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Law Practice,
Judges and Judiciary

Jun. 7, 2021

Revelations III

Lately I’ve been thinking about judges searching for anonymity when taking a beating by a “higher” court.

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 gilbertsubmits.blogspot.com.

UNDER SUBMISSION

I read a squib last week in the Sunday New York Times' section "Of Interest." Eleven years ago, then-chairman of Google, Eric Schmidt, is reputed to have told an interviewer that "young people would change their names upon reaching adulthood to escape their digital pasts."

Sometimes people would like a name change because of a malicious lie someone posted about them on the internet. Or maybe because they themselves posted a dumb comment borne of adolescent hubris reinforced by their brain's undeveloped limbic system.

This got me thinking about judges searching for a name change or anonymity when taking a beating by a "higher" court. The trial judge didn't do so well in United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001), section VI, in particular. How could a judge with a name like Penfield Jackson make such errors? In contrast, Judge Rodney Melville, who presided over the world-famous Michael Jackson case, does not need a name change. In People v. Jackson, 128 Cal. App. 4th 1009 (2005), we considered the propriety of sealing the transcript of the grand jury proceedings. At page 1017, "We conclude that Judge Rodney Melville carefully balanced the defendant's right to a fair trial and the public's right to know. He displayed sensitivity and insight into these issues, and he made rulings that gave him the flexibility to maintain that balance in an ever-changing environment."

Long after the case was over, Judge Melville told me why he was able to preside over the case with equanimity. "The case wasn't about me." Good insight for all judges whatever the case. But however we rule, anonymity is not an option. We signed up or, to be exact, accepted the appointment and, like all things, with the benefits ... you know the rest.

Chief Justice John Roberts' famous, but incomplete, explanation of what judges do, calling balls and strikes, is only part of the enterprise. The reason for the call is as important. When that chore is over, judges do their best to move on whether they are affirmed or reversed, just as lawyers move on whether they prevail or not (leave "win" or "lose" to the press). But the ineluctable possibility of a judge facing reversal does not apply to those on the United States Supreme Court. Eschew SCOTUS, good name for a pet. A subsequent SCOTUS (here we reluctantly use the detestable abbreviation to avoid repeating the Supreme Court of the United States) may remake or scuttle an earlier decision. Time marches on, or backwards, depending upon your point of view. And our California Supreme Court has faced "reversal" from SCOTUS on rare occasions. See Nollan v. California Coastal Com., 483 U.S. 825 (1987). Wonder why I chose that case?

There are other pressures in that final appellate station. Recommend we avoid descriptive clichés like "rarefied," or "ivory tower." Ivory does not and never did belong on piano keys. Will not elaborate for fear a creative ground for recusal may be advanced in some future case. Despite the rare exceptions, not just SCOTUS, but our own SCOC, or SCOCAL, if you prefer, is generally the final station for the holding that resolves the issues.

But not always. Different facts, different situations often call for different applications. And different times, different justices can change everything. Example, see Burlage v. Superior Court, 178 Cal. App. 4th 524 (2009). Then 10 years later, see Heimlick v. Shivji, 7 Cal. 5th 350, 370 (2019). How fickle these judges can be.

And needless to say, judges, like lawyers and their clients, are subject to the vagaries of the law when they are litigants. They should never represent themselves. All capable and many incapable practitioners know this. Seasoned trial lawyers if caught off guard will admit that courtroom bravado is often a cover, as they try to calm down the butterflies beating their wings beneath the surface. This is not to say the law is a crap shoot. Reasonable predictions about outcomes are legitimate and necessary. When clients ask their counsel, "Can they do that?" The response, "It all depends," is honest and forces confrontation with the unknown. I know, because I was a client in the celebrated case of Gilbert v. Chang, 227 Cal. App. 4th 537 (2014). I knew enough not to represent myself. I was represented by my close friend and colleague, then-attorney extraordinaire, and now redoubtable administrative presiding justice of the 2nd District Court of Appeal, Elwood Lui.

Will save for a subsequent "Revelations" column the rigors of trial preparation to fully analyze and argue the meaning, if any, of a troublesome statute. I prefer not to characterize the client, me, in similar fashion. The point is that we were asking ourselves what "they," the trial and appellate judges hearing our case, would do. And I was and Lui had been "they." For those readers too lazy to look up the case, we won, I mean, prevailed.

And now a farewell to Cruz Reynoso. To describe this one remarkable individual is akin to describing a composite of several uniquely exceptional people. Among his many accomplishments, he was the first Latino justice on the California Supreme Court, associate justice on the Court of Appeal, director of the California Rural Legal Assistance (CRLA), distinguished law professor, member of the U.S. Commission on Civil Rights, and awarded the Presidential Medal of Freedom. Equally remarkable is that Cruz Reynoso, a person of such accomplishments, leading the way to change for a better world, was so gentle, unassuming, and kind. From my brief acquaintance with him, I knew he preferred to be called Cruz.

You can witness the moving tribute to Cruz by our Supreme Court that took place on June 2 on the court's website and it will be published in the Official Reports. Our chief justice, with her characteristic warmth, presided over this tribute. Justice Mariano-Florentino Cuéllar's eloquent comments will have you in tears. Luis Céspedes, Gov. Gavin Newsome's judicial appointments secretary, delivered a stirring tribute from the governor, and related a few stories about his dear friend Cruz. When Cruz was living in New Mexico and received a call from Gov. Jerry Brown informing him of his appointment to the 3rd District Court of Appeal, Cruz fretted. Moving to California was one thing, but, not to disappoint the children, the animals had to come as well. The goats, rabbits, horses and a donkey all arrived in California. I hear they preferred the climate. Cruz put his foot down when they wanted to attend his swearing in.

Comments from Justice Joseph Grodin; Dean Kevin Johnson, UC Davis School of Law; Cruz's son, attorney Len ReidReynoso; and Chief Justice Tani Cantil-Sakauye gave us an insightful portrait of a person you would feel fortunate to know. So even though we say goodbye Cruz, you are still with us. 

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