Wednesday, April 15, 2015

Bullish on Certainty




         About 10 years ago, I wrote about an enchanted garden I came upon during a morning jog in my neighborhood.  In the garden were windmills, ponds, fountains, gnomes, toads, toadstools, and, as I recall, an old edition of Shepard's citations.  In the middle of the garden was an unlikely inhabitant, an English bulldog.
         After several moments of careful scrutiny, my keen powers of observation and deduction, perfected after decades of judging, led me to decide that the dog was not real, but ceramic.  Clarification:  By real, I mean a live English bulldog.  Of course, the dog was real.  I judged it to be a "real ceramic" English bulldog.  I concluded the dog was ceramic by characteristics that distinguished it from live dogs.  Live dogs usually move.  And even when dogs are trained to "alert" (not sure that English bulldogs "alert"), the attentive observer can detect subtle signs of life.  The dog's breathing, evidenced by the slight rhythmic movement of the rib cage, is an example.  Of course, there are more obvious clues like panting, which, in the case of bulldogs, is accompanied by drooling.  None of these signs were apparent. 
         Imagine my surprise then when I approached the garden to get a better view.  The "ceramic" bulldog growled and approached me with the resolve of Winston Churchill.  This was not my finest hour and, despite the fence that separated me from the approaching bulldog, I sprinted to the safety of my home.
         I never quite got over my embarrassment until a few weeks ago when I read an article in my neighborhood local newspaper, the Palisadian Post.  It was about an incident involving a ceramic turtle in the same garden.  Next door to the garden lives a live turtle who escaped from his home to court, as in "make love to," the ceramic turtle.  What a relief.  I felt foolish about my misperception, but now I feel better.  If a live turtle can be confused about its own species, I am allowed to be mistaken about a species other than my own. 
From this we learn an important cautionary rule:  A few apparent facts can be deceptive, and lead us to unwarranted conclusions.  With this in mind, courts can establish precedence and give us predictability and certainty.  Right?  Of course not. 
         Despite our best efforts, most of us realize that an expectation of certainty is unrealistic.  If mathematicians can only approximate pi, the ratio of a circle's circumference to its diameter, how can one expect the courts to give us certainty?  The experts call pi an "irrational number."  You're telling me.  And in quantum mechanics, Heisenberg's "uncertainty principle" says it all.  Here we are talking about real small things in the subatomic world.  I am quite uncertain about this stuff, but all I need to do is quote the famous German physicist about his principle:  "It can be expressed in its simplest form as follows:  One can never know with perfect accuracy both of these two important factors which determine the movement of one of the smallest particles- its position and its velocity.  It is impossible to determine accurately both the position and the direction and speed of a particle at the same instant."  (Bohr, Niels; Noll, Waldemar (1958), "Atomic Physics and Human Knowledge," American Journal of Physics (New York: Wiley) 26(8): 38.)  In short, uncertainty is inherent in the nature of things.
         The indeterminate nature of language and the different perspectives that germinate in the human brain and provide competing points of view make certainty in the law an impossible goal.  Take, for example, Yates v. United States, 135 S.Ct.1074 (2015).
         Yates was a fisherman who was alleged to have caught undersized fish, a violation of federal conservation regulations.  Such a violation is a civil offense punishable by a fine or possible suspension of one's fishing license.  A federal officer boarded Yates's fishing boat in the Gulf of Mexico off the Florida coast in a routine investigation and suspected that some of the catch was undersized.  He ordered Yates to take his boat into the harbor where officers could accurately measure the fish to confirm whether or not he violated the law.  On the way back to port, Yates was alleged to have thrown some of the small fish overboard.  He was charged with destroying, concealing, and covering up undersized fish to impede a federal investigation, in violation of 18 U.S.C. Section 1519.  Wait a second, that's a provision of the Sarbanes-Oxley Act of 2002.  That law was enacted to protect investors and restore trust in financial markets following the collapse of Enron Corporation.  That section provides that a person may be fined or imprisoned for up to 20 years if he "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence" a federal investigation.
