Unzueta

In 1935 Judge Learned Hand asked: “How far is a judge free in rendering a decision?” (Hand, The Spirit of Liberty (1952).) Judge Hand *1693 did not answer the question but did put the judicial dilemma in perspective by saying: “So you will see that a judge is in a contradictory position; he is pulled by two opposite forces. On the one hand he must not enforce whatever he thinks best; he must leave that to the common will expressed by the government. On the other, he must try as best he can to put into concrete form what that will is, not by slavishly following the words, but by trying honestly to say what was the underlying purpose expressed. Nobody does this exactly right; great judges do it better than the rest of us. It is necessary that someone shall do it, if we are to realize the hope that we can collectively rule ourselves. And so, while it is proper that people should find fault when their judges fail, it is only reasonable that they should recognize the difficulties. Perhaps it is also fair to ask that before the judges are blamed they shall be given the credit of having tried to do their best. Let them be severely brought to book, when they go wrong, but by…

I respectfully dissent.

Absurdity—I know it when I see it. I agree with my colleagues that absurdity is in the mind of the beholder. Perhaps I am too prone to see it, but its specter haunts me in this case.

The school teacher here is arrested for possession of cocaine. He admits this to his principal and also admits he was under the influence of cocaine when he was arrested. The school teacher is placed on a leave of absence from teaching pursuant to statute. He is in a drug diversion program for almost two years. During this time, the California Commission on Teacher Credent!aling suspends his teaching credential.

After successfully completing the drug diversion program, criminal charges against the teacher are dismissed pursuant to Penal Code section 1003. The District has good cause to fire the teacher, but instead gives him a break and allows him to come back to work. The teacher then sues the District for backpay during the time he was lawfully suspended.

Under the majority holding, the teacher would have received the full $40,000 in backpay had it not been that he fortuitously earned money during his suspension. A literal reading of the plain language of Education Code…

In 1935 Judge Learned Hand asked: "How far is a judge free in rendering a decision?" (Hand, The Spirit of Liberty (1952).) Judge Hand did not answer the question but did put the judicial dilemma in perspective by saying: "So you will see that a judge is in a contradictory position; he is pulled by two opposite forces. On the one hand he must not enforce whatever he thinks best; he must leave that to the common will expressed by the government. On the other, he must try as best he can to put into concrete form what that will is, not by slavishly following the words, but by trying honestly to say what was the underlying purpose expressed. Nobody does this exactly right; great judges do it better than the rest of us. It is necessary that someone shall do it, if we are to realize the hope that we can collectively rule ourselves. And so, while it is proper that people should find fault when their judges fail, it is only reasonable that they should recognize the difficulties. Perhaps it is also fair to ask that before the judges are blamed they shall be given the credit of having tried to do their best. Let them be severely brought to book, when they go wrong, but by…