Wednesday, December 11, 2002
Page 7
PERSPECTIVES (Column)
Justice Miriam Vogel: ‘I Concur in the Judgment, Only’ — Period
By ROGER M. GRACE
A pronouncement by an appellate jurist that “I concur in the judgment only,” without explanation, is really rather obnoxious. The jurist is saying, in effect, “I see something wrong with the majority’s opinion, but I won’t tell you what it is.”
“I concur in the judgment only” is a pet phrase of Court of Appeal Justice Miriam Vogel of this district’s Div. One. Use of it appears to be her way of asserting superiority over the colleague who authored the majority opinion, without unleashing one of her backbiting critiques. (She has, to her credit, been behaving herself of late, desisting from the sort of gross uncollegiality that marked her in the past.)
On Nov. 27, an opinion which was not certified for publication was filed in Captain Dave’s Marine Services v. Angel Grove Productions, B146318. Presiding Justice Vaino Spencer wrote the opinion. Vogel concurred in the judgment only.
Spencer’s opinion affirms a judgment of dismissal following Los Angeles Superior Court Judge Joseph E. DiLoreto’s order sustaining a demurrer to the third amended complaint without leave to amend. The opinion meticulously sets forth the flaws in the pleadings, leaving no doubt in the mind of any reader of the opinion that DiLoreto made the correct ruling.
Justice Reuben Ortega concurred in the opinion, without grumbling. But Vogel dissociated herself from it, leaving to conjecture why she did so.
On the same day, Spencer filed an opinion, also not certified for publication, in People v. Avery, B148230. The court reversed a first degree murder conviction “provisionally.” The defendant’s lawyer had failed to attempt to introduce a statement to police by a shooting victim, who later died, which exonerated the defendant. Spencer said the defendant “received ineffective assistance of counsel—if the trial court determines that there are sufficient indicia of the statement’s reliability for it to be admissible pursuant to Evidence Code section 1370.”
Justice Robert Mallano signed Spencer’s opinion. Vogel declared: “I concur in the judgment only.”
Why? Vogel has derided her colleague in the past for verbosity, and the statement of facts was perhaps longer than it needed to be. Was that the reason?
Who knows? Vogel doesn’t tell us.
Well, of course, it could be a coincidence that Vogel concurred in the result, only, as to two Spencer opinions, right? This doesn’t necessarily mean that she was evincing antagonism toward the division’s presiding justice.
There is, however, also the case of Barton v. Princess Cruises, B123107, another unpublished decision filed Nov. 27. The opinion reverses a grant of summary judgment by Los Angeles Superior Court Judge Alexander H. Williams III, finding that the case (involving fees charged to cruise ship passengers) is governed by maritime law, and that application of that law gives rise to factual issues as to the enforceability of provisions in the contract for passage.
The discussion is reasoned and succinct. It is difficult to see how one could concur in the result while repudiating the discussion.
Nonetheless, Vogel did just that, not deigning to shed light on her reasons. Ortega concurred in Spencer’s opinion.
Coincidence? Not likely.
On Nov. 25, Div. One filed an opinion in People v. Arreguin, B153904. The opinion affirmed a judgment in a three-strikes case by retired Los Angeles Superior Court Judge Robert W. Armstrong, sitting on assignment. Spencer was the author of the opinion. Mallano concurred; Vogel concurred in the result only.
A reading of the opinion provides no clue as to the basis upon which Vogel refused to sign that opinion. A knowledge of Vogel’s traits does suggest the reason: it was simply her way of sticking her tongue out at Spencer.
That’s four times last month that she repudiated an opinion by Spencer, unwilling or unable to state just where it is that she parts company with her colleague. Well, her defenders might interject, four instances hardly reflect a pattern.
Would you believe 21 instances since the start of the year? That’s the number. In 21 cases, Spencer wrote the majority opinion (in each instance unpublished), either Mallano or Ortega concurred, and Vogel indicated she agreed with the outcome but disavowed the opinion, stating no reasons.
Only once this year did Vogel declare “I concur in the judgment only” with respect to an opinion by Ortega or Mallano. On Jan. 4, Ortega filed an opinion in a workers’ compensation case; Mallano concurred; Vogel declined, without stating why, to sign the opinion.
She did the same with respect to an Aug. 29 opinion by Richard Rico, a Los Angeles Superior Court judge sitting on assignment.
Thus, 91 percent of her 23 unexplained refusals this year to join in opinions which she thought had the right outcome were in response to opinions by Spencer. Her action would be reasonable if Spencer’s opinions were routinely undecipherable, stuffed with improper matter, founded on faulty reasoning, or reliant on cases that do not stand for the propositions for which they are cited. They’re not.
Vogel’s pattern of conduct smacks of a vendetta. Her conduct was described in a series of columns earlier this year appearing on the Internet at:
http://www.metnews.com/opinion/persp-vogel-f.htm.
(At that point, both Spencer and Mallano were her targets.)
I would suggest that when Vogel spots what she perceives to be a flaw in an opinion by another justice, collegiality would demand two things: that she point out the defect, as she regards it, to the author; and if it remains in the opinion but is merely superficial, that she sign the opinion, recognizing that the opinion’s length, phraseology, grammar, and so forth will not be attributed to her.
If what she sees as an error is of such a nature that it is apt to have an adverse impact on the jurisprudence of the state, her duty to the public would command that she articulate her differing view.
These obligations, in my view, preclude any appellate jurist, ever, from declaring, “I concur in the judgment [or result],” and leaving it at that. If the disagreement is worth noting, it is worth explaining, even if the explanation is comprised only of a short paragraph.
