Thursday, January 3, 2002
Div. One: a Court of Appeal Division With a Tradition of Tomfoolery
By ROGER M. GRACE
The decisional law of our state has, for the most part, been skillfully sculpted. It’s a work of art, the contours of which are constantly changing as fresh additions are made to the Official Reports, and as aged opinions atrophy. An appellate jurist, empowered to participate in the shaping of California’s jurisprudence, ideally approaches that task with reverence for its significance and a commitment to utilize the hammer and chisel entrusted to him or her with care. Most do.
Court of Appeal Justice Miriam Vogel does—sometimes. Of late, however, that captious member of this district’s Div. One has sought to use those tools as weapons—ones with which to strike at two colleagues, Presiding Justice Vaino Spencer and Justice Robert Mallano. So far, the assaults on them in her opinions have been inept, and the would-be victims are unscathed.
In misusing the tools, Vogel follows in the footsteps of two justices of this district’s Div. One in days gone by, L. Thaxton Hanson (who served from 1973-1990) and Robert Thompson (on board in 1968-79).
Hanson, now deceased, was Vogel’s immediate predecessor. He was prone to stuff his opinions with extraneous philosophical discourses. On one occasion, in May 1982, Hanson authored a lengthy concurring opinion in which he set forth what he saw as the shortcomings of the court system and provided his prescription for reform. The majority declined to certify the opinions for publication. Justice Vincent Dalsimer (also deceased) ended the majority opinion (in which Spencer concurred) by commenting:
“Our colleague deemed it
necessary and proper to include in his concurring opinion a lecture to the
Supreme Court concerning that court’s administration of judicial business. We
wish to emphatically express our total disagreement with the entire thesis of
that lecture and the propriety of its inclusion in a judicial opinion. In
addition, it would appear that our colleague is attempting to convert what
should be solely a judgment of the controversy before us into a platform to
advocate his personal plan for constitutional and statutory reform of the
appellate judicial process. Our failure to here join issue with each of the
specifics of our colleague’s admonishment to the high court should under no
circumstances be deemed to constitute acquiescence therewith. Rather, it is
founded on our disapproval of our colleague’s use of this forum for purposes
extraneous to the subject matter of this opinion. We disassociate ourselves
from our colleague’s essay.”
Hanson was miffed. Upon learning of the decision not to publish, he added verbiage to his concurring opinion, protesting that publication should be ordered whenever any of the three justices on the panel wants it. “This practice is in accordance with common courtesy and enhances collegiality and recognizes the First Amendment rights of each justice,” he insisted.
The jurist complained:
“For lack of publication this opinion will not reach the audience for which it was written, the bench and bar and the entire legal community, in order to generate debate toward meaningful court reform. The business-as-usual; don’t-rock-the-boat; and we-know-best syndrome again carry the day.”
Hanson seemed genuinely convinced that by denying him publication of his commentary, comprised of wide-ranging observations unrelated to any issues in the case, the majority had abridged his rights.
Hanson toned down the “lecture” and incorporated it in a 36-page concurring opinion filed in another case on Feb. 24, 1983. The three opinions in the case—Hanson’s majority opinion, in which Justice Mildred Lillie joined, Hanson’s concurring opinion, and a dissent by Dalsimer—were certified for publication.
Dalsimer not only dissented from the judgment but also from the order that the opinions be published. He said:
“The concurring opinion in my judgment is not germane to the case at bench and should not be placed in the official reports. This court should not be used by an individual justice as a forum to present his or her personal philosophy to a captive audience. Further, I do not believe that it is appropriate to invade the public purse to advocate a position that has strong political overtones. The goals of the ‘Citizens for Law Enforcement Needs’ which are advocated by Justice Hanson may be laudatory indeed, but as the organization is private and formed to foster a privately supported objective, the taxpayers of this state should not be taken advantage of by being required to finance the publication of that point of view.”
