February 2014 - A Comprehensive Commitment to Justice
by John C. Hueston
Almost fourteen years ago, Ernest and Ruth Fybel stood proudly as their son Richard was formally enrobed as a California Superior Court judge. Having fled from Europe in the face of a rising Nazi Germany, they marveled over the fact that the justice system of their adopted country was now embracing their son. But for Richard, who two years later would be appointed an Associate Justice of the California Court of Appeal, it was a natural extension of his thorough commitment to the law and his lifelong self-challenge: “What else can I do to make a difference?” Justice Fybel’s evolving answer to that question is imprinted in his profile work as a pre-eminent business litigator and law firm leader, in his meticulously researched and thoughtful opinions, and in his multi-pronged commitment to his community.
Little more than one year before his first judicial appointment, Richard Fybel had reached a crossroads in his life. He was a senior litigation partner at Morrison & Foerster preparing for another lengthy trial. For decades, he had juggled a richly rewarding but challenging set of client commitments and firm responsibilities. He had served as the firm’s managing partner in Los Angeles from 1988 to 1993. He then assumed firmwide responsibilities for personnel management and for lateral partner hiring. And once again, a key client had called on him to try a complex case. To do so, he had cleared three months of his calendar to prepare for and serve as lead counsel for a six-week trial. He had transferred client responsibilities to his partners. But shortly before commencement of trial, the case settled. Now staring at almost two months of cleared calendar, he obtained approval to take a sabbatical.
He designed his sabbatical to encourage reflection on his life and next steps. His travels included a trip with his siblings to Germany to visit the home and synagogue of his father. Again and again, he found himself asking, “What else can I do to make a difference?” He concluded that he had achieved his every goal in private sector legal practice and firm management. Thinking deeply about the Germany from which his father had escaped in 1939, he decided that it was time to give back and to seek challenges in the public sector. While on sabbatical, he applied for a position on the Superior Court. Shortly after he returned, he was contacted by the Commission on Judicial Nominees Evaluation and then appointed by Governor Gray Davis.
Justice Fybel’s enthusiasm for judicial service was on display from his earliest days on the bench. He relished his felony criminal assignment at the North Justice Center even though he had little relevant experience. Practitioners routinely praised his intense interest in each case. Handling approximately 200 cases per week, Judge Fybel seized every opportunity to learn from the criminal bar. Ever humble, he often called the District Attorney’s Office and the Public Defender’s Office to thank them for helping him arrive at the right result. Practitioners in his court came to expect active engagement and full and fair consideration of every argument. Judge Fybel, in turn, witnessed a more collegial and respectful bar in criminal practice that reshaped his expectations for civility and ethics for practitioners across all disciplines.
Eager to broaden his contribution to the development of California law, he applied for an opening on the Court of Appeal. His rapidly developed reputation as a keen intellect and hardworking judge led to his quick elevation to Division 3 of the 4th District Court of Appeal in November 2001.
At the Court of Appeal, Justice Fybel’s commitment to make a difference in the development of law and in his cases immediately manifested itself in his very active engagement during oral argument. He routinely informs counsel of his views and provides ample opportunity for them to change his mind.
But it is his opinions that clearly evince his meticulous, sensitive, and at times courageous approach to the law. Justice Fybel’s opinions reflect a careful airing and dissection of arguments presented by the parties and an exhaustive, national review of caselaw when faced with an issue of first impression. Such a rigorous and meticulous approach alone would be sufficient to distinguish Justice Fybel as one of California’s preeminent jurists. But Justice Fybel’s opinions reflect more than a scholarly and detailed effort. They exude Justice Fybel’s dedication to achieving individual justice and his effort to reach deeply into the record to understand and appreciate the potential impact of his decision on the parties.
In re Christopher I., 106 Cal. App. 4th 533 (2003) (“Christopher I.”) exemplifies Justice Fybel’s rigorous scholarship infused with passion to achieve individual justice. The case involved infant Christopher on life support after his father had violently shaken him and thrown him against the bars of a crib. His father had attacked him previously and his mother had failed to intervene. As a result, Christopher was neurologically “devastated” and in a persistent vegetative state. He had no cognitive function and despite “heroic” medical care, faced no prospect of recovery and would eventually “succumb to complications of treatment.” Id. at 539.
Among a host of difficult and wrenching issues raised on appeal, Christopher I. required a California court for the first time to set forth the standards to apply when deciding whether to withhold or withdraw life-sustaining medical treatment from a dependent child. To determine the appropriate factors, Justice Fybel conducted an exhaustive national survey of cases, local rules, and guidelines. In arriving at a twelve-factor test, he determined that a decision for a juvenile required more nuanced considerations of the benefits and burdens of continued treatment, and additional factors such as the opinions and motivations of the family. Recognizing the extraordinary “high stakes,” he determined that the Welfare and Institutions Code’s highest standard of proof—clear and convincing evidence—must be applied. Id. at 552.
