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Law Practice,
Judges and Judiciary

Jan. 11, 2021

Potpourri or get it off your chest

Looks like our Democracy is intact. Whatever one’s politics or rationale for positions extreme and otherwise, the courts maintained their independence, ruled as they had to, and forestalled what could have been a disaster for our country.

2nd Appellate District, Division 6

Arthur Gilbert

Presiding Justice, 2nd District Court of Appeal, Division 6

UC Berkeley School of Law, 1963

Arthur's previous columns are available on


Looks like our Democracy is intact. Whatever one's politics or rationale for positions extreme and otherwise, the courts maintained their independence, ruled as they had to, and forestalled what could have been a disaster for our country. After decades of careful study of the law, its foundation and principles, I have come to an irrefutable conclusion, which I pass on to you, dear reader. Cases based on facts... must have facts. The facts lead to the law, its interpretation, and its application to the facts. Granted, how judges interpret those facts can lead to differences of opinion. That is why judges have a limited circle of friends in constant flux. Judges are grateful for their appointments, but our oath of office compels loyalty to an ideal that dwarfs loyalty.

Now for something different and timely; let's go to the opposite end of the spectrum -- New Year's resolutions. I do not make them. They are promises. Why make a promise you cannot keep, especially when it is to yourself? Can I truly be a better person? Wait, that doesn't sound right. There is a difference between going a millimeter to arrive at a goal within reach, and traveling ("going" is inadequate here) light-years to achieve an unattainable goal. By the way, light-years measures length, not time.

Whoops! Just thought of two New Year's resolutions I am determined to keep. Please ignore previous paragraph. Resolution #1: Master the new technology of communication, namely Zoom and Bluejeans. Resolution #2: Come to grips with or change the names of the new technologies. "Zoom?" "Bluejeans?" These perky expressions were used in comic books when I was a kid. That was a while ago. I am working on appropriate names for new complex technologies on the horizon. "Whoosh," "Pow," and "Shazam," are high on the list.

Must admit, I like these fun names, but I confess to some discomfort when the Supreme Court and Courts of Appeal hear oral argument on cases involving murder, evictions and financial ruin through a medium called Bluejeans. I am not a stuffed shirt (where did that expression come from?), but the more high-tech the technology, the "cuter" and more juvenile the name. My court has conducted oral argument via Bluejeans several times this year, and I confess I have worn bluejeans during a few of those oral argument sessions. And a caution to attorneys and judges conducting such arguments. What you see of yourself on your screen, others see the same on their screens. This includes what goes on in the background. This is a respectful publication so I will not relate ... never mind. Forget I even brought it up.

The courts and the Bar have worked diligently to work as best they can through the pandemic. And our Supreme Court is working diligently to resolve important issues during this crisis. I am sure that some of the issues occasioned by recent legislation relating to criminal sentencing that is creating havoc among Courts of Appeal will be decided soon. Right? Penal Code Section 1170.95 comes to mind. This of course has nothing to do with New Year's resolutions.

And I end with a goodbye to two good friends and colleagues who recently passed away, two exceptional people whose contribution to the judiciary endures. Court of Appeal Justice Rick Sims of the 3rd District and I were appointed to the Court of Appeal in...oh dear...1982. His opinions reflected clarity, wisdom, and scholarship. He was the ideal justice with a subtle sense of humor and firm grasp of the rule of law and common sense. I commend you to read "What Appellate Judges Do," 7 J. App. Prac. & Process 193 (2005). It is one of the best explications of what the courts do. It is a must read. I also suggest you view his interview on the oral history of appellate justices on YouTube.

And we will all miss Joan Dempsey Klein of the 2nd District Court of Appeal. I knew Justice Klein for a few years...since...1965. Yikes! We became buddies over the years and I called her Joanie. She had a number of nicknames for me. She was a fighter with a sense of humor. Anyone who called her Jack Dempsey Klein got decked. I would not even think of going a practice round with her. Back in the 60s she ran the hectic municipal master calendar court like a...master. She proved a woman could do the job better than most men. She never stopped proving that. She was an inspiration to women in the law and responsible for the careers of many of our distinguished women lawyers and jurists. So to add to your viewing pleasure, I urge you to watch the oral history of Justice Klein on YouTube where I had the privilege of interviewing her. You will truly know what a remarkable person she was. I guarantee that watching the oral histories of both Rick Sims and Joan Dempsey Klein will make a difference in your life whatever your profession. 


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