Thursday, December 21, 2006

Education for Judges- A Flu Shot

Yesterday I got a flu shot. No one made me get it. I did it on my own. Of course I could still get the flu. If so, I can take some comfort that at least I had tried to prevent it, and could rationalize that without the shot, my flu might have been more severe. But what if I did not get the flu shot and got the flu? I would have this demeaning discussion with myself. Despite my weakened condition I would be the object of derision and scorn heaped upon me by myself. It is not pleasant to call yourself an idiot. (For the benefit of the Daily Journal's refined readership I have omitted the adjectives that precede the word "idiot.") While in bed, shivering with chills, trying to swallow with a sore throat, I would have looked back months earlier and agreed that a mandatory flu shot would have avoided all of this.

But does that mean that mandatory flu shots are preferable? The subtle change in the hypo would not change my view because I had the benefit of hindsight. It is likely, though not a certainty, that I would have avoided the flu with a mandatory flu shot. I might not be so sanguine about a mandatory flu shot, however, when it is administered without the benefit of a glimpse into the future. The word "mandatory" does not sit well with most people. This includes judges. Now there's irony for you. Judges, like me for example, who make mandatory pronouncements daily that make people go to jail or pay money, or do something, or stop doing something, bristle when on the receiving end of "mandatory."

But wait a second. The doctor who is treating me for the flu attends mandatory continuing education programs. If my doctor did not take these programs or even voiced a strenuous objection to taking them, I would seek medical advice elsewhere. Most people profess to take the notion of education seriously, even high school drop outs. The insight usually occurs later in life. Education is mandatory for kids, and for an array of professionals including lawyers, doctors, accountants, veterinarians, mortgage and real estate brokers, to name a few.

So should mandatory education be required for judges? On October 20, the Judicial Council will consider recommended proposed Rules of Court that would require minimum education requirements for trial judges, 30 hours over three years. The devil may be in the details, but the rules can be modified and tweaked to satisfy a broad range of educational needs. But what of the concept itself? Judges on the trial and appellate level have voiced passionate concern over the issue, offering arguments for and against. The California Judges Association (CJA) through its Executive Board has expressed the firm belief that education is a "core duty of every bench officer," but is opposed to mandatory education.

California has rightfully earned a stellar reputation for having the most advanced and comprehensive judicial educational program in the world. Educational programs put on by CJA and the Center for Education and Research (CJER) draw record attendance. I have attended and taught at many of these programs and come away enlightened and renewed in my enthusiasm for my work.

With such high attendance and support for education from the vast majority of California judges, why are some so against mandatory as opposed to voluntary education? One primary concern is that mandatory education threatens judicial independence. But does it? The rules for mandatory education are promulgated by judges and will be implemented by judges. Judges have no say over what they can wear on the bench, but I hear no complaints that this undermines judicial independence.

Section 68110 of the Government Code requires judges at their own expense to procure a judicial robe which they shall wear when presiding over cases in open court. What's more, the Judicial Council prescribes the style of the robes. Rules of Court, rule 299 requires that the robe be black and extend in front and back from the collar and shoulders to below the knees, and have sleeves to the wrists. Moreover, the robe must conform to the style customarily worn in courts in the United States. Want to wear a short sleeved navy blue robe when the letters J-U-S-T-I-C-E on the front? A judge can do so at the dinner table, but not on the bench.

And what do we mean by judicial independence? In fact, we are dependent, and ironically, our independence depends upon it. We are dependent on the public we serve. I am not speaking about the unhealthy co-dependent relationships that psychologists speak of. Nor do I speak of the inappropriate dependence that would be reflected in judicial decisions that take into account the mood of the moment. This instead is a healthy relationship where judges take into account the public trust necessary to a free and independent judiciary.

True, candidates for judicial office undergo a rigorous examination concerning their suitability for this important office. The dedicated Commission on Judicial Nominees Evaluation (JNE) conducts an exhaustive investigation free from the influence of the appointing authority. But after a judge takes office the public can reasonably expect the judge to meet more than the minimum standards of competence and knowledge of legal principles. There is also the legitimate expectation that judges be cognizant of the diverse cultural mores of our communities and be aware of how the administration of justice is perceived by the public. Indeed, the commitment to mandatory education from the judiciary itself tells the public that judges take their awesome responsibility seriously.