Repeatedly, Christopher I. counsels that justice is not formulaic. Justice Fybel warns against a rigid approach to merely counting factors for or against maintenance of life support. Rather, courts must consider live testimony, individual circumstances, and additional possible factors presented by each case. And in response to the biological father’s argument for a rigid interpretation of a statute that would lead to a senseless result, Justice Fybel invokes Judge Learned Hand in rejecting such an approach:
The wisdom of Judge Learned Hand illustrates why in appropriate cases we need to give meaning to the purpose of a statute. “Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” (Cabell v. Markham (2d Cir. 1945) 148 F.2d 737, 739.)
Id. at 565.
Justice Fybel’s reputation for careful consideration of the losing party’s key arguments is amply reflected in Christopher I. Although he would have been justified in not permitting augmentation of the record with respect to an Indian Child Welfare Act issue raised by the biological father who had reduced Christopher to a vegetative state, Justice Fybel considered the ramification of a possible remand and resulting delay in relief for the victim: “[T]he interests of justice require that we augment the record in this case because remand of this matter would be futile and would not be in Christopher’s best interests. To decline to augment the record in this case would only serve to prolong Christopher’s suffering.” Id. at 563.
In conducting a national survey of caselaw and informal guidance, in fashioning a sensitive multi-faceted standard to determine whether to withhold or withdraw life-sustaining treatment, and in his comprehensive consideration of every significant argument, Justice Fybel never forgets the ultimate victim. He reminds the reader of the personal tragedy and the highest of stakes at issue in the opening paragraphs of his lengthy opinion:
We appreciate the significance of our decision to Christopher, now one and a half years old. We reach our conclusions with his fate in our minds and our hearts. In making his ruling in the juvenile court, Judge Behn said, “I would ask you to keep Christopher in your prayers and thoughts, as I have done for these last three or four months.” We join in Judge Behn’s sentiments, and wish Christopher peace and serenity.
Id. at 540.
Justice Fybel’s meticulous and exhaustive work at the Court of Appeal reflects a prodigious work ethic for which he was well-known in the private sector. But for Justice Fybel, “his job” extends well beyond the courthouse and into multiple lay and legal communities.
Justice Fybel has demonstrated extraordinary commitment to meaningful mentorship of attorneys in the Orange County community. He routinely participates in bar activities such as by serving as a judge for the mock trial competition of the Constitutional Rights Foundation. He has also served in numerous bar leadership roles, including as a board member of the OCBA Masters Division and as an officer for the Board of Trustees of the Orange County Public Law Library. But Justice Fybel’s outreach is not limited to marquee bar events and board leadership positions. With his signature unhurried and welcoming demeanor, he always finds time to guide and counsel attorneys at all levels of experience.
When pressed, Justice Fybel will concede that he is most proud of his service since 2004 as Chair of the California Supreme Court’s Advisory Committee on the Code of Judicial Ethics. As Justice Fybel recognizes, the work of his committee over time will contribute substantially to the public’s assessment of and confidence in the judiciary. In 2012, his committee completed the first comprehensive review of the Code since 1996. No mere copy of the ABA Model Code of Judicial Conduct, his committee’s work has been recognized as a national model for judicial ethics and has been cited by Chief Justice Tani Cantil-Sakauye as making a significant improvement to the Code in guiding the conduct of judges both on and off the bench.
Just as his parents’ experience with Nazi Germany in part inspired Justice Fybel to re-dedicate his life to public service, his reflections on the Holocaust moved him to write, teach, and lecture on a host of related legal topics. His writings and lectures range from the failure of the German legal system to broader contemporary topics such as national security and the war on terror.
Justice Fybel would not abide a profile extolling his achievements without recognizing his dedicated court staff, including research attorneys Julianne Bancroft, Matthew Ross, Michele Troyan, and his judicial assistant Nancy O’Connell. And most importantly, Justice Fybel cites his wife Susan, daughter Stephanie, and son Dan for prompting him to avoid complacency and to seize opportunities for new challenges.
Routinely working from dawn until late at night, Justice Fybel has truly reached his goal of “making a difference” in promoting justice and the development of law not only in Orange County but throughout California. In recognition of Justice Fybel’s comprehensive commitment to justice, the Orange County Bar Association is proud to present him with its highest honor, the Franklin G. West Award.
John C. Hueston is a Past President of the OCBA and is Chair of Irell & Manella’s Business Trial and Crisis Management Practice Group.