Tuesday, December 08, 2009

First Annual Justice Gabbert Oral Argument Series

Korematsu v. United States -- Oral Argument Reenactment
Riverside Lawyer, Oct. 2009, at 24.

On August 12, 2009, to mark the 65th anniversary of Korematsu v. United States, 323 U.S. 214 (1944), the Fourth Appellate District, Division Two, of the Court of Appeal (in Riverside) hosted a reenactment of the oral argument in that infamous case followed by the reading of the decision by the Justices of the same court. The event marked the “Inaugural Justice John C. Gabbert Historic Oral Argument Series.”

Representing Fred Korematsu was Dean Erwin Chemerinsky of the UC Irvine School of Law. And Dean John C. Eastman of Chapman University School of Law represented the United States.

As the two learned counsel were entering the courtroom, as told by Presiding Justice Manuel Ramirez, Chemerinsky told Eastman “I think you are going to win this one.” Eastman agreed. However, without missing a beat Chemerinsky observed “[then again] maybe they’ll get it right this time.” Unfortunately the script had already been written.

Korematsu, of course, deals with one of the most shameful episodes in our history where thousands of Japanese-Americans were rounded up and sent to interment camps out of fear that their loyalty to the Emperor of Japan may lead to acts of sabotage on the west coast of the United States. Fred Korematsu refused to report to his assigned relocation camp and was subsequently convicted for violating that order. Represented by the ACLU, he fought the conviction all the way up to the United States Supreme Court. In a 6-3 decision the Justices affirmed his conviction.

Appropriately, before starting his “opening argument,” Chemerinsky started by paying homage to Judge Robert Takasugi who passed away recently after a long battle with cancer. Coincidently, his memorial service was being held on the same afternoon as this event in Los Angeles. A 35 year veteran of the Federal bench, Takagugi at the age of 11, along with the rest of his family, had been relocated to Tule Lake. According to news reports, his father actually died there. I was hoping Takasugi would at least be mentioned, and Chemerinsky (a fixture of the Los Angeles legal community himself) did a great job in the small amount of time he was given.

The arguments were apparently a summary of those made at the Supreme Court. Both Chemerinsky and Eastman presented their cases with a degree of levity and a very live bench (the Justices were joined by retired Justice John C. Gabbert who had just turned 100) made for an interesting afternoon.

One amusing occasion had Presiding Justice Ramirez asking how the case can be reconciled with Ex Parte Endo, 323 U.S. 283 (1944). Chemerinsky, a giant of Constitutional Law jurisprudence, without a pause, distinguished the case “assuming we had a time machine.” Ramirez’s faux pas (and Chemerinsky’s quick catch) was that he had forgotten that Korematsu and Endo were argued on the same date and that, as you can see by the pagination of the opinions, Endo was actually decided after Korematsu.

The reading of the decisions (including Justice Robert Jackson’s famous dissent) was followed by some personal histories from the daughter of Fred Korematsu – Karen Korematsu-Haigh— and Judge Ben T. Kayashima of the San Bernardino Superior Court who had been interned near Parker, Arizona, in 1942. It was interesting to learn that Karen Korematsu did not know of his father’s legacy until a civics course in High School.

Chemerinsky and Eastman took to the podium again towards the end of the program in a section captioned “Korematsu to Hamdi – Historical Perspective.” Chemerinsky, of course, had to take the opportunity to once again use his soap box to rail against all of the policies of George Bush including Guantanamo Bay and its detainees; he represents one such detainee. I more than most, especially being an Iranian-American living in post-9/11 United States, fear that we may not have learned from our past mistakes (Korematsu is technically still good law!). Nevertheless, I cannot disagree with Eastman’s concluding remarks that our “Constitution is not a suicide pact” and that although our laws don’t change during wartime our definition of “reasonableness” does (hence affecting civil liberties).