It is true, that courts are constantly engaged in a process of education through the very act of judging. But educational programs give judges not only a comprehensive view of substantive law, but expose them to different methods of judging and help them become aware of how new technology and values in a rapidly changing world affect the administration of justice. Moreover, the excellence of the judicial programs now planned and taught by dedicated judges would in no way be diminished if the programs were mandatory. Forty-two states require judges to have mandatory education. Why not California?

Many judges in favor of mandatory education point out the "political downside" to rejecting such a proposal. We should not tell the voters that the rules that apply to other professions simply do not apply to judges. Should we appear as the stern Judge Angelo did to Isabella in Shakespeare’s Measure for Measure, Act 2, scene 2, “ . . . man, proud man, (and woman) Dressed in a little brief authority, Most ignorant of what he is most assured?” Should we hand this responsibility over to the legislature?

Some of my colleagues from the First Appellate District have endorsed judicial education for trial and appellate justices. They have remarked that “supplemental education programs administered by the judicial branch will affirm California’s commitment to judicial excellence and will enhance public confidence in the courts.”

The Judicial Council will vote on the proposal for mandatory education on October 20. We should avoid unpleasant consequences in the future. A mandatory flu shot can be a good thing.

Going to the Dogs

Dog- gone it, ( a euphemism for what I'm thinking.) To stay with the metaphor, I am dogged by complaints of people I know unleashing on me their dissatisfaction with perceived misdeeds of the judiciary. Not my misdeeds, mind you but those of others. They are barking up the wrong tree. Is every law abiding ethical CEO responsible for the Enron scandal? Is any judge responsible for the decisions of other judges? How, I ask you can I be held accountable for the occasional miscreant who appears on the scene?

Case in point. People are still complaining to me about the "judge" who several weeks ago, ordered a victim of spousal abuse seeking a restraining order to leave his court or risk arrest and deportation. Well, first of all, he was not a sitting judge. He was a Pro Temp, an attorney volunteering his time to "help out " the Los Angeles Superior Court with its caseload. It appears he didn't help the court, the victim or enhance the public's perception of how the court dispenses justice. But the Los Angeles Superior Court acted with alacrity. It figuratively ordered him to leave the courtroom, or more specifically, it removed him from the list of pro temp judges. The victim who the judge pro temp ordered to leave the courthouse, ultimately had her day in court and another judge granted her request for a restraining order. So a mistake was rectified and justice done. And I hope the public understands that this one isolated incident is not a reflection on the dedicated attorney volunteers who offer their expertise and devote their time to help the court.

Glad to get that off my chest. But on second thought I know about this incident only because I read about it. Judges are supposed to hear all sides of the story before making a decision and here I am making a judgment without hearing the pro temp's side of the story. True, he used bad judgment but could his motivation have been benign? He is reported to have mistakenly believed that he was helping the victim by alerting her to the possibility of arrest.

So why have I considered the sliver of a possibility that the ex judge pro temp may have had a plausible explanation for his actions? I think it is because judges of all stripes often take it on the chin for their misunderstood rulings. I remember back some thirty years ago, when I was a municipal court judge. Despite the awesome power we judges wielded in deciding misdemeanors, one thing struck terror in our hearts, the Appellate Department of the Superior Court.

Its presiding Judge, now a distinguished Judge on the 9th Circuit Judge Arthur Alarcon reminded us that for all intents and purposes the appellate department was our supreme court. That alone was enough to scare the daylights out of us. At this time before word processors were in use in the court system I thought the opinions were prepared and mimeographed by the typing class at Le Conte Jr. High School. "The left turn was safe. Reversed."

I recall the time a Commissioner's finding of guilt on a traffic infraction was reversed by the appellate department. The appeal by a pro per defendant stated adequate grounds for reversal. The defendant also alleged that the Commissioner made numerous inappropriate comments during the trial. The appellate department's opinion stated that if the allegations were true, the commissioner's conduct was unacceptable. But the alleged conduct had not been proved, much less shown any where in the record. I knew this commissioner and it was inconceivable to me that he could be guilty of these allegations.

