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Viewpoint: Appellate Bench's Tougher Moments

By William W. Bedsworth Contact All Articles 

The Recorder

March 22, 2013

Back in 1996, when I decided to take a crack at an appointment to the court of appeal, I walked over to the courtroom next to mine to talk to Dick Weatherspoon about it. I was trying to figure out which of my fellow superior court judges was likely to be competition for the job, and since "Spoon" had already beaten me out for a municipal court position in the mid-'80s, I knew him to be a formidable adversary.

I'll never forget his response when I asked if he was going after the seat. He looked at me for a moment like I'd suddenly begun speaking in tongues, and then bellowed, "Court of appeal? Are you kidding me? Who would want that job? Billy, if I could quitclaim you my rights to an appellate court position, I would do it in a heartbeat."

As I continued my survey, I found — much to my amazement — that the competition for the job was not going to be what I expected. A good number of my colleagues were not the least bit interested in my dream job. In fact, if I had to put a number on it, I'd guess two-thirds of the superior court wouldn't take the job on a dare.^FN:1

I suppose this shouldn't have been a complete surprise. I felt that way once. Here is what I had written about the court of appeal in 1987:

"Looks too much like work to me. I mean, if somebody gave you the choice of going out and umpiring — getting paid to watch major leaguers play ball every day — or sitting in the league office arguing with a couple of certified cognitive cerebrates about whether the foul lines ought to be moved three centimeters, which would you choose?

"Me, I'd take the umpiring. And I can't, for the life of me, figure out how smart people like Justices Trotter, Crosby, Sonenshine and Wallin got talked into a job whose only perks, as far as I can see, are a great staff and lovely offices, neither of which anybody ever gets to see because we're all afraid of committing 67 kinds of misconduct by going over there to say hello (and also because most of us have teenagers at home and don't need court of appeal justices to tell us how stupid we are).

"I assume they took the job because God told them to.'Either take this job on the court of appeal, or I'm calling you home.' No other explanation suggests itself.

"I think I would have taken 'home' — even if Oral Roberts was there. I mean, this is not a good job."

Obviously, a decade on the trial bench changed my mind, and by 1996, I was ready to wash the car and mow the lawn of everyone on the governor's Christmas card list if that's what it took.^FN:2And I was right. It's a great job. If you're waiting for me to die so you can get your shot, you might consider checking the Internet for undetectable ways to poison cinnamon rolls, because it is worth killing for.

But it is not perfect. And the older you get, the harder it is. For example:

I was researching recently and my eye caught the statement, "Pink Bollworm Control Act does not mandate jury trial." I might have resisted that when I was a younger man. But at my age, concepts you have never previously encountered — especially concepts as alien as that — are irresistible. My pedestrian Seventh Amendment issue was just going to have to wait until my golden retriever brain could run down the squirrel that had just crossed its path.

Let's face it, there are cases you just have to read, regardless of whether you expect them to have any redeeming social or career value. I mean, how can you resist a Pink Bollworm Control Act case?^FN:3

In 41 years practicing law and three nights of serious insobriety, I have never — ever — encountered a pink bollworm. I hope to live the rest of my life so as never to do so. But I absolutely had to read this case.

What I didn't have to do was write it. That task fell to the justi of the Fifth District.^FN:4 Tasks like that fall to courts of appeal all the time. Personally, I'd rather have burning wreckage from a midair collision fall to me. But that's the job. Hence my pronouncement, it is not perfect.

I mean, just look at the first sentence of the Pink Bollworm Control Act opinion.^FN:55 "These 17 consolidated cases ..." Right away, you don't like it. SEVENTEEN consolidated cases. You stack these files in your chambers, they're gonna be taller than you are.^FN:6 " ... involving 16 individual defendants ..." Omigod, one of 'em's a recidivist! ... "arise from violations of the Food and Agricultural Code §5784 ..."

