Tuesday, January 18, 2011

Profiles in Courage- The Sequel

Warning. The concluding paragraphs of this column contain scatological references, which some, if not all, discriminating readers will find offensive. We strongly advise discretion for the sensitive and parental oversight for those of tender age.

Last month my column centered on the ripple effect of judicial decisions. My example was Superior Court Judge Stanley Mosk's 1948 decision in which he held that restrictive covenants were unconstitutional. I expressed my admiration for his reasoning and insight. I did not mention his courage (a trait, incidentally, I believe he possessed in abundance), because judges who lack courage to make well reasoned, yet controversial, decisions when called for should look for other work. Such decision making is implied in the job description.

Yet many judges who stake out new ground with a constitutionally based decision are often labeled "courageous" or "irresponsible," depending upon the reader's evaluation of the decision. Judges know this. Though most welcome praise, when they are faced with disapproval of a controversial decision, they simply may shrug their shoulders, an acknowledgement that criticism goes with the territory.

Chief Justice George's first opinion in the In re Marriage cases held the ban on same-sex marriages violated California's state constitution. Courage aside, three concurring members of the court agreed that George made the right decision. George felt compelled to change course and uphold a ban on same-sex marriage when the voters nullified his first opinion with the passage of Proposition 8, which amended California's state constitution to define marriage as occurring only between a man and a woman. It would be wrongheaded to label George's first opinion heroic, and the second one pusillanimous. He ruled as he thought he must. Although George's first opinion does not have the force of law, and may settle in the dust of obscurity, it will endure as an example of a judge doing his job. Far better than having one's name on a building.

But some decisions are steeped in courage. Los Angeles Superior Court Judge Alfred Gitelson decided the controversial "bussing case." He ruled that the Los Angeles Board of Education, as the school district was then called, must end segregation. Judge Gitelson's election was on the horizon when he made the momentous decision that would have mandated bussing of students in Los Angeles. He could have held the matter under submission (no relation to the title of my column) until after the election, but he filed the judgment a short time before the election.

The timing of that decision reflected his integrity and courage. No doubt Judge Gitelson knew his decision would engender a firestorm of protest, but as far as I can determine, up until that time no superior court judge had been turned out of office because of an unpopular judicial decision. I suspect that if Gitelson knew he would be turned out of office, he still would not have postponed the filing of the judgment.

There are other less dramatic ways in which a judge displays courage. It is not easy to summon the strength to admit a mistake or to face up to an embarrassing situation. A judge who dresses down a lawyer in court for a minor gaffe abuses his authority. But what if the shoe is on the other foot and the judge is the one who does something foolish?

The late Ventura Superior Court Judge Ben Ruffner invariably treated lawyers and litigants with courtesy and respect. No one would want to see him in an embarrassing position. An example of the unfair distribution of reward and punishment we so often experience was illustrated by what happened to him one day during a jury trial over which he was presiding. He leaned back in his large swivel chair while aligning the fingers of each hand so that they touched their counterpart in the opposite hand. His eyes were partially closed, not because he was dozing, but because he was listening intently to the testimony. When the tilt of his chair passed the line of equipoise, he toppled over backwards.

The view from the courtroom facing the bench revealed Judge Ruffner's shoes, the soles of which were pointed at the ceiling, and a bare portion of his legs just above his socks. If Ruffner had treated people poorly, there might have been laugher in the courtroom. That was not the case. The eerie silence in the courtroom must have been what astronauts experience in outer space.

Ruffner freed himself from the overturned chair, smoothed his robe, and turned the chair right side up. He then sat in it, rolled it forward so that his arms rested on the writing portion of the bench, and addressed those in the courtroom, figures in a painting, frozen in place. In slow, measured tones, he said, "I do not do that for just any jury."

Judge Bernie Kamins, retired from the Los Angeles Superior Court, often sits by assignment in various courts throughout the state. He had minor surgery in Los Angeles. His stitches were due to be removed when he was sitting by assignment in Santa Clara. He went into an Urgent Care center across the street from the courthouse to have this simple procedure performed. He did not know that this center was solely for pregnant women. When he affixed his signature to the sign-in sheet and heard titters in the background, he knew something was amiss. The receptionist inquired if he were a seahorse. Instead of scurrying for the exit, he extended good wishes to the pregnant ladies in the waiting room. Kamins was not expecting, but the nurse nevertheless removed his stitches.

