Tuesday, June 16, 2015

The Earth is Not Flat

     Many centuries ago a timid sailor said to the ship’s captain, “Columbus, don’t do this‑‑we will fall off the edge of the world.”  I have it on good authority that the earth is an oblate spheroid.  Yet there are people today who believe the earth is flat despite all the evidence to the contrary.  Many such “believers” (or are they nonbelievers?) belong to flat-earth societies.
         There are people who believe that a president should not appoint a person directly to the United States Supreme Court unless the appointee has had prior judicial experience.  The same goes for a governor making direct appointments to the state Supreme Court or to the Court of Appeal.  I have not seen evidence to support this notion.
Perhaps this curious misconception comes from those of one political party who seek to disapprove appointments made by the other party.  All the members of our United States Supreme Court, with the exception of Justice Sonia Sotomayor, had direct appointments to appellate courts.  Chief Justice Earl Warren, Justices Felix Frankfurter and William Douglas were direct appointments to the Supreme Court.  Many judges on the 9th U.S. Circuit Court of Appeals, Republicans and Democrats, were direct appointments.
In California, one of the great jurists of the 20th century, Roger Traynor, was directly appointed to the California Supreme Court.  Other luminaries Raymond Peters was directly appointed to the Court of Appeal in 1939.  And Mathew Tobriner was directly appointed to the Court of Appeal in 1959, and three years later to the California Supreme Court.
In recent times governors from both parties have made direct appointments to the Court of Appeal.  They include Justices Daniel Kolkey, Earl Johnson, Andrea Hoch, Coleman Blease, Jim Humes, Peter Siggins, Therese Stewart, Charles Poochigian, and Richard Mosk, though prior to his appointment he sat as a judge on the Iranian-United States Claims Tribunal at The Hague.  Whatever their political affiliation, these jurists and other “direct appointees” have distinguished themselves as outstanding judges.  And we can expect the same from our recent appointees to the California Supreme Court.  The range of talent among appellate jurists has little or no correlation to prior judicial experience.
I am particularly enthusiastic about the recent appointees to the 2nd District Court of Appeal‑‑Lamar Baker, Elwood Lui and John Segal.  They all have impressive backgrounds.  Baker’s appointment will be directly to the Court of Appeal.  He has been a special assistant to the president, has worked as an assistant U.S. attorney, and has been in private practice in Los Angeles.  He has tried cases in trial and appellate courts, and has received rave reviews from all who have worked with him.  Segal has been sitting by assignment on the Court of Appeal.  His well-reasoned opinions already establish him as a first rate justice.
I have more than a passing familiarity with Elwood Lui who is coming back to the Court of Appeal.  I have known him for 40 years and we are close friends.  He is a brilliant lawyer and an extraordinarily fine justice.  Justice Frances Rothschild, Lui and I began our judicial careers in traffic court.  We were all in our30's.  As I recall Rothschild was Gov. Jerry Brown’s first appointment to the Los Angeles Municipal Court.  Justice Lui (Ret.), soon to jettison the “Ret.,” thinks he was the second appointment, and I was the third.  On August 18, 1975, we both received a call from the governor, who was also in his 30's.  We cannot prove whom the governor called first.  Whenever we ask him, he changes the subject.  The only reason Elwood had seniority over me was that he ran down to the courthouse and was sworn in before me.  Richard Mosk, who back in 1975 was a successful lawyer, arranged for me to be sworn in by his father, Justice Stanley Mosk at Richard’s home on Labor Day.  And now that Lui will be back with us as a justice, for the first time ever, I have reminded him, more than once, that I will have seniority over him.
