Wednesday, February 03, 2021
My good friend and colleague Justice William Bedsworth (Beds) is a talented writer and columnist. Some time ago we were talking about our mutual obsession, or if you will, neurosis, for writing columns. Why anyone would commit themselves to writing a periodic column under a self-imposed deadline while also facing deadlines to write and file opinions in a timely manner is beyond my ken. Writing a periodic column reminds me of Samson. You know what he did to columns. Beds and I mused that when one has been writing a column for decades, the columnist could possibly … inadvertently, of course, recycle earlier columns. Mmm, not a bad idea. But after more than 30 years of writing a column for the Daily Journal, I cannot remember whether I inadvertently recycled something I had written earlier as opposed to deliberately doing so. But I am not so vain as to think a reader … well, maybe one or two elderly readers, might note what they imagine is a repetition and out of perversity write a complaint to the editor. To brace myself for what could be the shock of discovering that I have rewritten or reimagined a past event, I listened to the wonderful Lerner and Loewe song “I Remember It Well” from the movie Gigi, sung by Maurice Chevalier and Hermione Gingold. I urge you to listen to it on YouTube. For the young, it is what to expect. For the mature (euphemism for elderly), you know what I am talking about. Certain topics that have permutations in different situations bear reexamination. Columnist Myron Moskowitz who offers invaluable pointers about appellate practice for the Daily Journal will look at a topic whether it be effective brief writing or oral argument from different perspectives in more than one column. Trial lawyer John Blumberg has written a variety of articles for various publications about effective advocacy. The nature and posture of a particular case may determine how best to use direct or cross-examination. Blumberg has shown how direct and cross-examination of lay witnesses and experts may vary depending on the nature of the case. Reexamining an issue we decided in the past often offers new insights. Blumberg notes that it is wise to rethink what we thought we understood. I use this as a segue into a brief look at how my appellate court works and how I know most others work in general despite specific differences. This is prompted by an article in the Daily Journal last Thursday, January 28th. Well-known appellate attorney Jon Eisenberg complained to the Judicial Performance Commission about delays in filing opinions in the Third Appellate District. As a rule, I would not write on this subject at this stage. But many readers have asked for my view of Eisenberg’s complaint and the phenomena of delay in general. And because like Mount Everest the topic is there and challenging, I offer these few general comments. I draw on articles, columns, and lectures I have given in the past on appellate practice to give the reader a context in which to consider the subject of delay. Please note Eisenberg’s complaint is not about the quality of work produced by the Third District. I often look to the opinions from the Third District for guidance in my own opinions. I know and respect the justices and feel the same about Eisenberg. I have served on the Court of Appeal for nearly four decades. (Hope that is not interpreted as a declaration against interest.) And though I have written on this subject in previous columns, I offer a perspective into the workings of many Courts of Appeal, drawing specifically from my own division. I offer this not as a defense or indictment of the Third District. But it might provide a glimmer of insight to dispel possible misimpressions readers may have drawn from Eisenberg’s complaint. I will not presume to speak for the Third District, but in my division, we have a” blind draw.” Cases are assigned in rotation to the justices as they are filed with the clerk. So-called “monster” cases, with multi-volume records, are on a separate rotation track. This way the cases that require more judicial resources and time are more equitably distributed. All justices have a judicial assistant and research attorneys who are indispensable in helping draft the opinions. The time a justice spends on a case is obviously determined by the difficulty and novelty of the issues presented. It may involve distinguishing, agreeing, or disagreeing with other published opinions. Because appellate opinions involve three justices, the two justices who are not authors of the opinion must be intimately familiar with the issues to decide whether to concur or dissent. This, in turn, requires research and close analysis of the briefs and record in the author’s particular case. Often cases are continued for a variety of reasons. The attorneys request continuances, or justices may “hold” an opinion in which an issue is pending for decision before the Supreme Court. Sometimes it is advisable to wait for our Supreme Court to rule on an issue pending in that court. And I need not repeat the cliché about justice delayed. It is an issue we all take seriously in keeping a fair balance between quality and expedition. But keep in mind that what is missing from Eisenberg’s complaint are the reasons for the delay. And that has made all the difference
Looks like our Democracy is intact. Whatever one’s politics or rationale for positions extreme and otherwise, the courts maintained their independence, ruled as they had to, and forestalled what could have been a disaster for our country. After decades of careful study of the law, its foundation and principles, I have come to an irrefutable conclusion, which I pass on to you, dear reader. Cases based on facts… must have facts. The facts lead to the law, its interpretation, and its application to the facts. Granted, how judges interpret those facts can lead to differences of opinion. That is why judges have a limited circle of friends in constant flux. Judges are grateful for their appointments, but our oath of office compels loyalty to an ideal that dwarfs loyalty. Now for something different and timely; let’s go to the opposite end of the spectrum – New Year’s resolutions. I do not make them. They are promises. Why make a promise you cannot keep, especially when it is to yourself? Can I truly be a better person? Wait, that doesn’t sound right. There is a difference between going a millimeter to arrive at a goal within reach, and traveling (“going” is inadequate here) light-years to achieve an unattainable goal. By the way, light-years measures length, not time. Whoops! Just thought of two New Year’s resolutions I am determined to keep. Please ignore previous paragraph. Resolution #1: Master the new technology of communication, namely Zoom and Bluejeans. Resolution #2: Come to grips with or change the names of the new technologies. “Zoom?” “Bluejeans?” These perky expressions were used in comic books when I was a kid. That was a while ago. I am working on appropriate names for new complex technologies on the horizon. “Whoosh,” “Pow,” and “Shazam,” are high on the list. Must admit, I like these fun names, but I confess to some discomfort when the Supreme Court and Courts of Appeal hear oral argument on cases involving murder, evictions, and financial ruin through a medium called Bluejeans. I am not a stuffed shirt (where did that expression come from?), but the more high-tech the technology, the “cuter” and more juvenile the name. My court has conducted oral argument via Bluejeans several times this year, and I confess I have worn bluejeans during a few of those oral argument sessions. And a caution to attorneys and judges conducting such arguments. What you see of yourself on your screen, others see the same on their screens. This includes what goes on in the background. This is a respectful publication so I will not relate … never mind. Forget I even brought it up. The courts and the Bar have worked diligently to work as best they can through the pandemic. And our Supreme Court is working diligently to resolve important issues during this crisis. I am sure that some of the issues occasioned by recent legislation relating to criminal sentencing that is creating havoc among Courts of Appeal will be decided soon. Right? Penal Code section 1170.95 comes to mind. This of course has nothing to do with New Year’s resolutions. And I end with a goodbye to two good friends and colleagues who recently passed away, two exceptional people whose contribution to the judiciary endures. Court of Appeal Justice Rick Sims of the 3rd District and I were appointed to the Court of Appeal in…oh dear…1982. His opinions reflected clarity, wisdom, and scholarship. He was the ideal justice with a subtle sense of humor and firm grasp of the rule of law and common sense. I commend you to read “What Appellate Judges Do,” 7 J. App. Prac. & Process 193 (2005). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol7/iss2/3. It is one of the best explications of what the courts do. It is a must read. I also suggest you view his interview on the oral history of appellate justices on YouTube. And we will all miss Joan Dempsey Klein of the 2nd District Court of Appeal. I knew Justice Klein for a few years…since…1965. Yikes! We became buddies over the years and I called her Joanie. She had a number of nicknames for me. She was a fighter with a sense of humor. Anyone who called her Jack Dempsey Klein got decked. I would not even think of going a practice round with her. Back in the 60’s she ran the hectic municipal master calendar court like a…master. She proved a woman could do the job better than most men. She never stopped proving that. She was an inspiration to women in the law and responsible for the careers of many of our distinguished women lawyers and jurists. So to add to your viewing pleasure, I urge you to watch the oral history of Justice Klein on YouTube where I had the privilege of interviewing her. You will truly know what a remarkable person she was. I guarantee that watching the oral histories of both Rick Sims and Joan Dempsey Klein will make a difference in your life whatever your profession.
Granted, I made a big deal about my 300th column. When I brought it up in conversation, others would change the subject. I acknowledge that in the well-ordered cosmos the anniversary was less than insignificant. But what is significant is the asterisk. If you missed it, it is in the title, sort of like Barry Bonds vs. Hank Aaron. Because facts matter, and especially so in the law, I acknowledge after reflection that my November column, while technically my 300th column, should not be so designated. In fact, the 300th column is more like the 297th. For those of you who are still reading, here is the explanation. In the past, whenever I “wrote” my 100th anniversary Daily Journal column, I penned (didn’t want to repeat “wrote”) a brief paragraph or two and repeated my first Daily Journal column in 1988. That column was about depublishing, and I republished the column about depublishing. Republish, a way to get even for depublish. Get it? There’s a bit of irony for you. Simple arithmetic. Let’s see, columns numbers 100, 200, and 300 are not full columns. That makes three columns, right? So that means my 300th column will not truly occur until March 2021… if I am still writing a column next year. Good segue into what follows: taking credit. Taking credit, a good topic at the end of the year. Its cousin–things are not what they seem–will be explored in a future column. Who knows, maybe my 302nd or, if you will, my 299th. Titles often give persons credit for sanctioning (used in the good sense of the word here) the work of others. Our presidents get credit or blame for picking an array of experts to advise them and to head agencies. Historians, academics, even columnists, acknowledge the contribution of others for the articles and books they author. (I am not crazy about turning nouns into verbs.) Darn, I just did it. Often those who help others in their labors are called “staff.” Those individuals who make up the group called “staff” seldom receive individual credit. “Staff” should not be confused with “staph,” the shortened form of staphylococcus. Staff in the singular can be a rod or pole to use while hiking or beaning someone. But here we are talking about staff as a collective noun to describe a group of persons who work to make other people look good. But as long as we are on the subject of taking credit, judges also get credit or blame for decisions they make. Yes, we all get what we deserve, but lawyers and staff make the contribution to arrive at the decision. We don’t sit there and make it up… although we have been accused of that. Appellate court decisions are the final product of the work of lawyers, colleagues, and staff. My thanks to Justices Yegan, Perren, and Tangeman, their staff and mine, research attorneys Lauren Nelson, Peter Cooney, and Robert Miller, and judicial assistant Bonnie Edwards, for making me look good when I follow their advice. It’s the end of a difficult year and I want to acknowledge my gratitude to them and to Danny Potter, Clerk of the Second District, and Patricia Silva, Assistant Clerk of Division 6, and her staff (got to stop somewhere, sorry), for their invaluable contribution. And everyone else in Division 6. Kudos to Justice Martin Jenkins and Los Angeles Presiding Judge Kevin Brazile for acknowledging credit when it is due. They endorsed and put into practice a judicial mentoring program for attorneys who wish to become judges. They also deserve praise for acknowledging that the program was the brainchild of Judge Helen Zukin. As reported in the Daily Journal, this program helps attorneys wishing to apply for judgeships to meet with a superior court judge to help them with their applications and to “demystify” the application process. This, in turn, encourages a large pool of applicants and encourages diversity. And finally some thoughts about my dear friend and colleague Justice Paul Coffee who passed away last month. Paul was Catholic, a Navy pilot, a Republican, an insurance defense attorney, everything I am not. Paul remarked that these superficial differences were meaningless. You bet, Paul. You brought a healthy sense of practicality, common sense, and wisdom when you became our colleague in Division 6. You courageously fought a long illness after your retirement from the bench in 2012. And we had many conversations and visits during that time. How fortunate I was to have your friendship and that last visit shortly before your passing. So, Paul, it’s not goodbye. We both decided that.
