NOT AN INTERMISSION

This column speaks, among other things, about matters of bodily functions.  Reader discretion is advised.

“What goes around comes around.”  To appreciate the significance of this well-known dictum, one must experience the “comes around” part.  I recently did….

But first, the "goes around" part.  It was back in the mid-1970’s when I was a municipal court judge.  I took pride in handling a heavy calendar, trying and disposing of cases with dispatch, while, of course, assiduously protecting the defendants' constitutional rights, and according counsel, witnesses, and the jury every possible courtesy.

A city attorney assigned to my court ‑ let’s call her Pia ‑ was a good lawyer, and I was fond of her.  But she had an annoying habit that drove me nuts.  She constantly required breaks to visit the “restroom.”  No matter that her urgencies often occurred at key moments during trial when a witness was providing crucial testimony.  She would squirm in her seat, and stare at me with desperation in her eyes.  This was not a ruse to sabotage opposing counsel.  If I did not respond to her silent plea, she would ask for a recess, even while one of her own witnesses was testifying favorably. 

         What to do?  I thought it inappropriate to suggest she consult a urologist.  I discussed the problem with my colleagues, but their suggestions were less than helpful.  One person suggested I drop a subtle hint by placing a catheter on the counsel table.  I thought the idea indelicate, and, besides, I had no idea what size.  Finally, one day after court, I broached the subject with her.  “Are all these breaks really necessary?”  “They are restroom breaks,” she replied.  “You see,” she went on, “I have an extremely small bladder.”  When she saw the color vanish from my face, she said, “Not to worry.  I volunteered the information.  But check your impatience,” she cautioned.  “Some day you will know what I am talking about.”

When I was in my mid-60’s, and young and foolish, I ran or, to be more accurate, crawled the L.A. Marathon.  I trained with a diverse group of like-minded people who also lacked judgment.  We established strong bonds.  One of my new friends with whom I trained was a young woman who did stand-up comedy.  The week after our grueling race, our running group went see her perform at The Ice House in Pasadena.  I wrote some jokes she used in her routine:  “So folks, you might wonder, why would I get up at 5:00 in the morning and train for the punishing L.A. Marathon.  I was looking for 'marathon man.'  But all the men my age were in training groups that ran 8- and 7-minute miles, too fast for me to sustain for 26 miles, so I trained with a slower group that consisted mostly of older men.  But there were compensating factors.  From their sophistication and experience in the world, I learned about things I would never have known.  Did you know that prostatic hyperplasia is a common ailment of men in their 60's and 70's?” 

         And this takes me to my problem, the “comes around” part.  It reached its apogee during Verdi’s powerful, yet seldom performed, opera Simon Boccanegra.  I always seem to get into trouble with Verdi's operas.  I do recall seeing a performance of Il Trovatore.  Or was it La Traviata?  No matter.  The program notes mentioned the passionate affair Verdi had with the incomparable soprano Giuseppina Strepponi.  They eventually married.  I was so moved by the music and the couple's illicit relationship that I composed a poem during the performance.  The poem begins:

Guiseppina Strepponi

Loved Verdi and spumoni,

Was his lover, not a crony,

His muse, his rigatoni.

         I read it to a lady who sat down next to me in the lounge during intermission.  She got up and left without saying a word.  No doubt she deduced that I had penned my lines during an important aria.  I subsequently added a quatrain, keeping to the same rhyme scheme, but not the meter. 

She, Verdi's love, his love only,

A love that's true, not phony,

They, an island, not Coney,  

They were ham and cheese, not baloney.

         So Verdi struck again with Simon Boccanegra.  It is such a long opera that the geniuses at the Los Angeles Music Center decided to schedule just one intermission.  Seems to me a long opera calls for two or maybe even three intermissions.  So we get home a little later.  What's the big deal? 

