Friday, April 20, 2001
1948: a Year of Scrutiny for Judge Charles S. Burnell
By ROGER M. GRACE
The defendants’ lawyer objects to a question. The judge snorts: "All right, I will sustain the objection since you do not want the jury to know the truth about that."
The injudiciousness of the comment is patent. Yet, such a comment was typical of the jurist who made it, Charles S. Burnell, a judge of the Los Angeles Superior Court from 1921-49.
In my last two columns, I’ve made note of appellate court opinions that dealt with Burnell’s in-court potshots and diatribes through the years. Today, I’m going to point to five opinions issued in 1948—by which time the judiciary had clearly had its fill of Burnell spouting off.
The comment quoted above was recounted in an opinion authored by Justice Marshall McComb as a member of Div. Two of this district’s Court of Appeal. The case was Etzel v. Rosenbloom 83 Cal.App.2d 758, filed Feb. 20, 1948. It was a personal injury case, there was a jury, and it was the plaintiff with whom Burnell sided.
The one-liner about the defense lawyer seeking to keep the truth from the jury was followed by a similar remark. When the defendants’ lawyer objected to a question put to the plaintiff by Burnell, the judge sustained the objection, advising the jury: "Anything that counsel do not want you to know I do not want you to know. If that is the way they want to try the case that is all right." As if he had not already made his point, Burnell then told the lawyer: "If you don’t want the jury to know the truth, I will sustain your objection."
Other questioning by Burnell reflected his belief that it was the plaintiff whose car was struck by the defendants’ vehicle—rather than vice-versa, as contended by the defense—and that a defendant was lying on the stand.
"In the ordinary case we would be constrained to reprimand Judge Burnell for his flagrant disregard of the canons of judicial ethics and for his nonjudicial and outrageous conduct. However, we refrain from doing so for the reason that the reported cases show that from time to time during 20 years the appellate courts of this state have directed Judge Burnell’s attention to the impropriety of conduct similar to that which occurred in the present case—all to no avail."
The jurist recited cases in which Burnell had been found to have committed misconduct, and remarked:
"The trial of a lawsuit is a serious matter, and the courtroom is not the forum in which the buffoon should ascend the bench to display his wares.
"Misconduct resulting in the reversal of cases costs the taxpayers large sums of money, is an utter economic waste, and often results in guilty persons escaping justice. (See criminal cases cited, supra.)
"Judge Burnell’s conduct in this case is to be condemned without reservation."
On April 12, 1948, there came the Court of Appeal’s opinion in Jaffe v. Vitz, 84 Cal.App.2d 810. Burnell’s "popping off" did not result in reversal in that case. For one thing, there had been no jury for him to prejudice. One of Burnell’s barbs quoted in that opinion was this assessment of a witness: "This man seems to think every question you ask him is an excuse for opening his mouth and letting the words pour out."
Next in chronology was Podlasky v. Price, 87 Cal.App.2d 151, decided Aug. 6, 1948. I’ll get to that case later.
On Sept. 13, 1948, in Murr v. Murr, 87 Cal.App.2d 511, the Court of Appeal reversed a divorce decree which adjudged the husband to be the father of a child born to his wife. The husband was in the Navy and, for him to have been the father, this normal, healthy child would have to have been conceived during shore leave six months before birth.
Burnell reportedly told the lawyers in chambers before the trial that he was not going to find the child to be a bastard, and throughout the ensuing proceeding repeatedly complained of time being wasted—at one time noting that the attorneys "know what is going to happen." The Court of Appeal invalidated the decree based on Burnell’s prejudgment of the paternity issue, as well as his intimidation of a witness. Justice Parker Wood commented that the "prejudicial conduct of the trial judge is corroborative of the opinions relative to such conduct heretofore expressed" in other cases.
On Dec. 3, 1948, the California Supreme Court again examined Burnell’s conduct.
In handling a divorce case, Burnell expressed the view that women could find jobs and—without any evidence as to the wife’s health or earning ability—proclaimed that she didn’t need alimony. The husband’s attorney responded by offering to withdraw the cross-complaint if the wife would waive alimony. This colloquy ensued:
The Court: They do not need to waive alimony. The Court will waive it for them.
Mr. Murstein (plaintiff’s counsel): What is that, your Honor?
The Court: I say they do not have to waive it; the Court will waive it himself.
Mr. Murstein: This woman has been married for 37 years. I think she is entitled to be supported.
The Court: Go ahead and wash your dirty linen. I won’t stop you.
In adjourning court, Burnell remarked:
"All right; we will continue washing the dirty linen tomorrow morning....I will instruct all witnesses in this case to return tomorrow at 10:30, and I think after that I will exclude the witnesses. There is no necessity of having them listen to the washing of the dirty linen."
The next day, Burnell did hear some testimony from the wife as to her need for support, but when her lawyer sought to return her to the stand for more testimony, the judge balked, saying:
"I have told you that I am not going to award any support. I have told you that several times....I wish you would please stop wasting the Court’s time."
Reversal came in an opinion of the California Supreme Court. The case is Webber v. Webber (1948) 33 Cal.2d 153. Writing for the majority, Justice Homer Spence said:
"From this recital of the record, it is apparent that plaintiff did not have a fair trial of her cause by reason of the preconceived and declared aversion of the trial judge to award her financial relief consistent with defendant’s responsibilities."