This is just another indication that a judge's judicial life is not a bed of roses. Even judges who have passed away are not free from criticism. The famous Judge Charles Fricke who died in 1958 is still taking heat for the trial he conducted in the famous Sleepy Lagoon case in 1942 on which the musical Zoot Suit is based. People v. Zammora, 66 Cal.App.2nd, (1966). The Los Angeles Times recently devoted an article to him. Aug. 20th 2006. My friend Alice McGrath who assisted the defendants and their counsel during the trial argues that the manner in which Fricke tried the case reflected bias. Enter again my colleague Judge Alarcon who had tried numerous cases before Fricke, and read the trial transcript. He disagreed with this assessment, and points out that the reversal by the Court of Appeal was not based on bias or racism but error in the admission of evidence. The appellate court found the evidence insufficient to show defendants conspired to commit murder. Ibid at pg.201-202. The appellate court also chastised Judge Fricke for disparaging remarks he made about defense counsel in the jury's presence. Ibid at pg. 215.

Interestingly Judge Fricke's name appears in an article in the Spring/Summer 2005 newsletter of the California Supreme Court's Historical Society. The engrossing article by Kathleen Cairns is about the conviction in 1935 of Nellie May Madison for the murder of her husband. But for a commutation of her sentence by then Governor Merriam she would have been the first woman to receive the death penalty in California. Judge Fricke was the trial court judge and actually testified for the prosecution. The Supreme court in People v. Madison, 3 Cal.2d 671 (1935) approved of Fricke's conduct. It was proper for him to testify for the prosecution about a witness's statements about the interval between shots because that testimony "did not appear in the record and the trial court timed it." At page 679. Lest we be too quick to condemn Fricke, Ms. Cairns points out that the decision tells us much "about judicial attitudes and procedures in the 1930s."

But trial judges can be reversed, and on occasion chided by some uppity court of appeal. Even a graciously written reversal can be devastating to any judge. Recently I was reversed by the California Supreme Court. I was more shocked than upset. When I received the Supreme Court opinion, I said aloud to no one in particular, “Dog gone-it. How could seven intelligent people all be wrong?”

Just as I was about to howl about my sentiments, I thought back to what I had just said aloud. “Dog gone-it.” Of course that was it. What every misunderstood judge should have. A dog. Dogs don’t care about reversals or even affirmances. They are there for you no matter what. Their love is unconditional. For cat lovers, a weakness to which some including this writer have succumbed, it is your unconditional love for the cat that is mandatory. Ask any cat.

But dogs. They are good for judges because they don’t judge. A dog’s tail will wag for a judge that has been censured by the judicial performance commission. Well that may depend on the breed. I am talking about dogs and judges.

But judges can carry their relationship with dogs too far. Take, for example, Judge Noel Canon. See Cannon v. Commission on Judicial Qualifications. 14 Cal.3d 678. She was removed from the bench for some bizarre behavior, including having her dog sit in her lap while she conducted trials from the bench. Some of the dog’s rulings reflected unfamiliarity if not disdain for the Evidence Code.

When she was removed from the bench, Judge Canon's dog, (I think it was a high strung Chihuahua), is reputed to have made commercials to supplement her mistress’s income until a highly publicized dispute with Actor’s Equity ended that. But it does show a dog's devotion.

But I wonder if all breeds of dog show such loyalty to their owners. I have no question about Sergeant Preston and his Husky King. But do you think a Pomeranian would display the loyalty of Judge Canon’s Chihuahua? I mention this because of an ad I saw in the Los Angeles Times.

In thick bold white letters against a blue background, appear the words, “Pomeranian.” Beneath the letters is a photo of an orange Pomeranian sculpture, "actual size 8 3/4 in height. Yours for only $59.60. Allow 4 to 6 weeks for shipping after initial payment."

The ad pitchs the “meticulously crafted figurines” as if they were real dogs. It rhapsodizes about a Pomeranian’s “intelligent eyes” and “friendly expression.” It speaks about how this breed is “outgoing and friendly” and “always ready to play.” The ad then urges you to buy a “figurine” to bring the “irresistible charm of this beloved breed into your home.”

