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THE VIEW FROM OVER THE WATERSHED Huh? And other responses to continuing education. by Jay C. Smith
I
PUT OFF DOING my MCLE until the last minute. That’s clever, because that way I get all the most up to date information, right? Sadly, it was not because of any clever reason, it was vecause of my worst vice, procrastination. (At least I think it’s my worst vice—friends, family and folks who just happen to encounter me probably have other candidates.) I’m retired now, so I probably should have gone inactive and avoided the requirement of MCLE altogether, but I like to be able to give minor legal advice or write a letter for someone I know pointing out that it’s a letter from a lawyer* so I’ve stayed active for at least another year. Because I’m retired, I took courses in many things that interest me but are not “relevant” to my practice because I don’t have a practice. Something my brief survey of the current state of the law showed me was that there is too darn much of it. There was plenty back when I was sworn in in December 1976 and it has grown whatever the next stage after “exponentially” is ever since. We’re just inventing problems now. I also was reminded that California statutes remain very poorly written. I admit that it is hard to explain things in a clear, organized fashion and the problem is magnified if nit-picking lawyers are going to give everything you write an exhaustive deconstruction. As may be, though—statutes with numbers like 685.030, with five lettered subparts and six different numbered (sub) sub parts? Why do we still have, for example, two Penal Code sections, one 647 (b) and the other 647b describing different crimes? (I guess that’s better than if they described the same crime, but still.) I once read that California’s statutes’ clarity is suffering because fewer and fewer of our state legislators now are lawyers themselves. I’m sure it was a lawyer who wrote that; we have so little self-awareness. My own thought has always been that except for those few rare exceptions I must acknowledge to protect myself from a devastating counterexample, if a lawyer were a good lawyer, he or she wouldn’t have run for the legislature in the first place.
I do think that the legislators have been pushed into over-broad legislation, especially in the criminal area, because of a paranoid fear that unless the statue covers every possible possibility and its permutations, some sneaky lawyer somewhere will find a loophole. This concern that I believe affects our lawmakers translates into statutes that are written so broadly that conduct that should be non-criminal or at least no more than mischief is felonious. I think of a case my wife once had where her clients were accused of (and, truth be told almost certainly did in fact) the setting off fireworks in mailboxes and were charged with felony possession of an explosive device. A literal reading of Health and Safety Code section 12000 seems clearly enough that firecrackers are within the definition of explosives. Some property damage was done, so the elements of the possession of an explosive were made out. Are M80s dangerous enough to be treated the same as grenades when there is a perfectly good federal vandalism charge that applies to damaging mailboxes? (It carries a maximum of three years and a fine if you want something more specific and possibly punitive than a general vandalism charge.) Common sense prevailed in the particular case, fortunately (my wife was a persuasive advocate) but a kid could have had record of “Possession of an Explosive Device” that was quite misleading. The kid deserved punishment, but he wasn’t a mad bomber. *I think you’ll agree that it’s not fair, but it is a fact that institutions and people in general pay more heed to letters from lawyers than from normal people. They see us as more of a threat or something.
Jay C. Smith is a Bakersfield attorney who retired from the Department of Child Support Services after working there for 15 years. He was in private practice for 25 years before joining DCSS.
MARCH/APRIL 2020
