California Court of Appeal, Fourth Appellate District, Division Three

 00:40:52

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Justice Eileen C. Moore of the California Court of Appeal, Fourth Appellate District, Division Three, joins us today to provide a historical perspective on the challenges women faced in becoming lawyers in the 1970s, and how far both she and other women lawyers have come in their legal careers. She also discusses the long-lasting impact of her service in the Vietnam War, and her commitment to military veterans.

Relevant episode links:

Justice Eileen C. Moore, The Feminine Mystique, Vietnam Veterans of America

About Justice Eileen C. Moore:

 Justice Moore was appointed to the Superior Court of California, County of Orange in 1989 by Governor George Deukmejian and to the Fourth District Court of Appeal, Division Three in 2000 by Governor Gray Davis.

She has lectured extensively at education programs for lawyers and judges, and, in 1990, she was a lecturer of business law at the University of California Irvine, Graduate School of Management. Justice Moore is a current author for Bancroft Whitney's California Civil Practice series, and she has published numerous articles on a variety of legal issues.

In 1992 Justice Moore was honored as a Distinguished Alumni of the Year by University of California Irvine, in 1993 as Alumnus of the Year by Pepperdine University School of Law, in 1993 as Trial Judge of the Year by Orange County Women Lawyers, in 1999 by the Orange County chapter of American Board of Trial Advocates with its annual Judicial Civility Award, and in 2000 as Trial Judge of the Year by Consumer Attorneys Association of Los Angeles. 

From 1996 to 2000 Justice Moore chaired the Orange County Family Violence Council, leading the community in its response to domestic violence. For her efforts in this area, Justice Moore was twice honored by the Orange County Board of Supervisors. 

Justice Moore spent her nonjudicial legal career in private practice in Newport Beach. From 1965 until 1972 she practiced as a registered nurse, including service as a combat nurse in Vietnam. She is a member of Vietnam Veterans of America.

In this episode, I'm very pleased to welcome Justice Eileen Moore from the California Court of Appeal Fourth Appellate District, Division Three, my home district and division in California. Welcome, Justice Moore.

Thank you very much.

I think it would be good to start from the beginning in terms of how did you decide to go into law? What attracted you to it and what did you hope to find life in the law?

I served as a combat nurse in Vietnam and when I came home, I read a book. I was and still am a registered nurse. I read a book by a woman named Betty Friedan and the book was The Feminine Mystique. She told me that the likes of me, a nobody, the daughter of a high school dropout, a girl, that I could study at a university and I believed her.

Along with thousands of other women across the country, I picked up my dainty little size nines and kicked into the door of a university. I went to the University of California, Irvine. When I got there, I was among many other women that were kicking in the doors of universities also. They were returning to school after doing something else. The University of California, Irvine, UCI, got a grant and they conducted something called the Vera Christie Project. It’s something that everybody should have the advantage of going through.

They had people from all kinds of businesses, industries and academia. They interviewed us. They tested us. They prodded us. They did all sorts of things and at the end of the quarter, they sat each of us down. They were sitting at a desk and they told us where they thought our abilities might best lie. They told me that they thought with my mouth that I might make a good lawyer. That's what started me out on the path to the law.

I didn't know that. That is a great program to help you through the process and figure out where you might best share your talents.

It would be good for everybody to have that advantage.

I know you mentioned your service and that you've done a lot of service towards veterans, the military and a lot of that in your judicial role in and outside your judicial role. I didn't know if you wanted to talk about that. That seems very formative to you as a person and also in terms of your service throughout your life.

I pretty much turned my back on everything once I realized that avenue was available to me, that is, studying at a university. I just grabbed for that brass ring and went on with my life. After I was appointed to the Superior Court, it was sometime in the 1990s. I was invited by the local chapter of Vietnam Veterans of America to speak at the Richard Nixon Presidential Library for some special event that they had.

You have to sell yourself to get the position you want because nobody will come asking you to apply. 

When I got into there, off to the side of the auditorium sat three rows of men who looked disheveled with old fatigues. They look tired and worn out. Immediately, I said to myself, “Homeless Vietnam vets self-medicating.” I gave whatever speech they asked me to give. When I came down from the stage, those three rows of men surrounded me.

They swarmed around me and each one had to touch me somewhere. They would touch my shoulder or my arm. One took his pointer finger and went over and over the outside of my hand. I think that I had sort of an epiphany at that point that I knew how badly our Vietnam vets were treated, but I don't think that it hit home just how bad their memories were. I realized that they have no good memories from Vietnam, except maybe the nurses.