I suppose these last two examples are more about grace under pressure than real courage. But my next example is about a person who possesses the grit and courage to which we should all aspire. Through mere chance, I encountered this valiant individual at the Los Angeles Music Center last month during the intermission between the second and third acts of Verdi's Rigoletto.

My wife and I went downstairs to the restrooms. As usual, the line from the vestibule into the women's room snaked in uneven circles. It inched forward imperceptibly. I said, as I have innumerable times in the past, "Doubt you will make it before the end of the intermission." "I will make it," she said with the confidence borne of countless successful missions.

I went to the crowded men's room. But no long lines. I expected that I would soon join other men in the vestibule, waiting impatiently for their wives, lovers, sisters, mothers, partners or friends. We would glance nervously at our watches when the lights flicker, indicating intermission is coming to a close.

But this time, things were different. I entered the gleaming white, rectangular men's room. To my left was the long aisle I had seen so many times before. On either side were two rows of approximately fifteen starkly white, waterless urinals, all of them occupied. At the end of the aisle was a right turn into another long aisle, against the far wall of which were fifteen to twenty toilet stalls.

I quickly walked down the first aisle where I saw the backs of a variety of men's jackets. Just as I approached the corner and made my right turn, a toilet stall opened up. I quickly slipped in as the previous occupant stepped out. He and I, adhering to men's room etiquette, avoided direct eye contact.

I closed the stall door. How should I put this? You can be a president, an astronaut, a Nobel Prize winner, an emperor, a rock star… even a judge… it doesn't matter… you still have to pee. Task completed. I opened the door. And there facing me was … a woman!

Our eyes met for a split second. Then in an instant she was in and I was out of the stall. The door closed. I didn't say anything. No one said anything. I went back along the aisle of shining urinals to a wide square room with sinks. I washed my hands and crowded with others at the technically advanced paper towel dispenser, which, despite our frantic hand waving, refused to dispense. I didn't care. My mind was on the woman in the stall, the Joan of Arc, the Madame Curie, the Florence Nightingale, who had the fortitude to march into the men's room in her time of need.

I thought of her opening the stall and hurrying along the long row of urinals to the exit. Sir Walter Raleigh came to mind. I decided to help. With my wet hands behind my back, I raced back down the aisle to the toilet stall where earlier our eyes met. I stood guard, waiting for her to open the door. She did, and our eyes met again.

"I am here to run interference for you to cover for you. I am here for you," I said.

"Let's go," she said. And out we rushed as seemingly one person, me directly in front of her. Once out in the vestibule, we laughed giddily and I brought her over to meet Barbara, who for the first time was waiting for me. I said, "Barbara, I would like you to meet a person of great courage who I deeply admire." I turned to the woman I had ushered out of the men's room and asked, "By the way, what is your name?" She told us and we all shook hands.

This woman of valor I will probably never see again. She said simply and eloquently, "I really had to go, and so I said to myself, 'What's the big deal?' and I just marched in there." We said goodbye and we made it back to our seats for the last act of Rigoletto, which we all watched in comfort.

I then wondered whether I would have the courage in my time of need to walk into a women's room…. Forget it, not easy to write a column from County Jail.

Wednesday, January 05, 2011

The Ripple Effect

We have all heard of the ripple effect, how even the most insignificant act can have far-reaching consequences. At the risk of sounding self-important, my sneeze last week may have caused an avalanche in Tibet. I hope no one was injured.

Seldom are we aware of the ripple effect resulting from a kind or an insulting word. Judges may make an off-handed remark in court that could have significant consequences for a litigant, a witness, or someone they know.

I recall a case over which I presided some 30 years ago. A young woman was charged with a misdemeanor offense stemming from her failure to protect her three-year-old daughter from her father's abuse. She pled guilty and I told her about her obligation to protect her daughter and to stand up to the father or call the police.

