Justice Miriam Vogel’s Drive to Humiliate Colleagues Backfires

Monday, December 31, 2001

Page 9

Perspectives (Column)

Justice Miriam Vogel’s Drive to Humiliate Colleagues Backfires

By ROGER M. GRACE

Court of Appeal Justice Miriam Vogel of this district’s Div. One has embarked on a crusade. Her mission is to belittle and discredit her panel’s presiding justice, Vaino Spencer, and her newest colleague in the division, Robert Mallano.

When either is the author of the majority opinion and she’s on the panel hearing the case, Vogel is prone to seize the opportunity to poke fun at the opinion penned by her rival (as she apparently regards Spencer and Mallano).

Ironically, she desists from picking on her other Div. One colleague, Reuben Ortega. The irony is that Ortega has made public mention of difficulties in dealing with Vogel. At the June 28, 2000 retirement lunch for Justice William Masterson, Ortega alluded to how easily Vogel is riled and said something along the lines of: “Getting under Miriam’s skin—that’s good!”

But if Ortega were to write an opinion saying that X equals Z, and the judgment were therefore reversed, and if Vogel agreed with the outcome, she would simply concur in the opinion, without comment. If Spencer or Mallano wrote that X equals Z, however, Vogel would be apt to write separately to comment on how foolish an approach the majority took in resolving the case, that X is irrelevant, and that Z is all that matters.

Her evident goal is to make fools of Spencer and Mallano. She’s not succeeding. Rather, she comes off looking like a silly brat, sticking her tongue out at the grown-ups on the panel.

Vogel was appointed to Div. One in 1990. The appointment was a gift to her from Gov. George Deukmejian on her 50th birthday. She has not proved an ideal colleague. There are rumors of snippy, snotty internal memos from her. It’s easy to believe those rumors; snippy, snotty verbiage has oft appeared in her opinions, sometimes aimed at parties, sometimes at colleagues.

Spencer is known to have been irate when Vogel, on June 30, 1992, ordered publication of one of her own opinions. As you may recall, Vogel was the author of a dissent, and the majority had opted not to publish their opinion, penned by Spencer. Vogel explained in a footnote that she was the “majority” among the dissenters, and could therefore order publication of her opinion. That puerile reasoning did not impress the California Supreme Court, which countermanded her publication order. For a time, Spencer and Vogel reportedly were not speaking to each other, except when essential.

In recent years, it seemed that Vogel had simmered down. Masterson, a white-haired gent with an unassuming and avuncular manner, reportedly had a calming effect on her. But since he left, so have her senses.

She is now engaged in open warfare on Spencer, as well as on Mallano, who joined the division on Aug. 18, 2000.

Any appellate jurist must, of course, expect critiques of the writing style or organization used in his or her opinions. Such critiques are apt to appear in law journals or newspapers, or be spoken at MCLE lectures or in cocktail party conversations. But an assessment of how well, or how badly, a given opinion is written is hardly to be anticipated in a concurring opinion. For one justice to review the quality of an opinion penned by a colleague is unthinkable.

But Vogel has thought of it, and done it. She did on Friday in a concurring opinion in a criminal case. The opinions in that case were not certified for publication.

She also did it in two concurring opinions in civil cases filed Dec. 20. Publication was ordered in both of those cases.

In each of the three instances, Spencer wrote the majority opinion and Mallano concurred.

•Friday’s case concerned error by Los Angeles Superior Court Judge William J. Birney Jr.—conceded to be error by the Office of Attorney General. Birney had inadvertently omitted the standard instruction on the presumption of innocence and the People’s need to establish guilt beyond a reasonable doubt. The harmless error rule applied, the People insisted, because Birney did give equivalent instructions. It urged that the appellant’s conviction for car theft be upheld.

Spencer discussed relevant case law, including a United States Supreme Court decision upon which the People relied, and concluded that there was per se reversible error. She discussed two additional claims of instructional error for guidance of the trial court on remand. The opinion comprised eight pages.

Vogel snorted in response:

“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.”

While there is little to be said in favor of opinions that take the form of rambling treatises, it must be borne in mind that there’s a limit to how brief an opinion may be. A state constitutional provision, Art. VI, §14, requires that “[d]ecisions of the…courts of appeal that determine causes shall be in writing with reasons stated.” Spencer was not at liberty to simply proclaim: “Trial judge failed to give CALJIC No. 2.90. Judgment reversed.”

The eight-page opinion was neither rambling nor cursory. While some of the factual recitation might have been trimmed, it remains that the recitation took up only two pages. The rest of the opinion was comprised of relevant legal discussion. The cause of maintaining public confidence in the judicial system does require that an opinion say enough to evidence a comprehension of, and a conscientious treatment of, the contentions put forth by both sides.

Vogel’s barb that “we don’t get paid by the word or even the page” was inapt because the majority’s opinion was not inordinately long. More significantly, however, it was an inappropriate potshot. Vogel was not commenting on the legal issues presented, but on the competence of the writer of the majority opinion.

•In O’Byrne v. Santa Monica Hospital Medical Center (B143702), 01 S.O.S. 6029, Vogel concurred in an opinion affirming a grant of summary judgment to a hospital sued by a physician who was denied privileges. Vogel said she wrote separately “for several reasons.” Her main reason was to deride Spencer for providing a lengthy recitation of facts where a more concise recitation would have sufficed.