I thought that maybe I was getting a message that I should probably get active and do something. That was the beginning of my being involved with veteran’s activities. I was involved through the rest of the ‘90s and the early aughts but then when the homeless Iraq, Afghanistan veterans started appearing in the community, I realized that the courts should be doing something.

They should be ready if the legislatures all over the country do the right thing this time, which they did not do after Vietnam. Sure enough, there was a sudden patriotic zeal in the legislatures and they started passing statutes and I wanted the courts to be ready. I talked with the powers in Sacramento, and I got permission to launch a committee, a veterans and military families committee. 

I have chaired that committee since 2008. That's the big thing that I have been doing, pass rules and forums. Have educational seminars and assist the courts. We have 58 counties in California and we have 34 Veterans Treatment Courts in California now. I've been doing that. Plus, I write an article each month for the legal newspaper.

I think that is one of the things, that as a judge, people listen to you and you have an opportunity to convene people around issues that are important to you and important to the community. That’s definitely one that you’ve done great work in. I wanted to make sure we talked about that. After you decided that you would become a lawyer, you went to law school as well. How did you decide what practice you wanted to do after you came out of law school?

I think it was decided for me. I graduated from law school in 1978. There wasn't any red carpet waiting for women who were getting out of law school at that time. I remember one job interview I had. It was with the head of the firm. I thought I did well. I looked nice and I had some good grades. I didn't punt any of the interview questions. I thought I had been forthright with everything. At the end of the interview, he sat back in his chair and said, “I know a lot of the law firms are doing this, but we're just not ready to have a woman lawyer in our firm. Thank you for coming.”

That wasn't the best part of it. The best part of it fast forward twelve years and at that point, I was supervising judge of the Law & Motion department because I was appointed to the court after practicing for a few years and who walked into my courtroom? I don't think he had any reason to remember me. It made such an impression on me that interview because I thought, “What am I supposed to do? This is the way God made me and I want to practice law.”

He was before me and everything within my being wanted to say, “Are we ready yet?” I held my tongue and I figured, at least the man had been honest with me. If he had told me that I had flubbed the interview or something, then I would have taken responsibility for doing something wrong but there was nothing that I did wrong in that interview. I made my ruling and sent him on his way. To this day, he probably has no idea that he interviewed me.

I think that's important to mention where things were at different points in time because I know Justice Ashmann-Gerst from Los Angeles. She says in her timeframe, in the early '70s, there were no spots. The firms wouldn't interview. Public service or agency work was much more open to her. Justice Leah Sears, who was previously at the Georgia Supreme Court comes a little bit later and says, “There were some openings at firms, but maybe only one or two, ten years later.”

I think it's helpful to mention this because it is relatively recent and it's something that, gratefully, newer lawyers now wouldn't have anything like that happen to them at this point. There may be other issues along the way, but it is an important point to make and to point out. You did go into practice but it was with a smaller firm.

This was a smaller firm and I had only one job in the law before taking the bench and we were a litigation firm, primarily insurance, employment and personal injury. Almost all of it was representing plaintiffs.

We are a very well-known and well-regarded plaintiff's firm, I might add. That was very quick. Ten years, that's about the first opportunity you could become a judge. What made you want to apply for that position?

I'm not exactly sure when I decided I would apply for it, but it was shortly before I did. I think I applied in July of 1988 and I had my first interview in November and I was sworn in May of ‘89.

Sometimes it's many applications that sometimes, it just happens. It's the perfect timing and the perfect opportunity. How long did you serve on the Superior Court before you came to the Court of Appeal?

It was about eleven years, but then getting from the Superior Court to the Court of Appeal, which is the intermediate court in California, it was another story I had to apply over and over again. That was not such a quick change for me.

You had both experiences, the quick and the prolonged, but you have to be persistent for these things. That’s what I often hear in terms of applying for judicial positions. You got it if you’re interested in it.

If I had to give anybody any advice, I would say that if you've decided that you want to be a judge, do something every day to tweak it. I don't know exactly what it is. Make a call, write a letter, give a speech or write an article. Do something every day to keep going because you have to be tenacious. In not many instances will anybody come to you and ask you to apply. You have to sell yourself.

That's an opportunity to get to know people so that people know you, but also that you have a reputation for serving instead of being at your desk and doing your work. Also, being out in the community in different ways so that people can say, “That’s someone who is interested in service and another form of services on the bench.”

The local bar association is where I got very involved, volunteering my time to do work on this committee or that committee or the other committee just become known within the legal community and one connection leads to another connection.

You had some good mentors and sponsors helping you, giving you support and encouragement along the way, I'm sure.