The young woman thanked me for the advice and I ordered her released from custody. We continued her case to the next month for her sentencing hearing. At that hearing I was surprised to see her dressed in jail garb. She was in custody. The Deputy City Attorney moved to dismiss the misdemeanor offense. I felt a sinking feeling in the pit of my stomach. The City Attorney informed me that he was dismissing the case because she was now facing a more serious offense, the murder of her husband. She smiled at me as though she had done a good deed. Maybe I am overstating it, but I felt she was tacitly telling me, "See, I followed your advice." I am still haunted by a vague sense of guilt for my possible complicity.

I recall a complicated case I wrote concerning whether a landlord was required to return a renter's security deposit. The case involved a statute that I said "teeter[ed] on the brink of unintelligibility." There had been much previous litigation concerning this statute. When the lawyer representing the landlord in a previous case inquired of an appellate panel how his client could avoid the harsh effect of the security deposit, one of the justices said from the bench, "Call it rent." Were it not for that off-the-cuff remark, I would not have had to struggle with Granberry v. Islay Investments (1984) 161 Cal.App.3d 382.

A judge's decision in a particular case can, and often does, have far-reaching consequences for many individuals. Going back again more than 30 years ago, I declared the solicitation section of Penal Code section 647(a) an unconstitutional violation of the First Amendment. The Brown Act made sexual acts between consenting adults legal. I reasoned that "if you can do it, you ought to be able to talk about it," and dismissed approximately 40 cases that charged violations of 647a. In a separate but similar case, the California Supreme Court in Pryor v. Municipal Court (1979) 25 Cal.3d 238 ruled as I did. To get an idea of the profound effect these decisions had on millions of people, I recommend you read "The Domino Effect," by Thomas F. Coleman, who, along with Jay Kohorn, argued the case in my court and the Pryor case before the Supreme Court. Their compelling briefs and cogent arguments made my job easy.

Stanley Mosk, one of California's preeminent jurists, wrote opinions that produced ripple effects permeating the state and the nation. Many of his rulings will endure for generations. But one case he decided as a young trial judge also created ripples that significantly affected many lives. Stanley Mosk's son, Court of Appeal Justice Richard Mosk, wrote a touching article in the Daily Journal, October 14, 2010, The Intersection of Two Lives, about some of the people whose lives were changed by this case, decided more than 63 years ago.

The famous United States Supreme Court decision, Shelley v. Kraemer (1948) 334 U.S. 1, holding that racially restrictive covenants in property deeds were unenforceable in courts of law, had not yet been decided. In Mosk's case, a Black family, the Dryes, purchased a house, the deed of which contained a racially restrictive covenant. When some neighborhood residents sought to enforce the Caucasian-only resident requirement, other Black families moved, but not the Dryes. They stayed to fight this injustice. They were represented by Loren Miller, the great civil rights lawyer, who later became a judge, and whose son Loren Miller became a distinguished Superior Court judge and a dear friend and colleague.

Judge Mosk ruled the covenants were an unconstitutional violation of the Fourteenth Amendment and sustained the demurrer without leave to amend. He pointed out how callous it would be to deny Mr. Drye, a decorated war hero who fought in two wars to preserve our country's freedom, the right to live in a house because of his race. The next year the United States Supreme Court decided Shelley v. Kraemer.

The Dryes stayed in the house and raised their son, whom I will never forget, and not because he and I share a first name. I met Arthur Drye on November 5, 2010. That was the day I was privileged to attend the ribbon-cutting ceremony at the new Stanley Mosk Elementary School in the West Valley. All of us in the audience in the school auditorium felt a connection with one another. You could tell, because we were all smiling, a reflection about how good we felt about the ceremony.

One of the speakers was Arthur Drye, a teacher and school administrator. He asked the students to think for a moment about their heroes. He asked them if Superman or Spiderman were heroes. I was relieved to hear the kids roar in unison, "No!" When he asked if their parents and teachers were heroes, they yelled, "Yes!" I thought to myself there is hope for the future. Drye then spoke of his heroes, his father and mother, who had the courage and character to fight for their rights, and his hero, Stanley Mosk, who made it possible for him to live in the neighborhood of his parents' choice. He spoke of the jeers and taunts he suffered in school because of his race. But, like his parents, he refused to be defeated and became a teacher and school administrator. His message: A hero stands up to bullies. We succeed by not encouraging bullies. Bullies only win if we let them.