I have often thought about why people apply to the bench.  Gov. Brown once said it was not for the pay but for the psychic rewards.  He has a point.  It is why I am on the court, and why Elwood Lui will once again join me as a colleague.  It is the reason that we are all there.   
An article in the New York Times a few weeks ago by Douglas Quenqua posits that successful lawyers are not happy, documented in a study authored by Lawrence S. Krieger, a law professor at Florida State University.  If you think the rewards of a successful practice, “wealth, status, stimulating work,” bring happiness, you are probably wrong.  Quenqua, referencing the study, wrote, “Researchers who surveyed 6,200 lawyers about their jobs and health found that the factors most frequently associated with success in the legal field, such as high income or a partner-track job at a prestigious firm, had almost zero correlation with happiness and well-being.  However, lawyers in public-service jobs who made the least money, like public defenders or Legal Aid attorneys, were most likely to report being happy.” 
         “Lawyers in public service jobs also drank less alcohol than their higher income peers.  And, despite the large gap in affluence, the two groups reported about equal overall satisfaction with their lives.”  
         Lui represented me in the celebrated case, Gilbert v. Chang 227 Cal. App.4th 537 (2015).  The case allowed retired judges to accept public employment during their so-called “term of office.”  I can assure you I did not pursue this case on behalf of all judges in the state of California so they could make more money.  This is public employment mind you.  So why do it?  I guess it’s about the satisfaction we experience in public service.
         And let’s not hear complaints about judicial experience.  Diversity in experience and background provides a dynamic and energetic judiciary.  A flat-earth mentality defeats that goal.
         In my research to dispel popular misconceptions, I discovered that Einstein did not fail mathematics.  He was good in the subject.  He failed his first attempt at the entrance exam to the Swiss Federal Polytechnic School.  Hey, what do you expect, he was two years younger than the other students.
         I also learned that Napoleon Bonaparte was 5 feet 7 inches tall, not 5 feet 2 inches.  What a relief.  And here is some truly useful information.  Vomiting was not a customary Roman dining custom.  The vomitorium was simply an archway to enter or leave a stadium where you could see a lion eating someone.  So it’s no wonder that people would probably make good use of the exit.  Flush toilets were used during the Bronze Age.  So Thomas Crapper did not invent the flush toilet.  Marconi did not invent the radio, and Al Gore did not invent the Internet.
         But I had difficulty resolving the Coriolis effect.  Does water drain in a counterclockwise vortex in the Northern hemisphere and clockwise in the Southern?  It’s all the same to me, like arguments about judicial appointments.  The governor makes the appointments and the Judicial Evaluation Nominees Commission evaluates and rates the candidates.  The system works fine, and given that California’s judiciary is par excellence, arguments about judicial experience and direct appointments should be washed down the drain, clockwise, counterclockwise, or otherwise.