In his final remarks, Justice Ramirez likewise paid his respects to Judge Takasugi – the “first Japanese-American named to the Federal Bench” – and thanked him for his 35 years of judicial service to the United States. In short, this was a great event and I cannot wait to see what the “Second Justice John G. Gabbert Historic Oral Argument Series” has in store for us.

[This is a longer unedited version. For the edited published version, please click here).

Summary of California Child Support & Paternity Law

Child Support Cliff Notes Allow Everyone to be on Same Playing Field
Riverside Lawyer, Sept. 2009, at 11 (with Natalie Metzger)

Opposing counsel had a surprise for me at the hearing.
Though we are good friends, he wouldn’t tell me what he
was up to and wanted to unveil his “surprise” at the hearing.
Finally, before the family law commissioner, he pulled
out a copy of the Child Support Attorney Sourcebook
and started arguing that “their own practice
guide” mandates that his client prevail. I guess his “surprise”
was that he had managed to get a copy of the book.

For a number of years, the Child Support Directors
Association (CSDA) has been publishing a number of
practice guides to assist those practicing in the area of
child support and related paternity law. In addition to the
Sourcebook, the CSDA publishes Cases of Interest to Child
Support Attorneys
and the Interstate Sourcebook.

Though these books have always been available for sale
to the public, the CSDA never really solicited the private
bar until recently. Last year, for example, while almost
500 copies were sold to the courts and family law facilitators,
only 53 were sold to the private bar. We are hoping
to increase that number and also to send a message that
these practice guides are readily available to the private
bar (and pro per litigants, for that matter).

I joined the CSDA’s publication committee in 2006 as a
contributing editor and have been serving in that capacity
since then. While the CSDA is a nonprofit organization
with a few paid staff, the publication committee operates
on a completely volunteer basis; i.e., neither I nor any of
my fellow editors get paid to work on these publications.

The Sourcebook, which I would call our flagship
publication, is a pocket book (small enough to fit inside a
jacket pocket or a small purse) designed as a quick reference
guide for use in court. Cases of Interest, on the other
hand, is meant to be a collection of case briefs that can (1)
quickly refresh your mind with the central holding of a
case, and (2) refer you to the citation and related authority
(including cases that have distinguished it and any splits
in authority). Finally, the Interstate Sourcebook is a collection
of case briefs and related authority from across
the nation dealing with the very specific area of interstate
enforcement of child support orders, including, but not
limited to, issues arising under the Uniform Interstate
Family Support Act (UIFSA). Like all reference guides,
these are all secondary sources designed to help refer you
to the primary source (case, statutory, or administrative
law) and its citation.

The reason I describe the Sourcebook as our flagship
publication is because it is the one that attorneys would
more likely use on a daily basis; in addition to its size, it is
designed to be a quick reference guide on all sources of law
dealing with child support. Especially for those just starting
to handle cases in this highly specialized area, it could
serve as an invaluable source. The book is divided into
16 major sections: Establishment and Civil Procedure in
IV D cases, Parentage, Support, Enforcement/Collections,
Relief from Judgment, Contempt/Criminal Enforcement,
Bankruptcy, Workers’ Compensation, Collections from
Estates and Trusts, Real Property Liens, Analyzing Tax
Returns, UIFSA and Registration of Foreign Orders,
Evidence, Objections, Miscellaneous Provisions, and
Internet Sources. Each section is divided into smaller sections
and fully indexed (including a “Table of Cases” and
“Table of Statutes”). Cases of Interest and the Interstate
are similarly organized.

In short, these books serve as an invaluable resource
for both experienced and novice practitioners of child support
(and paternity) law. They are also reasonably priced,
at $60 per publication and $20 for the 2009 Interstate
Sourcebook Supplement
. For more information about
these publications or to place an order, please visit www.

As to my friend and his “surprise,” he lost the case
because he committed a cardinal sin of legal research:
relying on an older version of the book, he failed to look at
the primary sources (case law and related statutes) governing
the set-aside of judgments. No matter how good the
publication, secondary sources are never a substitute for
the primary source.