Dear Reader, You might think this introduction is a cute trick. It is partially; omit “cute.” I am not the columnist Arthur Gilbert. I am Gilbert Arthur. I have been enlisted to write an introduction to Arthur Gilbert’s 300th column, as if that is something special. It is not. It is just another column. Arthur Gilbert and I have some things in common: we both have two first names – only mine, Gilbert Arthur, sounds literary. And as befitting my name, I offer a few comments about the columnist who hereafter I shall refer to as “Gilbert.” Gilbert apparently thinks his 300th column is a big deal. I repeat – it is not. If “300” is so important, why doesn’t Gilbert write about what happened 300 years ago? I am sure it crossed his mind. 300 years ago, the typewriter was patented. If Gilbert had been alive 300 years ago, we still would have been stuck with his columns. While we are on the subject of 300, how about what happened 3,000 years ago? Camels were domesticated in Egypt. People somehow first began building Stonehenge and hieroglyphic writing began, an apt description of Gilbert’s columns. In 1988 the Daily Journal enlisted Gilbert to write an article about what he considered, and still does, an odious practice then in common use by the California Supreme Court known as “depublication.” Now there’s a concept that might be useful if applied to Gilbert’s columns. Gilbert’s unusual article, and the riots that followed, prompted a Daily Journal editor, apparently having a bad day, to suggest (oh dear) that Gilbert write a column for the Daily Journal. What was he thinking? The Gilbert columns have gone on year after year. To what end? He skips from one subject to another and in the labyrinth of his mind (a euphemism) he finds connections between items, events, and topics that to normal people have no relationship whatsoever. To use a common, vulgar expression, “go figure.” Think what it would be like if Gilbert did not have his judicial assistant Bonnie Edwards saving him and us from disaster during her noon-hour proof reading. And let’s add Daily Journal Legal Editor Ben Armistead who steels himself when Gilbert’s monthly drafts arrive. And a badge of courage to Editor David Houston. On this and other prosaic anniversaries, Gilbert contrives to republish his first column that ironically is about the concept of depublishing, a notion I have suggested could be applied to all 300 of his columns. Chalk it up to laziness, one less column to write. I do not apologize for this frank assessment. If Gilbert berates me, he berates himself, a practice he has refined to an art (pardon the expression) most of his life. We have engaged in this contentious exchange around the time he reached his fourth, maybe fifth birthday. So here once again is the column that started it all. It Never Happened The Los Angeles Daily Journal Thursday, June 9th, 1988 Arthur Gilbert Most people don’t know what Court of Appeal justices do, and that includes many trial judges. A Court of Appeal justice writes opinions, “grinds them out” would be a better way of saying it. Henry Ford would approve. The opinions bump along the assembly line and then chug down the road to oblivion. Along the way they are used or misused by attorneys or judges, who sometimes read them. But deep within the heart of every appellate justice there lies the seed of an occasional masterpiece, a gem that would make Benjamin Cardozo turn green with envy. It starts with a case that fortuitously comes your way. Something special occurs during this random encounter. You begin to feel ideas growing and developing in your brain. The Unseemly and Grotesque Stage During an appropriate period of gestation, the ideas coalesce into a concept. When the concept fights and claws its way out of your brain and plops in a heap on the page, you know you are ready to write the first draft of the opinion. When you’re done, that draft is wiggling with life but not ready for public consumption. It is unseemly and grotesque, like the mutant baby in the cult film classic “Eraserhead.” But it’s your baby, and you nurture it and shape it, draft after painstaking draft. And then you know, as if by instinct, that the opinion is ready. It shimmers with clarity and reason. Magnanimously, you acknowledge that the brief on the winning side was persuasive, but the opinion has you signature - figuratively and literally. The opinion reflects your style, your panache, your essence. Shortly after the publication of your chef-d’oeuvre, you happen to attend a cocktail party given by the local bar association. You try to avoid an attorney known for his unctuous fawning. But when he starts praising your new opinion, you find his conversation engaging and stimulating. You tell him in a modest, self-effacing tone that you hope the opinion will be useful. You think it might be unseemly to tell him that you know the opinion illuminates the law, gives it meaning and purpose, that it persuades and sparkles with reason and insight. I have experienced this. But it’s hard to talk about because it never happened. No, I don’t mean I imagined it. I don’t mean I’m crazy and hallucinating. It’s much more than that. I mean the state Supreme Court depublished it. Someone up there simply pulled the switch on an opinion that had just begun to bask in the light of recognition. The ostensible reason for this ignominious termination is that the opinion reached the right result, but for the wrong reason. Maybe so, but the recent use of depublication on such a wide, unprecedented scale means that there are a whole group of justices writing poorly reasoned opinions these days. I suppose the depublication rule helps hold back the flood of cases inundating the Supreme Court, but it also keeps ideas locked in the closet. No Useful Purpose Whatever the reason for the rule, it serves no useful purpose. Why hide the reasoning of an opinion, whether good or bad, from the rest of the world? If the Supreme Court does not care for an opinion, it can decertify it. The opinion may lack precedential value, but at least it exists as an object of either enlightenment or of ridicule. Another interpretation of the law is at least accessible to scholars, lawyers or collectors of the bizarre and occult. Decertifying instead of depublishing opinions will not increase the Supreme Court’s caseload. It will, however, permit the expression of all ideas and will serve an important educational function for the bar and the public. And, who knows, the spurned opinion just might become the law in the next millennium. I’m not holding my breath that the rule will be changed in the near future. If it does not change soon, one of my colleagues suggested that we publish all the depublished opinions. That’s a brilliant idea. I just may start an underground publishing firm that will publish only depublished opinions. I’ll call the company East’s Oxymoron Publishing Co. - “Opinions That Get You in Lots of Trouble If You Cite Them.” Better yet, maybe we can change the rule so that justices on the Court of Appeal rather than the Supreme Court will have the last word on whether an opinion is published or depublished. I can just imagine what would happen with such a rule. Assume I have decided not to publish an opinion, but the Supreme Court wants it published. “Oh please, publish this opinion,” the Supreme Court asks me. “No,” I answer. “I don’t think it really merits publication.” “But it’s so good, you have crystallized your ideas into a succinct, readable treatise on this complex issue of law. There is a desperate need for your opinion. Its publication will be a significant contribution to the people of this state and the legal profession.” “Well…I’ll think about it.”
Yes, this is #299. Not bragging. “Numbers” is a word invented by people to count… things. Just as “a rose by any other name is a rose,” or Gertrude Stein’s rediscovery that “Rose is a rose is a rose is a rose,” a number is a number is a number is a number. A single number is insignificant even when it is labelled a “record” because in time there will be a new record. Roger Bannister breaking the four-minute mile comes to mind. For a while it caught our attention. Of course a record number of deaths or tragedies can and we hope prompt us to action. My only point is that a specific number means little when one considers that numbers go on for infinity. So why make a deal about the number of this or subsequent columns? Good question. Or to put it another way, why even bring it up? Another good question. I have no good answer other than to repeat, this is my 299th column. To continue with the same theme, whether I write my 300th column next month remains to be seen. Could happen or not. This I could have said about by 233rd or any other column before I wrote it. Whatever the number, columns in every sense of the word are here to stay. Columns can be decorative, but they also hold up structures in the mind or the physical world. Columns also hold up second, third, fourth (numbers again) stories in buildings. Columns hold up words in the sense we are speaking about here and tell stories and hold up ideas. So I am not so presumptuous to make any predictions about a 300th column that has not occurred and remains to be read, or “actualized” if I were a philosopher. Enough about how many columns anyone would write. Whatever the number, some may be worth reading, whoever the columnist and whatever the subject. Notice I wrote “some.” In past columns I have explored the “risks” in expressing opinions that may offend readers who take exception to a word or a phrase they interpret as reflecting bias or insensitivity. I accept that all of us no matter our race or ethnic origin may harbor an unconscious bias that is revealed in conversation or in a column. Nevertheless, I have railed against hyperconscious self-censorship that militates against the open exchange of ideas. I have already written about the word “niggardly” that has nothing to do with race, but would likely offend any decent person unfamiliar with the word. Is it forever banned from usage? We may all have our share of guilt, but instead of beating ourselves up over it, let’s be conscious of it and do something about it. I have noted that some columnists, reflecting the mood of many of us, are so riddled with guilt they write about their character flaws and misdeeds, presumably to show how human they are. I get it. How else could I write 299 columns? But judges are human… most of them, and they make mistakes just like everyone else. That’s why we have Courts of Appeal… oh, yes, and a Supreme Court. It used to be that certain topics were taboo like bodily functions, a favorite topic of elderly men. I admit to writing a few columns on the topic. Elderly men often talk about their panic in public where there are no public restrooms available. An even more pressing (pardon the expression) concern during the pandemic. This includes judges. I know it’s hard to believe. But this is a subject I save for my Saturday morning running buddies. I mean, my walking buddies. We used to run. Judge Judith Chirlin, now retired, and I gave a talk in Moscow to Russian judges in the early 1990’s about American jurisprudence. The Russian judges asked good questions ranging from statutory interpretation to the death penalty. One judge asked a long question with a tone of urgency and passion. When the interpreter finished the translation, I sensed the anticipation and interest as the Russian judges waited for my answer. Rough translation of the question: “Artur, when you have important witness on the stand in the middle of cross-examination, and you have to go bad to the bathroom, what do you do?” What’s the point of all this? If we can talk about bodily functions, we can talk about anything and not allow fleeting concepts of political correctness stifle the free exchange of ideas. Maybe being offended now and then is good idea. Let us hope that doing so will not be as futile as whipping the Hellespont. My friend Professor Marvin Zuckerman told me that when he was a graduate student in linguistics he learned that trying to fight a usage, and I would add, a habit, was like trying to “whip the Hellespont.” Xerxes, King of Persia, devised a plan to cross the Hellespont to invade Greece. He had his engineers build a few bridges to cross it. A storm destroyed the bridges before the Persians could cross. Xerxes was “cross” in the other sense of the word, and repeatedly whipped the waters, among other things, to punish them. So, I repeat, let us not allow the open exchange of ideas, no matter how unpopular, be as futile as whipping the Hellespont.
