April 2017 – Fight On

by Justice William W. Bedsworth

God bless state legislators.1 They’re the only people who listen to me. My family, friends, pets, and colleagues in the Superior Court and Court of Appeal know better, but the Legislature sometimes listens.

In 2000, I wrote an opinion reversing a conviction because two prospective jurors had been excused when it was discovered they were lesbians. Assemblywoman Carol Migden wrote me a letter saying it was the first time in 700 years that a court had recognized the rights of LGBT people and she was going to fight to have my opinion turned into a statute.

She did; section 231.5 of the Code of Civil Procedure was amended to prohibit exclusion of a juror based on sexual orientation. If you read the note in the annotated codes, you’ll see they expressly said they meant to set my opinion in stone. 2

A few years later, I wrote an opinion saying that it was hard to discern the legislative intent in a statute that prohibited escape from a juvenile facility or while en route to or from a juvenile facility, but did not seem to prohibit escape from the Kidseum in Santa Ana while on a field trip because that was neither a juvenile facility nor a bus going to or from one. I said if the legislature meant for the statute to cover that, they could rewrite it, but I was bound by their words and their words did not cover the Kidseum.3

They heard me. It took them about an hour and a half to reverse me by changing the statute. I’m glad I was not there to hear what they said about the harebrained judge who had made it necessary.

Most of the time, when a state legislature hears a judge, it results in grumbling. Either we’ve interpreted a statute in a way they don’t like or we’ve thrown it out entirely.

As a general rule, they only hear us on those relatively rare occasions when we disapprove of something they’ve done. The times we swallow hard and follow their dictates4 are pretty much dog-bites-man non-news in their eyes.

While the parties may gripe and grumble, it’s “nothing to see here” as far as the legislators are concerned. All we’ve done is what we’re supposed to do.

But it’s always . . . interesting . . . when they hear us. In Alaska, a judge struggled with a divorce case in which possession of a sled dog was involved. The result? The passage of H.B. 147, a goliath fifteen-page set of amendments to Alaska family law that elevates pets’ rights to a status previously unprecedented in this country.

Under Alaska law, pets are no longer to be treated like toasters and lamps in divorce cases. The court is to give “consideration to the well-being of the animal.”

According to the Washington Post:5

[A]n amendment to Alaska’s divorce statutes, which took effect last week, is making waves in the world of animal law. It makes Alaska the first state in the country to require courts to take “into consideration the well-being of the animal” and to explicitly empower judges to assign joint custody of pets. In a blog post, the Animal Legal Defense Fund called the well-being provision “groundbreaking and unique.”

I love animals. I’ve always had pets. I was so desperate for animal companionship in law school, I smuggled a guinea pig into my “no pets allowed” apartment and snuck him in and out every time I had to go somewhere. I shed tears when Funky Henry, essentially no more than a rat with a cute face, died. So I am not exactly an impartial observer when it comes to pets.

And I am certainly in favor of anything that “explicitly empower[s] judges.”

But I fear these statutes may be a mixed blessing. Figuring out what will advance the well-being of an animal seems to me a perilous undertaking.

Figuring out the well-being of a child is easier. We all have experience with children, a general sense of what they need and deserve, and lots of expert opinion to guide us.

And children talk. What they say and have said is invaluable in figuring out what’s best for them.

Animals don’t talk, and vets aren’t used to testifying in court. Figuring out who should get Lassie or Garfield or Marmaduke may turn out to be even tougher than figuring out who should get LaDainian or Beyoncé or Plaxico.6 And that’s tough enough.

I’m looking at my cat Bronko,7 who is sitting at the other end of the table looking at me with an absolutely impenetrable stare. I know part of it is an attempt to influence me to feed him by using animal mind control. But I have no idea what else is going through his mind.8

Figuring out whether Bronko should go to me or Kelly would be one helluva tough job. We both love him and there is no way to determine which of us he prefers.

No, he does not purr louder when he sits on Kelly’s lap, and I would object to bringing him into court and measuring the comparative decibel level of his purr. But this is the kind of thing that’s going to happen in Alaska.

Veterinarians, already in short supply, are going to be closing up their practices for a day while they try to describe their experience with this particular horse and divine whether he will be happier in husband’s or wife’s custody.

Judges are going to be trying to figure out which home has the better cat tree, which “parent” is more likely to remember to change the box, and whether the fact Johnny pulled the cat’s tail means the cat should end up elsewhere.9

I’m all for Alaska’s new law. I hope it just tracks what most judges were already trying to do.

But it does complicate things, and complication is something our legal system already has. I have sixty-five linear feet of Cal.Apps in my chambers. That wall of books does not include California Supreme Court cases, and only goes back to the beginning of Cal.App.4th. If I want anything older than 1992, I have to go out into the hallway.

And that wall of books represents only the attempts of my California colleagues and I to explain away the complications of the eighty-five linear feet of statutes that line the walls of my reception area. It is a very small part of the machinery of the law.

The law is a complicated system that deals with the complicated problems of complicated people. And—according to the Supreme Court—those “people” include gigantic business organizations that comprise thousands of individuals and who make their actions about as easy to figure out as Bronko.

In short, this stuff is hard enough already.

Judges are not infallible.10 Unlike popes, when we speak ex cathedra, we are as likely to screw up as when we speak at Denny’s or the Tilted Kilt.11

They didn’t issue us a bucket of wisdom along with our robes. Heck, they didn’t even issue us robes; we had to buy them. We are ordinary people trying to solve extraordinary problems.

So, good for Alaska for trying to take better care of animals. Bravo.

But let’s say a little prayer for those Alaska judges. Because Bronko’s understanding of his rights is a lot more expansive than my own. And, being indigent, he would expect appointed counsel to represent him in asserting those rights. I don’t expect Alaskan cats to be any different.

So, good luck, Alaska. Let me know how this turns out. And, in the words of the learning institution I root against every week with tragically little success, “Fight on.”


  1. (1) A sentence that may never previously have been typed.
  2. (2) People v. Garcia, 77 Cal. App. 4th 1269 (2000). It was the kind of case you have in mind when you sign up to be a lawyer. It remains—after twenty years on this court—my proudest moment.
  3. (3) In re Antonio F., 77 Cal. App. 4th 1269 (2007).
  4. (4) See Capistrano Taxpayers Ass’n, Inc.v. City of San Juan Capistrano, 235 Cal. App. 4th 1493 (2015).
  5. (5) Please don’t tell the President I read the Washington Post.
  6. (6) Naming children is apparently a much different enterprise than it was when I was doing it. My youngest is fortunate she was born before I knew Plaxico was a name.
  7. (7) Named after football Hall-of-Famer Bronko Nagurski, so maybe I shouldn’t be casting aspersions about naming children.
  8. (8) Indeed, that question may assume facts not in evidence.
  9. (9) The Alaska statute explicitly excludes fish from its purview, so the aquarium can be divided without the need of an interpreter to solicit input from the Cambodian Crowntail Beta.
  10. (10) You may have noticed that.
  11. (11) Okay, you’re right. If we’re speaking at the Tilted Kilt, we’re probably substantially more fallible than usual.
  12. William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.