The Citizens for Law Enforcement Needs was a task force which the conservative Hanson headed. Dalsimer was of decidedly liberal bent, hardly apt to be a devotee of that group’s causes. But all that aside, whether a jurist rails in a judicial opinion for liberal or conservative causes that are unrelated to the issues in the case, there is a patent misuse of the forum.
Hanson shot back at Dalsimer in a footnote, accusing his colleague of a “cavalier attitude toward the ‘independence’ of the judiciary and the First Amendment rights of a judicial public servant in the performance of his or her duty as he or she sees fit.”
He insisted his opinion was “most germane” and went on to say:
“In addition, there hardly can be ‘political overtones’ in proposing long-overdue procedural reforms designed to cut delay and costs in processing criminal cases on review which would benefit all the people of California (litigants, lawyers, victims, and the taxpayers who pay all the bills for the criminal justice system) regardless of party affiliations, race, creed or color.”
In the end, Hanson’s essay was not published. The Supreme Court granted review; it later retransferred the case with instructions to redecide the case in light of pronouncements it had just made in two cases; the revised opinion, which did not include Hanson’s essay, was certified for publication by Div. One; the Supreme Court ordered it depublished.
Depublication was also ordered in Medovoi v. American Savings and Loan Association (1979) 152 Cal.Rptr. 572. The case had originally been decided by the panel in 1976; the Supreme Court granted review, then bounced the case back to Div. One with instructions to redecide it in light of Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, which restricted enforcement of due-on-sale clauses.
In a footnote, Hanson lambasted the high court’s ruling in that case. He asserted:
“Here, the Wellenkamp decision clearly tinkers in the financial area of our economic lives and is another example of bureaucratic chipping away at the free market-private enterprise system.”
Thompson, in a concurring opinion, also took issue with the Supreme Court’s holding.
Although the Supreme Court depublished the opinions, Hanson salvaged three sentences of his footnote, quoting from it in Anderson v. Department of Real Estate (1979) 93 Cal.App.3d 696. In a footnote in Anderson, he wrote:
“In an opinion recently ordered depublished by the state Supreme Court, I said: ‘Intrusions by any branch of government which inject socialization into the internal workings of our free market banking system tend to kill the goose that lays the golden egg. The golden egg is human welfare. The goose has been proven to be the free market or private enterprise system which has afforded Americans the highest standard of living of any system in the history of the world.’ ”
One does not often see a decision quoting from a depublished opinion. One does not often see political commentary in a judicial opinion, either.
Then there was the time Hanson and Dalsimer spatted over the timing of the filing of opinions. On July 23, 1982, Hanson filed a 124-page majority opinion, in which Lillie (now presiding justice of Div. Seven) concurred. He did so without waiting for Dalsimer to complete work on his dissent. The opinion purported to uphold Prop. 8’s “truth-in-evidence” provision and to proclaim that it could be applied retroactively.
Hanson added a six-page concurring opinion, not signed by Lillie, in which he explained that because the dissenter had not provided a time estimate for completing his opinion, and because the issue was pending before the California Supreme Court, “it is our ‘DUTY’ to file this majority opinion as promptly as possible (NOW).” He apparently thought it to be imperative that the high court not decide the issue before it had the benefit of his insights.
In his dissent, filed 28 days later, Dalsimer accused the majority of “highly irregular” and “unprecedented” conduct. He said there was no pressing need for the Court of Appeal to resolve the issue because Prop. 8 was irrelevant to the search and seizure issue that was presented in the case at bar, asserting that the majority’s discussion of the provision was mere dictum.
Hanson then filed a modified concurring opinion in which he commented:
“While Acting Presiding Justice Mildred Lillie was of the view that some additional time should be given to prepare the dissent before filing the majority opinion, this writer has decided to file the majority opinion immediately.
“IN NO WAY under the circumstances could or should control over the time of filing a 124-page majority opinion, involving such important statewide concerns as presented here OR the First Amendment rights of the majority, be relinquished to a minority-of-one who has manifested an intent to treat the matter as merely routine by refusing to give any time estimate whatsoever.”