Events that shape and affect our society sooner or later resonate in our political institutions. I include under the rubric “political institutions” all state and federal courts. And of course the most authoritative pronouncements on the law and its application come from the U.S. Supreme Court (refuse to write “SCOTUS” - sounds like the name of a pet. “Here SCOTUS, come here SCOTUS, no SCOTUS.” Don’t go there.) I think we all agree that the tasks of all courts, and particularly our nation’s high court, involve more than calling “balls and strikes,” though that is an essential element. Court decisions do involve issues of national importance that reflect profound changes in our society and culture. Brown v. Board of Education comes to mind. The recent series of police shootings of Black suspects caused our country and other nations to focus on persistent decades of racial inequality. And this in turn compelled our state Supreme Court to issue a declaration signed by all members of the court reflecting a commitment to social justice. It is remarkable that this declaration was not memorialized in an opinion, but stood alone, signed by all the justices. The declaration is compelling, moving, and profound. It states: “In view of recent events in our communities and through the nation, we are at an inflection point in our history. It is all too clear that the legacy of past injustices inflicted on African Americans persists powerfully and tragically to this day. Each of us has a duty to recognize there is much unfinished and essential work that must be done to make equality and inclusion an everyday reality for all. We must, as a society, honestly recognize our unacceptable failings and continue to build on our shared strengths. We must acknowledge that, in addition to overt bigotry, inattention and complacency have allowed tacit toleration of the intolerable. These are burdens particularly borne by African Americans as well as Indigenous Peoples singled out for disparate treatment in the United States Constitution when it was ratified. We have an opportunity, in this moment, to overcome division, accept responsibility for our troubled past, and forge a unified future for all who share devotion to this country and its ideals. We state clearly and without equivocation that we condemn racism in all its forms: conscious, unconscious, institutional, structural, historic, and continuing. We say this as persons who believe all members of humanity deserve equal respect and dignity; as citizens committed to building a more perfect Union; and as leaders of an institution whose fundamental mission is to ensure equal justice under the law for every single person. In our profession and in our daily lives, we must confront the injustices that have led millions to call for a justice system that works fairly for everyone. Each member of this court, along with the court as a whole, embraces this obligation. As members of the legal profession sworn to uphold our fundamental constitutional values, we will not and must not rest until the promise of equal justice under law is, for all our people, a living truth." And this takes me to a recent case, B.B. v. County of Los Angeles (2020) 10 Cal. 5th 1. The case involved sheriff deputies attempting to subdue an arrestee, Darren Burley, an African American. One deputy pressed one knee into the center of the suspect’s back and placed his other knee onto the back of the suspect’s head near the neck. Burley died of suffocation. Sound familiar? Plaintiffs, the decedent’s child and estranged wife, sued for damages. The case involved an interpretation of Civil Code section 1431.2, subdivision (a) enunciating principles of comparative fault in civil cases. The court in a majority opinion, written by Justice Ming Chin, held that section 1431.2, subdivision (a) does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors including a plaintiff contributed to the injuries. Principles of comparative fault do not require a reduction of an intentional tortfeasor's liability based on the acts of others. The defendant sheriff deputy who caused the death is not entitled to a reduction of his liability for noneconomic damages based on any negligence of the decedent or other defendants. In footnote 2, the B.B. court acknowledged that the decedent was African American. “We are cognizant that the facts of this case bear similarities to well-publicized incidents in which African Americans have died during encounters with police. These incidents raise deeply troubling and difficult issues involving race and the use of police force. But the question plaintiffs raise in this case—whether and how section 1431.2 applies to intentional tortfeasors—does not turn upon either the decedent's race or the fact that a law enforcement officer, rather than a civilian, committed the intentional tort.” And here I go again, finding something remarkable in the thought-provoking concurring opinion of Justice Goodwin Liu, joined by Justice Mariano-Florentino Cuéllar. I subscribe to Justice Liu’s views. But I was struck by the rebuke levelled at the majority opinion. Liu acknowledges that the wrongful death judgment “affords a measure of monetary relief to Burley's family.” He goes on to say the majority opinion “does not acknowledge the troubling racial dynamics that have resulted in state-sanctioned violence, including lethal violence, against Black people throughout our history to this very day. (See Felker-Cantor, Policing Los Angeles: Race, Resistance, and the Rise of the LAPD (2018); Coates, Between the World and Me (2015); Baldwin, The Fire Next Time (1963).)” I note that he cites James Baldwin’s “The Fire Next Time.” I read that work and attended a lecture in the early 60’s at Berkeley where James Baldwin, John Cheever, and Philip Roth appeared on a panel. It was worth cutting property class for that event. I still recall to this day that Baldwin spoke of offenses to Black people occurring in the name of the white population, allowing “tacit toleration of the intolerable.” I did not interpret Baldwin’s observation as an indictment, but rather a call to rouse the white population from apathy and neglect. It was a call to jettison apathy and to actively support racial equality. The concurring opinion goes on to catalog racial abuses that have occurred throughout our history and notes how courts on the federal and state level have fallen short in meeting their commitment to administer justice involving racial matters. It even speculates that had plaintiffs’ 42 U.S.C. section 1983 action not been dismissed in federal court because of the running of the statute of limitations, they would have had an uphill battle to obtain redress in those courts. The concurring opinion also highlights the ways in which the qualified immunity doctrine emasculates section1983 actions. The concluding paragraph picks up on the theme of the first paragraph and again acknowledges that a “wrongful death judgment with substantial damages is one way of affirming the worth and dignity” of the decedent. But again cautions that the racial dimensions of the case should not escape the court’s notice. And then cites the court’s June statement of solidarity with a question, “How are we to ensure that ‘the promise of equal justice under law is, for all our people, a living truth’? (Cal. Supreme Ct., Statement on Equality and Inclusion (June 11, 2020)
.) Whatever the answer, it must involve acknowledging that [decedent's] death at the hands of law enforcement is not a singular incident unmoored from our racial history. With that acknowledgment must come a serious effort to rethink what racial discrimination is, how it manifests in law enforcement and the justice system, and how the law can provide effective safeguards and redress for our neighbors, friends, and citizens who continue to bear the cruel weight of racism's stubborn legacy.”
Despite the passion and strength of the concurring opinion, does it belong here? Yes, the victim was an African American, but the holding applies to any plaintiff in similar or other circumstances involving intentional acts. Footnote 2 answers that question and only two justices signed the concurring opinion. Maybe because of the race and circumstances under which the decedent died, the similarities to the George Floyd murder, the concurring opinion was justified. But would the message of the concurring justices been better expressed in a law review article, and not in an opinion where the decedent happened to be African American?
The powerful message of the concurring opinion highlights the inequities that have plagued this country and our institutions. But it can be argued the relevant issues in B.B. are incidental even though Mr. Burley was African American. Justice was accorded his heirs, and the concurring justices acknowledge that. But was this the case to raise historical issues that perhaps might be better voiced elsewhere? Does the court lose its political capital when some members extend the discussion beyond the issue before the court? Does it give appellate practitioners pause concerning their prediction of how some justices might view future cases where litigants are African American? And this in turn may affect perceptions of justice’s objectivity.
On the other hand, these views are a legitimate expression of the changing landscape of a systemic national issue that all our governmental political institutions should acknowledge as often as possible. Are they not an expansion of what all members of the court expressed in its June declaration? “On the other hand…” –an introductory phase that has haunted all law school students– is and will always be omnipresent in the legal profession.
I had dinner the other evening with the philosopher Heraclitus of Ephesus. I remarked that Justice Ming Chin was retiring from the California Supreme Court at the end of August and that I, along with countless others, would miss him. Heraclitus adjusted his toga, took a sip of ouzo from the bottle we shared, and remarked, “All that endures is change.” I think Heraclitus was 45 at the time. And that is old. Heraclitus was impressed with Justice Chin’s accomplishments, but I could tell from his expression he was confused. Of course he was confused. The month of August was then called Sextillis and it had only 29 days. This would put Ming’s retirement on September 2nd. Whoever heard of retiring two days into a new month? Did I mention, Heraclitus of Ephesus was born in 535 BC, and the calendar as we know it had not yet been devised? It was not until 46 BC that Julius Caesar added two days to August, I mean, Sextillis. He did that a few years after he took a quick break to write the seven volumes of the Gallic Wars, while protecting the far-reaching Roman Empire. It took someone like Augustus, an emperor in 8 BC, to have the name of the month Sextillis changed to Augustus. The Roman senate made it happen. Having one’s name on a month is better than on a building. This discussion of ancient Roman history might alert the attentive reader to conclude my dinner with Heraclitus of Ephesus was imaginary. But who are we to make such judgments? I can, however, assure the most skeptical that the ouzo was the real thing. I muse on the remarkable career of my friend Justice Ming Chin. Change is inevitable, but how quickly or slowly it occurs is a matter of perception that varies depending on one’s perspective. But with Justice Chin, his “elevation” (sounds religious) to higher and higher judicial plateaus was swift (an understatement), but well deserved. A brief estimate: Judge of the Alameda County Superior Court, 45 minutes; Associate Justice of the Court of Appeal, one hour; Presiding Justice of the Court of Appeal, two hours; and finally… Associate Justice of the California Supreme Court, 15 minutes. If these timeframes seem an exaggeration, think of a successor to Heraclitus, Einstein. Time is relative. Or if that is too weighty, consider the appearances of the obelisk in Kubrick’s classic motion picture “2001.” In whatever manner we contemplate time, Justice Chin’s decisions on the various courts on which he served reflect the judiciary at its best. Mention the name Justice Chin and one immediately thinks of his civility, collegiality and humor. He is down to earth and has no sense of self-importance, but he does have a keen sense of the importance of his work. His well-written opinions reflect a fair and objective exposition of the law. He reflects everything we expect from a judge – humanity, objectivity, and professionalism. I am fortunate to know Justice Chin and honored to call him a friend. I join his many friends in wishing him and his wife Carol happiness and joy in the adventures that lie ahead.