While the state Constitution requires only that opinions which determine causes be in writing with reasons stated — impliedly permitting the filing of dissents and concurrences in results, only, without reasons being articulated — it remains that responsible conduct is an inherent obligation of public office. Conduct which is not constitutionally barred may yet be irresponsible. The practice of concurring in the result and giving no reason is, I would submit, an irresponsible one.
For Vogel to state that she concurs in the judgment, only — which only implies that the majority opinion is faulty — is at least preferable to her hurling express barbs over mere matters of style. For example, last Dec. 28, in People v. Reid, B142393, an unpublished opinion, Spencer wrote for the majority. Vogel snorted: “I concur because the trial court’s failure to instruct the jury according to CALJIC No. 2.90 constitutes a structural constitutional defect and compels reversal per se. (People v. Phillips (1997) 59 Cal.App.4th 952, 954.) Since we don’t get paid by the word or even the page, I just don’t understand why it has to take eight pages to state the obvious.”
That last sentence was, to state the obvious, unseemly.
If Vogel thought Spencer’s opinion was too detailed, the appropriate response would have been a memo to Spencer along the lines of:
“In reading this, my reaction was that some of the discussion is unnecessary. I agree that the trial court’s failure to instruct the jury according to CALJIC No. 2.90 constitutes a structural constitutional defect and compels reversal per se. Do we really need to say much more than that?”
If Spencer didn’t take her advice, Vogel had two options consistent with civility:
Shrug, and sign the opinion, or pen a separate opinion.
An opinion setting forth the limited extent of the concurrence need not be lengthy. Many such opinions have been pithy and effective.
There was an instance, on Sept. 25, when Spencer concurred in the judgment only, without elaboration. The case was In re Megan P., 102 Cal.App.4th 480, and the author was Vogel. The case involved a minor who was declared a dependent of the court. The mother had been incarcerated and the Los Angeles County Department of Children and Family Services had been unable to locate the father, Vincent S. However, it had been searching for him using the wrong surname. He got wind of the proceedings at the eleventh hour; his lawyers appeared at a dispositional hearing and asked for a continuance which was denied; the father’s parental rights were terminated without Vincent S. having an opportunity to be heard. The Court of Appeal reversed.
Why did Spencer dissociate herself from the opinion? It could have been a matter of Vogel’s harshness in criticizing the “ineptitude” of the department (though, clearly, its procedures were infirm). It might be that she took issue with Vogel having deprived the minor of anonymity by disclosing the true surname of her father.
It cannot be doubted that had Spencer written the opinion, the same result would have been reached, but far greater sensitivity would have been manifested. But she didn’t write the opinion. If Spencer felt she could not lend her name to Vogel’s opinion, it should not have been left to speculation as to her reason.
This technique is utilized by other justices every now and then.
Even one of the appellate courts’ most respected member, Norman Epstein of Div. Four, concurred in the result only, without amplification, in an unpublished opinion filed May 29. Div. Five’s newest member, Richard Mosk, has done it twice in recent months, also in unpublished opinions.
Of late, however, the only “frequent offender” in this district has been Vogel.
Restricting attention to opinions certified for publication — including those which were subsequently depublished or which evaporated when the Supreme Court granted review — I’ve counted 51 opinions in the past 15 years (and, even with key-word searches, I might well have missed some) where there was an endorsement of the result, only, with no discussion.
This took place almost exclusively in Divs. One and Seven. With respect to the other divisions, it occurred in all of them except Divs. Four and Six.
Richard Aldrich of Div. Three adopted the approach once in 1998, Patti Kitching of the same division did so once in 1993, Donald Gates of Div. Two (since retired) also did it that year. In 1989, the technique was used once each by H. Walter Croskey of Div. Three, George Danielson of the same division (now deceased) and Joyce Kennard of Div. Five.
There was one other time it was used in Div. Five: People v. Superior Court (Soon Ja Du). The court affirmed the sentence of probation for a Korean American grocer who fatally shot a 15-year-old black girl whom she suspected of shoplifting. The leniency of the sentence enraged many. Whatever the wisdom (or lack of wisdom) of the sentence may have been, it was plainly within the trial court’s discretion, and the appeal by then-District Attorney Ira Reiner was legally pointless. The task befell the Court of Appeal to affirm, without embracing the trial court’s decision, and stressing the limited discretion of the appellate court, in hopes that the affirmance would not spark a riot. Then-Justice Herbert Ashby did a superb job. Justice Margaret Grignon “concurred in the result.”
Given the intense public interest in the case, Grignon might have deigned to share her insights.
Vogel, despite her propensity for concurring in the judgment, without discussion, in unpublished opinions, has done so only four times in published opinions (thrice in 1993 and once last year). Spencer has also done it four times (twice in 1993, once last year, and once this year). Ortega did it once, in 1993 — unfortunately in the same opinion in which Vogel concurred only in the judgment, resulting in a ruling with no holding.
It was five years ago yesterday that Justice Earl Johnson Jr. of Div. Seven went on the wagon and (apparently) swore off issuing unexplained concurrences in the result, only. The liberal Johnson had previously been addicted to that approach when responding to opinions by his conservative colleague Fred Woods when he was not able to dissent.
And Woods did his share of repudiating Johnson’s opinions without explication. The last time Woods did it was April 29, 1999. Between 1991 and then, he did it seven times, all in response to opinions by Johnson.
Presiding Justice Mildred L. Lillie (since deceased) did it twice (once in 1990 and once in 1991) in reaction to Johnson opinions, and Justice Leon Thompson (also deceased) once (in 1988) so reacted to an opinion by Johnson.
That totals 26 out of the 51 instances in the past 15 years.
The rest of the 25 times, the justice who concurred in the result, without telling why, was Johnson. He did it on Dec. 13, 1988, in response to an opinion by Lillie, and on each occasion from then on, it was as a rejoinder to a Woods opinion.
Copyright 2002, Metropolitan News Company