You can also get a black one if the orange one doesn’t appeal to you, or maybe get both. Or maybe get two of a kind. That way one won’t get lonely. The photograph of the head of the black Pomeranian is creepy. It looks a bit like a vampire bat. I haven’t seen all that many Pomeranians, but I am sure I never saw a black one. There are black labs, black poodles, black cockers, but are there really black Pomeranians? But I’m getting off track.

The ad raises some questions. Has any one seen a Pomeranian lately? Haven't seen any in my neighborhood. Maybe people are embarrassed to be seen with them. Would a misunderstood judge be cheered at the end of the day by a yapping, I mean barking Pomeranian? . I don't know but if the judge pro temp who ordered the victim out of his courtroom does not have a dog, I would be willing to send him a Pomeranian figurine.

Governor Does the Right Thing

Hooray for Governor Schwarzenegger!. Did I just say that, me, a Democrat? I voted for Gray Davis three times for Governor. And yet the first sentence of my column is a commendation for Governor Schwarzenegger. But what does my praise have to do with my party affiliation? Absolutely nothing. Maybe that is because sincere and well deserved praise, and criticism too, should stand on its own irrespective of party affiliation or other extraneous considerations.

Lest the preceding sentence introduce too sanctimonious a tone, let’s get back to Governor Schwarzenegger later. I guess you know where this is leading. It’s about that troubling judicial election last month.

No doubt you have heard and read quite enough about the election of Lynn Olson to the Los Angeles Superior Court. Editorials, articles, opinion pieces, and letters to the editors have exhaustively dissected this “upset” election ad nauseam. So why am I writing about the same thing a month later? See, I was out of town when the election results were posted in the Daily Journal. When I learned the results upon my return, I was numb. It was the same feeling I had when Judge Alfred Gitleson was defeated in a judicial election in 1970, the year that marked the end of clear election sailing for judges. His opponent had been rated "unqualified" by the Los Angeles County Bar Association.

I had to wait for the numbness to wear off this time before I could process the news that Ms. Olson had defeated Judge Janavs. Then I was overcome with guilt. You see I heartily, enthusiastically endorsed Judge Dzintra Janavs. This was an unsolicited offer. I endorsed her because along with countless others, I know her to be a judge of exceptional ability. My motives were partly selfish. She brings distinction and excellence to the bench. Judges of her caliber enhance the judiciary. Months ago I was at a legal function where I found Judge Janvas standing near me at the table of munchies. We chatted and I said while nibbling a carrot stick, “By the way I would be glad, in fact honored to endorse you-- if you don’t think it would be a liability.” A little joke there at the coda. I think she understood me. She graciously laughed, and thanked me for the endorsement. Perhaps this sounds ego-centric, but maybe there was some truth in my feeble humor. You don’t think my endorsement contributed to the result do you? Hello! I didn’t hear your answer.

Whatever my contribution, I have had time to reflect on this terrible outcome. I have heard the accusations against Ms. Olson and her responses, and read the many editorials, articles, and letters to the editors concerning this disturbing election. And having a few weeks to mull things over, I offer a few observations. My motivations are selfish because I want to divert attention away from my being a possible cause of this election gone awry.

So let’s get back to what I was saying earlier about Governor Schwarzenegger. What was it? Oh yes, I was praising him and I might have said something about my being a Democrat. That just sort of slipped out. Oh, now I remember. I said something about praise or criticism should have nothing to do with party affiliation. Is this point of view a reflection of naivety or my profession? A politician’s party affiliation is usually pertinent and relevant to the voters, but a judge’s party affiliation is not relevant.

“Not relevant to what?” a nameless person who is a composite of the general public asked me.

“Not relevant in the mix of criteria you use to evaluate a judge’s performance. What is that you are muttering?”

“Give me a break.”

“Nice colloquialism. Go ahead. Take a 'break' to elaborate."

“Thanks, dude. But don’t tell me party affiliation is not relevant in the decision to appoint judges.”

”Yes, often it is, but not always. But once the Republican, Democrat, Independent, Wobbly, whoever takes the oath of office, then party affiliation is not relevant.”

“Now we are back to square one. Not relevant to what?”

“To the decisions and rulings the judge makes.”

