Tuesday, October 2, 2018
Parents of Appeals Court Justices Should Have Taught Their Kids Better Manners
By ROGER M. GRACE
Why would Manuel Ramirez, the presiding justice of the Orange County-based Court of Appeal division, presume to identify the adult appellant in a case, Douglas Boyd Harris, as “Douglas” and the adult respondent, Lisa MacDonald, as “Lisa”?
In a footnote to an opinion filed last Thursday (not certified for publication), he gives an explanation as to what appears, at first blush, to be effrontery. And after examining his rationale, it becomes clear that what appears to be effrontery is.
Disingenuously, he purports to be adhering to a “customary” practice while, in truth, he is joining with a few other impertinent jurists in seeking to start a new, and rather obnoxious, custom.
Criticisms have been put forth here in the past of appellate court justices referring to adult parties by their first names where the parties have had—unlike the present circumstance—the same surname. The purpose of using first names, it has generally been set forth in footnotes in the cases, is to avoid confusion—with the frequent notation that “no disrespect is intended.”
This most often occurs in family-law cases, but also in probate cases, and others, where there is a shared last name. Yet, if Mary Jones is suing Robert Jones, the cheeky familiarity can be avoided by referring to “Mary Jones” and “Robert Jones”; or to “Mr. Jones and Ms. Jones”; or to “the former husband” and “the former wife.” Though denounced by one jurist as “archaic” terminology (as discussed later), the parties could be alluded to as “appellant” and “respondent.”
The argument for using first names in a “Mary Jones” and “John Jones” situation is comprehensible, though I would contend, frail. However, there seems to me to be no conceivable justification for the use of first names where, as in Ramirez’s opinion last week, the adult parties have different surnames.
“Husband Douglas Harris filed this divorce proceeding against wife Lisa Peck (now MacDonald),” Ramirez says in that opinion. He goes on to announce, in a footnote:
“From here on, we will refer to the parties by their first names, for two reasons. First, this has become customary in family law cases. (In re Marriage of Smith (2015) 242 Cal.App.4th 529, 531, fn. 2.) Second, first names make it easier for the reader to keep track of who is the husband and who is the wife.”
Now, hold on. The reason it’s become “customary” is because, customarily, “he” and “she” in divorce cases have had the same last name. It is not otherwise “customary.” Use of first names of adults with different surnames has, in fact, recently occurred, yet on relatively rare occasion.
The footnote in Smith, cited by Ramirez, says:
“As is customary in family law proceedings, we refer to the parties by their first names for purposes of clarity and not out of disrespect.”
In that case, decided by the Fourth District’s Div. Two, the parties were Kierstin A. Smith and Mark Lee Smith.
The observation there, and in numerous other opinions, as to the practice being “customary,” had reference to cases where the parties had the same last name; it provides no excuse for Ramirez’s rudeness in referring to Douglas Harris as “Douglas” and Lisa MacDonald as “Lisa.”
Manny—I assume that’s how he’d want to be designated given his preference for informality—says he’s using first names so the reader can “keep track of who is the husband and who is the wife.”
I would not think that a reader would have to possess exceptional mental prowess to be able to keep in mind, had Manny used their surnames, that a reference to “Harris” would have been to the ex-husband and to “McDonald” would have indicated the former wife.
But if Manny truly thinks that readers are going to be confounded absent his helpfulness in keeping it straight, as he goes along in his opinions in family-law cases, as to who’s who, why does he not provide that assistance in other cases where the parties have different surnames?
In an Aug. 13 unpublished decision, Manny deals with an elder-abuse injunction obtained in 2016 by Wanda Joyce Bartholomew against her neighbor, Paul Hupp. If readers would be confused over references to “Harris” and “McDonald,” they would likewise wonder, as they went through the opinion in Barthalomew v. Hupp, “Is Hupp the elderly woman or the neighbor”? If Manny had referred to “Wanda” and “Paul,” he could have been sure that we would all be able to “keep track” of which party is the woman and which is the man.
