Monday, November 16, 2009


"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law…. Its immortality no more confers on it political power, or a political character, than immortality would confer such power or character on a natural person.” So wrote Chief Justice John Marshall in Trustees of Dartmouth College v. Woodward (1819) 17 U.S. 518, 636.
John Marshall’s sentiments may have been on Justice Sonia Sotomayor’s mind in her debut appearance at oral argument at the U.S. Supreme Court in the case, Citizens United v. Federal Election Commission. The issue before the court was whether the campaign finance law limiting corporate donations violated a corporation’s First Amendment rights. Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with ... [imbuing] a creature of state law with human characteristics."
And Justice Sotomayor may have found a like mind in Justice Ruth Bader Ginsburg who said, "A corporation, after all, is not endowed by its creator with inalienable rights."
Thought-provoking comments like these do not necessarily indicate how a justice will vote on an issue, but the justices raise a good point. The attributes corporations have as persons are created by statute. Corporations can own property and sue and be sued, but they can’t sue for emotional distress or loss of consortium. Why? Because they really are not persons. They are simply substitutes for persons, sometimes.
And this got me thinking about my, I mean our, two cats. Some people can’t stand seeing other people, particularly those without children, fawn over animals. They contemptuously refer to these animals as “children substitutes.”
My wife, Barbara, rejects the notion of cats as child substitutes. “They are simply cats.” My response: “So why do we fret about them and attend to all their needs?”
I think it boils down to this. Just as a corporation may be treated like a person for some purposes, so may a cat be treated like a child for some purposes. But we all know that a corporation is not really a person, and a cat it is not really a child. I mean you don’t burp a kitten. You may play ball with it, but you don’t take it to a ball game.
And, if you are a little crazy, you may have a birthday party for it when it is one year old, which translates into around seven human years. Then you can go crazy deciding who to invite‑‑ Other neighborhood cats? A few small dogs? An eccentric neighbor or two? And what about presents?
Even the nitwits who throw parties for their pets figure out the whole thing is a farce when they wind up buying all the presents. (Parenthetic tip: Cats hate practical presents that benefit their owners. Collars and kitty litter are out. Catnip or a toy to moisten in their spit is preferable.)
Recently a journalist with apparently nothing to write about sought to interview professionals about the difficulty of raising children and attending to their professions. Somehow she got my name. The journalist thought a story about a presiding justice and his children would be of great interest to the reading public. She called me at a time when I was feeling particularly close to my cats, I mean, our cats. Barbara has often reminded me that they are “our” cats, not mine alone. That is true. In fact, I think she is their favorite.
I agreed to the interview and suggested to Barbara that, because the cats are “ours,” she should participate. She looked at me in what I would charitably call an expression of disbelief, and declined. She rejected out of hand my cat-corporation comparison. I decided to be interviewed alone, but assured Barbara that I would refer to the cats as “our” children. She said that would not be necessary and extracted a promise that under no circumstances would I mention her name. Ladies and Gentlemen of my readership, you are instructed to disregard the name “Barbara,” and not to consider it in your discussions, deliberations, evaluations or thoughts about this column.
The interview took place at a posh restaurant on the exclusive “Westside” of Los Angles. The interview began over an endive salad with blue cheese crumbles, walnuts, grapefruit slices and a subtle vinaigrette dressing. It was concluded before dessert. What follows is my best recollection of the interview:
Journalist- So how many children do you have?
Me- Two.
Journalist- How old are they?
Me- (a pause‑‑not to be confused with paws‑‑sorry, couldn't help that) Around 20.
Journalist- Around 20?
Me- You get busy; you lose track. Let’s just say 20.
Journalist- (a quizzical look on her face) O.K…. Around 20. (a pause) What is the date of their birth?
Me- I can’t really say. We got them a few months after they were born.
Journalist- (brightening) So you adopted them?
Me- Yes, you might say we did.
Journalist- So they are twins?
Me- No, they are brothers.
Journalist- (about to pursue the matter, but thinking better of it, moves to a new topic) What are their names?