         The first and second acts go on and on with several scene changes, during which the curtain closes and the house lights go on, but in a dim mode.  The screen on which the subtitles are written reads, "NOT AN INTERMISSION."  The first time I read this disappointing message, my discomfort is in stage one alert.  The second time, stage two alert, I grimace.  I think to myself, "Surely the intermission will occur soon.  We are not even into the second act."  It is an eternal 15 or 20 minutes before the house lights dim a third time with the infuriating message, "NOT AN INTERMISSION."  Stage three alert!!!  I am in agony.  I silently curse Verdi.  I have to make my move.  I get up and make my way to the aisle.  Of course my wife and I are sitting in the middle of the row.  Annoyed patrons mumble, "Not an intermission."  "Quite true," I mumble back.  One obnoxious SOB with large feet refuses to move them so I can pass by.  "Not an intermission," he growls.  "I can read," I say.  "Please let me by.  It is an emergency."  "An emergency?" he asks sarcastically.  "You will regret it if you do not let me by," I reply.  Probably a dumb thing to say.  But he does ever so slightly move his feet and I stumble over them.  I finally get to the end of the aisle.  There, I am met by a young attendant who says to me ‑‑ you know what.  "Not an intermission," she intones with authority.  "Let me by," I demand.  "You will not be admitted back into the auditorium until after the intermission," she says.  "Will that be an hour or so?" I ask. 

She is blocking the door.  I walk past her and push open the door.  In doing so, my hand brushes against her sleeve.  "You touched me," she says with alarm. 

Just what I need.  The front page story in the Daily Journal flashes before my eyes.  "Judge Arrested for Assault at Music Center."  At this time, I figure I have about 30 seconds left.  A bright red flashing warning light goes off in my brain like the one you see in films in which the spacecraft or the massive structure that houses the death ray will blow up in seconds.  I hear the recorded voice, implacable, crisp and certain, methodically ticking off the seconds to total annihilation.  "29…28…27…"

         I tell the young attendant who has followed me that I am ill.  She panics and offers to call paramedics.  I say "unnecessary," and bolt for my destination.  I and several others in the same predicament make it to the restroom just in time.  Yes, Pia, I get it.  It had gone around, and 35 years later it came around.  I watch the next scene on the television monitor in the lobby with a bunch of old guys.  Then comes the intermission.  None of us care.  The third act is a piece of cake.

I am occasionally called for jury duty.  I never get picked, but sometimes judges are selected to sit on a panel.  I would love to sit on a jury but I worry about what could happen if I did.  I fear that during trial I may squirm in my seat and stare at the judge with desperation in my eyes. 

Not an April Fools' Column

Today, as usual, my column appears on the first Monday of the month.  Today is a court holiday in celebration of the birth of Cesar Chavez, the great champion of farm worker rights. Today is also April Fools' Day, but this unfortunate coincidence of the sublime and the ridiculous occurring on the same day is of no significance.  I would have preferred we celebrate Chavez's birth on his actual birthday, Sunday, March 31st.  But then we would not have a court holiday this year.  I leave it to others to decide whether or not the trade-off is worth it.  But I endorse the principle that birthdays need not be celebrated on the same date as one's actual birthday.  No disagreement from those whose birthdays occur on Christmas, New Year's, or Super Bowl day. 

          April Fools' Day, the day of practical jokes, is a tradition that goes back centuries.  There is a subtle reference to April Fools' Day in "The Nun's Priest Tale," in Chaucer's The Canterbury Tales.  Do not try, as I once did, to read the tale in the original Middle English.  I could attribute my missing the April Fools' Day reference to my deficient translation skills, but I also missed it in the modern English version.

          The first Monday in April of 1996 was the last time my column appeared on April Fools' Day.  I wrote about a series of troubling current issues that I claimed had been resolved.  "April Fools!"  Get it?  Would it not be interesting to see what I wrote about then, a sort of 17-year-old time capsule?  This brief foray into the past will be illuminating.  And it will save me the trouble of writing a completely new column this month.

          What follows are excerpts from what I wrote in 1996, with an occasional "comment" from the present. 

          The column began with a corny, yet ironic title.  (My titles today are much better.)

GOOD NEWS-READ ALL ABOUT IT!

          "What's the good news?"  This seemingly naive question invariably produces a patronizing yawn from the blasé.  A typical response is:  "Haven't you heard, darling, there isn't any." 

          If we narrow our inquiry to the judiciary and the legal profession, we get a similar response:  "Haven't you read the advance sheets?" or "Haven't you read the papers?"

          I have, but I don't think I have asked the wrong question.  There's no denying that headlines scream bad news at you.  News items drip with scandal, opprobrium, negation and disapproval.

          If you're like me, you're ready for a change.  There are positive changes afoot and I'm happy to report the following good news:

1.       MONCHARSH OVERRULED.  

          In Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, our Supreme Court held that courts must confirm arbitration awards even when the arbitrator commits egregious errors which appear on the face of the award and which cause substantial injustice.  The Supreme Court now sees the wisdom of Justice Joyce Kennard's dissent, and finds it unseemly for courts to be instruments of injustice.  It therefore intends to reverse itself on Moncharsh.  Comment - I wrote the unpublished, routine Moncharsh Court of Appeal opinion, which my colleagues concurred.  The California Supreme Court granted review, and something remarkable happened.  We were affirmed.  But our dicta were reversed (sounds horrible, but "dicta" is plural).  Today, Moncharsh is applied with more flexibility and less fervor and zeal than when it was first decided. 

