Fun with footnotes
Lots of the most interesting stuff in court decisions is often buried in footnotes. Not legal rules or subtle points of law (although those things end up in footnotes, too). They are also where judges take potshots at each other.
In 1975, a gentleman named Norman Arno leased space in the Playboy Building in Los Angeles. Over a period of 10 days, the Los Angeles Police, using some 10-power binoculars. from 200 to 300 feet away, watched Arno and a companion handling what looked like obscene materials. This information led to search warrants for the offices, and Arno and his partner were eventually convicted of producing obscene films.
In 1979, the court of appeal reversed the convictions primarily because the police used binoculars to view Arno's offices. The majority opinion relied on a U.S. Supreme Court decision that had thrown out a conviction because the police had bugged a phone booth. The majority concluded there was no practical difference between using a microphone and using binoculars.
This brought an angry dissent from one justice, who was especially upset by the majority's statement that, in circumstances “involving a substantial risk to life, person or property, optically aided view” might be permissible. But in Arno's case, the police had committed a “quintessential violation of the constitutional right” to privacy. This is where the judicial oneupsmanship began.
The dissent ridiculed the idea that protecting the activities of the defendants was defending a “quintessential” right. Making obscene movies was also not a “victim-less crime,” according to the dissent, which argued, “There are no victimless crimes. Society is the victim.” In another footnote, he added that reversing the conviction “joins the wreckage in a `giant junkyard' of the judicial landscape” in the “upsidedown system of criminal justice which diverts the focus of criminal prosecutions from the guilt or innocence of the defendants to a trial of the police.”
At this point, the dissenting opinion had initially ended. But then the majority opinion was changed to add a new footnote at the end of that opinion:
“We feel compelled by the nature of the attack in the dissenting opinion to spell out a response:
1. Some answer is required to the dissent's charge.
2. Certainly we do not endorse victimless crimes.
3. How that question is involved escapes us.
4. Moreover the constitutional issue is significant.
5. Ultimately it must be addressed in light of precedent.
6. Certainly the course of precedent is clear.
7. Knowing that, our result is compelled. (See Funk & Wagnall's The New Cassell's German Dict., p. 408, in conjunction with fn. 6 of the dissenting opinion of Douglas, J. in Ginsberg v. New York . . . .)”
If the phrasing in that passage seems a little awkward, read down the first letter in each sentence numbered 1-7 to get the majority's “real” message. In German, the word means “jewel.” It could, however, have been referring to the more common Yiddish meaning of the word, which can be taken as both “fool” and an uncomplimentary reference to the male organ.
When the opinion was released to the press, it was picked up by the Los Angeles Times, which apparently didn't follow the instructions carefully enough and consulted an English dictionary rather than (as the majority suggested) a German one. The headline must have read something like, “Judge Calls Fellow Judge a `Schmuck.'”
This brought a final blast from the dissent, who added another footnote to his opinion: “I have heretofore eschewed responding to footnote 2 of the majority opinion in kind since it would be beneath the dignity of the office.”
One can only wonder what he would have said if he had responded “in kind”; maybe he just didn't know any Yiddish. But although not responding “in kind,” he went on: “I decry the lack of propriety, collegiality and judicial temperament displayed in footnote 2. I abhor the loss of public respect for the legal profession and the judiciary footnote 2 has engendered by reason of the report of the Los Angeles Times . . . . One certainly cannot fault the Los Angeles Times for using an English dictionary ( Webster's) since California published opinions for over 125 years have been written in English and our jurisdiction obviously does not extend . . . to the Rhine in Germany.”
The Los Angeles Times apparently interpreted the word to have been used in the less complimentary sense. Of course, the judge who wrote the majority opinion could always claim that he didn't intend to insult Hanson with his footnote. Maybe he was just saying that his colleague was a “jewel” of a judge.
Somehow, though, I doubt it.