2017 End of Year

Tuesday, January 2, 2018

Page 9

2017 IN REVIEW

END OF THE YEAR:

Court of Appeal Presiding Justice Paul A. Turner, former Attorney General John Van de Kamp Die… High Court Justice Kathryn Werdegar Retires…Trutanich Faces State Bar Disciplinary Charges… Kozinski Resigns in Light of Sexual Misconduct Allegations

(A summary of news in 2017 relating to the Los Angeles County Bar Association appeared in Thursday’s issue.)

January

3—Chief Deputy Attorney General Kathleen Alice Kenealy became acting California attorney general pending the Legislature’s confirmation of then-U.S. Rep. Xavier Becerra as the successor to Kamala Harris, who resigned as head of the state Department of Justice before taking office as a United States senator.

4—The MetNews reported that Ronald L. Brown, who served quietly as Los Angeles County public defender since his appointment by the Board of Supervisors in 2011, retired from office Dec. 31, without fanfare.

18—Senior U.S. District Judge Robert J. Timlin of the Central District of California died, at the age of 84. He had become a district judge in 1994 and took senior status in 2005.

21—Retired Ninth U.S. Circuit Court of Appeals Judge William Norris died at the age of 89. He served from 1980-94….Retired Los Angeles Superior Court Judge Charles Scarlett died at the age of 92. Gov. Jerry Brown appointed him in 1980, and officially retired in 1993, but continued to sit on assignment, primarily in Inglewood juvenile court, but also in Compton until after his 90th birthday.

23—Xavier Becerra was confirmed by the state Senate as California attorney general. The appointee of Gov. Jerry Brown was confirmed by the Assembly on Jan. 13.

31—Roger W. Boren retired as presiding justice of Div. Two of this district’s Court of Appeal without making a public announcement. He was named to Div. Five as an associate justice in 1987 and elevated to his post as a presiding justice in 1993.

February

9—The State Bar’s Office of Chief Trial Counsel charged former Los Angeles City Attorney Carmen Trutanich with five disciplinary violations—suppression of evidence, violation of his duties under Brady v. Maryland, moral turpitude, and two counts of presenting false testimony. The charges stem from the 1986 trial of Barry Williams, a South Los Angeles gang member charged with killing a member of a rival gang in 1982. The conviction and death sentence were upheld on direct appeal in 1997, but were thrown out on a writ of habeas corpus by U.S. District Judge David O. Carter of the Central District of California last year. Trutanich, who was elected city attorney in 2009, defeated in his bid for district attorney in 2012, and unseated in 2013, often talked about the Williams case during his campaigns.

14—A veteran former deputy public defender, Rhonda May-Rucker, told members of the Board of Supervisors that Acting Public Defender Kelly Emling lied to them in connection with seeking approval of a request by Acting Public Defender Kelly Emling that up to $15,000 be spent on the defense in the State Bar Court of a deputy in her office, Delia Metoyer. Metoyer, who had announced “ready” in a case, became upset with Los Angeles Superior Court Judge Elizabeth Hunter for not releasing her to keep a previously announced medical appointment the next morning. Metoyer was allowed to go to the lavatory to compose herself, and failed to return. Emling said in her request for funds that the deputy’s supervisor— who was May-Rucker—“relieved the Deputy Public Defender” from duties in the case and reassigned it “in response to the immediate health needs of the Deputy Public Defender.” May-Rucker told the supervisors: “I asked the lawyer to return to court several times, and she refused. I told the lawyer numerous times, if she did not return to court, she would be abandoning her client, and she still refused. When she refused to return to court, I was forced to reassign the case.” Supervisors postponed action on the matter. Emling now works for the County Counsel’s Office.

22—John D. Early was sworn in as a U.S. magistrate judge for the Central District of California. He succeeds retired Magistrate Judge Arthur Nakazato.

March

2—The California Supreme Court held that emails relating to government business, sent to or from officials’ private email accounts, are not necessarily shielded from disclosure under the California Public Records Act. Observing that “in today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace,” Justice Carol Corrigan wrote for a unanimous court that in determining whether or not a communication is a public record “particularly when writings are kept in personal accounts, will often involve an examination of several factors, including the content itself; the context in, or purpose for which, it was written; the audience to whom it was directed; and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.”