“We the composite public just don’t buy into that. And you, Judge, just admitted to being a Democrat.”

“Yes, but only to illustrate that my party affiliation has nothing to do with my praise of the Governor in this instance. In United Sates v. Nixon, 418 U.S. 683 (1974), for example, president Nixon's appointees to the United States Supreme Court ordered him to produce certain tape recordings and documents during the Watergate investigation.

“You sure they were Republicans?”


“O.K. but that was an exception.”

“No it isn’t. Most judges make every effort to put aside their personal beliefs and prejudices and decide cases on the merits, the facts and the law, and not their preferences.”

“Even if I accept your shaky proposition, if judges had their party affiliation listed on the ballot, I would vote for the ones that belong to my party.”

“And what is your party?”

“Judge, if you would pay attention, you would remember that I am a composite, a number of parties, and points of view rolled into one.”

“So a part of you voted for Lynn Diane Olson, the non practicing attorney who makes bagels instead of legal arguments, the candidate who the Los Angeles County Bar Association rated ‘unqualified’ to sit on the bench.”

“Most of me did. And by the way, to bring up bagels is a cheap shot and detracts from the objectivity of this interview.”

“I suppose you're right. Sorry. But how could ‘most of you’ vote for someone who is not qualified?”

“Most of me didn’t even know what her rating was.”

“The judge she defeated, Judge Dzintra Janavs, was rated “exceptionally well qualified” by the County Bar Assoc. She is one of the most able, conscientious and well respected judges to sit on the Los Angeles Superior Court.”

“Most of me didn’t know that either.”

“Did you know that Judge Janavs is a Republican?”

“Yes, that’s why a large part of me voted for Olson.”

“You irritate me no end.”

“Got something against Democracy?”

I didn’t ask any more questions. This was about one of the most exasperating interviews I have ever conducted. Sure democracy is not all that tidy and people get to vote however they wish and for the most arbitrary reasons. But it is perfectly legitimate to ask and question how this election turned out the way it did. In the Crawford case, Judge Gitleson decided that the law compelled him to order the school board to adopt a desegregation plan for the school district in Los Angeles. He lost the election, not because he was a bad judge, but in fact because he was a good judge. His party affiliation had nothing to do with his decision.

Why did Judge Janavs, another good judge lose the election? Ms. Olson, a Democrat, has been reported to say that she chose to run against Janavs because Janavs is a Republican, and not because of Janavs' foreign sounding name. That may be so, but there is still a triable issue of fact about how and why this election was won by Ms. Olson. Ms. Olson may be a Democrat, but her party affiliation tells us nothing about her qualifications to be a judge. Campaigns, however, can give us insight into character, integrity and values, important qualities we look for in judges and office holders.

I acknowledge that some lawyers voted against Judge Janavs because they disliked her rulings in rent control cases. I cannot speak to the legitimacy of their criticism, but should that be the basis to vote for an unqualified candidate who has never made a judicial ruling in her life? Time will tell what caliber of judge Ms. Olsen will be.

But the wrong that this election created can and will be corrected. Governor Schwarzenegger plans to re-appoint Judge Janavs to the Los Angeles Superior Court. An editorial in the Los Angeles Times last month, chalked up the defeat of Judge Janavs to “politics” and mildly rebuked the Governor for re-appointing Judge Janavs. The Times complained that we cannot pretend to respect the voters when we overturn their decisions. Nonsense. The voters got the candidate they apparently wanted. The voters also elected the governor who has the power to appoint judges. Here, the governor acted in the public interest. He insured the high quality of the Los Angeles Superior Court by keeping Dzintra Janavs, one of its most able and conscientious judges on the court. That’s good politics. And that’s democracy.

A Catty Legal Problem

Ask lawyers and their clients this question: Judges know the law-true or false? Their answer depends upon whether they won or lost their last case. I’m not even sure what it means to “know the law.” In fact, judges often rely on lawyers to educate them about the application of law to the facts of a particular case and hope to discern when they are mis-educated.

But many people think that judges are presumed “to know the law.” If judges knew the law so well, why do they ask so many questions? “Counsel, would not collateral estoppel apply here?” More often than not this isn’t a mere rhetorical device to stimulate discussion. But have you ever heard a judge outside of the courtroom admitting he doesn’t know the answer to a question, legal or otherwise? Has anyone ever heard a judge ask a lawyer at a bar function to explain what is a retraxit?