It was an extraordinary experience to hear Arthur Drye, standing on the auditorium stage of the Stanley Mosk Elementary School, inspiring and encouraging the students, 63 years after Judge Mosk's decision. It is fitting that the downtown court civil courthouse in Los Angeles be named the Stanley Mosk Courthouse. It is an acknowledgement of his invaluable contribution to California. No doubt Stanley Mosk would be pleased with this recognition. But the grammar school that bears his name, stemming from a demurrer sustained without leave to amend over six decades ago, I suspect, would be an immense satisfaction to him and would hold a special place in his heart.

Stanley Mosk swore me in as a Municipal Court judge on Labor Day, 1975. Through his example and my association with him, he has been my mentor. Arthur Drye and I have something in common beyond our same first names. For us, Stanley Mosk is a hero.

Under the Influence-Intoxication Is Toxic

Last month, Los Angeles Times columnist Steve Lopez wrote about his recent encounter with zip, schnitzel, prune, dooby, chillums, funk, spliff, boo, snop, cheo, ganja, gunja, gunney gange, gash, gasper, griff. As long as we are on the G's, he wrote that the experience made him giggle. You are with me on this, right? He was like blowing a stick, going loco, with a goof butt, hitting the hay, howling with hooch, sparking it up, getting on with gunga. Oh dear, here we are, back on the G's. Gracious. In case I wasn't clear, Lopez was smoking reefers, weed you know, marijuana cigarettes.

And guess what? Lopez got to do it with law enforcement officers present, including the Los Angeles City Attorney. It was all part of an experiment to determine how the presence of marijuana in one's body affects driving ability. This information is particularly relevant should proposition 19, which would legalize marijuana, pass. Suffice it to say that after several 'hits," Lopez's driving skills were impaired. He also was "laughing like a hyena." When an officer asked him if he was having fun, he replied, "What, is that a crime, officer?" That reminds me of Max Beerbohm's line, "Nobody ever died of laughter." But one could die when crossing the street in front of a driver under the influence of cannabis. Marijuana can you think of any other word that has so many synonyms… other than sex?

Some law breakers get a thrill committing an illegal act. But committing a crime with impunity, with the approval of the police, is like riding your bike on the wrong side of the street when it is closed to traffic, confessing one's sins in the confession booth without a priest, being contemptuous in court before the judge takes the bench.

At one time, possession of marijuana was perceived in some quarters as a serious offense. I recall years ago, when my date and I dropped into a party shortly after I had been appointed to the Los Angeles Municipal Court, I wasn’t sure, but there seemed to be a pungent odor in the room. I received congratulations and a few high fives, but there was an obvious tension in the air. I got the feeling they couldn’t wait until we left. My date cautioned me not to breathe too deeply. She feared I might be arrested for driving under the influence. Later, an unidentified source informed me that the party “took off’ when we left. That experience taught me to be vigilant about where I went and the company I kept. Because I occasionally played the piano at jazz gigs, I made it a practice to search all the musicians’ pockets before the gig. If more than one player took a drag on a cigarette at the break, I assumed it was not because they were out of cigarette money. I was out of there. They were left to finish the set as a facsimile of the Gerry Mulligan “pianoless” quartet.

Judges are paranoid about being on the wrong side of the law. It can happen inadvertently. When judges commit an offense, even a minor one, like jaywalking, people take notice. Even among my unconventional, anti-authority friends, there is a look of disapproval when on occasion I have jaywalked. I am supposed to set an example. My columns about my notorious speeding tickets on Pacific Coast Highway have drawn considerable attention. Readers seem amused and satisfied to know I got what I deserved, a solid eight hours of traffic school.