         At trial, Yates moved for a judgment of acquittal on the Section 1519 charge.  Yates argued that Section 1519's reference to "tangible object" subsumes objects used to store information, such as computer hard drives, not fish.  The district court denied Yates's motion, and a jury found him guilty of violating Section 1519.  The 11th U.S. Circuit Court of Appeals affirmed the conviction, concluding that Section 1519 applies to the destruction or concealment of fish because, as objects having physical form, fish fall within the dictionary definition of "tangible object."
         Justice Ruth Bader Ginsburg, writing for the majority, reversed.  She noted that although dictionary definitions of the words "tangible" and "object" bear consideration in determining the meaning of "tangible object" in Section 1519, they are not dispositive.  Whether a statutory term is unambiguous "is determined [not only] by reference to the language itself, [but also by] the specific context in which that language is used, and the broader context of the statute as a whole."   Identical language may convey varying content when used in different statutes, sometimes even in different provisions of the same statute. True, a fish is tangible; you can see it, smell it, and eat it.  But the Sarbanes-Oxley Act is directed to corporate and accounting deception and cover-ups.  The majority held that the tangible objects covered by Section 1519 are those used to record or preserve financial information, not fish.
         Justice Elena Kagan, joined by Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, wrote the dissent.  She thought the majority was on a fishing expedition.  "In my view, conventional tools of statutory construction all lead to a more conventional result:  A 'tangible object' is an object that's tangible," and destroying evidence is destroying evidence whether it is a fish or a document.  Justice Kagan concludes with the suggestion that the majority probably think Section 1519 "is a bad law‑‑too broad and undifferentiated, with too-high maximum penalties."  This gives "prosecutors too much leverage and sentencers too much discretion."
         One can argue that both versions make sense and quotes from Oliver Wendell Holmes support the majority and the dissent.  For the majority, "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used."  (Towne v. Eisner, 245 U.S. 418 (1918).)  For the dissent, "I don't care what the Legislature meant, what did it say?"  (I am pretty sure Holmes said this, but I can't remember where or when.)   I see both points of view, but, if anyone cares what I think, under the "give me a break test," I side with the majority. 
         And this takes me to People v. Grimes, 60 Cal.4th 729 (2015), a death penalty case decided just prior to the appointment of the current new Justices Mariano-Florentino Cuéllar and Leondra Kruger.
One of the issues in Grimes prompted a vigorous dissent by Justice Goodwin Liu.  Should the high court have invited additional briefing concerning the application of harmless error to an issue not briefed by the Attorney General?  Justice Liu argued the Attorney General was not entitled to a second bite of the apple and had forfeited the issue.  But now Justices Cuéllar and Kruger, along with Justices Kathryn Werdegar and Liu, voted to grant rehearing. 
         That a new mix of justices may bring new perspectives and see the issue differently than those sitting on the court a few months earlier is not a calamitous descent into chaos.  It merely highlights that judicial interpretation of our Federal and State Constitutions and the law in general is dynamic and evolving.  Often the change in precedent is incremental, but it can also be abrupt and startling. Depending on one's philosophy, and the case at hand, this can be good or bad.  Brown v. Board of Education and Citizens United v. Federal Election Commission come to mind. 
Precedent is often a useful guide to help us plan for the future.  But no matter how hard judges strive to provide certainty in their application of the law, we must acknowledge that it is in the nature of things that this goal is illusive and often unattainable. 
         In case anyone cares how I would have voted on the Grimes case...I 'm not certain.  

It's All About Me




          A front page story in The New York Times last week titled, "Lawsuits' Lurid Details Draw an Online Crowd," by Jodi Kantor, caught my attention.  It begins, "Intimate, often painful allegations in lawsuits‑‑intended for the scrutiny of judges and juries‑‑are increasingly drawing in mass online audiences far from the courthouses where they are filed."  I began to sweat.  Recently I was the plaintiff in a celebrated lawsuit.  The lawsuits referenced in The New York Times article involved sexual harassment and gender-related suits.  But my lawsuit was…shall we say, not particularly sensational.  You will not find the word "sex" or any of its derivatives in the complaint, interrogatories, depositions or testimony.  I calmed down a little, and thought about removing the adjective "celebrated" from my earlier description.  But we prevailed, and the result is beneficial to the public and to judges, so I am sticking with "celebrated." 
