1998 PUBLIC LAWYER OF THE YEAR: PETER BELTON

Peter Belton was honored as the 1998 Public Lawyer of the Year during the Public Law Section's annual reception at the California State Bar's annual meeting in Monterey on October 3, 1998.

Mr. Belton joined the legal staff of the California Supreme Court in 1960. He has served as staff attorney for Justice Stanley Mosk since Justice Mosk joined the court in 1964. A 1959 Harvard Law School graduate, Mr. Belton is widely viewed as one of the most able attorneys at the court.

He currently chairs the Editorial Review Panel for the Judicial Council's Appellate Advisory Committee, which is revising the appellate portions of the California Rules of Court.

Below is the acceptance speech Mr. Belton made on October 3, 1998 at the State Bar of California Annual Meeting.

Thank you very much, Justice Werdegar, for your kind words, and for reading the kind words of my boss and almost lifelong friend, Justice Mosk. If his schedule allowed, he'd certainly be with us. I also want to thank Manuela Albuquerque for nominating me for this award, Margaret Sohagi and the Executive Committee for selecting me, and all my fellow public lawyers for honoring me. I truly appreciate it.

As Justice Werdegar said, I have served as a Supreme Court staff attorney  for more than 38 years, the last 34 as the senior staff attorney for Justice Mosk. When Manuela told me I'm the first judicial staff attorney to receive this award, my initial reaction was to talk to you about who Supreme Court staff attorneys are and what we do. But the subject was well covered in a recent article by Dick Goldberg entitled The Shadow Court in the July 1997 issue of the California Lawyer magazine. The article gives the basic facts: There are currently 69 attorneys on the Supreme Court staff. Most are career positions. Most of the attorneys were in private practice before coming to the Court. About half are women. Of the 69,30 serve on the Central Staff, the specialized staff that prepares memoranda for the Justices on the petitions for review. The other 39 attorneys are divided among the staffs of the individual Justices. Each assists his or her Justice in various ways, primarily by studying the briefs in the cases assigned to that Justice, summarizing the facts, analyzing the issues, researching the law, discussing the case with the Justice, and drafting an opinion that expresses the Justice's views.

The Goldberg article, however, doesn't emphasize one aspect of the contribution of staff attorneys to the work of the Court that is harder to pin down but I think is equally important: it is the fact that each staff attorney–like each Justice–brings to the job an individual perspective and understanding gained from his or her own life experience. In some instances, that experience can give the Justice a deeper appreciation of what is really at stake in the case–its underlying reality. Such cases happen to all of us, and they happened to me a few memorable times. I'd like to tell you about two of those instances. I'll call it A Tale of Two Cases.

To appreciate the first case, you need to know I was not born an American citizen. In fact, I didn't immigrate to this country until I was 12. But English was not a problem: I was a British citizen, and had all my elementary education in schools in England and Toronto. After I settled in the United States, I had my secondary education in New York, earned a bachelor's degree from Harvard College, and entered Harvard Law School. I had resident alien status, but I felt and acted as American as apple pie–I loved baseball, paid my taxes, and had even been classified 1A in the draft! By then I had lived in this country for almost a decade, and I intended to live here for the rest of my life, making a career in the law.

In middle of my second year Constitutional Law class, however, I had a rude awakening. While discussing the rights and disabilities of aliens, my professor happened to mention that in most states–perhaps all–you had to be a citizen in order to practice law. I was surprised and dismayed. It seemed unfair, even irrational. I had worked long and hard to get through college and law school, and I believed I would make a good lawyer. I couldn't understand why I would be excluded from my chosen career just because I was a resident alien–why I had no right to practice law yet had to obey all the laws that a citizen obeyed, including paying taxes and being drafted. If nothing else, it seemed–to use a term I had just learned–invidious discrimination.

But at the time I believed I had no choice: I had to become a citizen or forget about becoming a lawyer. I therefore applied for my citizenship papers and went through the process quaintly called "naturalization." (Had I been "unnatural" until then? Being an "alien"–even before E.T.–seemed sufficiently alienating.) Because I had been a legal resident of this country for over a decade, the process in my case took only a few months; many others would not be so lucky.

In due course, though, I had the chance to contribute to a solution to the problem. After graduation I settled in California, was admitted to the Bar, and joined the Supreme Court staff. One day about 10 years later a petition called Raffaelli v. Committee of Bar Examiners was assigned–randomly, like all other petitions–to Justice Mosk. For me it was a classic case of deja vu. Paolo Raffaelli was an Italian citizen who immigrated to California intending to make his permanent home here. He entered San Jose State and graduated with a bachelor's degree. He entered Santa Clara Law School and graduated with a law degree. He passed the Bar exam on his first try. He was hired as a law clerk by a California law firm. He married an American woman, and had the legal status of a permanent resident alien.

But the Committee of Bar Examiners refused to admit him to the Bar on the sole ground that he was not a citizen: by statute, citizenship was a requirement for practicing law in California. (Former Bus. & Prof. Code, § 6060, subd. (a).) Rather than meekly complying as I did, however, Raffaelli chose to "fight it all the way to the Supreme Court": he filed a petition in our Court challenging the constitutionality of the statute and asking us to order his admission.

