by Justice William W. Bedsworth

Will Rogers famously said, “This country has come to feel the same when Congress is in session as when the baby gets hold of a hammer.” While we don’t talk much about it, state appellate justices feel pretty much that same way as the new year approaches and we brace for new legislative enactments: we know there will be breakage and we will be expected to sort it out.

Our great tripartite experiment puts some large egos in charge of writing laws and different large egos in charge of saying what the first bunch meant. “Yes, I know you said the schoolchildren would be served ice cream, but ice milk is pretty much indistinguishable to a bunch of first graders; we think that’s close enough.” Or sometimes, “Yes, you did say eye cream, but our experience is that first graders won’t eat eye cream, so we’re going to ascribe to you an intent to give them ice cream.”

The result of this division of labor is a relationship that has devolved into a bizarre kind of pas de deux.¹ Toes get stepped on: we complain that the legislators have written unclearly, and they complain that we are shockingly poor readers.

There’s something to be said for both points of view.

Shortly after I got this job, I wrote an opinion interpreting a statute that made it a felony for a juvenile to abscond from a juvenile detention facility or while being transported to or from such a facility. The juvenile in question had escaped from the men’s room of the Discovery Cube science center during a field trip in Santa Ana.

I wrote that the Discovery Cube was neither a juvenile detention center nor a bus. I admitted I couldn’t figure out why the legislature would want to exclude the Discovery Cube from their prohibition against escape, but they seemed to have done just that by the way they wrote the statute.

I pointed out that, before passing this law, they’d held hearings where experts on juvenile psychology testified, and they had a whole lot more information about this than I did. Not wanting to be an “activist judge,” I wrote to reverse the conviction. Two of my colleagues agreed. We invited them to amend the statute if we’d misread it.

They did. In record time. I think it took them about forty-five minutes to reverse us legislatively. The ink was still drying on our signatures when they amended the statute to patch the “hole” we’d fallen into, with language to cover time between the bus and the detention center. I’m sure they spent the entire process grumbling about judges whose literalism was worse than their five-year-old’s.

So I’m well aware the “baby with a hammer” feeling is mutual. Misunderstanding is part of the human condition. If it didn’t exist, my job wouldn’t. I’d be doing play-by-play for the Savannah Bananas or the Rocket City Trash Pandas today.²

And the numbers 425.16 and 1170.25 would not cause me to cringe.

In 1992, the legislature enacted Code of Civil Procedure Section 425.16, the anti-SLAPP law. I’ve been wrestling with this python for thirty years now and I still have to diagram every one that comes across my desk. So help me, given my choice between opening a box of scorpions and opening an anti-SLAPP file, I’d inquire about the availability of scorpion antivenin.

And I’m not alone. You mention the numbers 425.16 to any judge and he or she is liable to wave a bag of garlic at you and try to drive a stake through your heart.

More recently, our friends in Sacramento have given us Penal Code Section 1170.95. This one, also known as the California Full Employment for Judges Act, provides a mechanism for people incarcerated for murder to challenge their sentences and guarantees that the special gloves I bought for opening boxes of scorpions will not go to waste.

Eleven-seventy-point-nine-five cases are marching into my chambers every month like Robespierre’s minions during the Reign of Terror. And they are equally impossible to ignore. People incarcerated for murder have an inordinate amount of time on their hands and they have a code preference that guarantees them immediate attention.³

I offer no value judgments about the underlying change in our revision of murder culpability, any more than I mean to suggest we should not have anti-SLAPP laws. I merely note that my life would be much less complicated if the legislature had taken those days off. Or used them to declare a new official state rodent or official state ceiling fan or something.

If only they’d done what Utah did.⁴ Utah passed a law that denied deadbeat dads hunting and fishing licenses. By the time they’d denied 2,959 hunting or fishing licenses, they’d collected 9.9 MILLION DOLLARS in child support arrearages.

Brilliant! You can’t go sit on the lake and reel in perch or disappear into the woods in your camo gear until your child support arrearages are paid up. I suppose there’s a way my appellate colleagues and I could screw that up, but I can’t think of any offhand.

9.9 MILLION DOLLARS. American.

I’ve got nothing against fishing and hunting. I used to pack off into the eastern Sierra every summer to catch trout and tell lies with my buddies. But for 9.9 million dollars . . . , hell, I’d ban doughnuts if it would bring in 9.9 million dollars in child support arrearages.⁵

Obviously, the Utah legislature knew whereof they spoke.

As did the Kalamazoo, Michigan City Council. They de-criminalized public urination. That’s right, it is no longer illegal to pee on a tree in Kalamazoo.⁶

As explained by city attorney Clyde Robinson, “It’s kind of crude, but we are a college town.” He noted that college students full of beer “can’t always find a restroom.”

So rather than continue to expend time and energy running college students in all weekend, they just de-criminalized public urination. Brilliant!

Probably won’t save them 9.9 million dollars, but it should unclog their Monday morning arraignment calendar. And it will definitely save their police department time wasted making the arrests, writing the reports, fingerprinting the students, and responding to angry parents demanding, “Don’t you have anything better to do than arrest my son? Why aren’t you out there catching real criminals?”

I am now part of a group often described as “men of a certain age.” While that “age” is euphemistically applicable to a lot of things, in my case one of them is well described by Clyde Robinson’s reference to the fact we “can’t always find a restroom.”⁷

I am not personally going to move to Kalamazoo, but I can certainly anticipate a boom in senior citizens’ residences there in the near future. This should move Kalamazoo way up on those lists of “Best Places to Retire To.”
Me, I’m not ready to retire. I have my dream job. And they gave me my own bathroom.
What’s that? There’s a new statute that says the schoolkids should be given rice cream?

BEDS NOTES

1. Yeah, I know it’s pretentious, but I just couldn’t bring myself to use the hackneyed “love/hate relationship,” and my French is otherwise limited to describing my ice cream and soup choices, so I thought I’d indulge myself.
2. Yes, real professional baseball teams.
3. I wasted more time than I care to admit trying to come up with some guillotine/death penalty analogy here. I finally decided I should just give up convincing you of my cleverness and stop beating this horse.
4. Now there’s a sentence I don’t often get to write.
5. Easy for me to say; I could always interpret the statute to ban doughnuts only on Tuesdays.
6. I just learned it’s impossible to write “pee on a tree in Kalamazoo” without thinking of Dr. Seuss.
7. Do golf courses even bother watering the trees?

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at william.bedsworth@jud.ca.gov.