3—Los Angeles Superior Court Judge Lloyd Nash retired at age 64. He was appointed to the Los Angeles Municipal Court in 1989 and became a Superior Court judge through unification in 2000.

9—Retired Court of Appeal Justice Daniel A. Curry died at the age of 79. He served as a member this district’s Div. Four from 1998-2006.

12—Retired Court of Appeal Justice Barry-Deal, the first woman to serve on the First District Court of Appeal, died at age 95. She served on the appellate court from 1980 until her retirement 10 years later.

14—John Van de Kamp—who served as attorney general of California, Los Angeles County district attorney, and State Bar president—died at age 81….The Board of Supervisors approved a request by Acting Public Defender Kelly Emling that her department be authorized to spend up to $15,000 to defend one of her deputies, Delia Metoyer, against State Bar disciplinary charges. The request was approved by a vote of 4-0, with Supervisor Kathryn Barger being out of the room when the vote was taken. Emling insisted the request meets the standards of Government Code §995.6 which allows the county to pay for the defense of an employee in an administrative proceeding brought as a result of a job-related act or omission if the employee acted “in good faith, without actual malice and in the apparent interests of the public entity.” Metoyer was charged in December with abandoning a client, disobeying a court order, and failing to report sanctions to the State Bar within 30 days as required by a rule.

15—The state Supreme Court decided unanimously not to review the Commission on Judicial Performance’s public admonishment of Los Angeles Superior Court Judge Edmund W. Clarke Jr. for comments made to and about potential jurors during voir dire. The commission found in September 2016, that Clarke’s comments to four venire members were “discourteous and undignified,” and that he had acted improperly in requiring one of them—who had criticized her treatment by the courtroom clerk—to remain in the hallway after excusing her from service in that trial. “For many members of the public, jury duty is their only direct contact with the court system,” the commission said. “When a judge engages in a pattern of discourteous and undignified treatment of jurors, public confidence in the integrity and impartiality of the judicial system is eroded.”

17—Retired Los Angeles Superior Court Judge Lillian M. Stevens, 87, died. She was appointed to the Glendale Municipal Court in 1976 and served there until she was elevated to the Los Angeles Superior Court in 1979, retiring in 1995.

26—John J. Quinn Jr., president of the Los Angeles County Bar Association in 1976-77, died at the age of 84. He received LACBA’s highest honor, the Shattuck-Price Award, in 1992.

30—Los Angeles Superior Court Commissioners Rebecca Omens, 68, and Harold Mulville, 64, retired. Omens’s last day on the bench was Feb. 28. She was appointed a Los Angeles Municipal Court commissioner in 1988 and became a Superior Court commissioner under trial court unification in 2000. Mulville, whose last day on the bench was Feb. 10, was hired as a Citrus Municipal Court commissioner in 1990 and also became a Superior Court bench officer through unification.

April

5—The State of California has failed to provide judges with salary increases mandated by statute, the Court of Appeal for this district held in an opinion by Justice Victoria Chavez of Div. Two. She said Los Angeles Superior Court Judge Elihu Berle was correct when he sided with the state’s judges in a class action, in which 3,400 active and retired judges and justices are represented. The action, involving millions of dollars in back pay, was brought by retired Court of Appeal Presiding Justice Robert Mallano in January 2014, four weeks before he retired from the bench, naming then-state Controller John Chiang and others as defendants. Berle ruled two years ago that that the judges are entitled to a declaration that the state has not paid them the amounts mandated by Government Code §68203. That section provides that judicial salaries “shall be increased” each year by the average percentage of salary increases of state employees, and shall not be subject to the discretion of state officials. Berle said judges are entitled to the amounts they were wrongfully denied, plus interest of 10 percent per year, court costs, and attorney fees of nearly $660,000 pursuant to the private attorney general statute.

6—Los Angeles Superior Court Judge David Minning 71, retired. He was named to the Los Angeles Municipal Court in 1993 and became a Superior Court judge through unification.

17—Ninth U.S. Circuit Court of Appeals Senior Judge John T. Noonan Jr. died at the age of 90.