When I first started practicing law, it was a strange time because almost the only people to model myself after were men. I didn't want to model myself after men. I did stumble upon, I met her in court one day, a woman named Marjorie Day, who practiced here in my county. When I first met her, she was with a firm but then she went out on her own and started her firm. She was able to maintain her femininity yet. She was very aggressive in a good way and successful in a great way. I don’t know that she took me under her wing, but we became friends. I think that if I modeled myself after anyone, it was after her.

You saw a way of being that resonated with you. Also, in the judicial application process for the Court of Appeal, were there folks who were assisting or supporting you in that effort as well? Colleagues on the bench or anything like that?

Care for people around you and for the responsibility bestowed on you. 

I can't remember how many times I applied for the Court of Appeal position, but one of the earlier times, my good friend and the person in the courtroom next to mine on the Superior Court, Bill Rylaarsdam, we helped each other. Word processors were just started to be used in the courts and we were teaching each other how to do it. 

We helped each other fill out our applications and I remember that when we finished and we were licking the envelopes closed, Bill said, “May the best man win.” He did. I had to wait several more years. Once he got up there, I think he reached his hand down and helped me as much as he could. Also, there was another who had been in the private law office. He had referred a lot of cases to us. He became a judge years before I did and he was on the Court of Appeal, David Sills. He helped me, too.

You’re so lucky to have such a nice collegial bench. Justice Sills and Justice Rylaarsdam were very good judges and good people too. It’s nice that you got to be colleagues with Justice Rylaarsdam. It’s important on appellate benches to have that collegiality and good working ability with fellow judges because one person doesn't decide a case.

There's a panel of judges and you need at least one other judge to vote with you. It's good to have that collegiality. Do you have any suggestions for those who might be appearing in front of an appellate court in terms of how they could be most helpful to you in terms of whether it's presenting an oral argument or in their briefs? Are there things that make your job easier?

Being specific is probably the thing that would work out the best. A lot of times, people write their briefs and they claim that there's an error and they may very well be right. They claim that they were prejudiced by it and explain how they were prejudiced by it, but they’re not specific with regards to what they want us to do. In other words, most of the time, they want us to remand the matter, but they don't tell us what instructions we'd like them. Do they want to a retrial? Do they want just a hearing on a certain issue? What is it that they want? I would love them to be specific and that would be very helpful.

It helps you write the opinion, if I agree with you, what am I advising the trial court to do? What scope of relief can I give you and even is that possible? Because sometimes people will ask for things that aren't possible for their particular type of error. That's a good reminder because that's something that if you're in the trial court, you don't need to be quite as specific as you do when you're on appeal in terms of what you want the court to do with the directions, to any other court about what to do.

I found that as a big problem in the trial court also and it came up in both jury and non-jury trials. In jury trials, I thought that throughout my years on the trial court, counsel gave very short shrift to the special verdict form. That should have been something that was done right at the very beginning and carefully analyzed and tweaked throughout the trial to make sure it was right. For non-jury trials, they would come in after fighting and carrying on in discovery for a couple of years and then they'd come in and want a trial. When I would say, “What issues do you want me to decide?” They hadn't thought that through. I thought that was a continuing problem.

That can happen too. Sometimes people get so caught up in the dispute, we're angry and disputing, and then they need to get out of that mode and be specific about what they want. Is there a particular judge that you admire or that you mentioned the lawyer that you had emulated to some degree in terms of her presentation? Was there a judge that you admire or would like to emulate to some degree in your judging?

The judge that I probably admired the most retired a few years ago, and his name is Jim Jackman. He was a colleague of mine on the Superior Court. When you're sitting as a trial judge, you don't get to see other judges in action. The Court of Appeals is a different story, but in the trial court, you get to know the judges in other settings such as the judges' lunchroom. They come inside and sit down and have their sandwich and discuss whatever the issues were before them and whatever their attitude was.

I formed such a great impression of judge Jackman that he cared so much about, not only the legal issues but the people who appeared before him in the sense of responsibility that was bestowed upon him. The most recent reason that I respect him is that I think it was 2015. I put together, as an aside, not as part of my official duties, but as part of my veterans' duties, a team of volunteers to represent Vietnam veterans who are sitting as lifers in prison because the state of California does appoint attorneys to represent them, but they get almost no money for doing that.

They have to take fifteen cases at a time and you can't delve into a case. They are so overwhelmed like that. My idea was that these Vietnam vets who were given absolutely no treatment when they came home, no matter how badly they were suffering from PTSD, if they had somebody that could look at their case and study their situation. Judge Jackman took upon one of those cases and this man had been denied parole five times.

