Monday, August 01, 2016

Politic and Cautions

     I have often complained, I mean noted, that contrary to popular belief, judges have little power.  Judges must endure the indignities and constraints that confront all of us.  A few personal calamities prove the point. Like you, I also have to spend 45 minutes on the phone complaining to someone who speaks Sanskrit about my poor internet service. 
          In the middle of the night, when the evening is spread out against the sky like a patient euthanized upon a table, before trash pickup the next day, a miscreant roams through my neighborhood.  He crams trash containers with bags of smelly garbage.  The culprit is either colorblind or deliberately violates the rules concerning the correct bins for recyclables.  He over fills the bins, causing odoriferous waste to land in the street.  Like my neighbors, I am a victim of these marauders, yet they think I can solve the problem.  Fat chance.  I opt for fetid refuse over a confrontation at 3 a.m.
          In one of my columns a few months ago, I wrote about the thief that got away.  My wife Barbara and I heard the thump of a package we were expecting as it hit the threshold of our front door. Shortly after we heard the delivery truck pull away, Barbara opened the door.  A young woman clutching our package was running to a waiting car.  Barbara yelled an unavailing "Stop!"  I wish she would have added "thief" at the end of her futile command.  The young woman jumped into the car which sped off before Barbara could get the license plate number.  I arrived just as the car turned the corner.  I shouted at the top of my lungs….  It's not important what I shouted.  Do children read the Daily Journal? 
          We got even with the thieves, proving that on occasion even a justice gains a measure of justice. The package contained the poems of a new annotated book, The Poems of T.S. Eliot.  That will teach them.  I wonder how the thieves' world view was influenced by themes of despair and futility in “The Waste Land.”  They were ultimately apprehended.  I learned that after pleas of guilty they were given jail time and various conditions of probation.  If I had my say, I would have required the condition that they write an essay on the relation of Eliot's "objective correlative" in his poetry to their own lives.  Our local paper brought home to the community that judges, like everyone else, are victims.  The Palisadian Post wrote a front page article about the incident titled Porch Pirates Nab Poetry Books.  Implicit in the article was the observation that the judge and his wife were powerless to do anything about it.
          Judges are not just subject to the ordinary vicissitudes of life.  They must endure a multitude of professional restraints.  If you recall, in my last column Judge Foote created a disaster when he brought a flying fish to an arbitration hearing.  Years ago I thought about bringing my cat to court.  I decided it would be too controversial if I let him sit on the bench during oral argument.  If he purred into the microphone, litigants might think I was snoring.  Would I face some type of discipline if I let him hang out in chambers with me?  I did not want to risk it.  My staff, under the direction of one of our judicial assistants, Gloria, had his likeness reproduced on a rock.  A few decades ago pet rocks were the rage.  But those were just rocks.  My pet rock is a pet cat rock.  So, in a sense, I have my cat with me at work.  For obvious reasons, I would prefer you not spread this around too much. 
          And judges must be careful about expressing certain opinions that ordinary citizens do all the time.  The recent Justice Ginsburg imbroglio comes to mind.  Her comments about Donald Trump prompted a statement of regret.  “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office.”
          Commentators were quick to criticize Justice Ginsburg's salvo as inimical to the concept "judicial neutrality."  But Professor Chemerinsky wrote in an editorial in the Los Angeles Times that Justice Ginsburg's apology was unnecessary.  Professor Chemerinsky observed that other Supreme Court justices have said and done things that were considered inappropriate.  But the federal code of judicial ethics disallows judges the freedom to take sides in an election.  Chemerinsky argued that these rules do not apply to Supreme Court judges. 
          Despite my great respect for Professor Chemerinsky, I find this argument unpersuasive.  Maybe that is because the California Code of Judicial Ethics prevents me from publicly endorsing or opposing a candidate for public office.  Canon 5A(2).  So I guess I cannot say I agree… or disagree with Justice Ginsburg's assessment.  And by assessment, I will let you, dear reader, decide if I am referring to her initial comment or her subsequent one… or both.  While I ponder these troubling questions, I will pet my pet cat rock. 
My Daily Journal columns and some of my other articles and stories have received a wider audience of devoted, but perplexed, readers through the publication of my book Under Submission by the Rutter Group, a division of Thomson West (2008).  This came about through the efforts of William Rutter and Kalman Zempleny, who, after the passing of Bill Rutter, became the Director of the Rutter Group.  We all agreed that proceeds from the sale of Under Submission would go to legal charities.  A few weeks ago, my dear friend Kalman passed away.  So sudden and so unexpected, his death has left his legions of friends in shock and dismay.  We will always remember him for his devotion to excellence in legal education, his unfaltering optimism, his warmth and kindness to all who were fortunate to know him.  Goodbye dear friend.  You made a difference.

Maybe It Will Happen

     That’s one small step… on second thought, a medium step for everyone... but the giant leap‑‑I'll settle for a step‑‑ is yet to come.  Apologies to Neil Armstrong; man and mankind are in the same class, and I prefer human kind.  But no matter whether or not Mr. Armstrong failed to distinguish between the specific and the general.  The California Supreme Court took a step.  It unanimously amended California Rules of Court, rule 8.1105(e)(1) (effective July 1, 2016) so that Court of Appeal decisions will not be automatically depublished when the Supreme Court grants review.  The opinion still may be citable unless and until the Supreme Court says otherwise.  Of course, the Court of Appeal opinion would not be citable to the extent it is inconsistent with the decision of the Supreme Court.
I voted for the change in the survey circulated by the Chief Justice for public comment.  But other than my vote, is it possible?  No, probably not…but just maybe some of the present justices read my first column for the Daily Journal on June 9, 1988, titled It Never Happened.  I criticized the then-current and past practice of depublishing Court of Appeal opinions in general.
None of the current justices were on the Supreme Court when I published my first column.  For all I know, one or two could have been toddlers then, but certainly precocious toddlers.  So maybe they glimpsed it.  At any rate, it is time to take a bigger step and scuttle the outdated practice of depublication.  The word itself shows up as a spelling error.  The shaky rationale for this murky rule is that, although the depublished opinion comes to the right result, the reasoning is wrong.  Need I say more?  Let’s have transparency.  Not to prolong the suspense, here in its entirety is my first column, re‑published three days short of its 28th anniversary:
It Never Happened
Most people don’t know what Court of Appeal justices do, and that includes many trial judges. Generally 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 your 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 is a large group of justices writing poorly reasoned opinions. I suppose the depublication rule helps stem the flood of cases inundating the California Reports, 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 cases. That’s a brilliant idea. I just may start an underground publishing firm that will publish only depublished cases. I’ll call the company East’s Oxymoron Publishing Co.- “Cases That Can 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 the whether a case is published or depublished. I can just imagine what would happen with such a rule. Assume I have decided not to publish a case, but the Supreme Court wants it published.
“Oh please, publish this case,” 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.”