It’s all different. More so than any of us can remember. Lesson we all know, but many have stored in the back of a mental closet, the cliché that now bores through to the core: “take nothing for granted.” Complaints about court delays before March of 2020 seem oddly quaint. Trial court presiding judges are scrambling to figure out how and when to open, and in what manner. Following Supreme Court guidelines, it is still a monumental job managing cases entitled to priority and how and where to decide them. The larger the court, the larger the dilemma. Presiding Judge Kevin Brazile of the Los Angeles County Superior Court, the largest trial court in the country, with some 481 judges, not to mention commissioners, covering a geographical area of close to 5,000 square miles, faces a Herculean task. He is the right person at the right time who always seems to keep his cool. I bet he does at home as well. With me, it may be a different story. My wife and I signed a confidentiality agreement occasioned by my working at home. Nevertheless, I invariably take her side of any argument. Even I find it impossible to live with me. During the pandemic, the Court of Appeal has an easier time managing its caseload than trial courts. In case anyone forgot, we write opinions. We can do it from laptops and computers at home. Research tools are readily available for us, research attorneys, and our judicial assistants. And as a rule, we conduct oral argument only once or twice a month. We now do it through the marvels of video conferencing via Bluejeans. Can anyone tell me why “cute” monikers are so often used to describe new software technology? Probably to assuage the fears of techno-cowards like… me. Where were we? Oh, yes, oral argument video conferencing. There are advantages. In an article in the June 2020 edition of the London Financial Times entitled, “Pandemic puts remote courtrooms on trial,” barristers and judges offered various assessments of the procedure. For barristers, it can save two to three hours in traffic. Thought they were talking about Los Angeles. One barrister who argued her case on the phone from her living room said the experience was much like arguing in court even though her living room did not reflect “the splendor of London’s neo-Gothic Royal Courts of Justice.” To get in the mood, she wore a business suit and argued from a stand-up desk. She could have worn her pajamas, something I strongly recommend lawyers avoid when arguing via video conferencing – would be hard for me to stay awake during an uninspiring argument. The barrister learned immediately after arguing her case that she won. She then asked herself whether she might put on a “cup of tea.” So English. But there are disadvantages to video conferencing oral argument. Much harder for the judges to interrupt. I mean, we do have questions. My subtle approach to overcome this problem is simple – frantically waving my hands in front of the camera to signal the lawyer to stop talking (a euphemism). Lawyers should not be vexed with these interruptions. What better opportunity to know what judges tasked with deciding the outcome of a case think or ask for enlightenment? I suggest that anyone on the video conference be aware that “they” (now permissible) are seen up close. This applies to judges as well as lawyers. Gestures or expressions of distaste do not serve a valuable purpose. I won’t be graphic, but… you know what I mean. Of course, gestures we make to those gathered around the telephone concerning proposals or negotiations to another party on the other end of the line are a different story. I speak from experience. Today, however, phone conferences are mostly a relic of the past. But you can avoid embarrassing faux pas gestures in video conferencing because you see yourself on camera just as all other parties see you. Simply display a genial and interested expression no matter the inner range and rancor. Acting coaches are available for those who imagine their integrity an obstacle to such dissimilation. I recommend appropriate attire… from the waist up. If you are wearing shorts, underwear, or… well, whatever, do not EVER walk away from the camera. Keep that upper profile from only above the waist, better yet, from mid-chest, in view. This applies to judges and lawyers alike. Judges always wear at least a shirt and tie under the robe. What else? Oh, yes, background. For Zoom meetings, a bookcase in the background is impressive. And, yes, of course, the bookcase should contain books, although an occasional family photo is permissible. Depending upon who you wish to impress, I suggest an eclectic array: Dante’s Inferno, Gibbon’s Rise and Fall, Dworkin’s Law’s Empire, Eliot’s Middlemarch, Proust’s A la recherche du temps perdu (in the original), Piketty’s Capital in the Twenty-First Century… you get the drift. No one said you had to read them, let alone understand them. Better to stay away from more controversial faire, like Mein Kampf or Marquis de Sade’s The Crimes of Love, or Nabokov’s Lolita, which my wife removed from a prominent place on my bookshelf. My wife Barbara and I regularly watch the PBS Evening News with Judy Woodruff. The pandemic requires her and the various news analysts on her show to present their segments from their homes. Ms. Woodruff’s bottom bookshelf in her immediate background contains books on the Civil War. And that reminds me to remind you to keep your pets out of the room in which you are video conferencing. News analyst Lisa Desjardins appears to live in a sparsely furnished Washington apartment with a white L-shaped couch in the background. My wife and I recently missed most of her incisive analysis one evening because we were transfixed watching her black and white cat trying to fish out something from between the cushions. Even when the cat is sleeping, he or she captures our attention. Admit we have been accused of being cat, dog, animal “nuts.” So we all must adapt to what is called the “new normal,” the repugnant phrase that at its birth was properly termed “abnormal.” Within a few months it grew so precipitously that today it is more properly termed the prosaic but horrific “normal.” We have learned that nature controls and that when we fly too close to the sun we suffer the same fate as Icarus. In addition, social upheaval compels us to confront unacknowledged biases and prejudices. And as we face some unpleasant truths, we come to realize status and “position” carry at most a flimsy facade of importance. It is what we are and what we do that matters. To avoid recusals and the perception of bias, judges are cautioned not to publicly voice opinions relating to politics, religion, or controversial subjects that could be the subject of lawsuits. Some, whether resolute or reckless, write columns, and on occasion follow the advice to delete a phrase, a sentence, or the whole damned column. But much can be said from judges who support our mission to fairly and dispassionately administer justice. I applaud our chief justice who recently remarked, “As public servants, judicial officers swear an oath to protect and defend the Constitution. We must continue to remove barriers to access and fairness, to address conscious and unconscious bias – and, yes, racism. All of us, regardless of gender, race, creed, color, sexual orientation or identity, deserve justice. Our civil and constitutional rights are more than a promise, a pledge, or an oath—we must enforce these rights equally. Being heard is only the first step to action as we continue to strive to build a fairer, more equal and accessible justice system for all.” And please note that all seven justices of our high court on June 11th issued this statement on equality and inclusion: “In view of recent events in our communities and through the nation, we are at an inflection point in our history. It is all too clear that the legacy of past injustices inflicted on African Americans persists powerfully and tragically to this day. Each of us has a duty to recognize there is much unfinished and essential work that must be done to make equality and inclusion an everyday reality for all. We must, as a society, honestly recognize our unacceptable failings and continue to build on our shared strengths. We must acknowledge that, in addition to overt bigotry, inattention and complacency have allowed tacit toleration of the intolerable. These are burdens particularly borne by African Americans as well as Indigenous Peoples singled out for disparate treatment in the United States Constitution when it was ratified. We have an opportunity, in this moment, to overcome division, accept responsibility for our troubled past, and forge a unified future for all who share devotion to this country and its ideals. We state clearly and without equivocation that we condemn racism in all its forms: conscious, unconscious, institutional, structural, historic, and continuing. We say this as persons who believe all members of humanity deserve equal respect and dignity; as citizens committed to building a more perfect Union; and as leaders of an institution whose fundamental mission is to ensure equal justice under the law for every single person. In our profession and in our daily lives, we must confront the injustices that have led millions to call for a justice system that works fairly for everyone. Each member of this court, along with the court as a whole, embraces this obligation. As members of the legal profession sworn to uphold our fundamental constitutional values, we will not and must not rest until the promise of equal justice under law is, for all our people, a living truth.” And a final note of caution. In our zeal to fulfill this mission, we must judge with care. An offhand remark, an unconscious slip of the tongue, or an expression that could be perceived as offensive should be met with rational discussion and education. The quickness to condemn with irreversible consequences may reflect a zeal that mirrors what we seek to correct.
…together?” My wife Barbara and I, appropriately masked, were taking a walk in the neighborhood. Our next-door neighbor Lucille drove by on her way to another neighborhood. She stopped, put the car in neutral, adjusted her mask so we could hear her better, and said, “Time to see some different houses and different trees.” I nodded in approval and said (hate to admit it, so embarrassing)… I… said… “We are all in this together.” At least, I did not use the word “actually” before the word “said” in the preceding sentence. With undisguised scorn, Lucille said, “I don’t believe what I just heard you say. You of all people. I am sick and tired of hearing that dreadful slogan.” Lucille’s disdain is justified. Whatever we are in, we are not acting as though we are “in this together.” Lucille was also right to call the exasperating phrase a slogan instead of a cliché. Clichés generally express thoughts or ideas that most of us accept as true. Through overuse, most have become trite and unoriginal. Slogans on the other hand may or may not have anything to do with truth. But, as we are learning day to day, what is true is under attack. To repeat what I have written about before in past columns and elsewhere, facts are. The phrase “true facts” is redundant. “False facts” is a meaningless contradiction. Yes, I used the intransitive verb “is” in the preceding sentence because “phrase” is implied. And if I am wrong, I don’t care. Where were we? Oh, yes, facts. Of course, adjectives other than “true” or “false” may be applied to facts; “horrendous,” “remarkable” are sufficient examples. Refuse to use “incredible.” Ok, it is a popular expression to describe what is… remarkable? But why “incredible”? Are so many things “incredible”? With old age, I am getting shorter, if that’s possible. When they measure my “height” in the doctor’s office, I am known as the “incredible shrinking judge.” Why are so many events, people, and things incredible? That means they are not believable, cannot be. Fine, but use it sparingly. And under no circumstances, please do not use the ubiquitous “amazing.” That its use is so prevalent amazes me. A few more comments about facts in the legal profession. The recitation of facts in a motion, an opinion letter, a brief, a statement of decision, or an appellate opinion is often, if not always, the most important part. It is rudimentary that the law flows from the facts. Lawyers interviewing clients must ferret out the relevant facts to determine whether to take the case, and, if so… to then determine whether the client has the retainer. Best to do this in that order than the reverse. Yes, there may be honest differences of opinion about what the facts are, or what are the relevant facts. But once that decision is made, our profession demands that the “relevant” facts be stated with scrupulous care. My colleagues and I are amazed, I mean chagrined, when on those rare occasions a lawyer flagrantly misstates facts that are belied by the record. What were they thinking? Another overused phrase. Notice that in the penultimate sentence in the preceding paragraph I used “they” to refer to the singular “lawyer” in the sentence preceding that sentence. If you did (probably not – who would?), it was deliberate to avoid the awkward “he or she.” I wrote about this phenomena ad nauseam, I mean, in detail in my last two columns. You may recall (again probably not) that after a futile struggle, I join the ranks of those who find the current use of “they” to refer back to a singular noun perfectly acceptable. My good friend Professor Marvin Zuckerman pointed out in my last column that “they” had been used in this manner for centuries, citing such writers as Shakespeare, Dickens, and Austen. Yet another writer notes that the use of “they” by these writers refers to characters speaking in novels and plays where informal usage is de rigueur. Using it in formal or expository writing may be another story. But whether in so-called informal or formal writing, gender neutral pronouns work, and provide for more succinct writing. Enough of “he or she,” and other awkward phrases occasioned by our language’s lack of a common gender third person personal pronoun. Some of that evolution is engendered by the long overdue acknowledgment of women’s contribution to our civilization. Now nearly a third of our state’s appellate justices are women. Our Chief Justice and two other women sit on our Supreme Court. Nearly one-third of our 106 Court of Appeal justices are women, and these include presiding justices. And that number may increase if ever I retire. And that’s a tough decision. I have been threatened with great bodily injury if I do, and great bodily injury if I don’t. But in evolving toward a more fair and equitable society where there is no discrimination, let us all acknowledge that “we are all in this….”
