Monday, March 24, 2008

In Re Lawley (Cal. Supreme Court - March 24, 2008)

Let me be the first to alert you to the most significant development in California jurisprudence imaginable. An event of the most profound significance -- one that has been developing for at least the past three decades, and yet has exploded with a fury over only the past several days.

I speak, of course, of the unspeakable. Yes: That Word.


It was first used in a published opinion in California back in 1972. Ah, the golden era of speech. It was Justice Kaus who, in that year, had the honor of introducing us to that phrase -- using that colorful term in recounting the defendant's witty retort of "Right here, motherfucker" to a comment made by a witness. Showing the type of linguistic innovation, I might add, that undoubtedly directly led to Justice Kaus's subsequent elevation to the California Supreme Court.

It took six full years until anyone else on the Court of Appeal followed Justice Kaus's bold lead, but then, in 1978, Justice Paras entered the fray. Thereafter, in the 1980s and 1990s, all bets were off. As of today, my search reveals no less than 70 published opinions -- and an additional 263 unpublished opinions -- from the Court of Appeal that deploy this now-time-honored word.

It's now 2008. Thirty-six years since Justice Kaus first blessed us. And, notwithstanding the harsh language of those foul-mouthed justices on the Court of Appeal, the California Supreme Court had never used the term in print.

Until Thursday, that is.

Justice Baxter pulled the trigger in the California Supreme Court in People v. Gay. For proof, check out page seven, in which Justice Baxter recounts the defendant's alleged comment -- "Take this, you motherfucker" -- while shooting a police officer in the back.

I briefly talked about this case the day it came out, but the fact that Justice Baxter had broken a heretofore pristine barrier in the California Supreme Court didn't occur to me. Until today. At which point I read Justice Werdegar's opinion in another death penalty case -- In Re Lawley -- and noticed that it thrice recounts this word (on pages three and four) as "[m_________r]". (Presumably with the appropriate number of spaces for each letter, though I can't tell.)

This jogged my memory about Justice Baxter's opinion, which, crazily enough, was the last opinion issued by the Court before Justice Werdegar's. And then I did a little digging. On the history of the word.

So there you have it. On Thursday, Justice Baxter lays it all out for you. "Motherfucker". But a mere two business days later, Justice Werdegar lets you know what she's talking about, but protects your sensibilities. "M__________r".

A real innovation -- and contrasting styles -- on the California Supreme Court.

POSTSCRIPT - A little birdy up in San Francisco (anonymity assured, of course!) tells me -- correctly -- that the California Supreme Court actually broke this barrier back in 1983, when the Court used the phrase "Open the door, motherfucker" and -- in a cool sentence that I hope to use myself one day -- "Get out of my life or get it in it, motherfucker." And guess who was the author of this opinion? None other than Justice Kraus. A mere two years after coming on the Court, no less. Cool!

There are some other occasions in which the Court has used the term as well, all of which (for some reason) were omitted from my search results. I nonetheless remain excited about the contrasting styles. And await the day that the Court uses this term outside the context of a quotation. :-)