          Gilbert v. Chiang, 227 Cal.App.4th 537 (2014) involves an issue of constitutional interpretation. Article VI, section 17 of the California Constitution states in part:  "A judge of a court of record may not practice law and during the term for which the judge was selected is ineligible for public employment or public office other than judicial employment or judicial office .…"  My brilliant legal counsel Elwood Lui at Jones Day argued that a retired judge could seek public employment during the time period that coincided with the judge's term of office.  Lui convinced the appellate court that a retired judge is no longer a judge of a court of record and therefore the section does not apply to such a judge.  In a beautifully crafted opinion by Justice William Rylaarsdam, the 4th District Court of Appeal agreed.  This case, like the title to a popular ballad of the 1950's, proves that language as well as "spring can really hang you up the most." 
On the opposing side, the deputy attorney general, a formidable advocate and a gentleman, argued I had no standing.  To prove the point, he tried to impeach me during my deposition.  He asked me if I had other interests.  I thought he was talking about my music.  I launched into a recitation of the bands and venues I had played.  Which reminds me:  time for a plug.  I will be backing The Singers in Law, Sunday, March 22, 2015, 8:00 p.m., at Vitello's, upstairs in the E Spot Lounge, 4349 Tujunga Ave., Studio City.  Imagine, everyone is a lawyer except Barbara Gilbert, who many years ago was a court reporter.  Come early for dinner.  The singers are John Blumberg, Kenneth Freundlich, Linda Hurevitz, and Barbara Gilbert.  The instrumentalists are Jerry Levine on drums, Bill Ryan on guitar, Eric Schaefer on bass, and a certain piano player.
So back to the deposition.  I enlightened the deputy attorney general with my interest in music, but he had something else in mind.  He impeached me with a column I had written years ago.  In it I said, "I had no plans to retire in the immediate future."  My palms began to sweat, but I gathered my composure and blurted out, "That was years ago and I was not under oath."   Whew! 
Gilbert v. Chiang allows all the judges in California to continue their service to the public after retirement from the bench.  So thanks to Elwood Lui, I, along with all those other judges, know that public employment is an option upon retirement no matter what our term of office may have been.  The uncertainty of how section 17 would be interpreted by the courts made it risky for a judge to retire and then seek an interpretation of the section.  Thus, my complaint raised a "justiciable controversy" that was ripe for "judicial resolution." 
Now that it's over, I would advise that you scuttle any plans to discuss with Elwood Lui the travails of having me as a client.  When needed, attorney-client privilege comes in handy.  
          I have authored thousands of opinions over my judicial career.  And through Gilbert v. Chiang, I also have derived satisfaction having my name as a plaintiff on a significant case.  I suppose I should be content, and I do not wish to sound envious, or covetous.  But unlike some other judges, I never have had my name on a large physical object, like an obelisk, a monument, a bridge or a building.  My colleague Justice Perren, as a trial judge, was so instrumental in implementing procedural reforms in juvenile delinquency proceedings that Ventura County named a complex of buildings after him, the Judge Steven Z. Perren Juvenile Justice Center. 
          Once I asked a supervisor on the Los Angeles County Board of Supervisors to lobby his colleagues to name something after me.  The best he could offer was the men's room at Union Station.  Commuters at the station objected and the motion was not brought before the board.  I had noticed an interchange off the Century Freeway bears the name "The Judge Harry Pregerson Interchange."  In the past I speculated in this column whether the Pregerson name on the interchange had anything to do with his presiding over the lawsuit challenging the construction of the Century Freeway. 
          And then it occurred to me that I wrote the opinion in Friedman v. City of Beverly Hills, 47 Cal.App.4th 436 (1966).  The opinion upholds the right of the city of Beverly Hills to give preferential parking to residents.   Why couldn't the city of Beverly Hills name something after me?  This past month, I, along with famed trial lawyer Tom Nolan, was honored at an elegant dinner at the Montage Hotel at the Fifth Annual Beverly Hills Bar Association Litigation Awards Dinner. 