No intended obscenity in this column. So why the title? Because like so many other concepts based on beliefs or values, obscenity cannot be clearly explained. “I know it when I see it.” Justice Potter Stewart’s unforgettable phrase in describing – or should I say – his inability to describe obscenity but having little doubt about what it is. (Jacobellis v. Ohio (1964) 378 U.S. 184, 197 (conc. opn.).) He acknowledged, “I could never succeed in intelligibly [defining obscenity].” (Ibid.) He admitted with refreshing candor that he would not even attempt to define what materials fall within that definition. But he had no doubt in deciding whether the film, which was the subject matter of the case, was obscene. At the conclusion of his famous pronouncement he wrote, “[A]nd the motion picture involved in this case is not that.” (Ibid.) What a relief. Case decided. But is Justice Stewart to be praised or vilified for basing his decision on certainty without a specific concrete definition of obscenity? What could be more uncertain? Or is obscenity a concept that is so elusive and subjective that the definition can only exist in the mind of the beholder? Some have argued that films depicting scenes of violence are obscene. Hitchcock’s Psycho comes to mind. That I jumped out of my seat during the shower scene I attribute to expert editing. I still mourn for Janet Leigh. She had such a brief appearance in the film. How often does a major star die in the first few minutes of a major film? Why didn’t her agent bargain more forcefully for a change in the script? Sorry, I got carried away. Where were we? Oh, yes, obscenity. Not really, just using that as an illustration of a theme regular readers know I obsess over uncertainty. To say its presence is pervasive suggests it is something apart from what we perceive and think we know. Uncertainty simply is. Perceptions of what we are and how we behave are not universal. And judges are not exempt. The Jacobellis case illustrates the law is dynamic, reflecting changing mores and societal attitudes, often with the judiciary playing catch-up. At his confirmation hearing, then Chief Justice Roberts designate must have had his tongue inching along his cheek when he informed the inquiring senators that the Supreme Court calls “balls and strikes.” Yes, but it also changes the rules of the game. Courts interpret and apply the law to facts. The courts may interpret facts in various ways, but that interpretation must cohere. Facts may not be altered or changed. Woe to the lawyer who “stretches” or misstates the facts. But however faithful judges are to facts, their opinions are expressed in words. And the changing perceptions of how we interpret the world is reflected in our changing language. And words are what judges use to fashion their opinions. To add to the law’s uncertainty, it is unfortunate that many Supreme Court opinions are fragmented into separate concurring, dissenting, partially dissenting, and not quite concurring, and concurring with caution opinions. “Can’t they just get along?” Often, I ask myself, “So what is the holding?” And if I think I know what the holding is, do I have confidence it will apply in what I think is a similar situation? Yes, the tools of a judge’s trade are words. In addition to being absolutely sure that the facts are accurately stated, the words used to examine and analyze those facts may color how the reader responds to the opinion. In articles and lectures I have warned lawyers and my colleagues that facts should be powered by verbs and nouns. Beware of adjectives and adverbs. And let us be careful of how our words may be perceived. What is the middle ground between rigidity and flexibility? How do we balance sensitivity to changing mores against slavish adherence to what is politically correct? Let’s examine the first sentence of this paragraph as an example. “The tools of a judge’s trade are words.” Other than the sentence being unoriginal and trite, I am perfectly comfortable with it. Should I worry that a colleague or anyone would prefer I had used “profession” instead of “trade”? I hesitate to use the current “give me a break,” or “please.” No, on second thought, I will use them. This is a column not a judicial opinion. In judicial opinions and briefs we must be sensitive to our changing language and how expressions may be perceived or interpreted. For example, in my April column “House Arrest,” I wrote about my additional household chores during my current homebound COVID 19 quarantine, which included cleaning the toilets. In the final draft, I wrote that in evaluating my performance my wife was “stingy with praise.” In an earlier draft, I had written “niggardly with praise.” The origin of “niggardly” goes back to the 14th Century and comes from Middle English “nyggard” and means “stingy.” Of course, I knew it sounds like the extremely contemptible word that racists use to describe Black people. I originally thought that should not be a reason to use what had been a perfectly legitimate word before bigoted ignoramuses concocted a word that had a similar sound. Perhaps I was unconsciously uneasy. I showed my column to a few friends in addition to my wife before submitting it. They advised not to use the word. One of them, a close friend and a highly respected superior court judge, argued that substituting another word for “niggardly” would not be, as I contended, an overly sensitive capitulation to political correctness and the debasement of our language. Her counter argument was that closeness in sound to the two words makes any reader think of the contemptible word and detracts from what I am writing about. This has nothing to do with political correctness. So you know what I did. Was I right? Another troubling grammatical usage that concerned me was the use of “they” to refer back to a collective noun as in “when the jury decided the case ‘they’ had no trouble finding the defendant not guilty.” I generally used “the jurors” to correspond to “they.” I had a bigger problem with the proper pronoun for “the police,” or “the government.” And how about, “When a defendant asks for a lawyer, they are entitled to one.” This drove me nuts, but it avoids the cumbersome “he or she” and is gender neutral. And using “she” as the operative pronoun instead of “he” is like bragging how politically correct one is. I have it on good information and belief that this new gender use of “they” is being contemplated for use at the judge’s discretion in jury instructions. I discussed my initial discomfort with this ungrammatical use of “they” with my good friend Professor Marvin Zukerman, whose many books involve translations of Yiddish literature into English. He quoted sources that legitimized this usage. In a Dictionary of Contemporary American Usage by Evan Evans (1957), “The use of they in speaking of a single individual is not a modern deviation from classical English. It is found in the works of many great writers, including Malory, Shakespeare, Swift, Defoe, Shelley, Austen, Scott, Kingsley, Dickens, Ruskin, and George Eliot.” If it’s good enough for George Eliot, then I’m in. Notice George Eliot has both her first and last name mentioned. Yes, George Eliot was a woman and masterful Victorian novelist. Her real name was Mary Ann Evans. I let you guess why she changed her name. Hey, it just occurred to me George Eliot and I have something in common. We both have first last names. I wish we had more in common. But getting back to “they,” I am now convinced that if a person wishes to use “they” instead of “she or he” or “he or she,” they have every right to do so. Professor Zukerman points out that H.W. Fowler’s Dictionary of Modern English Usage (1965) says, “In colloquial usage the inconvenience of having no common sex personal pronoun in the singular has proven stronger than respect for the grammarians, and the one that is available in the plural is made to serve for the singular too.” And my Oxford Miniguide to English Usage (1983) at page 249 acknowledges that a grammatical difficulty “arises” because “English has no singular pronoun to connote common gender.” It gives examples where well-known writers, following earlier grammarians’ advice, used “his” when gender was not indicated. But at page 250, it states, “Popular usage… for at least five centuries favored the plural pronoun.” Example: “Nobody would ever marry if they thought it over.” G.B. Shaw. We can sum up how our language changes by Ben Jonson’s poem cited in Zukerman’s book Words, Words, Words (McMillan 1974). Much Phrase that now is dead Shall be recviv’d And much shall dye, that now is nobly liv’d If custom please at whose disposing Will, The pow’r and Rule of Speaking Resteth still. Ben Jonson (from English Dictionary, by E. Coles, London, 1717)
Now I know what it’s like. I am under house arrest. Yes, I know I am not the only one. But I have a probation officer. Her name is Barbara. She is tough and monitors my every move. It’s not a picnic. Her rationale: She loves me. It’s mutual. Imagine the many defendants on probation with probation officers who don’t love them. But I keep busy. I have gained expertise in cleaning toilets. I also assist changing sheets and dusting. But despite my herculean efforts, my probation officer never seems satisfied. Take cleaning toilets for example. I think I am good at it. My probation officer is stingy with praise, but encouraging, if you would call a long exhale with eyes looking upward encouraging. Once I went out without first checking with my probation officer. We need not go into the details of the violation hearing. After the plea of guilty with an explanation, the probation officer was on Amazon checking out ankle bracelets. Question: Is anyone reading this column during this crisis period of the pandemic crisis period? Doesn’t matter. I am still writing it. What else do I have to do? Plenty. The Second District Court of Appeal is open electronically. Staff and justices are in touch with one another via email. Research continues and so do writ conferences. In addition to my constructive duties at home, I, like so many others, am reaching out to friends with whom I have lost recent contact. I called my old (well, we both are old) law school classmate Joel Wallock. We reminisced about our experiences in law school so many years ago, 1960 to 1963. Yikes! I still remember the first day in class at what was then called Boalt Hall in Berkeley. Dean William Prosser, the famous Prosser on Torts, greeted the new class with these encouraging words, “Look to the right; look to the left. One of those persons will not be here next semester.” I looked to the right and then to the left and went into shock. I was sitting on the aisle. Speaking of shock, reminiscing with my classmate and friend Joel brought back memories, some of which I would like to forget. Example: My tax professor who knew the tax code and regulations by heart. The first day of the second semester he asked a question relating to a problem we had touched on during the remaining minutes of the last day of the tax class of the previous semester. That previous class had been taught by a different professor who displayed a rare quality I greatly admire: mercy. Several weeks had passed before the second semester began. I know you are way ahead of me. The tax class assembled for the first day of the second semester. I don’t have to tell you that the first question the tax virtuoso professor asked related to the problem briefly discussed at the end of the previous semester. The classmate who was first in his class and later clerked for five Supreme Court justices in five countries and rewrote the constitutions of seven emerging nations, taught at 17 law schools, and rewrote the Restatement of Law on six different subjects did not know the answer to the question. I do not remember the problem. How could I? One must understand the problem to remember it. But I do remember the professor’s interrogatory following his statement of the problem. “How would you resolve this conundrum… Mr. Gilbert?” The sighs of relief of my classmates reverberated throughout the classroom like the sighs of souls in Dante’s purgatory who were spared the descent into the inferno. What followed was not pretty. My cat, now deceased, was more compassionate with a mouse he once caught and “played” with until the coup de grace. My feeble attempts to rescue the poor mouse were as futile as my attempts to parry with the relentless questions of my tax professor. Robert Burns, who penned the poignant “To a Mouse, On Turning Her Up in Her Nest with the Plough,” would understand. This lying-in-wait ritual continued until mid-semester when my savant tax professor hit me with an extremely complicated corporate tax problem. I nailed it. I responded with alacrity and insight to his hypotheticals that required nuanced responses. He complimented me. Dante’s Paradiso shined its heavenly light upon me. The nods of approval throughout the classroom subsided as my classmates realized I would be spared for the remainder of the semester. One of them would be next. I gained a valuable insight from this experience which I pass on to you: studying pays off. Interesting that 40 years later this incident stays in my mind. My initial failure is far more interesting than a success story. Maybe that explains why Dante’s Inferno is so much more interesting than his Paradiso. But traumatic experiences spawn creativity. My role as sparring partner with my tax professor must have been the motivation to write a piece for an underground newspaper in Berkeley. I think it was called “Slate.” The piece I wrote was a parody of Kafka’s Metamorphosis. The paper titled the article “Student Bugged While Taking Exam.” I wrote under the ingenious pseudonym Arturo Gilberto to hide my identity. The disenchantment over my experience in tax class may have contributed to my decision not to attend my law school graduation. It turned out that the faculty graduation speaker was my tax professor. And his topic was a refutation of my article. Enough past reflections. Now I will get back to reading The Plague by Albert Camus. Hope this provided a respite from other concerns. As I mentioned earlier, our courts are functioning as best they can and appellate courts are functioning electronically. We are deciding cases. When this crisis ends, and it will end, the way we conduct business will change dramatically. And we will reestablish the in-person intimacy we need with other people. I urge you to take all precautions to protect your health and safety and to continue to work and be productive to the extent that is possible. To quote the Second District’s fearless and calm Administrative Presiding Justice Elwood Lui, “This is a time, not for paralysis, but for effort and ingenuity.” P.S. I do not have to ask who is our most revered lawyer, editor, and composer. Today is our dear Selma Smith’s 101st birthday. This is the day that the number of years she has graced the world with her presence exceeds by one the number of compositions she has composed. Barbara and I sang Happy Birthday to her over the phone. We traded several quips. We love you, Selma. Happy Birthday.
