Constitutional Law
Jul. 19, 2002
9th Circuit Confusion
Dicta Column - By Paul O'Brien - To paraphrase Art Linkletter, laymen say the darnedest things. In my capacity as the chair of a small civic organization, I am fortunate to hear some intelligent folks address some interesting community issues during our monthly meetings. Likewise, however, I'm unfortunate enough to be the lone lawyer in the group.
By Paul O'Brien
To paraphrase Art Linkletter, laymen say the darnedest things. In my capacity as the chair of a small civic organization, I am fortunate to hear some intelligent folks address some interesting community issues during our monthly meetings. Likewise, however, I'm unfortunate enough to be the lone lawyer in the group.
As every lawyer learns in his first weeks practicing law (if not while in law school), in group situations where one is the only attorney, nonlawyers routinely try to wrangle legal advice and advisory opinions. Adding to the frustration, all such advice and opinions are sought strictly on a pro bono basis, of course.
My civic group offers no different scenario. Before and after meetings, I am peppered with questions, most of which I am utterly incompetent to answer adequately. And I tell them so. When they press the issue and accuse me, wrongly, of engaging in false modesty, I firmly tell them it wouldn't be ethical for me to trot out any legal skills I may have. I am fortunate in that I have an easy "out" due to my job. I simply tell those who would see me as their personal legal "411" that I am not permitted to perform legal work, give legal advice or render an advisory opinion on any legal matter without the express written consent of the chief trial counsel of the State Bar of California.
Human nature being what it is, I am, nevertheless, held hostage until I weigh in with my "personal opinion" about a number of issues. This is a clever group of people I'm dealing with here. A question about the legality of a recent action by the City Council, for example, transforms into the more benign and fuzzy, "Do you think it's right for the City Council to do as it did?" Heck, everybody is entitled to an opinion. Alas, I'm often forced into these spots and wind up blabbering on with as much bombast as I can muster on a Thursday evening after a full day's work.
At times I am completely stunned and speechless. And even if I had Linkletter's comforting demeanor and infectious laugh, with which, alas, few of us are blessed, it would be seen as patronizing to similarly illustrate the "sweet naiveté" of the question and questioner.
Sometimes, the questions are more wicked and clever than naive. One of my fellow "activists" (as we've been pegged in the local press) offered up the following gem: "Assume for a minute that the 9th U.S. Circuit Court of Appeals was right about the Pledge of Allegiance. Now, if so, I have to know something: Can the Constitution itself be found to be unconstitutional?"
"Waddya mean?" I asked, showcasing my usual eloquence.
She pointed out that the preamble speaks of the "blessings of liberty" and wondered from whom those "blessings" emanated. (I didn't have time to advise her that scholars, lawyers and judges don't consider the preamble to be a part of the Constitution.)
She reminded me that Sundays are not to be counted in determining the 10 days the president has to return a signed bill to Congress under Article 1, Section 7, and asked rhetorically what other than the Founders' holding of the Sabbath to be holy could explain the reference.
She recited the ratification of the Constitution itself in Article VII, with its temporal reference, "In the year of our Lord one thousand seven hundred and Eighty seven."
"And what about the declaration?" someone else chimed in. "May it be posted in classrooms? And how about courtrooms? And can they even continue to house it in the Smithsonian?"
"What if my kid wants to recite the Gettysburg Address or Washington's Farewell Address in a valedictory speech?" another member asked. (Not to worry, I thought. Your kid wouldn't be the valedictorian in a school of flounder.)
It was clear they wanted to tie me to the 9th Circuit's most recent in a long line of infamous opinions. As bright as a lot of folks are, they see the legal community as a monolithic beast. Some probably see us as an apocalyptic beast, but that's another story.
The truth is that most lawyers, whatever their personal views, probably understand how the decision came about. Not that it matters in the least, but I believe it is wrongly decided. What bothers me just as much about it is that the decision reads like an undergraduate's strained attempt to make a professor happy, but only after completely misreading the professor. From a rhetorician's standpoint, it is one of the most ham-handed, flatulent bits of scribbling I've recently had the pain of reading. But, frankly, I didn't want to get sidetracked by anything that would delay the start (and completion) of our monthly meeting.
"Look, I never even said I agreed with the opinion," I tried to remind them.
"You're a lawyer, aren't you? You guys are all the same," the floundering valedictorian's dad accused.
Before the bandwagon got any more jumped-upon, I tried to correct my friends' collective faulty impression: "Lawyers were on both sides of that case, you know. We have an adversarial system in play here. And you sure can't blame all lawyers for the decision of the judges."
"They're just lawyers with bathrobes and hammers," offered one wag.
It was just a silly, superficial wisecrack, but I thought it offended the dignity of what I believe to be an honorable and noble profession, and I told him so.
"That's how that 9th Circuit decision feels to us," he told me. "It's silly, superficial, and offends the sensibilities of 95 percent of the population." He was right, of course.
I knew that it was a futile endeavor to defend lawyers, and I didn't want to delay the meeting any longer. I was starting to feel like the proverbial innocent man in a TV movie. In my case, I'd been framed by the 9th Circuit. Knowing there wasn't much I could do to defend any dignity that remained within my pinstripe suit, I looked at my watch and said it was time to begin our meeting.
"Okay, folks, sometimes judges say the darnedest things. So, let's please stand. This one's for the 9th Circuit. 'I pledge allegiance to the flag ... '"
Paul O'Brien is a deputy trial counsel in the office of the chief trial counsel for the State Bar of California.
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