May

4—The California Supreme Court issued a unanimous decision that will pare the number of anti-SLAPP motions that are granted, holding that protected speech or petitioning activity forming the basis for the motion may not be tangential to the action. Then-Justice Kathryn Werdegar (since retired) wrote: “[A] claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.”

5—Los Angeles Superior Court Judge Teresa Sanchez-Gordon spent her last day on the bench, later retiring after using up available vacation days. She was elected to the East Los Angeles Municipal Court in 1996 and became a Los Angeles Superior Court judge through unification in 2000.

10—Richard Schauer—who was presiding judge of the Los Angeles Superior Court at the time of its centennial in 1980, served as the first Court of Appeal presiding justice of this district’s Div. Seven, and became the “voice” of judges in major controversies—died at the age of 87.

12—Former Los Angeles County Sheriff Lee Baca was sentenced by U.S. District Court Judge Percy Anderson of the Central District of California to three years in prison for his role in obstructing an FBI investigation of abuses in county jails.

18—Court of Appeal Presiding Justice Paul Arthur Turner of this district’s Div. Five—who put in unusually long hours, and even had work brought to him at his home when he stopped going to the office at the start of the month, as he weakened, in the final stages of liver cancer—died at the age of 69. Turner was placed on Div. Five in 1990, as an associate justice, by Gov. George Deukmejian, and was named by him the following year to the post of presiding justice.

22—Named to the Los Angeles Superior Court by Gov. Jerry Brown were White and Case LLP partner Fernando L. Aenlle-Rocha, Los Angeles Superior Court Commissioner Robert S. Harrison, Assistant U.S. Attorney Sarah J. Heidel of the Central District of California, Bet Tzedek Legal Services Vice President Gus T. May, sole practitioner Rubiya Nur, Los Angeles Superior Court Commissioner Nancy A. Ramirez, Assistant U.S. Attorney Lynn H. Scaduto of the Central District of California, Los Angeles Deputy Public Defender Neetu S. Badhan-Smith and Los Angeles Superior Court Commissioner J. Christopher Smith.

23—Los Angeles Superior Court Judge Stuart M. Rice was elected president of the California Judges Association for the 2017-18 term by the group’s executive board.

June

20—The Los Angeles County Board of Supervisors, on a 4-1 vote, authorized an allocation of $3 to a tax-exempt charitable corporation for the legal defense of illegal immigrants facing deportation. Supervisor Hilda Solis released a statement saying that the fund “will be able to help those individuals who have simply been trying to make a better life for themselves and their families.” Supervisor Kathryn Barger cast the negative vote, declaring that “county taxpayers should not be forced to bear the cost to provide free legal representation for those facing deportation.”

21—The Ninth U.S. Circuit Court of Appeals declared invalid a California statute requiring that police, after impounding a vehicle driven by an unlicensed driver, store that vehicle for 30 days. Judge Alex Kozinski wrote that police could lawfully seize and impound a vehicle under the “community caretaking exception to the Fourth Amendment” where officers are acting to protect the public from a danger. He declared, however, that “[t]he exigency that justified the seizure vanished once the vehicle arrived in impound” and the owner “Brewster showed up with proof of ownership and a valid driver’s license.”

30—Richard Aldrich retired as a justice on Div. Three of this district’s Court of Appeal. Aldrich,78, was appointed to the appeals court in 1994.

July

14—Los Angeles Deputy District Attorney Danette Meyers, a former president of the Los Angeles County Bar Association, lost her bid for the presidency of the State Bar, with outgoing President James P. Fox breaking a tie by casting his vote for Nevada County attorney Michael G. Colantuono. Meyers was an unsuccessful candidate for district attorney in 2012.

17—The Commission on Judicial Performance censured Napa Superior Court Judge Michael S. Williams for purloining at least two business card holders from a club in San Francisco during a bar association dinner. As part of a negotiated settlement, he agreed to resign from office Dec. 5.

31—Los Angeles Superior Court Judge Leland H. Tipton, 75, retired. Tipton has spent his entire judicial career in the Bellflower Courthouse; he hired in 1987 as a court commissioner, took office as a Los Cerritos Municipal Court judge in 1997, having won the seat in the previous year’s primary election, and in 2000, became a Superior Court judge through trial court unification.

