S.C. to Consider Ex-Judge’s Duty to Disclose Censure

Thursday, September 18, 2008

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S.C. to Consider Ex-Judge’s Duty to Disclose Censure

By a MetNews Staff Writer

The California Supreme Court yesterday agreed to decide whether a retired Los Angeles Superior Court judge had a duty to disclose his censure for making offensive comments about women based on their physical attributes before arbitrating a medical malpractice claim centering on a woman’s appearance.

The justices, at their weekly conference in San Francisco, voted unanimously to grant review in Haworth v. Superior Court (Ossakow), 164 Cal.App.4th 930, decided by Div. Five of this district’s Court of Appeal in July.

In an opinion by Justice Sandy Kriegler, Div. Five held 2-1 that Los Angeles Superior Court Judge Allan Goodman correctly vacated an arbitration award in favor of a cosmetic surgeon in which retired Judge Norman Gordon cast the deciding vote because the censure could have caused a person to reasonably entertain a doubt that Gordon would be able to be impartial.

Justice Richard M. Mosk sharply dissented, saying the decision would undermine the institution of arbitration by allowing the losers of “binding” arbitration to vacate awards so long as they could find some fact that an undefined “average person” might say indicated bias. He also predicted the decision would significantly expand the circumstances in which judges must be disqualified from hearing cases.

The high court yesterday also asked the parties to brief the issue of the standard of review to be applied on appeal from an order vacating an arbitration award based on non-disclosure by an arbitrator.

The case heard by Gordon stemmed from an elective cosmetic procedure performed by Beverly Hills cosmetic surgeon Randal Haworth on Susan Ossakow’s lips in 2003, his fifth cosmetic procedure on Ossakow’s face.

Medical Malpractice

After the surgery, Ossakow sued Haworth for medical malpractice and battery, accusing Haworth of going beyond the agreed-upon procedure and altering her nose and its underlying musculature without her consent.

The parties stipulated to send the matter to arbitration by a panel of three arbitrators, consisting of one selected by each party and one “neutral” arbitrator, and Haworth proposed four possibilities to serve as neutral arbitrator—including Gordon—after selecting his own.

Ossakow’s counsel agreed to appointing Gordon, and contacted the former judge to gauge his willingness to serve, requesting that he send along “any other pertinent information.”

Gordon accepted, and enclosed a “Disclosure” stating that he had been involved in legal proceedings with members of defense counsel’s law firm, but otherwise had nothing to disclose.

Arbitration proceedings went forward on the medical malpractice claim after Haworth won summary judgment on the battery claim. But the panel—with Ossakow’s arbitrator dissenting—found that Ossakow failed to prove the procedures were performed without consent, or that Haworth’s performance fell below the relevant standard of care.

The majority said Ossakow was not credible because her symptoms were more severe in her testimony than in her statements to doctors, and noted her numerous previous facial surgeries.

“One thing probably everyone can agree upon, after five facial surgeries, [Ossakow] could have done without a sixth one,” they noted.

Explicit Remarks

Osakow’s attorney subsequently moved to vacate the award, saying he had just discovered that Gordon was censured by the California Supreme Court the year prior to his 1997 retirement from the bench for making sexually explicit remarks, ethnic slurs, and derogatory comments to or about his female employees and colleagues based on their physical attributes.

Contending that Gordon was required to disclose the censure under state law requiring arbitrators to disclose any matter that could cast doubt on their ability to be impartial, the patient’s counsel argued that it revealed a bias toward women based on their physical attributes.

Goodman, finding that a reasonable person advised of the censure would entertain a doubt as to Gordon’s impartiality, ordered a new arbitration. The Court of Appeal initially ordered the award reinstated, but later reversed course.

Noting that arbitrators are held to the same standards of bias as judges, and that the question was not whether Gordon had actually been biased, Kriegler reinstated that the “average person on the street” would doubt Gordon’s impartiality under the circumstances.

Kriegler similarly rejected Haworth’s argument that the censure was insufficient grounds to adjudicate facts sufficient to show—in Gordon’s case—gender bias.

Noting that the censure was based on findings of fact and conclusions of law by special masters appointed by the Supreme Court, he pointed out that Gordon’s censure has also literally become a textbook example of gender bias that is impermissible in the judiciary, cited both by the Judicial Council in its Guidelines for Judicial Officers, and by retired Los Angeles Superior Court Judge David M. Rothman in the California Judicial Conduct Handbook.

“As those authorities recognize, there is cause to conclude Judge Gordon’s inappropriate treatment of women constituted bias. By the same token, there is cause for a reasonable person to question whether Judge Gordon could serve as an impartial neutral arbitrator in this case.”

Presiding Justice Paul Turner joined Kriegler in his opinion, but Mosk disagreed, noting that Gordon was never found to have “engaged in any misconduct or impropriety with respect to any litigant, male or female” and said the censure provided no basis to assume that he was “incapable of impartial decision making in any case involving a woman or her appearance.”

Mosk also suggested that counsel was less than diligent in agreeing to Gordon’s selection without doing an Internet search that would have disclosed the censure. “I would think it preferable to require counsel to type three words into Google rather than force the parties to endure the time and expense of a pointless arbitration proceeding,” Mosk wrote.

In other conference action, the justices voted 6-0—with Justice Joyce L. Kennard recusing herself—to review the ruling of the Third District Court of Appeal in Barnett v. Superior Court, 164 Cal.App.4th 18, which deals with discovery disputes in a death penalty habeas corpus proceeding. Among other things, the Court of Appeal ruled that the defendant, Lee Max Barnett, is entitled to discovery of handwritten notes of investigators in other states who investigated crimes that were alleged committed by Barnett and as to which witnesses testified at Barnett’s 1988 murder trial in Butte County.

Among the issues to be decided by the high court is whether Penal Code Sec. 1054.9, establishing procedures for post-conviction discovery where defendants have been sentenced to death or to life imprisonment without possibility of parole, is an unlawful amendment to Proposition 115, the 1990 criminal justice initiative.

The justices invited the Criminal Justice Legal Foundation, the Habeas Corpus Resource Center, the Office of the State Public Defender, the California District Attorneys Association, and other interested organizations to brief that issue.