity.  Some concepts are complex, but they can be stated clearly.  To simplify is not to patronize.  Writers who obfuscate and complicate make it tough for both the reader and the writer.  If the opinion reminds you of Kant, rewrite it so that it reminds you of Plato.  Avoid the abstract; embrace the concrete.  Refer to the parties by name.  Your opinion comes alive with people, dogs, cats, tigers, chairs, doors, houses, cars, roads, and buildings.

          7.  Short sentences usually deliver more power than longer ones.  Active verbs deliver more punch than passive ones.  Don’t write, “An objection was interposed by counsel.”  “Counsel objected” is better.  Verbs should be close to their subjects and objects.  What do you think of the following sentence?  “The judge, looking surreptitiously to the side, and winking at the amused clerk, sustained the objection.” 

          8.  Make the opinion short, even though it takes a longer time to write.  Use Occam’s razor and cut, cut, and then cut some more.  If we analogize writing an opinion to making a movie, the cutting room floor should be cluttered.

          9.  Avoid such pests as: 

“in connection with,”

“with respect to,”

“despite the fact that,”

“the fact that,”

“the former and the latter,”

“it would appear that,”

“in terms of” – unless we are talking about

mathematics,

“viable” – unless you are writing an abortion case,

“contact” – unless you are writing about sports, electricity, or vintage aircraft,

“while” - as a synonym for although,

“parameters” – as a synonym for perimeter or boundary,

“alternatives” – not a choice among more than two possibilities or things, “meaningful” – adds little meaning, particularly when speaking of a “meaningful relationship.”

          Avoid most adverbs – in particular, “clearly.”  It works in No. 6.  If it is clear, you don’t have to sell the point.  Avoid the meaningless adverb “rather.”  “He was a rather temperamental judge.”  Was he, or wasn’t he?

          10.  Do not pad.  Be wary of adjectives.  They are seductive, but promise more than they give.  Our most dependable friends are nouns and verbs.  Active verbs provide the muscle to carry your ideas forward.

          11.  Do not use nouns for verbs unless you plan to work for the Pentagon.  Grammatical transvestites are unseemly.  Radio traffic announcers tell us we “transition” from one freeway to the other; software people “input” or “access” information.  Corporate executives tell their managers to “dialogue” with one another.  We, at least, should never “prioritize” our options.

          12.  Keep in mind that the opinion is more than a collection of examples of good grammar and syntax.  It is an essay that should make sense and be logically sound.  Its sentences and paragraphs should support one another.  It should be pithy, but not every sentence should be short and declarative.  Some will be longer and more complex, but all should be clear and easy to understand.  In this way, the opinion will not be rigid like the third little pig’s house of bricks, but open and flexible, like a geodesic dome.

          13.  A verb must agree with its subject in number.  Use singular verbs with singular subjects, and plural verbs with plural subjects.  “She works.” “They work.”  Problems sometimes develop when words are placed between the subject and the verb.  “The behavior of those criminals who are raping and pillaging is disgusting.”  “One of the lessons the judge learned was to be compassionate.”  “Each of the resumes has some merit.”  “He is one of those attorneys who write (not writes) unintelligible briefs.”

          14.  Use parallel construction: neither/nor, either/or, not only/but (also), both/and, rather/than.  Sentence elements joined by a coordinating conjunction must be parallel.  “We should be concerned with good writing and with clear thinking.”  Gerunds should be compared with gerunds to achieve a parallel construction.  “I like playing more than working.”

          15.  Avoid footnotes to discuss ideas you do not know how to incorporate into the opinion.  Best to use footnotes sparingly.  Good for citing a long statute. 

          16. Decide the case with reasonable dispatch.  Litigants and their lawyers often lose much with delay, even when they “win.”  

          17.  After writing the masterpiece, put it away for a day or two.  Then come back to it.  Then revise it.  Then put it away.  Then revise it again.  At this point you will realize that a good opinion is not written, but only rewritten.  If you are truly critical of your own writing, there is a good chance you will know whether it is honest and has integrity.  But keep in mind No. 16.

          I violate my own rules with agonizing regularity.  I would violate them many more times if they were not there in front of me as a reminder. 

          Even if you forget these rules, remember this principle: Unlike the poet who writes to understand, we write to be understood.

          So ends this column.  Oh!  I almost forgot about my concern that my extraordinary experience with the bat was a prophetic warning that I not write the column I had planned.  Did I heed the warning?  The answer, dear reader, I leave to you.