By now dear reader you may have guessed that I am leading up to something. I have a legal problem and I don’t know my rights. It is easier to make this admission to you, anonymous reader, than to a person standing before me whose stifled laughter I would notice.

My legal problem can be summed up in one word-CAT, not a tractor or Computerized Axial Tomography, mind you. They at least do some good and they don’t scratch furniture. O.K. I am a little upset. So just pretend I am a client sitting across the desk from you. If you are not a lawyer, pretend anyway. If I include facts that are not pertinent, please bear with me. Remember, I am a client.

So here is what happened. We had this cat, Boz. He showed up at the Court of Appeal, a mere kitten, about 16 years ago. So I took him home and he has been with my wife Barbara and me ever since, that is, until he died about a year ago. He was ill, but we made the last several months of his life comfortable. For example, we held off remodeling our house until he passed on. I don’t have to tell you how much construction costs increased when we finally began the project.

After the passage of an appropriate time, we had planned to get another cat to fill the void in our lives left by Boz. If a spouse dies, you don’t just go out and get married the next month. But cats are animals, selfish ones at that, and the appropriate grieving period is much shorter than it is for humans. Twenty-four hours is a little tight. So we thought we would wait a week or so.

There must be something in our karma, or maybe it has to do with our astrological signs, or maybe the word goes out in the feline community when there is a vacancy at the Gilbert residence. It never fails: cats always show up on our door step just at the time we are contemplating getting one. I don’t even know what it means to buy a cat. Do people actually buy cats? I wouldn’t be caught dead with an expensive Persian wearing an emerald collar around his neck.

Anyway, as ironic as it seems, a lovely elderly lady who lived up the street died around the same time as Boz. She didn’t exactly have a cat, but one lived on her roof for about a year. Her caretaker fed the cat, not on the roof of course. The cat came down to get her meals. During the week they wouldn’t let the cat in the house because the caretaker was allergic to cats. But on the weekend the lady’s daughter drove up from San Diego to relieve the caretaker who was off Saturday and Sunday. The daughter would let the cat in. I bet that caused havoc with the caretaker when she came back on Monday. But that is neither here nor there.

So when the mother died the daughter was panicked about what to do with the cat. She wanted to take the cat with her to San Diego, but thought it would be too traumatic, either for her or the cat, I'm not sure which. The daughter begged us to take the cat. She told us that when the cat first showed up it had a collar and a tag with a phone number. When she called, the kid at the other end of the line said they didn’t have a cat and hung up. So doesn’t that mean it was O.K. for us to take the cat?

I brought the cat over to our house. She, yes, this was a she. We always had males. I can tell you without hesitation male cats are much better tempered than females. I carried her and she actually growled. I bet she thought she was a dog. So I held her tight and brought her into the house. She checked the place out and knew immediately she had a good deal, food, lodging, toys and a medical plan. She purred and meowed and decided right then and there to stay. Simple as that. Barbara even gave her a name. Opus or Oh Puss. Get it?

Opus was temperamental as all get out. But she took to Barbara right away. You would think they were sisters or something. They hung out together all the time, carrying on with their private conversations, snuggling in bed. Most of the time Opus didn’t have much use for me, except when she was hungry. I get up earlier than Barbara, and Opus would follow me downstairs for breakfast. That made no sense because we had dry food in her dish at all times. She would look at me and meow for food that was already in her dish. I don’t know if this cat was a moron or just liked seeing me do things for her. I didn’t even have to put new food in her dish. I just stirred the food around a little and then she would chow down. Go figure.

We bought her a collar and dozens of toys that she drenched in cat spit and left all over the house. She was selfish and egocentric but on occasion thought to redeem herself by reciprocating for our generosity. For example, on various occasions she brought us disemboweled rats, lizards and birds, some still clinging to the last threads of life. That was sweet I suppose, but depositing them on our bed in the middle of the night did not allow for a restful night’s sleep.