August

4—The Ninth U.S. Circuit Court of Appeals affirmed a judgment of nearly $42 million against Safeway, Inc., in a class action based on the nationwide grocery company’s charging of higher prices for home delivered goods ordered over the Internet than customers in their physical stores, in violation of a term of the online user agreement which, the court held, promised price parity.

31—California Supreme Court Justice Kathryn Werdegar, 81, retired. She served on the high court since 1994….The Ninth U.S. Court of Appeals upheld a jury’s conviction of former Los Angeles County Undersheriff Paul Tanaka for obstruction of justice and conspiracy to obstruct justice, rejecting his contention that he was prejudiced by references to his supposed membership in a lawless “gang” of deputies known as the Vikings while a sergeant stationed in Lynwood….Deputy Los Angeles City Attorney Onica Cole, a candidate for election this year to the Los Angeles Superior Court, lost her bid for a permanent order to Human Resources Director Cristina Sarabia to stay at least 10 yards away from her. Cole, who came in last in a five-person race for a judgeship last year, contended that Sarabia, accompanied by others, on May 30 angrily confronted her at her desk while she was on the telephone, demanding to know what work she had done that day, and that Sarabia poked a finger in her face. Los Angeles Superior Court Judge Rolf Treu on Aug. 8 issued a temporary restraining, but Los Angeles Superior Court Judge Virginia Keeny found no evidence of continuous harassment and no reason to extend the keep-away order.

September

7—President Donald Trump nominated Assistant U.S. Attorney Ryan Bounds of the District of Oregon to a seat on the Ninth Circuit Court of Appeals. If confirmed, he will fill a vacancy created when Judge Diarmuid O’Scannlain assumed senior status Dec. 31. He is the first nominee by Trump to The Ninth Circuit. There are five other vacancies.

15—State Bar Court Judge Donald F. Miles recommended that Los Angeles Deputy Public Defender Delia Metoyer be suspended from the practice of law for a year, that execution be stayed, and that she be actually suspended for 30 days of probation. She must also go to State Bar Ethics School and pass the Multistate Professional Responsibility Examination. Miles found that she improperly withdrew from employment, failed to abide by a court order, and failed to report to the State Bar sanctions that were imposed on her. The County of Los Angeles paid the $1,500 sanction imposed on her by Los Angeles Superior Court Judge Elizabeth Hunter for leaving the courtroom to compose herself, and refusing to return; it funded the appeal to the Court of Appeal for this district, which affirmed the sanction and referred the matter to the State Bar for possible discipline; and it approved paying up to $15,000 for legal representation in the State Bar Court. She is contesting Miles’s decision.

20—The State Bar Office of Chief Trial Counsel filed disciplinary charges against attorney Philip J. Layfield, alleging he misappropriated more than $3.4 million from his clients.

October

2— Gov. Jerry Brown signed into law SB 36 which will detach all 16 sections from the State Bar, moving them, along with the California Young Lawyers Association, into a private nonprofit corporation. The State Bar, established as a unified bar in 1927—supplanting the voluntary California Bar Association—now becomes strictly a state disciplinary and regulatory agency, with professional activities shifted into a lawyers-only group. SB 36 declares: “The Legislature finds and declares that in order to assist the State Bar in fulfilling its licensing and regulatory duties and its duty to protect the public, the Sections of the State Bar and the California Young Lawyers Association are properly separated into an independent nonprofit organization and that these amendments serve a public purpose.” The legislation, by Sen. Hannah-Beth Jackson, D-Santa Barbara, also pares the Board of Trustees from 19 members to 13, with six fewer lawyers being on the board; the “president” will now be the “chair” and will be appointed by the Supreme Court, rather than being elected by the board, as will be a vice chair.