Me- Tatum and Powell.
Journalist- They sound like last names.
Me- They are. I named them after two of my favorite jazz pianists, Art Tatum and Bud Powell.
Journalist- Are your boys musical?
Me- I wouldn’t say so. But one likes to sit on the piano when I play.
Journalist- Describe them to me.
Me- Well, they are frisky, curious, and they are black.
Journalist- Black? (pause, not sure how to proceed) Were they adopted from Africa?
Me- No, their parents live in the U.S.
Journalist- What do you know about their mother?
Me- Not much. I was told that she gave birth while living in an empty lot next to a freeway off-ramp.
Journalist- (heeding her inner voice to develop another line of questioning) What, with your professional duties, have you and your wife been able to devote sufficient attention to your sons?
Me- We have done our best. They seem happy and carefree.
Journalist- The optimism of youth. Your sons are in their 20’s. Do they have romantic relationships, girlfriends, boyfriends?
Me- Not a chance.
Journalist- Not a chance?
Me- They have limited contacts with other….
Journalist- (interrupting) You are a strict father.
Me- I am just concerned about their safety.
Journalist- I appreciate that, but you can only protect them so much.
Me- I suppose that’s true. I shouldn’t be that concerned. After all, they are fixed.
Journalist- Fixed in their ways?
Me- Yes, you could say so, but at least they have no interest in the opposite sex.
Journalist- (getting red in the face and opting yet again for another line of questions) What are the things you like and dislike about your sons?
Me- What I like is that they respect the house and the furniture. And they sharpen their claws and teeth elsewhere.
Journalist- You mean they have their priorities in place.
Me- Yes. But their proclivity to pass back and forth in front of me is disquieting.
Journalist- Why would that be of concern?
Me- It brings bad luck.
Journalist- How so?
Me- Well, they are black.
Journalist- (becoming apoplectic) To… to imagine… that you… you, of all people, are a racist.
Me- A racist? What are you talking about? I just have this silly superstition thing that I am trying to deal with. I‘ll get over it.
Journalist- I must tell you that I’m dismayed to learn that you are a horrible parent without a clue how to raise a child.
Me- What do you mean? Our sons are well fed. They receive love and affection even when they don’t return it. Why, we even let them sleep with us. And on cold nights they crawl under the covers.
The journalist slapped her napkin down upon the table. I thought this was a good time to change the subject. I asked her what she thought about First Amendment rights for corporations. Without saying a word, she forcefully pushed her chair back, got up from the table and strode out of the restaurant. I had my dessert and coffee alone, and picked up the check.

Thursday, November 12, 2009

Tiny Pools of Perspiration

The headline smacked me in the face. Despite Money Woes, Judges Train in Luxury. (Daily Journal, August 11, 2009.) A thousand tiny pools of perspiration dampened my forehead. The pools overflowed and the rivulets cascaded down the craggy crevices of my face. (The two preceding sentences appeared in a draft of an opinion I wrote on the issue of retraxit. For some reason my colleagues refused to concur unless I deleted the sentences. So I thought I would use them here.)
I had already made my plane reservation. The next day I was scheduled to leave for the Dolce Hayes Mansion Resort in San Jose to teach a class with Justice Perren at the Judges College. How could I fly to San Jose and teach at a posh resort while the state teeters on the edge of bankruptcy? But it was too late to cancel my ticket without a penalty. When I arrived the next day at the opulent hotel at about 11:30 a.m., I didn’t see any judges. They were all in class diligently pursuing their daily studies from 8:00 in the morning to 5:00 in the afternoon to become more proficient in their profession.
My investigation confirmed what the article had acknowledged. The rate was a mere $110 per night which included the use several meeting rooms. Try and get those amenities at Motel 6 for that rate. But during the short one-hour lunch period, the judges told me how the story may have been passed to newspapers. The strands of my thinning hair stood at attention. A few days earlier, a "mole," posing as a judge, had infiltrated the college and “nosed” around asking questions. He pretended to be just another student judge hanging out with the new judges during breaks between classes. One student judge became suspicious when the faux judge said to him, "Someone told a friend of mine that the hearsay rule is dead. Do you think that's true?"