“First, most of the facts recited by the majority are irrelevant,” Vogel began, proceeding to pinpoint what she regarded as the salient facts. She continued:

“These facts are undisputed and I see no reason to recite the five pages of minutia included in the majority opinion….As Justice Cardozo put it, a proper statement of facts is one that is ‘rigidly pared down’ to those facts ‘that are truly essential as opposed to those that are decorative and adventitious.’…”

Vogel then pointed to areas where she agreed with the majority.

A necessity for a separate opinion was nonexistent. The obnoxiousness of it was patent. She used a judicial opinion as a vehicle for gratuitously assailing the writing style of a colleague.

If Spencer’s opinion was too long, thus creating an imposition on the reader, what was to be served by appending a concurring opinion, adding more words for the reader to wend through, while adding nothing of jurisprudential value?

•In Morris v. Blank (B147087), 01 S.O.S 6018, the court reversed a summary judgment granted to defendant Michelle Ann Blank in a Superior Court action arising from a traffic accident with plaintiff Crystal Lynn Morris. The trial judge, William A. MacLaughlin, held that Blank’s dismissal with prejudice of her municipal court action against Morris arising from the same accident, following settlement by Morris’ insurer, acted as a retraxit, barring Morris’ Superior Court action.

Spencer noted:

“In common law, a retraxit was ‘a voluntary renunciation by plaintiff in open court of his suit and cause thereof, and by it plaintiff forever loses his action.’…In California, the same effect is now accomplished by a dismissal with prejudice….”

Under modern practice, Spencer said, “when there is a voluntary dismissal with prejudice under Code of Civil Procedure section 581, the relevant question to be asked when one of the parties to the dismissed litigation seeks to litigate issues arising out of the same transaction is whether the litigation is barred by res judicata or collateral estoppel, not retraxit. We hold that retraxit is no longer applicable in this situation.”

In a meticulously reasoned opinion, Spencer showed that under the facts, neither res judicata nor collateral estoppel applied.

Vogel agreed with the result. However, she wrote: “I concur in the judgment but write separately because I believe there is a more direct means to the same end.”

After launching into a statement of the facts from scratch, she proclaimed: “In my view, the majority’s detailed discussion about retraxit is confusing and irrelevant.” Vogel said the settlement by Morris’ insurer was of no significance because it looked like Morris had not approved it. She then tossed in: “For these reasons, no purpose is served by the majority’s attempted exegesis about the rules of retraxit.”

The discussion of retraxit was appropriate for two reasons:

First, MacLaughlin decided the case based on retraxit. The two issues presented by the appellant were tied to retraxit. To eliminate a discussion of the doctrine upon which the trial court’s judgment was dependent and on which the briefs on appeal were focused would have been odd, indeed.

Second, California cases were still mentioning retraxit—a term many lawyers learned back in law school in a class on common law pleading, but which few would be able to define today. The opinion served to announce the demise of the doctrine in California.

Vogel’s assertion that “the majority’s detailed discussion about retraxit is confusing and irrelevant” is wrong not merely because the discussion was relevant, but because it was by no means confusing; it was set forth with clarity.

Moreover, she did not merely set forth how she would have preferred to resolve the case, but, again, critiqued Spencer’s opinion.

Her reference to the majority’s “attempted exegesis about the rules of retraxit” was unduly sarcastic and uncollegial.

Another irony is that Vogel, on the very day she scored Spencer for an overly long statement of facts, included a three-page statement of facts in a concurring opinion, with much of the discussion repeating what Spencer had already conveyed (in two pages). All that is needed in a concurring or dissenting opinion is a recitation of those facts which were not already mentioned and upon which the concurring or dissenting opinion relies.

Where a Court of Appeal opinion other than the majority opinion contains a statement of facts which stands on its own, it suggests that the opinion was intended by the author as the majority opinion, but that no other member of the panel would sign it. If that’s true here, it is understandable that neither Spencer not Mallano would sign an opinion that skirts a discussion of the doctrine upon which the case was decided below.

By no means do I suggest that one justice should never take issue with utterances of another justice. Robust dissents—based on disagreement with propositions of law—surely are to be encouraged. Drafts of dissents assist the author of the majority opinion in refining his or her thinking. Published dissents inspire critical examinations of the majority’s opinion by other panels, and may inspire the granting of review or enactment of legislation to abrogate the holding. The voicing of disagreement, whether in a public square or in a judicial opinion, is generally a healthy exercise of the democratic prerogative of speaking up.

Vogel, by contrast, is engaged in the sick exercise of denigration without a public purpose, a venting of the spleen for sake of self-satisfaction.

It is clear to a reader of Vogel’s commentaries that she possesses enmity toward Spencer and Mallano. Why it is she doesn’t like them doesn’t matter. What matters is that she is abusing a privilege of office. Whenever a majority opinion by one of Vogel’s colleagues is certified for publication, Vogel possesses the unfettered power to place in the Official Reports any observations she might wish to commit to writing in the form of a concurring, concurring and dissenting, or dissenting opinion. When she invokes that prerogative merely for sake of slapping at a colleague, with no jurisprudential purpose, she is, I submit, engaging in a form of misconduct.

In my next column, I’ll discuss some more of Vogel’s opinions over the past five months in which she derided Spencer and Mallano, including one in which she accused them of having “endorsed and encouraged a form of judicial extortion.”

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