Splintered Meaning

UNDER SUBMISSION

In my last column, we talked briefly about Shaquille O'Neal's response to a question last season about what it would take for the Sacramento Kings to beat the Lakers. Shaq's enigmatic answer that it starts with "C" and ends with "T" caused much speculation. I refused to hypothesize about what Shaq meant, but I wrote that, for me, "Cheap Shot" seemed appropriate.

I have been told that Shaq is "pissed." And what's more, he's looking for me. Somehow Shaq found out what I said. But how could that be? I doubt he read it. Outside of the enlightening Judicial Profiles, I did not think there was much in the Daily Journal of interest to Shaq. I figured he read Sports Illustrated or the Police Gazette.

At first, I thought some blabbermouth told him about what I wrote, perhaps someone offended by my disagreement, expressed in that very same column, with noted writing expert Brian Garner about putting case citations in footnotes. Incidentally, I spelled his name "Byron" (as in Lord), instead of Brian, just to see whether anybody caught it. But sources say Shaq did in fact read my column and is also miffed about the misspelling of Garner's first name.

On the ground floor of the Ronald Reagan State Building is a statue of a creature vaguely resembling a California grizzly bear frozen in a perpetual crouch. Rumors in the press suggest that Shaq intends to dribble me around the bear. When asked during an interview with an underground newspaper whether this were true, Shaq said, "huh uh, when my hallux gets better." He also mumbled something about his support for case citations in footnotes. Following a practice of many newspapers, this newspaper includes a box on the front page called "Quote of the Day." In the box appears a quote from Shaq. "When I'm through with him, Gilbert will be - it starts with H and ends with Y." An informal poll has "hamburger patty" running far ahead of "healthy" or "hearty."

This practice of highlighting quotes of the day in daily newspapers reveals our plunge from a literary Everest to a barren Death Valley. Try as you may, you will not find, for example, "Happiness is when what you think, what you say, and what you do are in harmony," Mohandas K. Gandhi. Nor will you find, "Look at all the sentences which seem true and question them," David Reisman, or "Mistakes are the portals of discovery," James Joyce, or "Truth is the most valuable thing we have," Mark Twain, or "It's good to shut up sometimes," Marcel Marceau.

Compare these insights to the quote of a Vallejo criminal defense lawyer that appeared in bold type under the heading, "Quotable" on the front page of the Daily Journal on July 24. The catchy quote concerns the defense attorney's views about a Solano County Superior Court judge whose profile appeared in the paper that day. The unassuming defense attorney lavished praise on the judge with a tactful comparison to other judges. The quote, belying the old adage about all the news that's fit to print, is "most judges I wouldn't piss on if they were on fire ... Paul, [the judge in the profile] is really a decent human being."

By seeking attribution for his elegant quote, this attorney must crave notoriety as much as the people who appear on the new "reality" television shows. Those are the folks who stuff raw pig entrails down their throats. Being seen and heard apparently trumps public humiliation. The analogy is not quite perfect. Unlike the television contestants, here the offal came out of the lawyer's mouth rather than into it. His unique judicial encomium contrasted the good qualities of one judge by a disparaging comparison to most others.

I suppose this is just another example of a profession taking it on the chin these days. Who ever thought we would witness seemingly harmless accountants reviled with the same degree of vehemence as physicians, priests, historians, lawyers, bar examiners, and even judges, whose repute declined at the conclusion of the last presidential election?

It is easy to ignore a tasteless slight, but when one of your colleagues suggests that appellate justices are not all they are cracked up to be, one has to take notice. Just one day before the graphic quote from Solano County, there appeared an article in the July 23 Daily Journal called "Judge-Speak: Appellate Court Decisions Use a Language Requiring Translation" by retired but not retiring Court of Appeal Justice Robert S. Thompson.

The article appears on the Dicta page, which a subheading informs us is devoted to "Notes, Comment, Frolic & Detour." I am not sure into which of these categories Thompson's article most properly belongs. Thompson takes phrases used by appellate justices and offers a translation of what they mean. For example, Thompson says that, when appellate justices say they are familiar with the record and the briefs, that means the research attorney drafted the opinion. He also writes that an admonishment from the court that it is interested in logic, not argument, means the research attorney has decided against you. Get the drift?

Is Thompson saying that appellate justices don't do much of anything but play golf and that the research attorneys do everything? If so, then maybe Thompson's article belongs under the "Comment" subheading. It is noteworthy that two of Thompson's research attorneys became two of our most distinguished appellate justices.

On the other hand, I bet the article belongs under the "Frolic" subheading. Thompson is an incisive thinker, with a penetrating intellect, as conversant with judicial philosophy as he is with hiking trails in the Himalaya. I am sure Thompson drafted many of his own opinions. His article is most likely a gentle satirical rebuke to some appellate courts that he may perceive as becoming bureaucratic and staff-dependent.

Yet, for all his accomplishments, fickle history will make Thompson remembered mostly for the much maligned footnote 2 in People v. Arno, 90 Cal.App.3d 505 (1979). Arno, written by Thompson, is an extremely well-reasoned opinion reversing convictions for possession of obscene films. The footnote was written in response to a derisive dissent that scolded the majority for its opinion. Depending on how you look at it, the footnote is either outrageous and appalling or innocent and benign. That in turn depends on whether you consider the anagram contained within the footnote scatological and repugnant or genial and inoffensive.

Contained within footnote 2 are seven numbered sentences. The first letter of each word of each sentence spells "schmuck." The footnote points out that a German dictionary defines "schmuck" as "jewel." The footnote also cites footnote 6 of Justice William O. Douglas' dissent in Ginsberg v. New York, 390 U.S. 629 (1967). Douglas' footnote reminds us that obscenity is in the mind of the beholder. Whatever one thinks of Thompson's majority opinion, I am sure footnote 2 was not written by a research attorney. Because Arno involved an issue concerning obscenity, the footnote may have been written only to show how words are subject to a variety of interpretations.

It is ironic that, with all the controversy about footnote 2, the Arno decision contains an uplifting grace note in footnote 1. The Court of Appeal had transferred the Arno case from the appellate department of the Superior Court. In footnote 1, Thompson thoughtfully wrote, "We do not denigrate the opinion of the appellate department. It is exceedingly well analyzed, researched and crafted. Our sole reason for not adopting it is a minor disagreement with the manner of expressing the controlling principle." Now that is class. This leads me to believe that Thompson meant no harm by footnote 2, just as I am sure he meant no disrespect in his Daily Journal article to all the Court of Appeal justices throughout the state who meticulously craft their opinions.

I would love to call Shaq and get his views on the matter. I can just imagine our conversation. Shaq says he really isn't out to get me; he's just joking around. He tells me our little tiff is no different than his brief contretemps with Kobe. I learn that he is an avid reader of the Daily Journal and likes my column about the colonoscopy. He reads the Daily Appellate Report but thinks many of the opinions lean toward the turgid and may be overwritten. I offer words of encouragement about his upcoming toe surgery.

I bring the conversation around to Thompson. Shaq admires his work. I mention footnote 2 in the Arno decision. I suggest it is merely an ironic comment about the use of language. Shaq replies, "It starts with B and ends with ... " I interrupt him. "Please, not another guessing game with initials." After a long silence at the other end of the line I hear, "Baffled, Unsure, Laughable, Lapsing, Serendipitous, Hectoring, Instructive, Tumultuous."