          That is when I came up with the idea.  I am not pushy.  I do not expect the city of Beverly Hills to affix my name to some fashionable building on Rodeo Drive.  I will settle for a passenger loading zone at the Montage Hotel.  Do you think it was tacky for me to mention it when I received the Ronald M. George Award for Judicial Excellence?   The bar's Chief Executive Officer Marc Staenberg told me he is looking into

Tuesday, February 03, 2015

Never Skin a Cat



"There is more than one way to skin a cat."  How I despise that detestable aphorism.  There are more genteel ways to express that there is more than one way to accomplish a task.  Is the adage even apt?  It is hard for me to imagine one, let alone two or more ways to accomplish this abhorrent act.  Nevertheless, I draw upon this pitiless yet familiar proverb because everyone knows in an instant what it means.  It is my opening to discuss the au courant practice of avoiding traditional avenues to seek justice.  Some call it alternative dispute resolution.  It is one thing in the area of civil law, but something quite different in criminal law.
          I am not talking about creative or new methods of dispensing justice in the traditional forums.  A goal of the Realignment Act is to reduce the prison population.  (See Pen. Code, §§ 17.5, subd. (a)(4) & (5), 1170, subds. (h).)  Some judges employed novel sentencing techniques to accomplish this goal long before the Realignment Act became law.  Shaming defendants because of their wrongdoing is an example. 
In the old days people could endure just about anything but shame.  If you felt ashamed, it would be unbearable to look others in the eye.  That’s why Oedipus switched to Braille.  His “shameful” act has become a popular expression of derision, more frequently used by those who have never heard of Sophocles.  Like substantial evidence questions, the expression occurs with “rhythmic regularity” in the transcripts of criminal cases. 
Does anyone feel humiliation or shame nowadays?  If “reality” shows are an indication, the answer is obvious.  People eat live bugs and snails, reveal their most vulgar traits, plot against their friends, have sex with strangers, and suffer innumerable humiliations witnessed by millions of enthusiastic viewers.  If Hester Prynne were here, she would be doing commercials for the Auto Club. 
In United States v. Gementera 379 F.3d 596 (2004), defendant was convicted of stealing mail.  As part of his punishment, he was ordered to stand in front of a post office for a day wearing a sandwich board sign that said, "I stole mail.  This is my punishment."  On appeal, Gementera argued that the sentence was not legitimate because it violated contemporary standards of decency and humiliated him.  The Ninth Circuit saw it differently and affirmed the sentence.  The majority acknowledged that the sign condition likely will cause Gementera humiliation or shame, but the condition is reasonably related to rehabilitation, a goal of the federal Sentencing Reform Act.  Apparently it did not occur to Gementera that his pilfering letters violated contemporary standards of decency. 
In Demery v. Arpaio 378 F.3d 1020 (2004), the sheriff used "web‑cams" to stream on the Internet live images of pretrial detainees in county jail.  The Ninth Circuit affirmed the district court's grant of a preliminary injunction prohibiting this practice.  The appellate court failed to see how turning pretrial detainees into unwilling objects of a kind of reality show served any legitimate goal.  The practice amounted to unlawful punishment of pretrial detainees.  There were dissents in both Gementera and Demery proving that notions of justice can depend on perception and the right panel. 
If shame is an anachronism, why did Gementera and Arpaio appeal?  I think there is a world of difference between choosing to act in humiliating and shameful ways in front of a jaded public, and quite another to be forced to do it. 
One California judge, since retired, ordered a beer thief to wear for one year a T-shirt on which was boldly written, "I am on felony probation," and "My record plus two six packs equals four years."  The Court of Appeal in People v. Hackler 13 Cal.App.4th 1049 (1993) disallowed the order reasoning that the T-shirt just might not favorably impress prospective employers, thus defeating defendant's rehabilitation.  In another case, unpublished, the same judge sentenced a woman convicted of beating her children to wear a contraceptive Norplant device as a condition of probation.  The judge’s rationale for the sentence was that the defendant was a drug addict and the dependency court had terminated her parental rights to her five children.  The judge reasoned that he was trying to protect a child not yet conceived from brutality and neglect.  No surprise that on appeal this sentence was reversed as unconstitutional. 
          Many years ago Los Angeles Superior Court Judge Veronica Simmons McBeth made international headlines when she sentenced a slum landlord who refused to bring his apartment house up to code to live in the squalor of his own dilapidated tenement for a few months.