But what if both parties are of the same gender, in a dissolution-of-marriage case or some other type of case? In a July 13 opinion in a non-marital case, dealing with an anti-SLAPP motion, Manny writes about a dispute between Richard L. Johnson and Douglas Humphrey over real property. Referring to “Dick” and “Doug” would not have helped us remember, as in going through that unpublished opinion, who was the plaintiff and who was the defendant.
So, where are we? Manny has taught us that use of surnames in opinions is inherently confusing even if the parties do not have the same surname, so that first names should be used in family-law cases where there are two parties, one with a man’s name and one with a woman’s. The inevitable conclusion (if we accept Manny’s premise) is that this usage should not be restricted to family-law cases because readers need to “keep track” of who the parties are in other cases.
But questions dangle. As just noted, what if both parties are of the same gender?
And what if they have names like “Lee” or “Pat” which could be the moniker of either a male or female? Or foreign names not generally recognized as being associated with one gender or the other? In cases with multiple parties, how can befuddlement be eliminated in connection with the cast of characters?
Well, if Manny can come up with a rationale for referring to “Douglas” and “Lisa” even though their surnames are different, we surely can count on him to provide the answers to these questions.
Jurists other than Manny have used the first names of parties who have different surnames.
In an Aug. 19 unpublished opinion, Court of Appeal Acting Presiding Justice James A. Richman of the First District’s Div. Two writes:
“Appellant Carla Vinhas and respondent Steve Krognes were married in 1997. During their marriage, Carla was a stay-at-home mother to the couple’s two children, while Steve’s career in finance was on an upward trajectory.”
Jimmy explains in a footnote:
“As is common in marital dissolution proceedings, we refer to the parties by their first names.”
Like Manny, he apparently fails to grasp that first-name reference has become “common” only in cases in where the parties have had the same last name, the practice being based on the notion that such familiarity is necessary to avoid confusion.
A Sept. 12, 2017 opinion by Court of Appeal Presiding Justice Dennis Perluss of this district’s Div. Seven, not certified for publication, begins:
“Gazelle Ann Benedicto, formerly Ingerson, appeals the superior court’s November 30, 2015 order granting the request of her former husband, Paul Gregory Ingerson, to renew a domestic violence restraining order initially entered in his favor on December 7, 2012. Ann contends the court abused its discretion in finding that Paul had established an objectively reasonable fear of future abuse in light of the parties’ changed circumstances and the lack of evidence of any further abuse after issuance of the initial order.”
In a footnote, Denny advises:
“Materials in the record indicate Gazelle Ann Benedicto is usually referred to by her middle name, Ann. Because the parties shared a last name during much of the period at issue in this appeal, we refer to them as Ann and Paul for clarity.”
By what stretch of the imagination could there be a lack of “clarity” if the woman now known as “Gazelle Ann Benedicto” were referred to as “Benedicto” and “Paul Gregory Ingerson” were denominated “Ingerson”?
A bizarre instance of referring to adult parties by their first names came in the Jan. 6, 2015 unpublished opinion by then-Los Angeles Superior Court Judge Helen Bendix, sitting on assignment to this district’s Div. One. Helen, now a member of Div. One, referred to the husband’s attorney, Linda N. Wisotsky, as “Ms. Wisotsky,” to the wife’s lawyer, Robert Sainburg, as “Mr. Sainburg,” but to the parties, Tiffany Krog and Ron Cobert, as “Tiffany” “and Ron.”
As noted here at the time, the opinion contains this line:
“In a March 31, 2009 letter, Ms. Wisotsky stated that settlement appeared impossible unless Ron signed Tiffany’s proposed judgment, and re-sent interrogatories that Mr. Sainburg denied having received earlier.”
The attorneys were accorded respect; the parties weren’t. Rendering it all the more ironic is that Krog is, herself, an attorney.
A knowledgeable person told me later that there was a factor of which I had not been aware that explains Helen’s approach in the case. The parties were referred to in the Superior Court by their first names.
I would think that persons writing for the Court of Appeal, which reviews Superior Court decisions and with regularity reverses judgments and grants writs, would not feel compelled to display impertinence toward parties with the excuse that it was done below.