Hanson also filed a two-paragraph memo entitled “Re Separate Majority Opinion” in which he complained further of Dalsimer’s unreasonableness. And, he filed a “Separate Concurring Opinion to the Majority Opinion” in which he presented at length the high points of a speech five years earlier by a systems management expert. That speech, in turn, quoted one by a “futurist intellectual” in 1973. It contrasted the “Humanist Ethic,” being propagated by academia, the news media and the courts, with the Judeo-Christian ethic, subscribed to by “80% of America.” I won’t go into detail. Suffice it to say the discourse had no conceivable place in a judicial opinion.
As it turned out, Dalsimer’s view that Prop. 8 was irrelevant to the case was vindicated. The California Supreme Court granted review and, in a nine-page opinion in Wilson v. Superior Court (1983) 34 Cal.3d 777, unanimously held the search and seizure to have been unlawful under federal constitutional standards, precluding a need to discuss Prop. 8 (which barred suppression except where mandated by federal constitutional law).
It was Thompson (now a retiree in La Jolla) who openly defied an order of the California Supreme Court. He did so in Krueger v. Superior Court (1979) 89 Cal.App.3d 934.
Div. One had peremptorily denied a writ. The high court granted review, then retransferred the case to the intermediate appellate court with instructions to issue an alternative writ and place the case on calendar for argument.
Obediently, Div. One issued an alternative writ and placed the case on calendar. However, having done that, it proceeded on Feb. 28, 1979 to deny the writ on procedural grounds, without waiting for receipt of opposition or for oral argument.
“We conclude that the petitioner for a prerogative writ must plead a prima facie case for relief and support his allegations of trial court action by appropriate exhibits to the extent necessary to understand the proceedings. We conclude that the petition must be properly verified. We conclude, also, that Supreme Court action on a petition for hearing from a Court of Appeal order denying an alternative writ which directs the lower court to issue the writ does not deprive the Court of Appeal of its discretion to determine whether the petition is sufficient. Accordingly, having followed our high court’s order and issued an alternative writ in the case at bench and placed the matter on calendar for hearing, we discharge the writ without reaching the legal issues which petitioners seek to raise.”
For Thompson to take the position that the high court had ordered Div. One to do nothing “other than to issue an alternative writ and set the matter for argument” was a smart alec evasion of the clear import of the order. Inherent in the order to issue an alternative writ was the duty to await and consider a return, if any, and inherent in the order to calendar oral argument was a mandate to hold oral argument in the case.
What Div. One did was to adopt a hybrid procedure unrecognized under California law. A peremptory denial of a writ does not entail issuance of a written opinion. Thompson did write an opinion. Yet, he sidestepped the alternative writ procedures. Whether characterized as a de facto peremptory denial contained in a written opinion, or otherwise, it was a screwball maneuver, entailing direct defiance of a Supreme Court command.
That wasn’t the first time Thompson had circumvented a Supreme Court command.
In Nichols v. Canoga Industries (1978) 83 Cal.App.3d 956, he started out his opinion as follows:
On December 22, 1977, we filed our opinion in the case at bench. Our Supreme Court granted respondents petition for hearing thereby wiping the jurisprudential slate clean of the blot of our opinion. On July 5, 1978, our high court retransferred the matter to us “for refiling of [our] opinion with appropriate references to Addison v. State of California (1978) 21 Cal.3d 313” a case arising out of the First District in which hearing was granted at about the same time as the hearing grant in the case at bench.
We here seek to carry out the Supreme Court’s mandate. At the outset, we face respondent’s contention that the order of the high court places the case at large and subject to rebriefing and presumably further oral argument. Concluding that we cannot “refile” our earlier opinion with an “appropriate reference to Addison” if we in fact rewrite the earlier opinion in any way other than to include the reference we deny respondent’s request for further briefing and argument. Because the mandate from the Supreme Court makes no reference to publication per rule 976, California Rules of Court, we do not modify our prior order for publication although the case at bench does not meet the criteria of rule 976 in light of Addison.