2.       MORADI-SHALAL OVERRULED. 

          In Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, our Supreme Court overruled its earlier opinion in Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880, which allowed third party bad faith claims against insurance companies.  Our high court has renounced its judicial activism and intends to overrule Moradi-Shalal. 

3.       ASSUMPTION OF THE RISK-A PIECE OF CAKE. 

          In Knight v. Jewett (1992) 3 Cal.4th 296, our Supreme Court offered a scholarly exegesis on the doctrine of assumption of risk and explained its application in light of the doctrine of comparative negligence.  Judges, lawyers and commentators now fully understand the majority, concurring and dissenting opinions.  It is easy to distinguish between primary and secondary assumption of the risk, and there is universal agreement as to what the case means.

4.       THE DISMISSAL OF MOTIONS TO DISMISS. 

          Trial courts are reevaluating their rulings on motions brought to dismiss for failure to prosecute under Code of Civil Procedure section 583.410. 

          Even though cases must be brought to trial with dispatch, trial courts are becoming more understanding when plaintiff's counsel misses the statutory time limits.  In a remarkable unanimity of action, trial courts throughout the state have come to the same realization:  dismissing cases for failure to prosecute only temporarily purges cases from the system.  The malpractice actions that inevitably follow such dismissals clog the trial and appellate courts with even more cases.  The lawyer whose case was dismissed becomes a defendant in an action brought by the former client.  The lawyer's insurance company, who contends there is no coverage, has to defend the bad faith action brought against it by the attorney.  If the former client gets a judgment, there may be even more actions to collect the judgment.

          Trial courts intend to exercise their discretion so as to give lawyers who offer reasonable excuses for delay the opportunity to try their cases on the merits.  Comment - Today an attorney's excusable neglect often saves the bacon.  (See Code Civ. Proc., § 473.)

5.       GOOD FAITH? BAD FAITH? SEARCH ME?  

          In United States v. Leon (1984) 468 U.S. 897, the United States Supreme Court held that an invalid search warrant could be upheld if the police officers serving it have a good faith belief in its validity.  Many court observers have complained that the Leon case emasculated the Fourth Amendment.  The United States Supreme Court is asking itself an important question:  What is the purpose of having the Fourth Amendment if it can so easily be violated?  Although some justices are in favor of its outright abolition, other voices have prevailed.  The signature of a well-meaning magistrate on a defective warrant will no longer be acceptable, no matter how much good faith the cops have.  A new decision disapproving Leon will be out soon.  It will be written by either Judge Scalia or Judge Thomas.  

6.  CIVILITY REIGNS. 

          All members of the bar have come to realize they are members of a noble profession.  They now all take enormous pride in their work, and treat each other with respect and civility.  The request for a continuance or a stipulation on virtually any matter need not be memorialized in writing.  A lawyer's word will suffice.  Therefore, trial courts will no longer be called upon to settle petty disputes over these issues.

7.       NEW DISCOVERY ABOUT DISCOVERY. 

          Discovery statutes actually facilitate discovery.  They are making the exchange of information between counsel pleasurable and easy.  Instead of misusing the discovery law to impede discovery, counsel now readily exchange pertinent information.  Courts no longer are burdened with annoying discovery motions, and discovery referees have become as essential as carbon paper. 

8.       BYE-BYE SANCTIONS. 

          Sanctions are a thing of the past.  Due in large part to items 6 and 7, attorneys rarely ask for them.  Even when they do, courts are loath to grant them.

9.       HARMLESS ERROR IS HARMFUL. 

          Harmless error is being used more sparingly in criminal cases.  That is because courts refuse to use this doctrine as a substitute for rigorous analysis.  Prosecutors refuse to rely on harmless error as a safety net for a well-tried and thoroughly researched case. 

10.     DEPUBLICATION DEPUBLISHED. 

          Our Supreme Court has refused to depublish cases in order to control its case flow.  Comment - Today depublication is rare, and few practitioners would argue it is not appropriate when it does occur.