There were, of course, striking similarities between my personal history and Raffaelli's. Justice Mosk knew my history, and it illustrated for him how irrational and discriminatory it was to exclude all non citizens from the practice of law. Knowing my interest in the subject, he asked me to work on the case. Needless to say, I was delighted.

My research showed that for the first quarter century of statehood, anyone wanting to practice law in California had to be white, male, and a citizen. The exclusion of nonwhites and women was repealed in 1877, but the citizenship requirement persisted. Indeed, in the first part of this century the Legislature expanded the citizenship requirement by imposing it on a wide range of other occupations licensed by state or local government (e.g., teacher, pharmacist, psychologist, policeman, private eye, social worker, insurance broker, etc.)

After discussions with Justice Mosk, I drafted an opinion recommending that we strike down the statute and order Raffaelli's admission. (Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288.) We reasoned there must be a rational connection between a law discriminating on the ground of alienage and the purpose the law is said to serve. We then reviewed five purposes that the State Bar claimed were served by the citizenship requirement for lawyers, but found that none was in fact promoted by it. For example, it was argued that a lawyer must be able to "appreciate the spirit of American institutions." (Id. at p. 296.) Rejecting that argument, we reasoned that the State could not show that aliens as a class were unable to understand American institutions. We said: "Knowledge of this kind comes not so much from the accident of birth as from the experience of the daily life of the community and the role of government in that life. These manifestations unfold to everyone who has lived in America or taken an active interest in the American scene. And there is no prescribed minimum number of years that a person must reside in the United States in order thus to 'appreciate' our institutions. Alexis de Tocqueville, after all, lived here for less than a year and never became an American citizen." (Ibid.)

Our decision unanimously held that the law excluding non citizens from the practice of law was not rationally related to the purposes it was said to serve, and struck it down on the ground it violated the Equal Protection clauses of the United States and California Constitutions. We concluded: "In the light of the modern decisions safeguarding the rights of those among us who are not citizens of the United States, the exclusion appears constitutionally indefensible. It is the lingering vestige of a xenophobic attitude which also once restricted membership in our bar to persons who were both 'male' and 'white.' It should now be allowed to join those anachronistic classifications among the crumbled pedestals of history." (Id. at p. 291) The Court ordered Raffaelli admitted to the Bar.

There are two postscripts to this story. First, shortly after our opinion was filed the Legislature began repealing many other laws requiring citizenship as a condition to engaging in an occupation. The process continued for several legislative sessions, and there are very few such laws left today.

Second, although personally satisfying to me, our decision applied only to California law. But 13 months later the United States Supreme Court faced the same question for the first time in a case out of Connecticut called Application of Griffiths (1973) 413 U.S. 717. The Supreme Court's reasoning was very similar to ours and reached the same conclusion- i.e., to exclude all aliens from the practice of law simply because of their lack of citizenship violates the Equal Protection clause of the United States Constitution. The decision, of course, applied to all states, thus putting an end to such exclusions across the land. And it made my day (it still does) to see that the opinion of the court, written by Justice Lewis Powell, citing Raffaelli, said: "In a thoughtful opinion, the California Supreme Court unanimously declared unconstitutional a similar California rule." (413 U.S. at p. 729, fn. 22, italics added.)

To appreciate the second case I want to share with you, I need to tell you that I contracted polio in 1954 and have been in a wheelchair ever since. Because I became disabled before my three children were born, they've never known me not to be in a wheelchair. Yet I feel that I fully participated, with their mother, in their upbringing. Like any parent, I read to them, played games with them, answered their questions about life and the world (usually in more detail than they wanted), drove them to school in my van equipped with a wheelchair lift and hand controls, helped them with their school work, and shared their adventures on weekends and family vacations. My being in a wheelchair was simply not an obstacle to normal family life, and certainly didn't prevent my children from participating in active sports -- for example, they were competitive swimmers and won many ribbons and medals.

How is all this relevant? One day a petition called In re Marriage of Carney arrived at the Court and was assigned–again randomly -- to Justice Mosk. For me it was deja vu all over again! William and Ellen Carney had two sons, but separated while the boys were infants. Ellen gave custody to William; she lived in New York, he in California. He brought up his sons with the help of his significant other; Ellen didn't even visit them for five years. When the boys were aged six and eight, William had car accident that left him a quadriplegic in a wheelchair. But he remained close to his sons, and bought van with a wheelchair lift and hand controls.

William and Ellen began divorce proceedings. Ellen asked for custody of the boys on the sole ground of William's physical handicap. At the custody hearing the trial judge–a man in his 70's, retired and serving pro tem.–questioned the witnesses only about the presumed effect of the handicap on William's ability to play sports with his sons. For example, he an asked expert witness: "would it be better if they had a parent that was able to actively go places with them, take them places, play Little League baseball, go fishing?" (24 Cal.3d 725, 734.) Although the judge agreed that William had a "great relationship" with his sons, he concluded: "I think it would be detrimental to the boys to grow up until age 18 in the custody of their father. It wouldn't be a normal relationship between father and boys. It's unfortunate William has to have help bathing and dressing and undressing. He can't do anything for the boys himself except maybe talk to them and teach them, be a tutor, which is good, but it's not enough." (Id. at p. 735.) The judge awarded custody to Ellen, and William appealed.