Judge Jackman was representing him for the sixth time before the parole board. He was in Folsom, which is in Northern California and we're in Southern California. Each time, they had these prisons in the middle of nowhere, so you had to take a plane and then you had to rent a car. You then have to drive forever until you get to the end of the Earth. Then sometimes you'd get there and the prison would say, “We're locked down now, come back another day.” This is costing him thousands of dollars.

He carefully went through the record and he found undisputed evidence that the man left the scene of the murder at 6:00 PM, but the coroner’s report said that the victim died at 10:30 AM. The reason the man had been denied parole the other five times was because he wouldn't admit that he was responsible for the death of the victim. Long story short, Judge Jackman got this man out of prison after 30 years and spent thousands of thousands of dollars of his own money doing it. I have great respect for him.

What a wonderful result. Having someone who cared enough about the law and this person to take that care to look through it and piece that together to figure that out. It's equally a little troubling and a little bit sad that wasn't done previously. While I'm glad the system worked now, but it's very disturbing that it got to that point, what a wonderful human being. I can understand why you admire him. In terms of being a judge and having been on the benches, is there something you're most proud of having accomplished in that regard or you're most fulfilled in terms of what you can do in your judicial position to help others or help the law?

I’d like to tell you about two things. One is, I think it was 2009 and I was on the Court of Appeal at that point. A published case came before me. It was a boy that had just turned fifteen years old. From the time he was twelve until he was fourteen, his mother who's a single mother and I don’t know who the father was. I think it was a casual meet for the mother.

The mother was afraid that the kid was going to get involved with drugs. He was of some Asian descent. I don't remember what the specific Asian culture was, but she was afraid he would get involved with an Asian gang. She sent him away to live with some relatives a couple of hundred miles away. He whined, complained and cried. When he was fourteen, she allowed him to come home. He started getting picked on by Hispanic gangs, so the Asian gang provided him some protection and he got involved with them a little bit.

He was picked up by the police for having a knife in a public park and he was put in home confinement. That was his only crime. While he was sitting in home confinement doing his homework and his mother was at work, the gang members came to visit him and wanted him to come out with them some evening. He said he couldn't. They went away and about half an hour later, they came back and they talked him into it this time. There were four of them in the car and they almost immediately pulled over to a carwash because somebody had to relieve themselves.

Giving a little encouragement each time can transform someone for the better. 

Two of the guys went into the restroom and the leader of the gang, who was sixteen, saw a man washing his car and said, “You up for it?” He reached to his pocket and the kid said, probably never having heard of the concept of aiding and abetting said, “It's on you man,” and walked along with him as the leader of the gang went over and shot the man who was cleaning his car and killed him.

Both of the boys were sent away for 25 years to life for the murder plus another 25 years to life for personal use of a firearm. Each got 50 years to life and it was the kid's case that came to our court. That was a very difficult case for me because the probation report was written in such a way that this child was extremely immature for his age. He didn't talk like a gang banger. He wasn't fully invested in the gang and for him to get the same 50 years as when he never touched that gun and never said anything to encourage the murder.

I wrote a dissent in that case because I couldn't get another one of my colleagues to go along with me. I said that I thought that this boy's brain wasn't fully developed. He was immature for his age and even though it was mandatory for the trial judge to give this sentence, I found that it was in violation of the Eighth Amendment. I would say within maybe 1.5 years or 2 years, over that period of time, other dissents were coming out saying essentially the same thing.

The California legislature came out and modified its rules regarding sentencing and preserving a record for children and for getting earlier parole hearings than they had been given before that. The law started to change. I don’t know if my dissent started if all, but probably at least it had something to do with helping move the law along. It made me understand the purpose that a dissent can have.

The other thing that I wanted to tell you about was something that occurred when I was acting as a mentor in a Veterans Treatment Court. I was observing the trial judge, which is something that you don't get to do, but when you're acting as a mentor, you do get to do that. I was a mentor for nine years. I would run over on Tuesday afternoon to mentor primarily young women veterans who got themselves sideways with the law.

While I was sitting in this Veterans Treatment Court, you have to understand that in these collaborative courts, the judge has the last say. It's a group of professionals that make the decisions beforehand. While the Veterans Treatment Court was going on, there was a holding cell in the courtroom and you could hear that the doors banging and climbing. The judge looked over to this cell and she said, “Mr. Williams, you're making a lot of noise over there.” The bailiffs had been trying to calm him down. He said, “Judge, you know I’m a veteran. Why can't I have what these people are getting?” Because one of the other veterans had stood up and he had an A-plus paper on a college paper that he was doing. He had gotten himself clean of drugs.