11.     THREE STRIKES IS OUT. 

          The public thinks the Three Strikes initiative is too draconian.  It is about to replace that law with something different--a life sentence for violent repeaters, instead of for those recidivists who steal a pizza or a carton of cigarettes.  Comment - Looks like there are "changes afoot." 

          I could go on, but this generous sample of good news proves there is more to look forward to than misery and tribulation.  But to be fair, we should acknowledge the bad news.  I have only one item to report:  today's date.

          Comment - So ends my 1996 column.  Unlike that column, this one does not seek to play a joke on the reader.  But because some of my April Fools' Day predictions in 1996 became a reality, there may be cause for cautious optimism about the future.  If I write that funding will soon be restored to the courts so that all citizens will have access to justice, do you think it will happen soon?  But this is no joking matter.  I can only hope that it will before the passage of 17 years.

The enduring legacy of California’s Premier Justice Stanley Mosk

This column illustrates that our lives are like electricity, filled with connections.  But to make a connection one has to plug in and flip on the switch.

         But first a caveat:  In this, my 210th column, you will be exposed to bursts of effusive praise for one of California's and the country's premier jurists, Stanley Mosk.  You will also encounter a paean or two for his son, also a jurist of uncommon ability, Court of Appeal Justice Richard Mosk.  That was paean No. 1.

         Next a disclosure:  Close to 50 years ago, Richard Mosk and I sat at opposite ends of the counsel table.  We represented our respective clients in a lawsuit involving a motor home company, (my firm’s client), that had been acquired by a mega corporation, (Richard’s client). The lawsuit was hotly contested, but Richard and I maintained a civil relationship and kept our sense of humor throughout the proceedings.  A friendship developed that has endured to the present. 

         When Richard learned of my appointment to the Los Angeles Municipal Court in 1975, he asked if I would like his father to administer the oath of office.  I could not imagine a greater honor than to be sworn in by one of the nation's most respected jurists.  On a warm Labor Day, an affable and gracious Justice Stanley Mosk swore me in at Richard and Sandy Mosk's home with family and friends in attendance.  We all downed a glass of champagne or two, and the next day I heard my first traffic ticket case.  I ruled against the pro. per. protesting the charge of an unsafe lane change, immediately establishing my bona fides as a law and order judge.  The pro. per. appealed.  That I cannot recall the outcome of the appeal could mean that my decision was reversed.

         Enough about me.  But before we get back to the Mosks, a disclaimer:  True, I admire the Mosks.  Nevertheless, I apply here, with the same steadfast and undeviating rigor, the fairness and objectivity reflected in my opinions over the past three-and-a-half decades 

         I commend to your reading, Justice Stanley Mosk, A Life at the Center of California Politics and Justice, by Jacqueline R. Braitman and Gerald F. Uelmen (McFarland & Company, Inc., 2012). 

         As the book's introduction aptly notes, "The life of Stanley Mosk has much to teach us about politics and justice in America."  Mosk had a part to play in many of the important and "epochal defining moments of the 20th century."  "From his arrival to California in 1933, he was fully engaged in the civic, social and political life of his community, state and nation."  His tenure as the longest serving Justice on the California Supreme Court (1964-2001) afforded him the opportunity to author ground-breaking opinions that reflected impeccable scholarship, superb craftsmanship, and the clear elucidation of constitutional principles of enduring value.

In a well-researched and engrossing narrative, Ms. Braitman and Professor Uelmen tell us the eventful and colorful life story of Stanley Mosk.  Mosk overcame the obstacles of anti-Semitism and fought for civil liberties long before it was fashionable to do so.  He rose to prominence in Jewish and Democratic political circles.  You will be treated to a compelling account of the contentious and irrepressible world of politics in California in which Mosk played a prominent role.  Mosk chaired and served on organizations during the Depression in the 30's that promoted social justice and good government during an era of corruption in Los Angeles when Frank Shaw reigned as mayor.  Many meetings of these reform organizations took place at Clifton's Cafeteria in downtown Los Angeles.  It was about a decade later when my grandmother often took me to lunch at Clifton’s and afterwards to a movie and the vaudeville show at the downtown Orpheum Theatre.  By that time Stanley Mosk had made Los Angeles a better place.

The engaging account of Mosk's career demonstrates that opportunity is often dependent upon luck, fortuitous circumstance and the talent and ability of the person upon whom luck shines its light.  Mosk's odyssey from Chicago to California and his involvement in social movements and politics led to his appointment as Gov. Culbert Olson’s Executive Secretary.  During the last hours of Olson's term of office, he called Stanley in the middle of the night and told him to fill in his name on the commission for the Los Angeles County Superior Court, making him, at age 30, the youngest superior court judge up to that time ever to sit on the superior court in California.