In the much-cited 1990 Court of Appeal decision in In re Marriage of Smith, then-Justice Donald B. King of the First District’s Court of Appeal (now retired) undertook to explain why first names are used where ex spouses have the same last name. However, if his reasoning is accepted, it would justify, if not compel, use of given names whether or not the surnames differ in just about any case.
A footnote in Smith says:
“We use the parties’ first names to assist the reader in following the opinion. In Pat’s briefs, she refers to the parties as Pat and Bill. In Bill’s briefs, ‘for convenience,’ he refers to the parties as husband and wife. Since they have now been divorced for over 14 years, it seems inappropriate to call them husband and wife, especially since Bill has a present wife. Referring to them as appellant and respondent or even worse appellant and cross-respondent and respondent and cross-appellant, would be impersonal to the parties and unduly confusing to the reader. Referring to the parties by their first names personalizes the opinion for the parties and, for other readers, makes the opinion easier to understand. As distinguished from other civil cases where parties may be partnerships, corporations, associations or governmental entities, the parties in marital dissolution actions are human beings and we use their first names, in part, to humanize a decision resolving personal legal issues which seriously affect their lives.”
Yes, ex-spouses are “human beings.” So are the parties to lawsuits over a fence that a homeowner built that obstructs a neighbor’s view, plastic surgery which a patient contends makes her look older, or an intersectional collision. Where “partnerships, corporations, associations or governmental entities” are not involved in litigation, human beings exclusively are, and in a multitude of cases not involving family law, the outcome will “seriously affect their lives.”
Why is “humanizing” (as Don supposes the use of first names to constitute) not provided in all civil cases? And where some entity is a party pitted against an individual, why should that individual be deprived of “humanizing”?
And why limit this to civil cases? Are criminals not also humans (or in the instance of someone like Charles Manson, approaching that status)? Does the outcome of their cases not “seriously affect their lives”? Why not extend Don’s reasoning to those cases? If customary usage of first names in family-law cases is “humanizing,” customary use of surnames in criminal cases must necessarily be de-humanizing—under Don’s reasoning—raising constitutional and civil rights concerns.
By the way: Sheriff Peter Pitchess was a human being. Why is it a “Pitchess motion” rather than a “Pete motion”?
Of course, I’m being facetious. The footnote in Smith, seriously intended, is almost comical.
Don finds that reference to “appellant and respondent” would be “unduly confusing to the reader.” Oh? Why?
What could be easier to grasp than that the appellant is the party who wants a reversal and the respondent is the party who won in the trial court and opposes reversal?
This reminds me of a contracts professor my wife and I had who barred students, in briefing the cases appearing in the casebook, from referring to “plaintiff,” “defendant” “appellant,” or “respondent,” or by name. The offeror had to be designated “X” and the offeree referred to as “Y.”
Yet, a footnote in a 1999 reported opinion for the Fourth District’s Div. Three by Presiding Justice David Sills (now deceased) says:
“We follow and commend Justice King’s observation in In re Marriage of Smith [citation] that courts should refer to parties in family litigation by their first names in order to both assist the reader and humanize a decision which seriously affects the litigants’ lives. Obviously, no disrespect is intended by use of first names, and referring to parties by abstract litigation terms like ‘appellant’ and ‘respondent’ is generally an archaic practice which makes an opinion unnecessarily difficult to read.”
Sometimes that which is “archaic” is something worthwhile, senselessly abandoned.
Dave’s next footnote in the opinion begins:
“Judge Knox was fully aware of certain physical health problems which Ida had mentioned in her declaration.”
If appellant Ida Schaffer was worthy of being “humanized,” why was Orange Superior Court Judge Robert A. Knox (since deceased) not deserving of equal courtesy (if “humanizing” is to be seen in positive light)?
In feeding the phrase “we refer to the parties by their first names” into the Westlaw search box (specifying published and unpublished California cases), as of last Friday there were 751 hits, with “disrespect,” in connection with those words, appearing 403 times. There are several variations on the phraseology in opinions, so the total count would be higher.
An accurate explanation by California justices of their use of first names would be this:
“We refer to the parties by their first names because we’re presumptuous and boorish.”
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