Food and Agricultural Code? Criminy! When's the last time you cracked open the Food and Agricultural Code? The one in my chambers has probably never been opened. For all I know, it's hollowed out and has a gun inside. The Food and Agricultural Code! Gimme a break.

And the first sentence isn't done yet. "... and Title 3, California Administrative Code ..." California Administrative Code! Jesus wept! Have you ever seen that monster? It's 42 loose-leaf binders full of laws regulating elevators, reupholsterers, lamp adjusters (official), heptachlor, herring, swine brucellosis, brake fluid, amateur boxing, jackrabbits, jute, pneumatic nailers, the Petaluma Marsh Wildlife Area, assigned risk automobile insurance, label manufacturers, the breeding of albino reptiles^FN:7 and everything else that ever lurked in the anxiety closet of a state legislator or anyone on her Christmas card list.

If your access to the Administrative Code is through the Internet, you can't possibly appreciate it for the calamitous leviathan that it is. Dealing with the Administrative Code online is like experiencing heart surgery by watching an episode of Grey's Anatomy. Hike on over to the law library sometime and confront it face to face. Take a whip and a chair.^FN:8

But we're still not done with that first sentence. If you haven't yet run screaming from the room, it concludes with, "... §3595 setting forth mandatory dates for cotton farmers to shred and plow under their cotton stalks." Take me now, Lord. Please. Don't make me learn this stuff. Let me die a painful death right now so Justice Knowitall next door will get stuck with this purgation. I don't deserve to have to write this opinion.^FN:9

And that's just the first sentence. How'd you like to sort this one out: "Where the 1978 revision provided that a plowdown violation constituted a single offense, punishable by a fine determined by the number of acres involved, under the 1984 revision, every acre not in compliance constitutes a separately chargeable infraction, each subject to an individual fine in addition to an infraction for the general failure to plow down. (See fn. 1, ante.)^FN:10 Thus, a one-acre violation would be subject to a $505 fine plus a penalty assessment of $353.50 for a total of $858.50."

Wouldn't you feel deserving of sainthood if you'd plowed through 25 cases,^FN:11 ranging from Ex Parte Wong You Ting, 106 C. 296 (1895), ^FN:12 through People v. One 1941 Chevrolet Coupe, 37 C. 2d 283 (1951), all the way to United States v. Troxler Hosiery, 681 F.2d 934 (4th Cir. 1982), and thrown in Bernie Witkin and an 80-year-old Harvard Law Review article co-authored by Felix Frankfurter to try to separate the wheat from the goats in this one?^FN:13 I would.

But as near as I can determine, sainthood has not yet been conferred upon Justice Franson,^FN:14 who wrote this magnum opus of bollwormery, or Justice Hamlin, who concurred, or Judge Papadakis, who sat on the case by assignment of the chairman of the Judicial Council because all the other justices were hiding under their desks.

This is inconceivable to me. In my book, just facing up to that first sentence was as tough as the martyrdom of St. Lawrence. I think at the very least beatification was merited for all three.

But this is the kind of unsung self-sacrifice we appellate types get used to.

No, it isn't a perfect job, because people who will stand and applaud a talented center fielder who runs down a line drive in the alley tend to yawn when a star jurist like the late Don Franson Sr. sorts out the procedural complexities applicable to a plowdown violation under the Pink Bollworm Control Law. There is no justice.

But there are justices. And I'll bet if Weatherspoon had known there were cases involving the right to jury under the Pink Bollworm Control Act out there, he would have felt differently about that quitclaim.

Contributing writer William W. Bedsworth is an associate justice at the Fourth District Court of Appeal in Santa Ana. He writes this column to get it out of his system. He can be reached at William.Bedsworth@jud.ca.gov. You can read more columns like this in A Criminal Waste of Time, a book from The Recorder featuring more than 30 of the best columns from Justice Bedsworth. Order by calling (800) 587-9288 or by going to www.lawcatalog.com/bedsworth.

The Recorder welcomes submissions to Viewpoint. Contact Vitaly Gashpar at vgashpar@alm.com.

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