Thoughts from the appellate court: Or, what to do about a crocodile in the bathtub

When Supreme Court Justice Bob Thomas swore me in on December 2, 2002, as an appellate judge for the second district I knew exactly what to expect. Or did I? After almost 25 years of legal experience, including being a trial judge, prosecutor, and private practitioner, I was ready for the challenges of the appellate bench.

I had listened to the advice of retired Justice John Nickels and knew that as a judge, instincts made way for being an advocate of fairness, justice, and righteousness. I had hoped my years on the bench improved my listening skills for oral arguments. I pulled out my old copy of “Thinking Like A Writer: A Guide To Effective Writing And Editing,” along with my “new” blue book for citations. At this stage, I didn’t think I’d risk the occupational hazard of “robitis.”

Life on the appellate bench is great and I truly love the challenges and the diversity. Deciding cases involving adverse possession, termination of parental rights, class action offenses, libel and natural life in prison for murder and a routine motion in one week can pique the interest of any inquisitive mind. Poignant and esoteric discussions with panel judges and law clerks has truly more drama than the Socratic method scenes portrayed in “The Paper Chase,” not to mention, the wonderful comradery and the light-hearted conversations reminiscent of the movie “Legally Blonde.”

The truth is that the transition from “Judge” to “Justice” has had its bumps along the way. One of the hardest assignments is learning to effectively deal with negative feedback. What happened to the days when lawyers, sheriffs, clerks and litigants referred to me as “your honor” or judge? That hasn’t changed other than an occasional address of “Justice Johnson.” What has changed is that the years of criticism that I might have had behind my back is now to my face. Now it’s lawyers AND judges who offer their criticism and opinions. I must admit that I didn’t give this area much thought before the election. None of my current eight colleagues, Presiding Judge Susan Hutchinson, and Judges Robert McLaren, John Bowman, Jack O’Malley, R. Peter Grometer, Robert Byrne, Thomas Callum and Frederick Kapala, have been able to provide me with any wisdom. Some suggest that I need to avoid lawyers and judges whose cases were recently reversed. Why would I want to avoid a wonderful legal community and who would that benefit? After all, I like socializing with attorneys and judges. They are the friends that I see at social and bar association events and even the grocery store. Needless to say, when a case is affirmed, I’m the beneficiary of smiles, back-slapping, and thank-yous. Not so with the reversals. I remember, from when I was on the trial bench, the many espoused words of wisdom from the days when Judge Fred Geiger was a trial judge, particularly his saying “I’d rather be right than affirmed!” At that time others voicing their displeasure about a recent reversal was not a big deal. Well, it seems to be a big deal from my current vantage point.

Some of my appellate brethren tell me to state in “open court” that I do not plan on discussing any recent decisions. That might work for some lawyers and judges but not for the ones that I know. I sheepishly remember being a young judge and cornering now retired Justices Geiger and Inglis to give them a “piece of my mind.” After all, how could they reverse MY case? Now that I am the “affirmer” or “reverser” I have a whole different approach. Sometimes I feel like the “terminator.” Remembering an appropriate comment from a case of retired California Supreme Court Justice Otto Kaus, “… ignoring the political consequences of visible decisions is like ignoring the crocodile in your bathtub.” Admittedly, I don’t want to be crocodile food and I don’t want to drain the bathtub. I am, however, willing to face the crocodiles.

I know that trial judges have a duty to decide a case on the basis of the law and the facts before them. I also know that nothing in a courtroom goes as planned. There are unexpected interruptions and unexpected matters not on the call. I hope that I will never forget the challenges facing the trial court judges, attorneys, and litigants.

As a member of the appellate bench I know I must decide individual cases and controversies based on the trial court record and the law. Whether we are members of the judiciary or the legal community, we are all interested in protecting the rights of the litigants and preserving the public confidence. I am looking for the best of both worlds. I believe that we can teach each other and learn to create a better legal atmosphere in the process.

I continue to pray for wisdom, judicial independence, impartiality and accountability. Informed criticism of decisions from judges and lawyers should play an important role in judicial accountability. We all know that a judge’s sworn duty, whether on the trial, appellate or supreme court, is enforcement and interpretation of the rules of law, and not winning a popularity contest. Many years ago Justice William H. Rehnquist stated it the best. “They (judges) must strive to do what is legally right, all the more so when the result is not the one the “home crowd” wants.” Remember, none of us can out run the crocodile.

Note from the editors: Elected to the Second District Appellate Court in 2002, Justice Barbara Johnson, of Lake County, brings the count of women on the appellate bench to a little over 25 percent (14 of 54 appellate justices). In the First District, eight of 25 appellate justices are women: Jill K. McNulty, Denise M. O’Malley, Anne M. Burke, Margaret Stanton McBride, Leslie Elaine South, Mary Jane Theis, Margaret O’Mara Frossard and Sheila M. O’Brien. In the Second District, two of nine appellate justices are women. In addition to Justice Johnson (the author of this article), the current Presiding Justice is Justice Susan F. Hutchinson. Justice Hutchinson is also a long-standing member of ISBA’s Standing Committee on Women and the Law. The Third, Fourth and Fifth Districts each have one female justice: Justice Mary McDade (Third); Justice Sue Myerscough (Fourth); and Justice Melissa Chapman (Fifth). Profiles of these justices are available at <>, the court’s Web site.

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November 2003Volume 9Number 2PDF icon PDF version (for best printing)