The Daily Journal is a legal periodical. Right? Any reader who disagrees, I advise not to read the remainder of this column. It is not surprising that numerous articles and columns in the D.J. are about recent Supreme Court, lower appellate, trial and federal court cases. The lawyers who argued those cases sought to achieve a satisfactory result for their clients. And the lawyers who represented the clients who prevailed (a better characterization than “won”) hoped the clients were satisfied. (Brief aside for columnist’s sudden recall from private practice decades ago: also hoped the clients paid.) Satisfaction all the way around is the best kind. Oh, you want to know why I prefer “prevail” over “win”? Trials are not sporting events. That the press, entertainment industry, or some clients characterize a “good” result as a win does not mean we in the legal profession should. The form and manner in which adversaries contest cases may bear a superficial similarity to opponents squaring off in a sporting match. But such a shallow comparison ends there. Whatever the result in a particular case, I like to think that when the judiciary is independent, justice wins over injustice in most, if not all, cases. But what about the precedential value of a case? The holding helps lawyers advise their clients about what is likely to happen if the client pursues a certain course of action. But to cover themselves, lawyers know there is no certainty in life or the law. The stock answer is: “It all depends.” And why is that so? Because different facts may or may not fall within the holding of a particular case. But many writers in this and other publications often express their perplexity in determining what is the holding of a particular case. And that is cause for concern. And can you believe? Even some of my opinions have been subject to that inquiry. There are insightful articles that appear in this and other journals concerning valuable techniques for writing coherent appellate briefs. Myron Moskowitz comes to mind. But I do not recall articles in the Daily Journal concerning tips on writing appellate opinions, even by anonymous writers. I won’t ask, “wonder why?” By now it should be obvious I am leading up to something. And this, in itself, may be grounds for criticizing this and other columns I have written. Why lead up to a subject? Begin with it –a good rule for an appellate opinion. But my test here is: If a reader takes the time to read the first paragraph, does she or he (or “do they” – an accepted deviation from proper grammatical usage) want to move on to the second, and so forth? If so, I reject the criticism. Now I forgot… oh, yes, what I was leading up to. Will save additional thoughts about opinion writing for another column despite the risk in doing so. Cannot be friends with everyone. To some extent I believe that problematic holdings in complex or hard cases are the result of something beyond or in addition to problematic writing. Ross Douthat’s column in The New York Times (Jan. 11, 2020) with the foreboding title “The Academic Apocalypse” caught my attention. I did not need Douthat to tell me the bad news from an article “Endgame” in The Chronicle of Higher Education. Douthat quotes the opening text, “The academic study of literature is no longer on the verge of field collapse. It’s in the midst of it.” I do not agree with Douthat on many political issues, but I do subscribe to his agreement with Professors G. Gabrielle Starr and Kevin Dettmar of Pomona University that the humanities “teach disciplinary procedures and habits of mind… [from which] we model a style of engagement of critical thought….” What has been taught and learned in the past is worth preserving and gives us tools for critical thought and expression. Neglected artists and thinkers from the past and from other cultures also should be embraced, but not studied exclusively as a replacement for the entire canon of what was written and thought in the past. To ignore works of the past because of the lifestyle or views of past thinkers is short sighted. Better to consider those ideas of the past that teach and enrich today. I could not bring myself to write “throwing the baby out with the bath water” or “separate the wheat from the chaff.” Hey, I just did. These bromides are no less true because they have been repeated … and repeated. I was inspired by Professor Herbert Morris, a philosopher, past dean of the humanities at UCLA, and a law professor at the UCLA School of Law, to teach a course for many years at our Judges College, along with retired professor and well known appellate lawyer Robert Gerstein. Our course focused on ways judges might decide hard cases for those in which there were no easy answers. To help students arrive at an approach to this task, they read selections from legal philosophy and literature. This included Shakespeare’s Measure for Measure, a multi-layered play that provides invaluable insights into our justice system today. Yes, a broad-based knowledge of the humanities makes for a more critical thinker who can articulate and write clearly. Many judges who took the course still tell me how it enriched them in ways that provided valuable insights into articulating the reason for their judicial decisions in addition to enriching their lives. As David Brooks pointed out in a column about education in Scandinavia (The New York Times, Feb. 14, 2020), our system of education now emphasizes “the transmission of specialized skill sets.” This is certainly an important component of judicial education. Learning the ever-changing rules of sentencing in criminal cases, navigating the complexities of class actions, and allocating property in family law cases are vital. So is being aware of bias and understanding norms of behavior in our multicultural society. I appreciate there are constraints on a judge’s time and energy. But there is more to being a good judge than mastering technical proficiency. There is more than doing and thinking only about how best to do the doing, more than learning the practical to accomplish the task. To be educated only in one’s profession is an impoverished education. I believe coherent holdings can be achieved with a broader understanding and appreciation of cultures, literature, and the arts, today and from the past. It leads to clarity of vision and clarity of style, and a little help from the Oxford Modern English Grammar and Strunk and White would not hurt.