The opinion also made note of the "unbecoming conduct of the trial judge" in referring to the parties’ "dirty linen," when such a reference had no relation to what was going on in the case.
"Such conduct on the part of the trial judge, indicating his unsympathetic attitude toward the litigation, does not accord with recognized principles of judicial decorum consistent with the presentation of a case in an atmosphere of fairness and impartiality, and it cannot be condoned," Spence said.
Now for Podlasky v. Price.
"If no other grounds for reversal existed, the conduct of the trial judge alone would adequately supply them," the lead opinion said. "Judge Burnell at various stages of the trial made statements calculated to intimidate the litigants and their counsel and to confuse the witnesses."
Dissatisfied with responses by witnesses to questions he posed, Burnell uttered complaints such as "I cannot give people brains," "Some of these people look like human beings," "You can’t beat brains in these people’s heads," and "I give up. I often wonder why some of these people are put in asylums and others are left out."
Among the portions of the transcript quoted in the opinion was this:
The Court: This man [a witness] looks almost intelligent at times.
Mr. Shepherd: He is quite intelligent, your Honor.
The Court: I doubt it very much. He keeps on interpolating what he thinks people’s motives were and how furniture was arranged.
Mr. Shepherd: If he were a court official he might be a little more capable. I think our witness is under a little strain while on the witness stand.
The Court: They seem to be unable to be silent. They seem to be utterly incapable of answering a question and then stop talking, and not interpolating extraneous matter. I have told witnesses on both sides that, time and time again. Apparently we are trying a case with a bunch of morons.
The Witness: Your Honor —
The Court: No one has asked you a question.
The Witness:—I would like to state this.
The Court: You keep quiet, now. You will wind up in jail if you do not look out.
Presiding Justice Minor Moore said in the lead opinion:
"Such conduct is not that of a legendary tyro but of a living, functioning judge who apparently delights in exhibitions calculated to deprive the court of the complacency, the disinterestedness, the zeal for truth, the judicial calm and mien indispensable to the avoidance of prejudicial error. The pronouncements of his personal opinions upon counsel and witnesses impair their efficacy as well as that of the court. Similar behavior by Judge Burnell has been the subject of many reversals during the past 24 years (see Etzel v. Rosenbloom, 83 Cal.App.2d 758) without effecting a reform in his behavior or causing him to conform with orthodox judicial deportment. However, it is still error thus to conduct a trial."
Two justices—McComb and Emmett H. Wilson—signed a concurring opinion in which they proclaimed:
[I]t is our view that the nonjudicial conduct of Judge Burnell during the trial of numerous cases, many of which are cited in Etzel v. Rosenbloom, 83 Cal.App.2d 758, is verging on a public scandal and is bringing the courts and the administration of justice into disrepute....
No longer should such disgraceful acts be lightly brushed aside. In order that taxpayers, litigants, witnesses and lawyers may be protected from further insults, harassment and ridicule at his caprice and whim two courses at least are readily available: (1) The judicial commission, acting on recommendation of the governor, can retire him for the "reason of mental...disability that is or is likely to be of a permanent character" rendering him unfit to perform the duties of the office which he occupies. (The Judges’ Retirement Act [Stats. 1937, p. 2204; 2 Deering’s Gen. Laws, 1944, Act 5849a, §§ 2, 3, p. 2252 et. seq.].) (2) The Legislature may remove him by a "concurrent resolution of both Houses of the Legislature adopted by a two-thirds vote of each House." (Const., State of California, art. VI, § 10.)
The provision of the Judges’ Retirement Act alluded to said, in part: "If the Governor finds that any justice or judge of any of said courts [Supreme Court, Court of Appeal, or Superior Court] is unable to discharge efficiently the duties of his office by reason of mental or physical disability that is or is likely to be of a permanent character, he may with the consent of all the members of the commission on qualifications...retire said justice or judge from office with or without his consent."
The "Commission on Qualifications" is not to be confused with the Commission on Judicial Qualifications—the original name of the Commission on Judicial Performance. That entity did not come into being until 1960. Rather, the Commission on Qualifications was what is now known as the Commission on Judicial Appointments. Comprised of the chief justice, the attorney general and the senior Court of Appeal presiding justice, it passes on nominees to the Court of Appeal and the Supreme Court (and in those days, also confirmed Superior Court judges if the county adopted legislation to that effect).
So, what McComb and Wilson had in mind, as an alternative to removal of Burnell through the impeachment process, was Gov. Earl Warren confabbing with Chief Justice Phil Gibson, Attorney General Fred Howser, and the district’s senior Court of Appeal presiding justice, John M. York, and yanking Burnell from office based on a "mental disability."
The statute was without constitutional authorization, and was probably infirm for that and other reasons. But the suggestion in an opinion by a Court of Appeal panel’s majority (albeit in a "concurring" opinion) that such a process be invoked based on a trial judge’s persistent misconduct was probably the hardest battering a judge had received to that point in the Official Reports.
Burnell died less than a year later, at the age of 74. He was in his 29th year on the bench.
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