Screw Ups (a euphemism)

In today’s column we continue our exploration of the current fashion: peeling back the heretofore opaque cloaks… or, if you will, robes of the judiciary. Advisory digression for attorneys and jurists, if any, reading this column: Avoid “heretofore” in briefs, motions, and opinions. No exceptions. Will ignore any wiseass who would add “columns” to the list.

Our theme on change permeates all levels of society. Need I once again remind you of Heraclitus’ dictum, “All that endures is change.” If you recall from last month’s column, I wrote about a lady who many years ago I rescued from the men’s room at the Los Angeles Music Center. The sign over the entrance reads “Gentlemen.” I felt that appellation applied to me in the singular. “Arthur, or Presiding Justice Gilbert if you will, is a gentleman. He assisted a lady to exit unnoticed from the men’s room at the Music Center.” I could see that quote in a biography, or even on the wall of a building, more likely in the lobby.

In that same column, I wrote about my near arrest at the Music Center during the Giuseppe Verdi opera, Simon Boccanegra, and my offending conduct by reading my doggerel poem about Verdi’s lover Giuseppina Strepponi to a dignified lady at intermission. No wonder that for many years I stayed clear of the Music Center.

But recently Igor Stravinsky’s ballet Rite of Spring, choreographed by Pina Bausch, with more than 30 dancers from African countries, drew me back to the Music Center. At intermission, everything seemed to be the same. The line into the “ladies” room (is ladies still used?) snaked around in circles and moved at a snail’s pace. Notice the juxtaposition of the suborders Serpentes and mollusks of the class Gastropoda. I looked it up. I believe passing on information like this to my readers is edifying.

So, I worked my way around the line into the “women’s” room to get to the “gentlemen’s” room. I was stunned. Even Heraclitus would have been shocked. There were women walking around in plain sight. Reader’s discretion is advised for what follows. The men standing before their respective urinals were staring straight ahead, as men are wont to do in such situations, with or without women present. My take – the women didn’t care. Don’t get me wrong. The men’s room was not overpopulated with women, but there were a few women, nonchalantly there… and as far as I could determine, no one, including me, cared.

So, getting back to judges. They are no longer figures removed from the real world as though they were statues who interpret statutes. Judges are real people. They have bodily functions, get angry at home and elsewhere, get divorced, get depressed, have eating disorders, and, like me, have countless other skeletons in their closets.

Like many of my colleagues who have been open about their struggles and failures, I too will follow suit and devote the remainder of this column to reveal just two missteps in my judicial career. In future columns, I hope to find the courage to disclose more shortcomings in the hope my readers will profit from my lapses in judgment.

In In re Moss (1985) 216 Cal.Rptr. 205 (explanation will follow why this cite), I wrote: “Our review calls to mind that one or more of a defendant’s constitutional rights may occasionally fall between the cracks; here, many of them fell into the Grand Canyon. Therefore, we must vacate petitioner’s convictions and his admission to violations of probation.”

Clever, huh? A grabber? Maybe. But what is wrong with the passage? The metaphor works only partially. The Grand Canyon is one hell of a large crack where many things, including people, unfortunately, fall into each year. But if something falls between the cracks, it escapes falling into the cracks. Imagine dropping a toothpick on the cement. If the toothpick falls between the cracks, it does not fall into the cracks. Right?

We vacated our opinion in In re Moss when the People discovered after the case was published …“they?” “it?” Interruption to make a grammatical point. The People is a collective noun. So is a jury. We generally refer to such entities with the pronoun “they” instead of “it.” Oh well. But getting back to Moss, we had to vacate the opinion when after publication the People discovered “they” had not supplied a complete transcript of the proceedings. So of course, we had to vacate publication. I was told the trial judge took it well.

And in Phillips v. San Luis Obispo County Dept. of Animal Regulation (1986) 183 Cal.App.3d 372, a dog Missy owned by a lonely elderly lady was destined to be euthanized under a poorly written ordinance. The dog had nipped a child who had pulled the dog’s ears. I quote the opening paragraph: “This is a death penalty case. We reverse. Missy, a female black Labrador, shall live, and ‘go out in the midday sun.’” I also wrote, “We resist the temptation that grabbed hold of our colleagues who have written dog opinions, and will not try to dig up appropriate sobriquets. You will not read about ‘unmuzzled liberty.’ Nor will you consider an argument ‘dogmatically asserted,’ or cringe with ‘we con-cur.’ (In re Ackerman (1907) 6 Cal.App. 5 [91 P. 429].) We will not subject you to phrases such as ‘barking up the wrong tree.’ (Romero v. County of Santa Clara (1970) 3 Cal.App.3d 700, 704 [83 Cal.Rptr. 758].) We disavow doggerel.” Nevertheless, I snuck in references that I promised to avoid, “the county unleashes an argument…,” “we bury this argument…” “the ordinance ends with a bang not a whimper.”

I apologize for these transgressions. There are so many more to write about ensuring continuing material for future columns.