Because Valentine’s Day occurs this month, and I love the law (most of the time), love requires honesty. I publicly state what I thought when I was practicing law, and what I knew for certain when I became a judge so many decades ago: Judges are not always knowledgeable. This is not an indictment, but an acknowledgement that we decide cases involving a myriad of subjects, about which we know… nothing. Through motions and evidence, we acquire the knowledge it takes to correctly, we hope, apply the law. Judges are perpetual students. Attorneys, who write briefs, motions, and arguments for them to read and to hear, are teachers. Whether admitted or not, everyone in our profession knows this. And the peculiar nature of this relationship is that the students, the judges, have all the power. Eons ago, when I was a college student, it appeared to me that students were true pupils, and their professors were, in fact, the teachers. Often the teachers imparted “knowledge” and, on occasion, wisdom to their guileless students. But of more consequence from the student’s perspective, was the teacher’s power to determine the student’s destiny. Recent conversations I have had with professor friends lead me to believe the student-professor relationship has undergone a radical transformation. This subject we will explore in a future column. Judges are sophisticated students (we hope), but they are not the last word. We have in our system an appellate mechanism to “correct errors.” But no matter what the particular profession, perfection is beyond human reach. The more we learn, the more we learn how much more there is to learn. Judges, lawyers, and all those who are called “professionals” bear the burden of expertise. We carry a mantle of authority that creates an expectation of competence in those who rely on our expertise. We make mistakes and can only guess what might happen in the future. Reversals and negligence actions may determine to what extent we are responsible for future events. It is easy to take credit for guessing right, but often painful when wrong. A friend of mine Dr. Joye Weisel-Barth is a psychologist-psychoanalyst. I have written about her in past columns. She is well-respected in her field and writes in a clear, compelling prose accessible to the lay reader. A few months ago, she delivered a paper entitled “Bad Faith and Analytic Failure” at the annual meeting of the Psychoanalytic Institute in New York. It will soon be published in The Journal of Psychoanalytic Inquiry. Dr. Weisel-Barth relates the story of one of her patients years ago when she was a new practicing psychologist, a story which to this day haunts her. It is not my purpose here to explore Dr. Weisel-Barth’s discussion of psychoanalytic snares, and how the existential concept of bad faith may adversely affect the patient-analyst relationship. The story, however, and its effect on Dr. Weisel-Barth bears a striking similarity to what judges and lawyers, and most everyone, experiences, how our decisions affect us and others. But we who have titles as professionals are expected to have the right answers. In those early years of her career as a psychologist, Dr. Weisel-Barth treated a 17 year old, David. Like many practitioners then and now, her office was a separate studio with a private entrance in her home. David’s mother was a professor of philosophy, and David was the “accident” of a sexual encounter in the “California commune culture of the 60’s.” The father? Who knows? David’s mother was not sure. She and her successful boyfriend were interested in David, but did not have adequate time to devote to him. His older sister was brilliant, and David felt like a neglected child. David suffered from social isolation, lacked motivation, had poor grades, and spent time alone in his room smoking dope. Dr. Weisel-Barth seemed to making progress with David. As the therapy progressed, David got a job, made friends, and thought about his family relationships. He was happy and looking forward to spending Christmas, only two days away, at his grandmother’s. He brought two gifts to Dr. Weisel-Barth, a box of candy and a marijuana plant in a small red pot. Dr. Weisel-Barth expressed her appreciation for the gifts, but told David she could not accept the marijuana. Possession was a crime then, and Dr. Weisel-Barth did not want her young children exposed to drugs. She tried to explain that to David. He seemed disappointed. Nevertheless, he left the plant on the doorstep where her young son found it and knew what it was. Dr. Weisel-Barth writes, “I don’t think he’s ever been more impressed with my work than at that moment.” Dr. Weisel-Barth looked forward to future sessions where she could work things out with David. What Dr. Weisel-Barth found out later from the mother’s boyfriend, and later from David in his jail cell, was this harrowing turn of events. Early Christmas morning David had an “awful argument” which ended with his mother and sister leaving for the grandmother’s holiday party without him. He was left home alone with the Christmas gift his mother left him, a rifle and ammunition. Looks like the mother also needed therapy. On the mother and sister’s return from the party, David shot the mother and watched her body twitching on the floor before she died. His sister gave him money and the car keys and “urged” him to drive to Mexico. He drove a few blocks and then returned and killed his sister because she had been a witness. Dr. Weisel-Barth visited David in jail and was horrified by his “emotionally barren and self-justifying account of the murders.” Dr. Weisel-Barth sees her treatment as a “therapeutic failure.” She blames herself for her revulsion of how the crimes were committed and her refusal or inability to deal “honestly with the affective therapeutic issues.” She concludes her revulsion at David’s brutal act and her desire to never see him again were violations of her therapeutic agreement with him “to deal honestly with the affective therapeutic issues: Bad Faith!” From my perspective as a layperson, I think Dr. Weisel-Barth may be too hard on herself. To what extent can a professional be so detached from her or his own emotions to always maintain professional detachment? Criminal defense lawyers constantly face this question. The practitioner is also human. In Dr. Weisel-Barth’s case, I wonder to what extent her rejection of the marijuana plant is a significant factor in her misgivings about her relationship with David. Is it possible there is, however weak, a causal connection? Dr. Weisel-Barth’s paper brought back a memory of a case that still haunts me when I was a young municipal court judge. Appearing before me was a young mother charged with neglecting to protect her four-year-old daughter from her abusive husband. Young Judge Gilbert did not impose jail time, but gently cautioned, or was it lectured her(?), on the importance of protecting her child. She smiled, thanked me, and promised to do all in her power to protect her child. I felt good at how I handled the case, perhaps a bit smug. A month or so later she appeared in front of me again, this time to have her misdemeanor case dismissed. Why? Because she had just been arraigned on a felony for the murder of her husband. As she looked “up” at me from the lectern where she stood with her attorney, she smiled with what I sensed was pride. Was she telling me, “See, I did what you asked. I protected my daughter”? I realize I may be placing too much importance on how I felt and what I said to this defendant. Like Dr. Weisel-Barth this event in my professional past still haunts me. But it opens for reflection and discussion to what extent an incident, a moment in our past, is significant within the endless chain of what we think is cause and effect. Is there more than a hint of self-importance even in the admission of what we perceive may be a failure? It all comes down to the unanswerable question of where notions of cause and effect lead and where it ultimately takes us. Are our decisions and actions a significant factor in a perceived chain of cause and effect, or is this just an imaginary construct? We do something and what happens later may have nothing to do with an earlier event. I hope to explore this dilemma in future columns, but for the time being I suggest we do the best we can and approach our decisions thoughtfully and with a great deal of humility.
New Year’s opening: no resolutions. At my age, it’s too late. And no clichés about it never being too late. Better to begin with a mea culpa. Everyone loves a mea culpa. The admission of one’s shortcomings is a real attention grabber. Lawyers who tout their victories are the biggest bores. Even I must endure these braggadocios now and then at legal functions. There are, however, occasional instances when a young lawyer, seldom an older one, apologizes for a bad oral argument he or she thinks they made in my court. I seldom do not have the slightest recollection of these misperceived failures. My usual reply: “Please, don’t give it a second thought, you were terrific,” or, if I have a slight recollection, “You were fine, and your brief adequately covered the salient points.” These “stretches” are not muttered under penalty of perjury. And if the foregoing raises questions about the value of the constitutional right to oral argument, I defer that perennial inquiry for another day. But here’s a hint. Write a good brief. My lapse occurred in my December 2019 column. I received almost as many responses to that column as those in which I have written about cats. I hesitate to bring this up because it was over such a small, I would argue, excusable mistake. I misspelled “de rigueur.” I wrote “di” instead of “de.” Well, it is a foreign word. I never said I was perfect. And, yes, I wrote in the December column that a decent writer knows whatever he or she writes is not simply written, but, if it’s worthwhile, rewritten. And that involves the tedium of going over what you have already written. It surprised me that no one noticed a logical inconsistency in a phrase I wrote in the middle of a sentence, “I often hug people on occasion.” I suppose I could defend this apparent contradiction by arguing that on various occasions, say a birthday or a special holiday, I hug people. But that is not what I meant to say. I often hug people whatever the occasion with what I think is an acceptable regularity; acceptable because the people I hug are often offended when I don’t. “What, I don’t get a hug?” So, after enduring the phone calls and emails about “de rigueur,” I ask or write, “But did you get …?” The response is an interruption with something like, “Get what?” “One of my points,” I respond. The reply is something like, “You make so many, it’s hard to keep track.” In fact, one friend complained that there are so many topics in my columns that he is confused. He informed me that his grammar school teacher taught the class that when writing an essay, it is absolutely necessary to stay with one topic. No doubt that explains why his grammar school teacher never taught in college, let alone in high school. I must confess to the inward satisfaction I derive from inserting a few obscure references, or an acrostic now and then, in my columns. This practice is to be avoided in opinions and briefs. See People v. Arno (1979) 90 Cal.App.3d 505, 514, footnote 2. I think I picked up this annoying habit from my days as a lawyer in private practice. Our cards and stationery were a refined parchment. The firm and our names were embossed in Bodoni typeface, named after an expert printer in the late 18th century. Not to be confused with the Italian painter Boldini. The senior partner commented that only one in a hundred people would appreciate the quality, but it was worth doing. We wore silk suits with monogrammed shirts. That was then. I became a judge so I could wear jeans to work. Please don’t report me. I call our court the think tank with tank tops. Where was I? (The grammar school teacher would disapprove.) Oh, yes, the one point in my column that few people “got.” Of course, one doesn’t write a column so that readers “get” a cryptic point that a self-involved columnist writes. So, this is not an indictment of those who missed a point that I “hid” in plain sight. This relates to one of the topics I explored in my December column – the prevalent and revolting use of profanity. To be clear, profanity has its place when used sparingly in an appropriate context. My specific gripe was about the use, or, more specifically, my use of a single syllable profane word that revolts me. I am sick of it, not because it is profane, but because it no longer is. It is used with such frequency that it has become boring and unimaginative. So, I devised a substitute word. The careful reader (that assumes with most evidence to the contrary that columns are read with care) might get my point. But who reads a column with care over a morning cup of coffee? In my December column, I did mention my substitute word – “Zygote.” Biology majors had little trouble defining its meaning, but not everyone made the connection I had in mind. No doubt this is due to the shortcoming of a columnist who does not stick to one topic. And who has the time, let alone the interest, to look it up in a dictionary? I suppose a better word would have been “gamete,” but that sounds too much like “Damn it!” Of course, a single syllable word would be superior, but I could not find one that has an association with the word it replaces. Oh, well. So, with this my first-of-the-year column, in which I am half-way through my 32nd year of writing Daily Journal columns, I wish you who have stayed with me, to this my penultimate paragraph, Happy New Year! Penultimate, because I just thought of something. We will know if it’s truly a happy new year in November. Yes, I know judges are not supposed to express their political opinions. But I have not done so. How the election turns out will make it a happy or hopeless new year. This depends upon who wins. From my point of view, if my candidate does not win, we are ZYGOTED!
