FLORENCE-MARIE COOPER
ROBERT FEINERMAN
Wednesday, January 16, 2002
Page 7
PERSPECTIVES (Column)
What Are Friends for? Writing Letters in Support of Miriam Vogel.
By ROGER M. GRACE
Another letter has come
in defense of Court of Appeal Justice Miriam A. Vogel—whom this column has
criticized based on her propensity in recent months for taking potshots at two
of her colleagues on this district’s Div. One, Presiding Justice Vaino Spencer
and Justice Robert Mallano. On Monday, I quoted a letter from appellate lawyer
Irving Greines extolling Vogel’s virtues as a jurist. Coming now to Vogel’s aid
are retired Court of Appeal Presiding Justice Robert Feinerman, presently a
private judge, and Florence-Marie Cooper, a member of the U.S. District Court
for the Central District of California.
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FLORENCE-MARIE COOPER |
ROBERT FEINERMAN |
Sayeth Feinerman and Cooper:
This letter to the editor is prompted by Roger Grace’s recent editorialization about Justice Miriam Vogel, who has sat with distinction on California’s superior and appellate courts for 16 years. We have known Justice Vogel professionally, on and off the bench, from the time she was an attorney, through her conduct and decision making on superior and appellate court benches. And with this knowledge, we find the description of Justice Vogel offered by Mr. Grace is so distorted as to bear no resemblance whatever to the person herself. Truly, it is an unrecognizable portrait.
Each editorial in Grace’s “triple swipe” at Justice Vogel offers pronouncements that are viciously potent. Boldly alleging a “crusade” by Justice Vogel “to belittle and discredit” two of her colleagues, Grace braces the reader for a well-supported exposition.
Yet, those who have taken the effort to read these opinion pieces through to their conclusions will be impressed not by supporting evidence, but by its wholesale absence. Instead, Grace quotes extensively from dissenting opinions authored by Justice Vogel. To be sure, the excerpts chosen by Grace are occasionally pointed and barbed. Alas, welcome to the judiciary. Far from a monolith, our courts are comprised of individuals from diverse backgrounds and perspectives—differences that occasionally elicit disagreements as to the meaning of governing law. And when we are fortunate to have judges who involve themselves deeply in the cases brought before them, it should come as no surprise that their disagreements take the form of impassioned dissents.
One need look no further than to our U.S. Supreme Court—of past and present—to find dissents bearing much sharper points that those quoted from Justice Vogel. There are of course proper boundaries to the limits of dissent writing. It is fair to say that they have not been approached by Justice Vogel in the dissents quoted by Mr. Grace.
It is no joy to find oneself on the receiving end of a pointed dissent, but far greater would be the cost of self-censorship for the sake of ensuring that a colleague never took offense. The oath of independence taken by judicial officers, and the truly incisive legal reasoning they strive for, occasionally yield this kind of unvarnished prose. Indeed, Mr. Grace concedes, as he must, that one of the majority opinions from which Justice Vogel dissented was subsequently ordered depublished by California Supreme Court. There ought to be little doubt that the order—shaping as it does the contours of California law—was achieved in part due to attention given to Justice Vogel’s dissenting opinion.
Justice Vogel’s colleagues are among California’s most capable, thoughtful and articulate constitutional officers, thus raising the question why Mr. Grace has picked up a cudgel that Justice Vogel’s colleagues have not.
While it is his stated opinion that Justice Vogel is on a “crusade” against two of her colleagues, Mr. Grace has by his own pen substantiated only a crusade of his own making—for reasons yet unknown—against Justice Vogel.
It’s great having friends.
Feinerman is a chum of Vogel and her husband, Court of Appeal Presiding Justice Charles Vogel.
Cooper has not merely known Miriam Vogel “professionally, on and off the bench, since she was an attorney,” but has known her since law school. Enrolled in night classes at Beverly Reuben’s law school were three secretaries who were close sidekicks: Vogel, Cooper, and Laurie Shoch. When Vogel was appointed to the Superior Court in 1986 and placed in a criminal law department—with no criminal law experience—it was her law school buddy Cooper, then a commissioner, who helped her get her bearings.
Loyalty to friends, as reflected by the letter quoted above, is to be commended. But engaging in dishonest argumentation is not.
Taking their letter as a whole, Feinerman and Cooper portray Vogel as the victim of unjustified assaults for having merely expressed, in “impassioned dissents,” her strong disagreement with her colleagues “as to the meaning of governing law.” They misstate the nature of the criticism. The criticism here was not that Vogel has expressed vehement disagreement on the law, but that she has, in both concurring opinions and dissents, sought to disparage her colleagues on a personal level.
The defenders give the impression that they “have taken the effort to read these opinion pieces through to their conclusions.” Yet, they seem to have missed this paragraph in the Dec. 31 column:
“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’s recent use of concurring opinions to draw into question Spencer’s ability to craft judicial opinions—in one instance lecturing that justices are not paid by the word and in another instance quoting from Cardozo on how opinions should be written—is not business as usual. To accuse Spencer and Mallano of having “endorsed and encouraged a form of judicial extortion” and to assert in a dissent to an unpublished opinion that Spencer and Mallano opted for non-publication in order to sweep a “result-oriented opinion” under the rug are departures from judicial propriety. For Feinerman and Cooper to dismiss this behavior by commenting, “Alas, welcome to the judiciary,” unfairly impugns the general caliber and maturity of California’s appellate bench by depicting Vogel’s behavior as the norm.
That the California Supreme Court depublished the decision in Account Management Associates v. Sanglimsuwan, 91 Cal.App.4th 773, might well stem from Vogel having succeeded in her dissent in pointing to the flaws in the majority’s reasoning. On the other hand, depublication could have been a reaction to Vogel having accused Spencer and Mallano of deliberately twisting the facts and the plaintiff’s arguments to reach the resulted they wanted to reach.
Why have I “picked up a cudgel that Justice Vogel’s colleagues have not”? The implication is that if Spencer and Mallano were wronged, they were capable of defending themselves—and if they saw no need to do so, it must be that they weren’t wronged. However, as Feinerman and Cooper should realize, there are cudgels which journalists properly may pick up and use which jurists may not.
An appellate opinion is the vehicle for deciding the parties’ disputes, not to air personal disputes of the justices, not a forum for bickering. For Spencer and Mallano to have answered Vogel in kind would have demeaned the judiciary—which, to their credit, they were not inclined to do.
The fact that Spencer and Mallano weren’t in a position to say anything about Vogel’s conduct does not mean there was nothing that needed to be said. And when something needs to be said, newspaper columnists traditionally have not been shy about stepping forward and being the ones to say it. Feinerman and Cooper allude to “reasons yet unknown” underlying my criticism. There’s really no mystery. The reason for the criticism was simply my perception that there was something there to criticize.
Vogel has gone out of her way of late to deride Spencer and Mallano (while exempting Justice Reuben Ortega from opprobrium). To any objective observer who takes the time to look at her recent opinions, this is clear. Feinerman and Cooper deny it is so. They’re friends, indeed.
Copyright 2002, Metropolitan News Company