          In appropriate criminal cases, creative sentencing that avoids incarceration is beneficial to society and to defendants.  But it is quite another story when alternative dispute resolution is used to avoid prosecution in criminal cases.
          We reject the notion that gangs may exact retribution against one another for perceived criminal acts.  We should also reject the notion that those who belong to religious, social or ethnic groups that break the law may bypass society's law enforcement system for their own internal system of justice.  It has been reported that some in the hierarchy of the Catholic Church thought it best that priests accused of molestation be dealt with within the church rather than through the police department, the district attorney and the criminal courts.   
          In an article in The New Yorker (Nov. 2014) entitled "The Outcast," Rachel Aviv wrote a compelling piece about a man's teenage son who was allegedly molested by a man who prayed at the synagogue to which they belonged.  Aviv wrote about the Hasidic community of Borough Park, Brooklyn where these alleged acts occurred.  A "modesty committee" enforces standards of sexual propriety among Borough Park's hundred thousand ultra-Orthodox Jews according to Talmudic law.  Aviv reports that "[w]hen children complain about being molested, the council almost never notifies the police. Instead, it devises its own punishments for offenders: sometimes they are compelled to apologize, pay restitution, or move to Israel."  The article raises questions that apply to all groups whether they be religious or not.  Is it ever appropriate to keep matters involving the criminal "in house"? 
          Less serious alleged criminal violations may not always be amenable to adjudication in traditional courts.  Penal Code section 383b states in part:  "Every person who with intent to defraud, sells or exposes for sale any meat or meat preparations, and falsely represents the same to be kosher, … is guilty of a misdemeanor…."  Many decades ago, when I was a young deputy city attorney for the City of Los Angeles, I was assigned a case in which a violation of section 383b was alleged.  I leave for another column my adventure with the kosher chicken case. 
          The California Supreme Court in Erlich v. Municipal Court of Beverly Hills Judicial Dist. 55 Cal.2d 553 (1961) held that the statute was constitutional and not void for uncertainty.  But Korn v. Rabbinical Council of California, a civil case originally cited as 148 Cal.App.3d 491 (1983), held that the determination of whether a meat company's food is kosher is an ecclesiastical question best left to an ecclesiastical court when rabbinic authority is in disagreement over whether the meat is kosher.  This holding could have a profound effect on criminal cases or maybe not.  The California Supreme Court ordered that the "opinion be not officially published."
          Except in the most exceptional criminal case, I draw upon what is reputed to be an old Spanish proverb:  "There are more ways of drawing a cat out of a well than by the bucket."  I prefer my own version:  "There is no better way of drawing a cat out of a well than by a bucket."

A Personal Letter



In the past couple of weeks I have received a plethora of deeply personal, generic "holiday letters."  The adjective "holiday" is a euphemism for "Christmas" to avoid offending Jews, Muslims, atheists, Druids, and other nonsubscribers.  Oh dear, I fear the preceding sentence may offend my many Christian friends.  To you, please substitute the word "substitute" for the word "euphemism."  And if that preceding sentence is confusing (two "substitutes" in the same sentence), we could substitute the first "substitute" with the word "replace."  But then we have to recast the sentence.  "To you, please replace the word "euphemism" with the word "substitute."
         There now, I think that is a bit clearer. Yes, I quite understand.  It would have been easier to simply edit the original sentence and substitute or replace it with the new sentence; also delete the word "quite."  But because (not "since"; "since" should not be used to mean "because") most of you who read this column must write (or is it draft?) letters, proposals, contracts, briefs, and resumes occasioned by partnership dissolutions, I thought the foregoing would be useful, despite the ungainly length of the sentence.
In the beginning of the New Year, we writers can take a moment to commiserate with one another over the pain that accompanies our endeavors.  Our New Year's resolution is to do what we must to acknowledge that we are good writers only if we acknowledge that we are re-writers.
         And that takes us back to the writing of the oxymoronic "personal, generic" holiday letter.  These letters, particularly those from family members of lawyers, if not the lawyers themselves, are posted to hundreds of their intimate friends.  I have been a recipient of many such letters from people I am not sure I know.  They relate in self-congratulatory detail the wondrous events that have happened to them and their families and firms during the past year.