This, my December column, occurs in the month when many readers may be vacationing, a perfect time to let it all “hang out” and admit to a flaw in my character. Isn’t that di rigueur these days? After writing the two previous sentences, in the first rough draft of this column, I had not yet decided whether I would in fact make such a revelation. Of course, you the reader will know whether I did because what you are reading, the final draft submitted to the Daily Journal, reveals my decision. I mention this as a courtesy to extend to those who have not already done so, the option to move on to some other piece in the Daily Journal. If you do, I sympathize. Like, who cares? Incidentally, the preceding paragraph proves that whoever the writer may be, most columns, essays, opinions, novels, grocery lists, are not merely written; they are re-written. “Written” includes dictating, scribbling, typing on a computer, an Underwood, Royal, or Olivetti. Advice to younger readers who do not know what the last three items in the preceding sentence are: visit the Newseum in Washington D.C. or delve into the past, if young people do that anymore. These days many people who, in one way or another have been censured, write books, make speeches, and give interviews, wallowing in mea culpas. What is the motive behind these shameless revelations? Perhaps it is the effort to save a career shattered on the unforgiving rocks of scandal, or maybe just the irresistible need to be noticed. This is to be contrasted with judicial revelations in the book “Tough Cases: Judges Tell the Stories of Some of the Hardest Decisions They’ve Ever Made” (The New Press 2018). I reviewed this book in my July 2019 column “Certainty and Solace.” In “Tough Cases,” trial judges from all over the country candidly wrote about their thoughts, doubts, and fears in presiding over and deciding cases, many of them high profile. To shamelessly quote myself, the book was “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.” That judges are human and not perfect is hardly a startling revelation, one that applies to all of us in all professions and walks of life. And being human reveals what is often the best in us as shown in “Tough Cases.” And in other cases, what is the worst. The standards of professional conduct in our respective professions compel us to monitor and refrain from certain activities. But we must take care that the image we seek to project through our profession is not a façade for who in fact we are. When a person in the public eye, whether judge, CEO, writer, painter, actor, musician, is “caught” committing a transgression, whether big or small, it is constructive for others in that profession to develop a heightened sensitivity over how their actions and comments affect others. See Justice Currey’s superb “teachable moment” in the recent case, Briganti v. Chow, 2019 Cal. App. Lexis 1168. But when such sensitivity is carried to extremes, we can lose our personality, our persona, our essence, who we are. For example, and this is not the flaw I mentioned at the beginning of this column, I often hug people on occasion, but only people I know well. My hugs do not discriminate on the basis of gender, race, religious affiliation, or political association. I admit, however, that lately I have been more circumspect concerning the last group. A few weeks ago, I ran into a female journalist I know and shook her hand. She asked in a bewildered tone, “What, I don’t get a hug?” Another example: I was walking down the street with some friends and passed a woman acquaintance. I yelled over to her “Hi Honey.” I was rebuked by one of our group for such demeaning familiarity. But her name is “Honey.” We are now closing in on obscenity and my flaw, well, one of my flaws — the use of obscene language. It is one thing to quote obscene language in a judicial opinion without sanitizing it with *@#!ing. A few years ago I invited readers to weigh in on the practice of quoting obscenity, spoken or yelled by witnesses and parties, in a judicial opinion. The overwhelming majority of readers voted it should be quoted if relevant to the issues or necessary to capture the flavor of the narrative. If a police officer asks a defendant a question and the defendant yells an obscenity at him, that obscenity might be quite relevant to what follows. But by virtue of the judicial office, a judge whether or not acting in her or his official capacity would be well advised not to shout an obscenity when frustrated or upset when others are nearby. So, there you have it. I often utter, shout, bellow, a single syllable repugnant word often, too often. This obvious word is used these days with such rhythmic regularity that it has lost its vitality. Lawyers often use this expletive when they receive adverse judicial rulings. Come to think of it, I was once a lawyer. No wonder. But unlike others who have confessed to misdeeds, I offer no apologies, no excuses, no pleas for forgiveness. Instead I have remedied my repetitive misdeed by way of a liberating substitute word that is reformative, and subtle; nothing unimaginative like the obvious and insipid “FUDGE!” I do acknowledge, however, that FUDGE bears the positive attribute of one syllable. The problem with my substitute word is that it has two syllables. But if uttered or yelled properly with the emphasis on the first syllable, this deficiency is slightly mitigated. This takes some practice. And I must also admit that my substitute two syllable word does not work well when used in the past tense. In this respect, even the boring “FUDGE” works better as in, “I’m FUDGED!” By the way I have gone on record supporting a proposed new rule governing judicial conduct. It would allow judges challenged in a recall election because of an unpopular decision to comment on the procedural and factual basis for the ruling within certain guidelines. This rule may be expanded to allow judicial colleagues to also comment on the controversial or unpopular decision to explain its rationale. If I think a judge or anyone for that matter is the object of unfair criticism and I can speak up in their defense, I will. When I see an injustice I yell… ZYGOTE! Postscript: Last week one of our premier lawyers David Pasternak passed away after keeping cancer at bay for many years. I did not hesitate to include this postscript about David despite the tenor of my irreverent column. Well, most of them are. And David would insist if I am going to say anything about him, it should be in a column such as this one. He had a curious sense of humor. He was president of everything including, the State Bar, the Los Angeles County Bar and winner of numerous well-deserved awards. He was a mensch, loved and respected by everyone. The last time I saw David was at a Dodger game with his childhood friend attorney Marc Sallus. Sallus noted that in addition to David’s brilliance and warmth as a human being, he was an “adventure.” To be more precise, when behind the wheel of a car, David provided passengers an adventure. That is one thing he and I have in common. David, we won’t forget you and you continue to be the model we strive to follow.
I had planned for this column to appear as my last month’s September column. The only problem is I missed my self-imposed deadline. And this, in turn, requires a slightly different approach to my subject. A few months ago, I had the privilege of attending a symposium (sounds too intimidating) – how about a discussion between two distinguished constitutional scholars. Professors Adam Winkler, UCLA School of Law, and John Yoo, UC Berkeley School of Law, discussed their perspectives concerning the past term of the U.S. Supreme Court and what this augurs for the now new term. Their thought-provoking analysis was moderated by preeminent Superior Court Judge Mark Epstein (preeminent better than eminent). Most readers are familiar with the works of Winkler and Yoo. (Arrangement of names has nothing to do with favoritism. Winkler and Yoo more rhythmic than Yoo and Winkler.) To recite even snippets of their respective curriculum vitae would fill this column. Their books and articles challenge us to ponder and question. Question what? That I leave to you, dear reader. Just hope it isn’t, “What am I doing in the legal profession?” A good portion of their discussion was devoted to speculation concerning what the high court will decide before the national election. This took place at the Stanley Mosk Courthouse in Los Angeles. Digression #1. Columnist’s self-involved note that has nothing to do with the remainder of this column. Would have worked better had I written this column more than a month earlier, so that it could have been published the day after Labor Day. Stanley Mosk administered the oath of office to me, an officious way of saying, swore me in, as a judge of the Los Angeles Municipal Court on Labor Day, 44 years ago. (Yawn.) The municipal court no longer exists. Please note this digression does not appear in a footnote. Perhaps it should have, but I left it in the body of this column to segue to another annoying digression. Digression #2. Footnotes. They should be used sparingly in judicial opinions and almost never in columns. For the sake of comity, here I omit from this admonition law review articles. I have omitted detailed analyses of Supreme Court opinions referenced in the discussion. My reason? To write about them, one must understand them. I recall a journalist referring to the writing of a particular Supreme Court opinion as “impenetrable prose.” And there is another reason I eschew this onerous task: too many concurring and dissenting opinions… and … too many footnotes. Because Winkler and Yoo were so open and candid, I decided not to quote them directly. What follows is simply my gloss on their perspectives. This approach benefits them in the event subpoenas are issued. Better I appear at a hearing than they. I am older. See digression #1. An obvious principle one draws from any discussion about the U.S. Supreme court is the one we all know with certainty: certainty is not a staple of the law. The professors stressed that before the appointment of Justice Kavanaugh, the court shied away from deciding critical and controversial issues unless it had to. So why talk about what the court might do, much less write about it? Professor Yoo suggested it is like predicting the outcome of a baseball game. Point proven with the Dodgers’ fifth game. I think we do it because it’s fun to be terrified, or… hopeful. And fretting about and predicting the future are endemic to our species. Two important issues that were explored in the past term, however, are worth noting: stare decisis and administrative law. These issues, dare I say, are certain to be explored in the next term. Hope I haven’t lost any more readers. The justices had something to say about stare decisis when considering the double jeopardy clause in Gamble v. U.S., 139 S.Ct. 1960 (2019). (Whoops, just cited a case.) The high court did not overturn the longstanding dual-sovereignty doctrine. Defendant could be prosecuted for the same firearms violation under Alabama law and federal law. This was not considered the same offense even though the conduct is the same. The rationale to support this result is the dual-sovereignty doctrine. In an opinion by Justice Alito, the majority was reluctant to overturn 170 years of precedent. In a concurring opinion, Justice Thomas gave short shrift to precedent when reliance on it is demonstrably wrong. His solution is simply not to follow it. He has little use for the view expressed by Justice Breyer that we give consideration to precedent that is embedded in our national culture. Thomas argues if it is wrong, we overrule it. (Gamble, p. 1986.) When I think of Brown v. Board of Education, I see Justice Thomas’s point. He did, however, concur with the majority. There were two dissenters. Easy guess that Justice Breyer was not one of them. And easy guess about one dissenter in contradiction to my uncertainty principle, Justice Ginsburg. She agrees with Justice Thomas’s views about stare decisis, but rejects its application when it comes to double jeopardy. “Stare decisis is not an inexorable command,” citing Payne v. Tennessee, 501 U.S. 808. 828 (1991). Guess who wrote the other dissent? May I add the adjective “convincing” to “dissent”? Justice Gorsuch. But he is a likely ally of Justice Thomas in giving scant consideration to precedent when it is “troublesome.” In Franchise Tax Bd. v. Hyatt, 139 S.Ct. 1485 (2019), an opinion by Justice Thomas, the Supreme Court overruled Nevada v. Hall, 440 U.S. 410 (1979), and held that states retain their sovereign immunity from private suits brought in courts of other states. Apparently precedent was troublesome. On behalf of the dissenters, Justice Breyer argued, “The majority believes that Hall was wrongly decided. But ‘an argument that we got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent.’” (Franchise Tax Bd. v. Hyatt, p. 1505.) It was opined that if Justice Thomas has his way, precedents established in Gideon v. Wainwright, New York Times v. Sullivan, and Batson v. Kentucky, to name a few, would be overruled. See Thomas’s dissent in Flowers v. Mississippi, 139 S.Ct. 2228 (2019). And note majority decision written by Justice Kavanaugh. Another big issue on the horizon is to what extent the high court will curb the rise of the “administrative state.” How will the court deal with the so-called Chevron doctrine, Chevron U.S.A. Inc v. Natural Resources Defense Council, 468 U.S. 1227 (1984). Is it likely that federal courts will continue to be compelled to defer to federal administrative agencies’ interpretation of their own ambiguous rules? And there are those troubling gerrymandering and census population issues. So many questions. Do 5-4 decisions make the court seem political? Will Chief Justice Roberts secure allies in his apparent attempt to preserve the public’s perception of the court’s legitimacy and make it appear nonpartisan? Since the time of the bull session with Professors Winkler and Yoo, we now know the many issues the Supreme Court will hear this term. They include rights of gay and transgender employees in the workplace, DACA regulations, and abortion rights. Anyone certain about how these cases will be decided? I am chastened by game 5. “Go Dodgers” has a hollow ring. So does certainty. But one element of certainty occurred in the delightful exchange between Winkler and Yoo. Keep in mind that Professor Winkler is a frequent speaker on the Supreme Court at the progressive American Constitutional Society, and Professor Yoo speaks often before the conservative Federalist Society. Though at times each held opposing views, they took stock of the other’s perspective and often acknowledged the reasonableness of another point of view. This was all done with good humor, wit, and civility. Would like their talk to be required listening for Congress. Justice Gorsuch would approve. In his new book, “A Republic, If You Can Keep It,” he argues that civilization’s essential ingredients are “civics and civility.” Not so, argues Michael Hiltzik in an article in the Los Angeles Times last month titled “Gorsuch’s call for ‘civility’ is really a defense of privilege.” Hiltzik argues that civility is a way of keeping malcontents quiet. This appeal is “aimed at shutting down debate, not promoting it.” Hiltzik points out that equality, more than civility, is civilization’s essential ingredient. Sometimes the public is compelled to rise in fury. That may be a necessary last resort in extreme cases. But not when colleagues on a court, a legislature, or any deliberative body meets to discuss and resolve issues. I just hope that after conclusion of this Supreme Court term, I do not ask a question like the one on my mind this past week. How could they lose game 5?