We hence refile our earlier opinion in its original form, deleting only the one paragraph which referred to and distinguished the First District’s opinion in Addison which reached a result different from ours. As so modified with the ‘appropriate reference’ to Addison which appears in this preamble, our opinion follows.”
Again, Thompson played the role of the class clown. The clear import of the message was that Div. One was to redecide the appeal in light of a new case, not merely that it recite the order to do so in a “preamble” and then reissue its original opinion, sans one paragraph.
How can lawyers and litigants be expected to desist from “playing games” if the Court of Appeal gives lessons on doing so?
Thompson did have a propensity for taking jabs at the state Supreme Court, if only playfully.
In International Harvester Co. v. Superior Court (1979) 95 Cal.App.3d 652, Div. One denied a writ sought by a cross-defendant which wanted the cross action removed to Kansas based on its claim of forum non conveniens. The panel had initially denied the writ peremptorily but was instructed by the high court to issue an alternative writ, which it did. Thompson complained, however:
“The Supreme Court’s order is not accompanied by a statement of reasons or citation of authority. While remaining in the posture of considerable doubt that the matter at bench is appropriate for review by extraordinary writ, we nevertheless take the hint and consider the matter on the merits.”
It was no wonder the cross-defendant wanted to get out of California. Here, under American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578, decided the previous year, it faced the prospect of liability to joint tortfeasors under principles of equitable indemnity; in Kansas, it apparently faced no such prospect.
Thompson made this aside in a footnote:
“We take some small satisfaction from the fact that the Oklahoma Supreme Court, while rejecting the opinion of the California Supreme Court in American Motorcycle Assn. v. Superior Court, supra., 20 Cal.3d 578, also found our vacated opinion in that case…to be ‘very persuasive.’ Apparently our effort, while panned in Baghdad by the Bay, has received a good review in what in the ‘City’ is the sticks.”
(“Baghdad by the Bay” was a nickname for San Francisco, where the high court is headquartered, conjured up by the late Herb Caen, a columnist for the San Francisco Chronicle.)
Thompson also cited his superseded Court of Appeal opinion in American Motorcycle in Sears, Roebuck & Co. v. International Harvester Co. (1978) 82 Cal.App.3d 492.
Probably the most flagrant instance of uncollegial conduct on the part of an appellate justice in California which anyone could point to occurred when Thompson stuck a footnote in his majority opinion for Div. One in People v. Arno (1979) 90 Cal.App.3d 505.
The footnote responded to a lengthy dissent by Hanson. The dissent lambasted the majority for reversing a conviction for possession of obscene films (the reversal being based on unlawful surveillance). It implied that Thompson, as well as Lillie, who joined with Thompson, were pro-smut.
Thompson said in footnote 2:
“We feel compelled by the nature of the attack in the dissenting opinion to spell out a response:
“1. Some answer is required to the dissent’s charge.
“2. Certainly we do not endorse ‘victimless crime.’
“3. How that question is involved escapes us.
“4. Moreover, the constitutional issue is significant.
“5. Ultimately it must be addressed in light of precedent.
“6. Certainly the course of precedent is clear.
“7. Knowing that, our result is compelled.”
The opinions were filed March 7, 1979. In a March 13 article in the Los Angeles Times, staff writer Gene Blake pointed out that the first letters of the seven sentences in the footnote spelled out a “Yiddish vulgarism defined by Webster as a ‘contemptible or foolish person; jerk.” He noted that another definition refers to a portion of the male anatomy.
On March 20, Thompson modified his footnote, adding at the end: “(See Funk & Wagnall’s The New Cassell’s German Dict., p. 408, in conjunction with fn. 9 of dis. opn. of Douglas, J., in Ginsberg v. New York (1967) 390 U.S. 629, 655-656.)” He later modified the modification to refer to fn. 6.
The German definition of schmuck is “jewel.” The footnote in Douglas’s opinion makes the point that in the case of obscenity, the problem is with the reader, not the material.