         Here are some passages from one I received last month from attorney Frank's wife, Gladys:
     "In June, our son, the genius Marvin, graduated top of his class at Harvard and has been made managing partner of an international tax firm at a starting salary of $2 million bitcoins.  
     Our daughter, the Yale physics professor, just published her fourth award winning book in which she describes her discovery of the unified field theory.  And, can you believe it, in February, she ran her 46th marathon and, in September, climbed Mount Everest where she saved five Sherpa guides from an avalanche and was awarded the Medal of Freedom. 
     Frank just landed two major clients for the firm, China and The European Union.  
     The villa in Paris is not quite finished so the kids joined us for a family reunion at the Palace Versailles.  I had quite a dilemma.  How many heads of state could we invite for our family holiday dinner?  Frank said '"the more the merrier,'" but I wanted something more intimate.  The Obamas couldn't make it, so we just invited the premier of Poland.  He is a kick with a wicked sense of humor.
     On a sad note, in November, our beloved Cocker Spaniel Corky died peacefully in his sleep and now is in dog heaven.  But he lived for 34 years and is in the Guinness Book of Records as the longest living Cocker Spaniel in recorded history.  Frank's client, an internationally famous veterinarian, was able to extract blood cells from Corky a month before his passing (Corky's passing, not the veterinarian).  He developed a formula that allows dogs to double their life expectancy.  We are so proud of Corky's contribution.  
     As for me, I intend to continue my work as financial consultant to the top ten firms on the New York Stock Exchange.  Whether or not I will accept the offer of Chair of Alibaba remains to be seen.  
     We wish you all a Joyful and Happy Holiday season and urge you to join us in prayer for the betterment of those who have not had the drive or connections to be as fortunate as we have."
         Are there generic holiday letters that speak of the misery of the past year?  You are not likely to read:  "Tom was disbarred last year.  Pete went AWOL in drug rehab.  Flossie choked 'till she was blue in the face on profiteroles at Starbucks last month."  Holiday letters are smug advertisements touting the accomplishments of the sender and her or his family to a mass audience.  I admit my response runs the gamut from envy to resentment.
         So no generic holiday letter to you, my readers.  You will not receive a self-congratulatory holiday missive reporting my monumental accomplishments this past year.  That there are not any to report is beside the point.  And you will not read from me saccharine, cloying, paeans of hope for your happiness and good fortune in the coming year.  You are in charge of that.  My good wishes will not make an iota of difference.
         I write letters directly to a particular person.  So if you will permit a change in tone, I write to my friend Judge Ruggero Aldisert, who passed away last week.  I was about to scuttle the column and write a eulogy, but he spoke to me and said, "I will permit a paragraph or two about me, but stay with the column.  Perhaps someone's writing will improve."  I think he was referring to me.  He does not mind my sharing this letter with you. 
         "Dear Rugi, We established a personal relationship a mere five or six years ago, but during that short period of time you enriched me for years to come.  I did not imagine that at my age I could have a mentor, but in fact you had been my mentor for years before we met.  Your articles and books on judging and the legal profession showed me and others in our profession how to analyze issues, how to structure and write our opinions with clarity and insight, how to do our job in the best possible way.  There they are on my shelf:  The Judicial Process: Text, Materials and Cases (2d ed. 1996) West Publishing Co.; Logic for Lawyers: A Guide to Clear Legal Thinking (3d ed. 1997) National Institute for Trial Advocacy; Winning on Appeal: Better Briefs and Oral Argument (2d ed. 2003) National Institute for Trial Advocacy; Road to the Robes: A Federal Judge Recollects Young Years & Early Times (2005) AuthorHouse; A Judge’s Advice: 50 Years on the Bench (2011) Carolina Academic Press; Opinion Writing (3d ed. 2012) Carolina Academic Press; and your novel Almost the Truth, A Novel of the Forties and the Sixties, published last year.  Unfortunately, my shelf could not hold the more than 50 law review articles you authored.
         After your retirement, following a mere 52 years as judge, you and I had planned on having some extended visits with our spouses.  What a profound disappointment these meetings will not happen.  But we will continue to have our conversations and you will always be my mentor.  Goodbye dear friend."