When I became the Supervising Judge of the Los Angeles Traffic Court in 1975, I also became obnoxiously self-righteous about traffic safety. I was a cautious (euphemism for “pain in the ass”) driver. I didn’t get speeding tickets until some 25 years later. I made complete stops at stop signs, even when the streets were deserted. No need to speculate why I was out when the streets were deserted. And I can assure you that my unblemished driving record had nothing to do with my acquaintance with so many traffic officers in Los Angeles.

I will have you know it was, and probably still is, the largest traffic court in the world. It was heady being the so-called head or leader of the largest something in the world. Judge Burt Pines was then the Los Angeles City Attorney. He and I had a friendly disagreement about punishment for first time DUI (driving under the influence of alcohol) offenders. He wanted all first-time offenders to be sentenced to jail for a few days. I opted for a less draconian approach, a compelled educational program for first-time offenders with low to moderate breathalyzer readings.

The press seemed to favor my approach. I wonder why? After work I joined some reporters (that’s what they called them in those days) for some drinks at a local hangout in downtown Los Angeles. After a couple of martinis, one pointed his wet finger at me, and said something like, “You know what? You… you’re… right. That’s what you are… right.”

And then one day the court sanctioned a weekend meeting on traffic safety with ASAP–the Alcohol Safety Action Project. I still remember the acronym. Judges, city attorneys, public defenders and police personnel attended an intensive, concentrated program on alcohol abuse. At the end of the conference, we had a party. We were instructed, OK, to be more honest, invited, to drink as much as we could, and then blow into the breathalyzer test machine set up in the middle of the room. Like Steve Lopez, I could get smashed in the presence of law enforcement officers.

I have never been much of a drinker. To prove it, I used bourbon and Seven to get my BA (blood alcohol) reading to ascend. It is hard to believe, but in those days, 0.15 was considered a low reading. A defendant with a lower reading usually could plead guilty to a reduced reckless driving charge. Who knows how many drinks I had, but according to the experts, it was not that many. After about four or five drinks, I blew into the breathalyzer and registered a measly 0.11. The experts said I was on the way up to a 0.16 or maybe a 0.17. Luckily, I left the party before that occurred. When I reached my presumed 0.17, I couldn't have been a passenger, let alone a driver. That was when the toilet and I had an extended rendezvous. I recall the intricate design of the bathroom tile and thought, not bad for a hotel. Ever since then, I admire bathroom floor tile standing up.

Hooked on Language

On commercial television, you cannot use “foul” language in dialog or in the title of a show. I suppose that is why the new comedy series on CBS is entitled "$#*! My Dad Says." The symbols "symbolize" "forbidden" or "offensive" language. If we peel back the symbols, what word or words do you think will be revealed? Will we be repelled by some horrifically repugnant language, or undisturbed by an innocuous phrase like “horseshit,” or the more popular “bullshit”? But it could be something a little more risqué. I read in the New York Times last week that the geniuses at CBS had not taken into account that scads of viewers with DVR’s could not prerecord the series because many DVR’s do not recognize symbols. This oversight skewed their ratings. Apprehension over language can lose or make money.

Maybe that is what drives the effort in some quarters to mask language. Everyone, well at least most everyone I know, uses a racy word now and then, a word that could offend someone’s sensibilities. Perhaps rules that censor language on television and radio are helpful to sponsors who do not want to offend the viewers they coax to buy their products. Shows on noncommercial television, like HBO, for example, have dialog and scenes that would make Howard Stern blush.

But judges can write opinions filled with vile epithets and boorish obscenities, uttered, indeed screamed, without the slightest attention to grammar or syntax. They simply quote from trial transcripts. That is the real world.

A strong expletive can be salutary. About 32 years ago, I was presiding over a criminal trial in Los Angeles Municipal Court. Who remembers what the case was about. The courtroom was packed with witnesses and court watchers. And who remembers why I was in such a bad mood. My mood must have been terrible, because the tension was so palpable, so high pitched, that stray dogs within a mile of the courthouse were barking their heads off. I snapped at the lawyers. “Sustained,” voiced almost simultaneously with the objection. My tone was sharp, clipped, reflecting annoyance and impatience.

