What Was He Thinking?
Saying or writing things that express bias have no place in the legal system, but even today not everyone has gotten the message.
Take the case of Briganti v. Chow, a decision by the California Court of Appeal filed on Friday, Nov. 22, 2019. This was a case about defamation, but the facts are not really that important. Suffice it to say that Briganti was the plaintiff who achieved victory at the trial court level, and Chow was the defendant who lost but was attempting to get a different result at the higher court.
In appeals, the person challenging what the judge did files an opening brief; then the other person files a responsive brief; and finally the first party has the opportunity to file a reply brief. It was in the reply brief that Chow, through his attorney apparently, said some things about the trial judge, the Hon. Gail Ruderman Feuer, that he should not have said.
Specifically, in what the Court of Appeal called “[t]he offending paragraph”, Chow said that “Briganti . . . claims that . . . Chow defamed her by claiming she was ‘indicted’ for criminal conduct, which is the remaining charge [in the case] after the [trial judge] . . . an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench, ruled for Chow granting his anti-SLAPP Motion to Strike Respondent’s Second Cause of Action but against Chow denying his anti-SLAPP Motion against the First Cause of Action . . . . With due respect, every so often, an attractive, hard-working, brilliant, young politically well-connected judge can err! Let’s review the errors!” (Emphasis added.)
The next step was oral argument, and the three justices naturally wanted to ask the attorney about his controversial comments. The lawyer stated that he intended to compliment the trial judge. But in its written decision, the Court of Appeal stated “we conclude the brief’s opening paragraph reflects gender bias and disrespect for the judicial system”.
The Court went on to say “’[d]espite the record numbers of women graduating from law school and entering the legal profession in recent decades, as well as the increase in women judges and women in leadership positions—not to the mention the [#MeToo] movement – ‘women in the legal profession continue to encounter’ discrimination. Unfortunately, ‘unequal treatment does not cease once a woman joins the judiciary’. Calling a woman judge –now an Associate Justice of this court – ‘attractive’, as Chow does twice at the outset of his reply brief, is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not. Such comments would not likely have been made about a male judge”.
The Court of Appeals decision was 3-0 with the opinion being written by Justice Brian Currey. Joining the justice were acting Presiding Justice Thomas Willhite and Justice Audrey Collins.