Hanson then modified his dissent by adding:
“I decry the lack of propriety, collegiality and judicial temperament displayed in footnote 2. I abhor the loss of public respect for the legal profession and the judiciary footnote 2 has engendered by reason of the report in the Los Angeles Times on March 13, 1979 (circulation 1,034,329). One certainly cannot fault the Los Angeles Times for using an English dictionary (Webster’s) since California published opinions for over 125 years have been written in English and our jurisdiction obviously does not extend seven thousand miles to the Rhine in Germany.
“I construe the Ginsberg reference in footnote 2 within the context of the case at bench as a personal affront to every California citizen and their duly elected representatives in the California State Legislature who have deemed it a wise public policy to enact our criminal obscenity laws and to all public servants charged with the responsibility of enforcing those laws. It is no wonder that California has the odious distinction of being the porno capital of the world.”
Contacted yesterday, Thompson said he has “no serious regrets” about footnote 2. He remarked that he only regrets “that it was misunderstood.” It was not intended as a characterization of Hanson, he insisted, but was only meant to show that a word can have varying meanings. Thompson lamented that “most people forget” his reference to the German-English dictionary.
Thompson’s research attorney from 1975-77 was a young woman named Miriam Tigerman. She now uses the surname of her third husband, and is known as Miriam Vogel.
Court of Appeal Justice Miriam Vogel is seen with retired Court of Appeal Justice Robert Thompson at reception on July 3, 1990 following Vogel's confirmation as a member of the Second District's Div. One. Vogel had served as a research attorney for Thompson in the late 1970s.
Thompson’s lack of civility in 1979 in penning footnote 2 to the Arno opinion has not been equalled by his protégé—but she’s working at it. In her assaults of late on Spencer and Mallano, she demonstrates that her mentor’s teachings were not lost on her.
Unlike Hanson, she eschews verbosity. But like Hanson, she will use a judicial opinion for purposes that are plainly non-judicial. Deriding the writing style of a colleague, as she has done in recent opinions, is no part of an appellate justice’s function.
One instance where the Supreme Court depublished an opinion in which Vogel had launched into commentary (setting forth views on the need for legislative action concerning involuntary discovery references) was McMillan v. Superior Court (which can still be found at 57 Cal.Rptr.2d 674).
In the case of Estate of Meeker (1993) 13 Cal.App.4th 1099, Div. One produced an opinion which stands as an oddity.
Vogel included an extraneous discourse on the need for trial judges not to rush through their cases too fast. The other justices assigned to the case, Spencer and Justice Reuben Ortega—apparently wanted to disassociate themselves from her remarks. Unwittingly (one would surmise), they caused the case to be decided in such a way that the state constitutional requirement of an opinion “with reasons stated” was not met.
Spencer and Ortega each “concurred in the result only.” Accordingly, not one statement in Vogel’s opinion (though cast in the first person plural) was joined in by her colleagues other than the disposition (“The judgment is reversed with directions to the trial court to set the matter for trial.”)
In a similar circumstance—where there was a lead opinion, a concurrence in the result only, and a dissent—the California Supreme Court held that “the decision of the Court of Appeal fails to satisfy the constitutional requirement that the reasons for the decision rendered by the appellate court be stated in writing.” That pronouncement came two years after Meeker in Amwest Surety Ins. Co. v. Wilson, 11 Cal.4th 1243.
There is an opinion in Meeker. But of what species is it? It’s not a “lead opinion” because it doesn’t lead—there are no opinions that trail it.
There are times when the justice who writes a majority opinion will add a concurring opinion in which views are expressed with which other justices do not join. The technique was pioneered in California by the late Supreme Court Justice Stanley Mosk in Hawkins v. Superior Court (1978) 22 Cal.3d 584. Vogel’s opinion resembles a concurring opinion penned by the writer of a majority opinion, but one can hardly “concur” in some other opinion when there is no other opinion in the case.
So, it’s a published opinion of indefinable nature, contained in the bound volumes, on CD ROMs and in databases, although not one portion of it is of precedential value.
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