5—There will be no judicial candidate on the ballot in next year’s election with a designation such as “Child Molestation Prosecutor,” “Supervising Criminal Prosecutor” or “Criminal Gang Prosecutor,” under a bill signed into law by Gov. Jerry Brown. The bill, SB 235, calling for use of actual government job titles or neutral references to the candidate’s status as a lawyer, was carried by Sen. Ben Allen, D-Santa Monica, and was sponsored by the Conference of California Bar Associations. It was based on a proposed bill drafted in 2015 by MetNews Co-Publisher Jo-Ann W. Grace, based on this newspaper’s Sept. 23, 2014 editorial calling for changes in Elections Code §13107. Grace was the 2015-16 chair of the Los Angeles County Bar Association delegation to the statewide conference, the successor to the State Bar Conference of Delegates. Her resolution was approved by the conference without opposition. The measure was endorsed by the Los Angeles Times, the Alliance of California Judges, the California Judges Association, the Los Angeles County Bar Association, the San Diego County Bar Association, and numerous individuals.

8—U.S. District Court Judge Beverly Reid O’Connell of the Central District of California, 52, died. She had collapsed on Sept. 15 while participating in a program titled, “So You Want to Be a Judge?” co-sponsored by the State Bar and California Women Lawyers. She suffered a brain aneurysm and went into a coma.

11—The Ninth U.S. Circuit Court of Appeals rejected a new-trial bid by former South Gate Treasurer Albert T. Robles—a figure in the corruption scandal that engulfed five small cities in southeast Los Angeles County in the early 2000s—holding that intervening case law does not call into question the constitutionality of his 2006 conviction on five counts of bribery, entailing solicitations of $1.8 million from bidders on contracts.

18—Former Los Angeles County Sheriff Lee Baca will remain free while challenging his conviction for trying to derail an FBI investigation into abuses at the jail system he ran, under an order of the Ninth U.S. Circuit Court of Appeals. Baca, 75, raised a substantial legal question when he claimed he was wrongly prevented from presenting evidence of his Alzheimer’s diagnosis at trial, three judges on the panel said. “Baca’s claim that the district court erred by excluding expert evidence of his Alzheimer’s disease is at least ‘fairly debatable’ ” the court said in an unsigned order. U.S. District Court Judge Percy Anderson of the Central District of California erred in concluding Baca was only appealing to delay reporting to prison to serve a three-year term for obstructing justice, conspiracy and lying to investigators, the order declared. Baca has long held he was not guilty of the crimes and will eventually prevail on appeal…. Malcolm J. Romano, an attorney for 41 years, died at age 78.

24—Chief Justice Tani Cantil-Sakauye declared that bail should be ended in California as a means of ensuring a defendant’s future appearances. Responding to a report by the Pretrial Detention Reform Workgroup, which she set up, the chief justice said: “I support the conclusion that California’s current pretrial system unnecessarily compromises victim and public safety and agree with the recommendation to replace our current system of money bail with one based on a defendant’s risk to the public. This report should serve as a framework as we work with the Governor and the Legislature to address these issues that are central to our values and responsibilities of providing fair and equal access to justice for all Californians.” The workgroup, in its report, termed the bail system “unsafe and unfair,” asserting that it “unnecessarily compromises victim and public safety because it bases a person’s liberty on financial resources rather than the likelihood of future criminal behavior.”

25—Maxwell M. Blecher, 84, a leading antitrust attorney who was in law practice for 62 years, died.

31—Attorney Philip J. Layfield responded to State Bar charges of misappropriating clients’ funds by saying that any wrongdoing was on the part of persons upon whom he relied. Layfield declared: “Rather than conduct a full and complete investigation into the allegations, the State Bar Investigators and Prosecutor chose to grandstand and prematurely bring charges. Had the State Bar acted appropriately in the investigation of these matters, they would have discovered that others were truly responsible for the misconduct alleged and that Respondent was doing everything that would and should be expected of an attorney under the circumstances.”

November

2—Gov. Jerry Brown appointed these 10 persons to the Los Angeles Superior Court: Rashida A. Adams, a senior research court attorney at this district’s Court of Appeal; Brett Bianco, court counsel to the Los Angeles Superior Court; Bruce E. Brodie, chief deputy alternate public defender; Steve Cochran, a partner at Katten Muchin Rosenman LLP; Los Angeles Superior Court Commissioner Nicole M. Heeseman; Deputy Attorney General Wesley L. Hsu of the Central District of California; Martha A. Matthews, directing attorney of the Children’s Rights Project at Public Counsel; Victor G. Viramontes, national senior counsel at the Mexican American Legal Defense and Educational Fund; Kerry L. White, a head deputy district attorney in the Los Angeles County District Attorney’s Office; and Los Angeles Superior Court Commissioner Amy C. Yerkey.