After close to a year of doting attention, we took her to the vet for a checkup. Yes, she had been “fixed,” (a term I find particularly offensive) and the vet tech gave her shots for a cost of $176. I have been told we got off cheap. A few days later Opus went out for an afternoon prowl and simply disappeared. Barbara was heartbroken. We searched the neighborhood, inquired of residents in a two block radius of our home, searched garages and sheds where she might have been trapped. Nothing.

I blamed this loss on coyotes who I was certain had dined on her. But as it turns out, the coyotes did not eat her. Six weeks after her disappearance she shows up, her fur straggly and matted. Although she was grossly overweight, she still begged for a handout. She wore a new collar on which was attached a tag and a phone number. Barbara called the number to inform whoever answered that she or he had our cat and thanks for taking care of her.

The lady at the other end of the line lives on an adjacent street no more than 100 yards from our house and claims that "Snookie" (her name for Opus), is and always has been her cat who has been missing for (are you ready for this?), two years and she would like to come over and get her. Rather than argue over the telephone, Barbara gave the lady directions to our house and she said she was coming over. An hour later (that’s how long it took to find our house which is half a block away), she came in her SUV with her 9 year old daughter who had allegedly been heart broken over the loss of “Snookie.” For two years? Give me a break.

I was ready for some serious negotiations when she whipped out a photo album showing Opus or "Snookie" as a kitten, and then as a mother nursing her young. One of her kittens who is now a grown male, Rex, and still living at his place of birth, was purported to have amorous inclinations towards his mother before she was “fixed.” That’s cats for you. But to be perfectly honest the photos were convincing. Opus and Snookie are one and the same. No doubt about it. Add to that the presence of a pouting 9 year old daughter and I knew a successful negotiation was as likely as President Bush admitting to a mistake.

In utter defeat I led the mother and daughter upstairs where they scooped up the sleeping Opus, who I think growled, and left with a curt good bye and no offer to pay the recently incurred vet bill. It is obvious that the overweight Opus is not eating proper food. And she hasn’t been brushed since she lived with us. That seemed a good basis for getting her back. I did some research, violating the rule about having an ass for a client, and it was not helpful.

In an opinion out of the second district, In re Marriage of Isbell, Willoughby (2005) authored last year by my colleague, the now retired Justice Nott, the appellate court concluded that in a marital dissolution action there is no authority to support who should get custody of Emmit the cat based on the best interest of Emmit. Instead, the court opined the only consideration is whether Emmit is the separate property of the wife. Luckily the opinion is unpublished and therefore not citable.

In another unpublished opinion, also from the Second District, my colleagues in Division V were of no use. The justices had their backs up, about whether a cat who bites should be tethered. In Goldshine v. Lafferty (2004) the appellate court acknowledged out-of-state authority that holds it is not abnormal for cats to bite under the right circumstances. For example in Lee v. Weaver (1976 195 Neb. 194, 237 N.W.2d 149) the appellate court found it not surprising that the cat who growled at the housekeeper’s vacuum cleaner and broom would one day bite the housekeeper. Opus growled at me and the vacuum cleaner on occasion, but I cannot say she bit me. And this is where George Bush and I are of like mind. I bet he agrees that she would have bitten me if she could. But getting damages for infliction of emotional distress might be a stretch.

Then I found a recent case directly on point. Unfortunately, it is of no use. It’s from Texas. In Willick v. Deastadeak (183 S.W. 3d 92, Tex.App. Dallas, 2006), defendant found a kitten shivering in the rain and cold in front of his house. He took cat in and nurtured him back to health and incurred vet bills. Over a year later, plaintiff, the original owner who lives next door, saw the cat in the neighbors window. Both sides want the cat. Neither will accept money. The Justice court ruled in favor of new owner who named the cat "Biscuit." On trial de novo court ruled in favor of original owner who named the cat "Sweet Pea" and awarded $80 damages. The Court of Appeal ducked the issue by deciding it lacks jurisdiction to hear the case. We might have had an answer if the damages had been at least $100.

I called my friend, the ancient but still wise Miss Anne Thrope who once wrote a legal advice column for the Police Gazette. Her advice was as follows: “Get over it and get on with your life.” I don’t believe she adequately researched the problem. If you agree with her, please don’t bother to write.