Terrifying Judges

"No one has to read a word I write."  In a column in The New York Times last week, novelist Robin Black suggests that "emerging" women writers tape these words to their computers.  Good advice to all writers. 
         That is not the case for me and my colleagues on the Court of Appeal.  Nor is it for trial judges who must write, among other things, judgments and statements of decision.  The lawyers involved in the cases we write about, and usually their clients, have to read what we write.  So do judges and lawyers searching for precedent.  Readers of this column have the luxury of stopping right now, "skimming" over the prose, or lining their birdcages. 
         But all writers have an obligation to all of their readers‑‑to be understood.  We may fall short of this goal because we often write to understand.  Writing through the problem gets the writer to a way station, a place of private understanding.  This "stop" may be far from the final destination.  The re-write for the reader tests the writer's understanding. 
         In Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665-666, 667, I wrote, "An opinion ought to be written so that a reasonably intelligent reader knows what it means.  The opinion ought to be concise and clear, not vague and obscure.  The holding of a case should state a principle of law with sufficient clarity so that persons can carry on their affairs with reasonable predictability as to the legal consequences of their actions.  If, however, an opinion can reasonably be susceptible to different interpretations, then the writer may have failed to meet his or her obligation….  We writers and readers of opinions should heed the admonition of Voltaire.  'Let all the laws be clear, uniform and precise: to interpret laws is almost always to corrupt them.'  (A Dict. of Legal Quotations (1987) p. 18.)"
         I hope that did not happen in my interpretation of a 177-word sentence in Penal Code section 1203.2a dealing with probation violations of defendants who are sentenced to prison on a later case:  "If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing, if such writing is signed in the presence of the warden of the prison in which he or she is confined or the duly authorized representative of the warden, and the warden or his or her representative attests both that the defendant has made and signed such request and that he or she states that he or she wishes the court to impose sentence in the case in which he or she was released on probation, in his or her absence and without him or her being represented by counsel."  (People v. Holt (1991) 226 Cal.App.3d 962, 966.) 
      My response to the Legislature's unpalatable concoction:  "It is an unenviable chore to consider section 1203.2a.  The statute reflects a disregard for careful drafting and contempt for the English language.  Meandering clauses in which the subject and predicate are ruthlessly separated from one another, jumps in thought and logic, and a lack of organization make the going difficult.  Nevertheless, we have persevered in our trek through the statute's thicket of tangled clauses.  Our efforts have not gone unrewarded.  The statute has a specific meaning that apparently was not discernible to other courts."  (People v. Holt, supra, 226 Cal.App.3d at p. 965.) 
         But readers also have obligations.  Short and simple may be clear but nevertheless misleading to the careless reader.  Last Sunday morning I met a friend for breakfast at Factors Deli on Pico Blvd. in Beverly Hills.  The side streets adjacent to the deli are mostly residential.  The first four parking places on the side street perpendicular to Pico are metered.  The parking sign reads, "TWO HOUR PARKING.  SUNDAYS EXCEPTED."  Further down the street beyond the parking meters is a parking sign that reads, "TWO HOUR PARKING M-SAT.  PERMITS EXCEPTED.  NO PARKING AT ALL OTHER TIMES." 
         Had I not noticed the meter maid slipping tickets under the wipers of the parked cars without permits, I would have gotten a ticket.  The sign is clear, but the confusion stems from the sign next to the meters which allows parking on Sundays.  I would lose in court if I tried to argue the signs were confusing. 
         I hesitate to improve on the warning etched on my car's side mirror, "Vehicles are closer than they appear."  These few words tell us to be careful changing lanes because the cars we view in the mirror are not as far back as they appear to be.  Hard to put that on a small mirror, and harder to read.   
         But there is a problem with confusing language that compels us to supply what we think the writer intended.  In a recent article discussing the skills of a mediator, a lawyer offered his comments about the mediator, "You can throw a rock and hit a mediator in L.A.  Everyone on the bench wants to be one.  Relatively few know what they're doing, and (this mediator) is one of them."  My bet is he thinks this mediator knows what she's doing.
         But the writer who strives too much for brevity may lead the reader astray.  "She leased the building."  Was she the lessor or the lessee?  Context might provide the answer, but standing alone this statement needs clarification.  "They are terrifying judges."  Are terrorists threatening the judges or are the judges just being themselves.
         Sometimes ambiguity is no one's fault.  A journalist friend of mine interviewed the winner of a beauty contest.  She asked the beauty queen how she felt after winning the contest.  The journalist wrote that the beauty queen replied, “I felt odd.”  The beauty queen wrote an irate letter to the journalist arguing that she had been misquoted.  The journalist referred to her notes and repeated the beauty queen's response.  "Yes, that's what I said and you misquoted me.  I felt awed.”  I side with the journalist on that one.  Am I asking too much to have expected the beauty queen to be clearer with “I felt a sense of awe.”  Or perhaps the journalist might have inquired further about the odd response. 
         I was dining in a neighborhood restaurant and told the waiter I liked my soup “hot.”  The soup arrived and, after just one sip, there was an inferno in my throat.  The soup was moderately warm, but the pepper and hot spices that were added to accommodate what the waiter thought were my ironclad taste buds precipitated a conflagration in my larynx.  My fault. 
         I am not sure how to characterize this final example.  I recently received an award for "Journalism Excellence."  I am not bragging as you will discover.  The award, memorialized in elegant script on a large parchment-like document, recognized me for my "insightful and courageous writing."  Sounds good, right?  It also noted that my dedication to truth and integrity in the judiciary are "paralleled."  Well, at least it won't go to my head. 
         And this takes me back to my recurring theme of uncertainty.  It requires effort to express what we wish to say or write.  And it requires effort to read with care so we do not make unwarranted assumptions.  Even with these cautions, uncertainty is ubiquitous.  
     James Terry, an insightful clerk in our court, asked me how the President spelled his name in 1975.  We are still friends.   

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.