No one was sure whether the uninvited guest was a reporter. Sorry, I just used an out-of-date term. Today they are called “staff writers.” Does that mean they “write” the news rather than report it, or are the two synonymous? Ben Hecht’s play, The Front Page, which opened on Broadway in 1928, was about newspapers and "reporters" in days gone by. The play tells a riveting story about a capital case and the wise-cracking reporters covering the story who worked out of City News Bureau of Chicago. Reporters were cynical and tough-minded. Every detail of a story had to be thoroughly checked. If your mother said she loved you, the rule was, check it out. No doubt the term derived from their mission to accurately report the news. But I digress.
Suppose the "mole," let's call him an investigative journalist, was sued for something scary like defamation or invasion of privacy and wound up in court. I bet he would expect the judge hearing his case to be competent, fair, unbiased, conscientious, knowledgeable, industrious, thorough, scholarly and respectful ‑‑ just some of the traits the JNE Commission considers important in its evaluation of nominees for judicial office.
No doubt these thoughts were not on his mind. He was looking for an exposé. He did not find one. Despite the headline, the Daily Journal article accurately "reported" that the California Rules of Court require new judicial officers to attend the college and the bids were solicited more than a year ago. (See Cal. Rules of Court, rule 10.462.) True, the resort was nice, but the rooms were inexpensive. And the judges worked hard for two weeks learning about evidence, civil and criminal trials, family law, and a multitude of other subjects taught by veteran judges. The newly appointed student judges, like their predecessors who have been attending the college for over four decades, will become the outstanding jurists for which California is well known. They will be highly skilled in their task to decide a multitude of cases for litigants seeking justice.
But the article about the Judges College highlights the concern over expenditures during a budget crisis. Some judges critical of the Administrative Office of the Courts' budget and its decision-making process have voiced their opposition to court closures. They argue that cuts should be made in other quarters, namely, the huge bureaucracy of close to 1,000 employees at the AOC. This, in turn, drew criticism from the Chief Justice who questioned the motivation for their opposition. But it appears that these judges have agreed to take a voluntary pay cut to proportionally match the mandatory cuts for court employees whether the courts are open or closed.
During governmental budget crises, there is no shortage of views about where best to make cuts. Our Legislature was at an impasse for months over the issue. I am sympathetic to the judges who wish to keep the courthouse open at all costs. After all, the courts are here to serve the public. But the same can be said about numerous programs that serve the public that have been discontinued during this unprecedented budget shortfall. Wherever a budget cut is made, there will be a legitimate argument that some other cut should be made instead.
I hope that in the future criticism will be expressed openly and respectfully without insults and invective from either side for those expressing the other point of view. Some judges I interviewed for this column expressed the belief they may suffer repercussions for candidly offering their opinion about budget cuts. They pose the hypothetical that a few judges may not be able to take a voluntary pay cut because of house or medical payments, college tuition for their kids, or other financial concerns. Will their names be published? I hate to say it, but that may happen even if they have never expressed a view in their life. Some staff writer somewhere may just want to publish a list. Oh dear. I didn't give anyone an idea to do this, did I?
I spoke with a number of judges about this column and, out of an abundance of caution, promised not to disclose their names. But they all wanted their names to be mentioned. One outspoken judge said he would take the fall for everyone else. But I decided not to mention any judge's name. I don't even want to mention my own name. This is not because anyone can or will suffer retribution for speaking out on a budget issue. But an open, frank discussion about budget cuts is itself bound to have frightful consequences.
For example, one judge I spoke with suggested that during this credit crunch the Judges College should meet for just one intensive six-day week. That is a great money saving idea. But, oh no, that could mean my class could be cancelled. You don't think that writing this column will result in my class…. Forget you have read this column. Don't talk about it. Anything you remember about it, keep it under your hat. I can feel it. A thousand tiny pools of perspiration are beginning to form on my forehead.