The Court of Appeal affirmed in brief unpublished opinion, largely on the ground that a trial judge has broad discretion in awarding custody. William petitioned the California Supreme Court for a hearing, claiming the judge abused his discretion. The Court rarely grants review in such circumstances, but again I was able to contribute to a different result.

Once more, of course, there were striking similarities between my personal history and the facts of the case. My experience with raising my children despite a physical disability illustrated for Justice Mosk how outdated the trial judge's views on the subject were. Again he asked me to work on the case, and again I was delighted.

First I drafted a memorandum recommending that we grant a hearing, and all seven Justices voted to do so. Then I began work on the opinion. There was no big question of law in the case as there was in Raffaelli, but the record was rife with stereotypical thinking at its worst–stereotypes about the role of parents in their children's upbringing and the capability of disabled persons to fill that role.

After discussions with Justice Mosk, I drafted an opinion exposing and condemning each of those stereotypes. (In re Marriage of Carney (1979) 24 Cal.3d 725.) As our guiding principle, we declared: "if a person has a physical handicap it is impermissible for the court simply to rely on that condition as prima facie evidence of the person's unfitness as a parent or of probable detriment to the child; rather, in all cases the court must view the handicapped person as an individual and the family as a whole. To achieve this, the court should inquire into the person's actual and potential physical capabilities, learn how he or she has adapted to the disability and manages its problems, consider how the other members of the household have adjusted thereto, and take into account the special contributions the person may make to the family despite–or even because of–the handicap." (Id. at p. 736.)

Applying that principle to the facts of the case, we reasoned: "For some, the court's emphasis on the importance of a father's 'playing baseball' or 'going fishing' with his sons may evoke nostalgic memories of a Norman Rockwell cover on the old Saturday Evening Post. But it has at last been understood that a boy need not prove his masculinity on the playing fields of Ton, nor must a man compete with his son in athletics in order to be a good father: their relationship is no less 'normal' if it is built on shared experiences in such fields of interest as science, music, arts and crafts, history or travel, or in pursuing such classic hobbies as stamp or coin collecting. In short, an afternoon that a father and son spend together at a museum or the zoo is surely no less enriching than an equivalent amount of time spent catching either balls or fish." (Id. at p. 737.)

Turning to the realities of children's lives today, we said: "the stereotype indulged in by the court is false for an additional reason: it mistakenly assumes that the parent's handicap inevitably handicaps the child. But children are more adaptable than the court gives them credit for; if one path to their enjoyment of physical activities is closed, they will soon find another. Indeed, having a handicapped parent often stimulates the growth of a child's imagination, independence, and self-reliance.... It is true that William may not be able to play tennis or swim, ride a bicycle or do gymnastics; but it does not follow that his children cannot learn and enjoy such skills ...." (Id. at pp. 737-738.)

Finally, and most important, we explained: "On a deeper level . . . the stereotype is false because it fails to reach the heart of the parent-child relationship. Contemporary psychology confirms what wise families have perhaps always known–that the essence of parenting is not to be found in the harried rounds of daily carpooling endemic to modern suburban life, or even in the doggedly dutiful acts of 'togetherness' committed every weekend by well-meaning fathers and mothers across America. Rather, its essence lies in the ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative years, and often beyond. The source of this guidance is the adult's own experience of life; its motive power is parental love and concern for the child's well-being; and its teachings deal with such fundamental matters as the child's feelings about himself, his relationships with others, his system of values, his standards of conduct, and his goals and priorities in life. Even if it were true, as the court herein asserted, that William cannot do 'anything' for his sons except 'talk to them and teach them, be a tutor,' that would not only be 'enough'– contrary to the court's conclusion–it would be the most valuable service a parent can render. Yet his capacity to do so is entirely unrelated to his physical prowess: however limited his bodily strength may be, a handicapped parent is a whole person to the child who needs his affection, sympathy, and wisdom to deal with the problems of growing up. Indeed, in such matters his handicap may well be an asset: few can pass through the crucible of a severe physical disability without learning enduring lessons in patience and tolerance." (Id. at p. 739.)

For all those reasons, the Court unanimously held that the order taking custody of the boys away from their father was an abuse of discretion, and ordered a new trial.

Again there are two postscripts. First, at the new trial, before a different judge, the boys were returned to their father.

Second, the case caught the attention of the media, and eventually resulted in a piece on ABC's "20/20" television newsmagazine and a two-hour, prime-time docudrama movie version on CBS. But that's a story for another day ....

To conclude, I accept this award not so much for myself as for all judicial staff attorneys, and not only those who work for Supreme Court but also those who work for the Courts of Appeal and the trial courts. We're few in number and do our work far from the public eye, but we're all part of a great and honorable tradition of serving the people of our state as public lawyers. We join you today in celebrating that tradition. Thank you very much.


Disclaimer: The statements and opinions here are those of Mr. Belton and not necessarily those of the State Bar of California, the Public Law Section, or any government body.