The back door opened and Linda Schwartz, a public defender who was a good friend, walked into the courtroom to calendar a matter with the clerk. Apparently she could not help but sense the tension. At the conclusion of a witness's testimony, she said, “May I approach the bench, Your Honor?”

“Yes, you may,” I said, as puzzled as were the attorneys. She opened the small swinging gates, passed by the clerk, and approached the bench from the side. I leaned over and she rested one foot on the first of the three steps that led up to the bench. “You are acting like a real …." I hesitate to use the word, not because I am squeamish, but because she was right. You probably can guess what she said. Rather not? It was the same expression used by George Bush to describe a New York Times reporter he disliked. He voiced his opinion to Dick Cheney when he thought the microphone was off during a Labor Day campaign rally. Only Bush emphasized the derisive phrase describing the reporter with the adjectives, "major league." Some people were overwrought by the expression. I said, “Big #*@^ing deal.”

It took a moment for Linda's assessment to sink in. I called a brief recess and snuck into my chambers. I laughed to hide my embarrassment. Linda walked in and I asked her how she was going to spend her next five days in jail. But I could not hold her in contempt when I was the one acting contemptuously. After thanking her for the rude awakening, I let her off with a warning to myself not to do it again. I took the bench and resumed the trial. My demeanor must have said it all, because I could feel the atmosphere cool down.

It just proves that judges, like everyone else, can be angry, depressed, frustrated and act like major-league… jerks (a euphemism). Sometimes, a swiftly delivered expletive (term make popular by another President) is a good way to snap out of it.

I know a judge who is so well balanced, so insightful, so attuned to people that she never needs to be on the receiving end of an expletive. Marin County Superior Court Judge Lynn Duryee is well known and admired throughout the state. She has written columns for the Daily Journal and writes a regular column for The Bench, the official newsletter of the California Judges Association. She was past Dean of California’s prestigious Judges College. Judge Duryee has directed her talents to writing a novel, recently published, “Hooked on Drug Court.”

This engrossing book is about a case in drug court. The characters are the people involved in the case the juvenile, her parents, the probation officer, and the judge. In the hilarious comedy "Noises Off," playwright Michael Frayn takes us behind the scenes to see the actors' lives off stage. But a court proceeding, while superficially sharing some aspects of theater, takes place on a stage where litigants and witnesses would rather not be. Judge Duryee takes us behind the scenes of the formal court proceedings and reveals the poignant drama occurring when court is not in session. She probes deeply into the characters' lives and psyches to reveal the chain of events that brought them to court. They become caught up in the court system in large part because they are caught up in their fears, misapprehensions, angers, and destructive patterns of behavior.

A fifteen-year-old girl, Andy, winds up in Juvenile Court after she is busted for being under the influence during a weekend visitation with her divorced father who is engaged in World War III with Andy's mother, his ex-wife. Thrown into the maelstrom are a seemingly sclerotic judge with a complicated love life, the probation officer, and other players who bring mystery and additional conflict to the drama. They inhabit the pages of a book you don't want to stop reading. All are involved in a journey of self-discovery, and the road has its potholes, detours, and chasms. Nothing is watered down. It's the real thing. It's authentic. Duryee's unerring ear captures the speech patterns of real people, not an expletive deleted. The title of each chapter is a character's name. We know them intimately through their interior monologs and through their interaction with other characters. We are drawn into their world and we care about them.

The main character Andy is a modern-day Holden Caufield. Only her angst comes not from her sensitivity to the phonies in the world, but from the pain engendered by her parents' conflicts, which in turn lead to her debilitating drug use. Andy is exasperating, funny, likeable, loveable, and Duryee deftly tells her story so that we root for her, but at times want to scold and shake her too. We feel even more exasperation with her parents and, yes, also the judge. But they are full dimensional, and we cannot help but care about them.

Judge Lynn Duryee gives us a three-dimensional view of a case and the people it touches. Their journey toward understanding is hard, painful, joyful, frustrating, and fulfilling. It's one we all take no matter who we are or what is our position in life. It is the journey Socrates tells us is the only journey worth our while, the journey of self-knowledge. The invaluable insights Duryee provides along the way should help us on our own journey. "Hooked On Drug Court" is available on Amazon.com.