Former California Judge Faces Criminal Charges in Marshall Islands

Tuesday, December 3, 2002

Page 7

PERSPECTIVES (Column)

Former California Judge Faces Criminal Charges in Marshall Islands

By ROGER M. GRACE

A former California judge, Charles Henry, who sat in Siskiyou County, has been suspended from his post as a chief justice of the Republic of the Marshall Islands and is facing trial on seven counts of “cheating and attempted cheating.”

This is the same Charles Henry who instituted contempt proceedings against a lawyer, Steven G. Hanson, in part because he told the jury his client had not received a fair trial. The Third District Court of Appeal upheld the contempt adjudication, finding that the one-liner (which Hanson insists was aimed at conduct of the prosecutor) “impugned Judge Henry’s integrity.”

The integrity of that jurist is now very much in question.

Henry, after leaving the Siskiyou Superior Court in 2001, forayed about 5,000 miles to the Marshall Islands, located in Micronesia. He was hired as chief justice of the High Court. The post is not quite as impressive as it sounds. The High Court is a general jurisdiction trial court, with appellate jurisdiction over decisions of lower courts (akin to our Appellate Division).

The Siskiyou Daily News reported Friday that Henry has been suspended from his job and charged with taking about $14,000 in funds for unauthorized tranel.

The article said:

“The charges filed against Henry claim he violated the terms of his contract with the Republic of Marshall Islands (RMI) by taking a number of government paid-for trips when his contract only allowed for one government-funded trip per year for ‘legal education.’ Allegations are that instead of attending legal education conferences while away from the islands as his contract required, Henry served as a judge for 10 days in July for the Superior Court of Merced County in California and 18 days in October for the Superior Court of Sacramento County.”

The newspaper reported that Henry raked in about $10,000 for his services as an assigned judge in California, plus $2,700 in expenses.

BOREN’S REASONING CHALLENGED — In my column on Nov. 22, I pointed to an opinion of the Court of Appeal with a conclusion that struck me as so obvious that it was hard to comprehend how the reversed judge, J. Michael Byrne of the Los Angeles Superior Court, could have seen it differently.

The City of Pasadena had sought to impose a late fee on utility tax payments relayed by AT&T from its customers. The relevant ordinance required that the phone company to “remit” payments by the 20th of each month, and AT&T had, in fact, sent payment by the 20th of each month, with the payments received later. Pasadena contended that the paytments were not “remitted” until they were received. Writing for this district’s Div. Two in City of Pasadena v. AT & T Communications of California, Inc., Presiding Justice Roger Boren pointed out that dictionaries define “remit” as meaning “to send,” which is the opposite of “to receive.”

Apparently, the correctness of Boren’s ruling wasn’t as readily apparent as I thought. I received the following e-mail from a member of the Los Angeles Superior Court (who wished not to have his or her identity disclosed):

I thought Boren was wrong. The remittance of money is a process, not an act, and the process includes not only starting the money on its journey but also its arrival at its destination. My unabridged dictionary lists one of the definitions of remit as “to send or pay (money).” To me, this reference to “pay” recognizes the flavor of meaning in “remit” that distinguishes it from “send.”

Indeed, I’ve never cared for this appellate judicial practice of looking in a dictionary to find the meaning of a word that has a technical meaning in law. “Remittance” is a familiar term in the field of transmission of money, and its meaning in the Pasadena ordinance should be evaluated within that field. It is also a term used, in various contexts, in the Uniform Commercial Code article on bank collections. UCC 4104(a)(11) says, “ ‘Settle’ means to pay in cash, by clearinghouse settlement, in a charge or credit or by remittance, or otherwise as agreed.” To me, this suggests that a remittance is a payment, not just the act of putting an envelope into a corner mailbox.

When a sender of money has complete control of the choice of the means of transport, and the remittance is in such a form that the sender gets the “float” until the money arrives at its destination, I don’t think it’s unreasonable to interpret the remittance deadline as meaning, “the taxpayer can send the money by any means he chooses — messenger, U.S. mail, UPS ground, Pony Express — so long as the money arrives by the deadline.”

Of course, Boren’s case involved an ordinance, and it certainly lay within the City’s drafting skills to specify a deadline for receipt in explicit terms. The real problem in the case was the astonishing late fee imposed by the ordinance. And I assume the City can overrule Boren’s decision by amending the ordinance — so long as they obey the Brown Act.

The state Legislature knew how to handle the delay problem with remittances; Rev. & Tax. Code section 19011(a) requires “remittance” be via electronic funds transfer if the amount exceeds a specified dollar threshhold.

Here’s how Boren approached the issue:

We consulted numerous dictionaries to learn the plain meaning of remit....Every dictionary defines remit as “send.”...Unsurprisingly, the City does not cite to any dictionary that defines “remit” as “receive.” After all, “send” and “receive” are antonyms. “An agreement to ‘remit’ or ‘transmit’ money is an agreement to send and not an agreement to deliver.” (Nicoletti v. Bank of Los Banos (1923) 190 Cal. 637, 640, italics added.) The Supreme Court added, “ ‘The definitions of the word “remit” in standard authorities do not involve the idea of delivery.’ ” (Ibid.) Nothing in the standard authorities has changed since 1923. Remit still does not mean deliver or receive.

Even if his logic were skewed (and it certainly does not appear to be), Boren cannot be “wrong” if he faithfully applied a holding of the California Supreme Court. He did.

In Nicoletti, the defedant bank undertook to “remit” $550 to the plaintiff’s mother, Rosa Nicoletti, in Chiatri, Italy. The bank sent the money through usual banking channels. Through a foul-up by a post office in Italy, the money was handed over by a bank to the wrong Rosa Niciletti. The Supreme Court said:

If there had been an express agreement to deliver the money to Rosa Nicoletti at Chiatri, Italy, there is no doubt that the plaintiff would be entitled to recover for the failure to do so. But the agreement alleged in the complaint, admitted in the answer, stipulated to by the parties and found by the court, was an agreement to remit the money to Rosa Nicoletti, at Chiatri, Italy.

An agreement to “remit” or “transmit” money is an agreement to send and not an agreement to deliver.

That holding appears to foreclose the argument that “[t]he remittance of money is a process, not an act, and the process includes not only starting the money on its journey but also its arrival at its destination.”

I would take issue with the comment in the judge’s e-mail that it would not be “unreasonable to interpret the remittance deadline as meaning, ‘the taxpayer can send the money by any means he chooses—so long as the money arrives by the deadline.’”

It would, indeed, have been reasonable for the Pasadena City Council to have provided in the ordinance that the burden was on the utility to effect delivery by a stated deadline. It would, on the other hand, be quite unreasonable for a court to interpret the ordinance as having effected such a requirement. The Pasadena ordinance provides simply that “on or before the 20th of each month—the full amount of tax collected shall be remitted” to the city.

It’s axiomatic that a court may not, in the guise of interpretation of a law, interject what legislators failed to include.

As Boren remarked in his opinion: “If the City wishes to receive tax payments on the 20th, it can amend the [Pasadena Municipal Code] to say so.” It can; a court can’t.