8—The Ninth U.S. Circuit Court of Appeals upheld a district court order denying a motion by Glassdoor Inc., which operates a website on which employees can post comments on their employers, to quash a federal subpoena requiring that it reveal identifying information relating to eight anonymous reviewers, with the appeals court rejecting the contention that compliance would breach the reviewers’ First Amendment rights. Judge Richard C. Tallman wrote for a three-judge panel in rejecting the appellant’s argument that it is obliged to safeguard anonymity of those who post their views on Glassdoor.com based on their rights to anonymous speech and associational privacy. It is facing a $5,000 a day contempt fine for noncompliance with the subpoena, with the fine stayed pending appeal.

25—Ninth U.S. Circuit Court of Appeals Senior Judge Harry Pregerson, 94, died. He was appointed to the appeals court in 1979 and did not assume senior status until two years ago.

29—Court reporters who are self-employed or work for private companies, when brought in to transcribe court proceedings, do so only if appointed by a judge as “official reporters pro tempore,” and the statutorily prescribed transcription fees applicable to court-employed reporters apply equally to them, Div. Two of This district’s Court of Appeal held. The court’s decision is expected to have a major impact on private court reporters. Acting pursuant to stipulation and court order, they are commonly retained by litigants nowadays in light of the scarce availability of court-employed reporters following cut-backs during the budget crisis that began in 2008.

December

6—The San Jose Mercury News reported that Conrad Rushing had resigned as presiding justice of the Sixth District Court of Appeal two days earlier in light of an investigation that was in progress into charges of bigotry and sexual harassment on his part. He was a Santa Clara Superior Court judge from 1978 until 2002 when he was elevated to the Court of Appeal, gaining the top spot in the district a year later.

8—The Washington Post reported that Ninth U.S. Circuit Court of Appeals Judge Alex Kozinski has been accused by six women of sexual misconduct. It said that Heidi Bond, who clerked for him from 2006-07, claimed that on several occasions he called her into his chambers, pulled up pornography on his computer, and queried if she were sexually aroused by it. The newspaper said: “Bond is one of six women—all former clerks or more junior staffers known as externs in the 9th Circuit—who alleged to The Washington Post in recent weeks that Kozinski, now 67 and still serving as a judge on the court, subjected them to a range of inappropriate sexual conduct or comments. She is one of two former clerks who said Kozinski asked them to view porn in his chambers.” It quoted Kozinski as saying: “I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.” In 2008, it was revealed that Kozinski maintained a website with pornography on it. He said he did not know that pages were publicly available and sought to shift some of the blame for the content to his son.

16—Kenneth Ofgang, an attorney/journalist who had been a MetNews staff writer since March 23, 1990, died of cancer. He was 64.

18—Ninth U.S. Circuit Court of Appeals Judge Alex Kozinski resigned, effective immediately, in the face of nine more women coming forth with allegations of sexual misconduct, and Chief Justice John Roberts Jr. commissioning Chief Judge Robert Katzmann of the Second Circuit Court of Appeals to probe the allegations. Kozinski said in a written statement: “It grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent. For this I sincerely apologize. A couple of years ago, as I reached the age when several of my colleagues had decided to take senior status or retire, I began considering whether the time had come for me to move on as well. Family and friends have urged me to stay on, at least long enough to defend myself. But I cannot be an effective judge and simultaneously fight this battle. Nor would such a battle be good for my beloved federal judiciary. And so I am making the decision to retire, effective immediately.”

22—Gov. Jerry Brown conferred Los Angeles Superior Court posts on Deputy Public Defender Gia G. Bosley, Assistant U.S. Attorney Susan J. De Witt of the Central District of California, U.S. Securities and Exchange Commission senior trial counsel Kristin S. Escalante, Los Angeles Superior Court Commissioner Robert S. Wada, private practitioner Gregory J. Weingart, and Supervising Deputy Attorney General Victoria B. Wilson of the Central District of California.