It was just really a beautiful story that was going on in the courtroom when this Mr. Williams started climbing on the jail door. The judge explained that the team had already decided that since he had been in and out of jail for 40 years, he was not a good candidate for a Veterans Treatment Court because they only have so many spaces for it. He started begging her. I could see that she was starting to give in and since I was in the audience, I could see the members of the team shaking their heads. “No, he's no good for this court.” That's the message that the judge was getting from the team, but she did have the last word. She gave him a chance.

I asked the bailiff’s permission if I could approach the holding cell during the break. I talked to Mr. Williams and said that I had been a nurse in Vietnam and that if I could help him in any way. I knew he could do it. I gave him a little encouragement and each time that I saw him in court again, I gave him more encouragement. About two months later, I could see a complete transition. He, all of a sudden, looked like a college professor.

He had a corduroy jacket, a sports jacket with those patches on his elbows and he still had the real long hair, but it was washed and it was pulled back in a ponytail. He looked as though he had control over himself. When that man graduated from the Veterans Treatment Court, the judge said, “Why was it that after all those decades of you committing crimes, you've decided that you're going to?” He said, “I couldn't let that nurse down.” That was my best day in a courtroom ever when I heard those words.

I do think that those collaborative courts are so valuable and they allow people opportunities that you couldn't get without them. My experience with them is that the people who enter them have to want to enter them. Whatever it is that caused that man that day to say that's what he wanted to do, that in itself seems to be the spark that needs to be maintained, but once that's in someone in those programs when they enter them, they tend to do pretty well. It tends to be a good opportunity for them.

I know I've seen some people who are given the opportunity and vetted to do that and refuse to do it. I’m shocked by that. I have heard people say, “They haven't reached the point where they want to do that enough or are they willing to leave the system they know for something better.” Maybe after all that time, he finally hit the moment where he was willing to do that.

To have people have faith in him after so long is what was necessary to give him that extra bump forward. Those are both amazing examples of what the law can do and how you can help in the law. What particular people and those particular people in their improved lives then ripple out to others, to their families and to the community. Those are very important things.

The dissent is an interesting story as well in terms of how that can sometimes move the law forward. Even where, as I know, you don’t dissent often so when you do, it has a notable impact, I would think because you feel extremely strongly about the particular issue. It seems that things were going, things were moving in that direction and the power of a few dissents and raising those issues and what that impact that can have on the legislature eventually.

Those are great lessons in terms of the impact of the law and maybe why you might want to consider different roles in the law if you weren't already. It’s about humanity. People sometimes forget that the law is about people as well and for the benefit of humanity and the community, as well as being a rule of law. Both of your stories exemplify that and what a good heart you have which you applied to the law. We’re going to go a little lighthearted, quick answer and lightning round questions now. Which talent would you most like to have that you don't?

I wish I could recognize people's faces more than I do. I remember the conversations that I've had with people but I'm not good with facial recognition. I wished that I had that ability, but I don't have it.

For what in your life do you feel most grateful?

As a woman, I feel grateful for having been born in the United States of America.

Who are your favorite writers, if you have any?

I have a lot of favorite writers. I read about ten books a month and a good portion of them are just mind candy, but I try to get something that's worthwhile in there. For the fiction writers, Michael Connelly, Fiona Davis, Ken Follett, Nadia Hashimi, Liane Moriarty and Kelly Rimmer. For non-nonfiction, Ron Chernow, Eric Larson and Hillary Clinton. How’s that? 

Those are a lot of good recommendations. Who is your hero in real life?

The notorious RBG. I think Justice Ginsburg cared about women and she was so tactical. I suspect that she carefully watched how Thurgood Marshall, his tactics on changing the law vis-a-vis race and adopted a very similar approach for gender.

I wholeheartedly agree with that. There are strategic efforts in the choice of cases. It was very thoughtful, similar and effective. Given the choice of anyone in the world, who would you like to have as a dinner guest?

I'd love to sit down and gab with Michelle Obama. She's strong, loving and she's realistic. She's had to make compromises in her life with the man she loves. She seems fair and I'd be interested in hearing how she guided her daughters not to be little prima donnas.

There are a lot of different aspects to discuss with her. That's what I always think about. As a dinner guest, you'd want it to be multi-dimensional. You'd have a lot of different discussions throughout the dinner. We’ll end with this one. What is your motto, if you have one?

I suppose I have adopted the motto of Vietnam Veterans of America as my own. “Never again will one generation of veterans abandon another.”

You have not. That is true. Thank you so much, Justice Moore. This was really kind, gracious and very openhearted of you to have this discussion. I appreciate it.

It was my honor. Thank you.