When a challenger in the next judicial election called Mosk "the child judge," the quick-witted Mosk replied, "Better a child than someone in their second childhood."  Mosk won the election "with the largest vote ever received by a judge in Los Angeles County."  The young, energetic Mosk proved to be up to the job and early on displayed his sensitivity to racial injustice in a decision that enunciated a principle that would become embedded in our country's constitutional law doctrine. 

In Wright v. Drye, Mosk struck down as unconstitutional a racial restrictive covenant in a deed to property purchased by a black couple.  His eloquent opinion presages the masterfully written opinions that he authored years later on the California Supreme Court.  He wrote, "'Our nation has just fought the Nazi race superiority doctrine.  One of these defendants was in that war and is a Purple Heart veteran.  This court would indeed be callous if it were to permit him to be ousted from his own home by using "race" as the measure of his worth as a citizen and neighbor.' … 'We read columns in the press each day about un-American activities.  This court feels there is no more reprehensible un-American activity than to attempt to deprive persons of their homes on a "master race" theory.'"

And can you believe it?  Mosk also wrote a weekly, not a mere monthly column, widely circulated in a number of local papers.  His columns were humorous and informative.  I can only wonder, how did he do it?  

         Mosk became Attorney General of California in 1958, winning the election with the largest margin of victory of any candidate in any contested election in the country.  He formed a Constitutional Rights Division in the office and pioneered enforcement of constitutional rights for all citizens so that minorities enjoyed the same protections as others.  For example, he induced the Professional Golfers' Association (the PGA) to avoid a lawsuit and abandon the "Caucasian Clause" in their contract. 

         Mosk became a figure of national prominence.  He was close to John and Robert Kennedy and other prominent political figures and was touted as the best candidate to represent California in the U.S. Senate.  There were other possibilities for public office that did not materialize.  Robert Frost's "The Road Not Taken" speaks to the dilemma we face in the choices we make in our lives and careers.  But Mosk chose roads upon which he encountered detours occasioned by the unanticipated vicissitudes of life.  The seemingly endless opportunities that lay open to him ultimately led him to the road he may not have anticipated - the road to the  California Supreme Court where he became one of its most influential and respected jurists. 

        

         The reader will glimpse some of the maneuvering and drama that occurs in our Supreme Court and how its atmosphere is affected by the personality and administrative skill of the Chief Justice.  The reader gains insight into "The Mosk doctrine," which provides wider, more expansive constitutional protection under independent state constitutional grounds than is provided under the U.S. Constitution.

         The chapters on Mosk's tenure on the Supreme Court are riveting.  The analysis of cases Mosk and his colleagues authored demonstrates that considerations of policy and practicality often support, in part, the court's rationale.  The discussion of Bakke v. Regents of the University of California (1976) 18 Cal.3d 34, authored by Mosk, is particularly incisive.  A particular case can engender derision and criticism from some quarters when it is issued, but with the passage of time garner praise for its reasoning.  Mosk and a majority of the court held that affirmative action based on a racial quota system in college admissions was unconstitutional.  Many came to realize after a clear and objective analysis that Mosk’s rejection of racial quotas in Bakke was in fact consistent with his decision decades earlier on racially restrictive covenants in Wright v. Drye.

         "Justice Stanley Mosk" is a well written biography that will grab your attention and hold it captive.  You can order a copy at www.mcfarlandpub.com. 

        

         Question:  Do parents pass on their talent and acumen to their offspring?  J.S. Bach and Stanley Mosk prove that they do.  To stay in that absorbing Mosk kind of mood, I next commend to your reading the "Oral History" of Stanley's son, Court of Appeal Justice Richard Mosk, which appears in California Legal History, Journal of the California Supreme Court Historical Society (Vol. 7, 2012), edited by our much-appreciated Renaissance woman, lawyer, composer, musician Selma Moidel Smith. 

In an enlightening interview, Richard's son and Stanley's grandson, Emmy winning investigative reporter and producer for ABC News, Matthew Mosk, asks his father Richard questions about his career.  Richard speaks of his work on the Warren Commission and his experiences as a judge on the Iran-U.S. Claims Tribunal and offers observations about Stanley Mosk.  Even if I had not written the introduction to Richard's "Oral History," it would be no less readable and informative.