Court of Appeal Justice Johnson to Retire This Week

Monday, October 15, 2007

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Court of Appeal Justice Johnson to Retire This Week

By KENNETH OFGANG, Staff Writer

Justice Earl Johnson Jr., a member of this district’s Court of Appeal’s Div. Seven since its creation nearly 25 years ago, will retire this week, the justice disclosed Friday.

Johnson told the MetNews that Wednesday will be his last official day on the bench, although he will be temporarily assigned to the court in order to finish work on pending cases.

“I’ve enjoyed it immensely,” the 74-year-old justice, who could have retired with maximum benefits several years ago, said. His reason for leaving, he explained, is that he is working on two books and has been unable to find adequate research time while performing his judicial duties.

Legal Services Project

Johnson, who headed the legal aid arm of President Lyndon Johnson’s War on Poverty and later served as president of the board of the Western Center on Law and Poverty in Los Angeles, said both books will deal with the subjects of legal aid and access to justice. One will be a comprehensive history of civil legal aid in the United States, while the other will be a “more scholarly” work on the subject.

He is also chair of the Right to Legal Services Subcommittee of the American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants, and a member of the California Commission on Access to Justice and intends to continue in those capacities, he said.

He may return to the court on occasional assignment once the books are finished, he said, but has no interest in private judging. Retirement from the bench will also allow him time to visit his children and grandchildren living on the East Coast and in the Pacific Northwest, he explained.

Johnson will be missed at the court, Presiding Justice Dennis Perluss said.

“He has been an icon, not only on our division, but on the Court of Appeal throughout the state,” Perluss said.

Presiding Justice’s Comments

Johnson will be remembered, Perluss commented, “for a passion for assuring equal access to all parties who come to the justice system, not only in the criminal system but especially in the civil system,” with particular concern for those who lack counsel or have difficulty with the English language.

The presiding justice added that his departing colleague is “an outstanding legal scholar” whose opinions reflect both cogent legal analysis and an emphasis on “the background and development of the law.”

Johnson has also been a “phenomenal colleague,” he said. When they have disagreed, as in a recent case dealing with the scope of the governor’s authority to veto an inmate’s release on parole, Johnson’s work has inspired him “to go to the next step” in searching for authority for the contrary position.

Justice Fred Woods, who joined Div. Seven in 1988, said the court was losing a “very fine gentleman” and a “scholarly justice.”

Div. Seven, whose previous presiding justices were Richard Schauer, now retired, and the late Mildred Lilllie, earned its reputation as a court whose members often disagreed in their opinions but got along personally, Woods said.

“There was no fighting out in the halls or anything like that,” he said. “Maybe a sharp word in one or two of the opinions, but very, very rarely.”

Johnson, he said, added a dimension to the court because he came from an academic background, rather than from the trial bench as is the case with most appellate justices.

The philosophical differences of the justices came into sharp focus in the 1990s, when Lillie, Johnson, and Woods were on the panel.

In one memorable case, Leighton v. Old Heidelberg (1990) 219 Cal. App. 3d 1062, the court was called upon to decide whether a restaurant, in firing a waitress for refusing to share her tips with the busboys, violated a statute declaring that a tip is the property of “the employee or employees to whom it was paid.”

Answering that the restaurant did no wrong, Lillie, joined by Woods, explained that in leaving a gratuity, a diner “rewards for good service no matter which one of the employees directly servicing the table renders it,” and that nothing in the law prohibits an employer from determining how a tip should be distributed, “as long as the employer does not pocket it.”

Johnson, in a vigorous dissent, argued that mandatory pooling of tips “is just a disguised way of requiring waiters or waitresses to pay the market salaries of busboys and bartenders,” and has a huge impact on wait staff who depend on tips for the bulk of their income.

The court, he argued, should have deferred to the view of the state Division of Labor Standards Enforcement, which said that tip-pooling arrangements violated the Labor Code unless voluntarily agreed to by the employees.

“The law must be as vigilant in its protection of the property rights of ordinary working people as it is of the property rights of the largest corporation or the wealthiest landowner,” Johnson wrote. “How would the courts react if a private person unilaterally decided to divest a business of a fifth of its earnings and hand them over to another businessman? Or to chop off a fifth of a landowner’s holdings and give the land to her neighbor?”

Johnson was born and raised in Watertown, S.D., attending Northwestern University in Chicago on a Naval ROTC scholarship. After graduation and three years as an active duty naval officer, he earned his law degree from the University of Chicago, later earning an L.L.M. in criminal law, writing his dissertation on the subject of organized crime, at Northwestern’s law school.

That led to a job as an organized crime prosecutor with the Department of Justice, which he left to join a legal aid program in Washington, D.C. He became the first deputy director of the Office of Economic Opportunity Legal Services Program in November 1965, was promoted to director the following June, and left in 1968 to join the Center for Law and Society at UC Berkeley.

He came to Los Angeles in 1969 to teach at USC Law Center, where he was director of clinical programs from 1970 to 1973 and was made a full professor in 1975. He was appointed to the Court of Appeal by then-Gov. Jerry Brown in 1982.