Published Opinions Shed Light on Judge David Schacter

Friday, December 21, 2001

Page 7

Perspectives (Column)

Published Opinions Shed Light on Judge David Schacter

By ROGER M. GRACE

David Martin Schacter.

He’s a judge of the Los Angeles Superior Court. And he’s one of the worst.

Yesterday I reported that Div. One of this district’s Court of Appeal in June ordered him off a case — a rare occurrence under any circumstances, but certainly remarkable given that the trial was already in progress. Div. One directed that the trial start anew before another judge. It seems that Schacter was conducting the trial on a “dribs and drabs” basis, as the appeals court put it—an hour or so here, a short time there, with proceedings stretching over a period of a year.

That decision was unpublished. Today: a look at some published cases which cast light on this oddball jurist.

•It was Schacter whose antics gave rise to the California Supreme Court’s opinion in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, a case mentioned in recent columns. Demonstrating obliviousness to the public nature of court proceedings, he ordered that the news media and the public at large be barred from attending a publicized palimony trial at any junction where the jury was not present. He also decreed that transcripts of these non-public portions be kept secret until the trial was over.

Schacter proclaimed: “[T]his is a very, very small intrusion on the First Amendment, and in essence it’s not an intrusion on the First Amendment. It is a slight delay.”

When the government effects even slight delays in the reporting of public matters, there is a constitutional transgression. As the U.S. Supreme Court recognized in Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, “the element of time is not unimportant if press coverage is to fulfill its traditional function of bringing news to the public promptly.”

The news media—accustomed to reporting news and not history—balked. KNBC and others sought a writ.

Div. Seven of this district’s Court of Appeal, in an insightful 1996 opinion by Presiding Justice Paul Turner, countermanded Schacter, ordering that the closure order be vacated and the transcripts be bared. (This was subject to the right of any party to make a showing, pursuant to Waller v. Georgia (1984) 467 U.S. 39, that there was an “overriding interest” in secrecy, with any subsequent closure order being as narrowly tailored as possible.)

The high court affirmed, with Chief Justice Ronald George writing for a unanimous court. George relied both on decisions of the United States Supreme Court and on California’s open-courts statute, Code of Civil Procedure §124.

As Schacter should have realized, secret trials are, in the United States, a no-no. The fact that the disputants were notables—actors Clint Eastwood and Sondra Locke—provided no conceivable justification for Schacter’s rash departure from the time-honored policy of openness in court proceedings. Indeed, the time during which that policy has been honored is extensive. In Gannett Co. v. DePasquale (1979) 443 U.S. 368, 386, fn 15, the policy of courts going back to colonial times was examined, and it was observed: “From the beginning, the norm was open trials.”

But Schacter was apparently more concerned with the comfort of those participating in the trial than the rights of the public to look in. At one point, during a closed session, he mentioned:

“Do you notice that I’ve made it so we can have these discussions, that we can say anything we want and there’s no press here? There’s nobody else here. Everybody can say what they want. That’s why we do it that way.”

In an editorial that was on target, the Los Angeles Times hailed the decision in NBC Subsidiary. It remarked:

“Judicial arrogance is glaringly apparent in court orders arbitrarily banishing the public from trials involving celebrities….

“Trial Judge David M. Schacter barred media access in order to prevent the jury from knowing about items excluded from evidence. His reason was that in a ‘higher-profile case,’ such as this one, gagging the press was ‘a very small intrusion on the 1st Amendment.’

“This is an affront not only to the 1st Amendment but to the jury system on which American jurisprudence is based. It presumes that jurors will violate their oath and disregard judges’ instructions to avoid media coverage.”

Schacter’s action, unsupported by any authority, constituted highly irresponsible judicial overreaching.

•Glade v. Glade (1995) 38 Cal.App.4th 1441 is a case in which Schacter was reversed based on prejudicial bullheadedness.

An action was filed by Carla Glade in 1993 to dissolve her marriage to Roger Glade. One of the community assets was the family residence; holding the mortgage on it was a trust established by Roger Glade’s parents.

In 1994, Roger Glade’s father, as trustee of the trust, brought an action to foreclose on the home. On Sept. 21, 1994, Los Angeles Superior Court Judge Michael Pirosh, sitting in a family law department, joined the trust in the action before him and stayed the foreclosure proceeding. A hearing in that proceeding was scheduled for Sept. 23 in Schacter’s courtroom. Attorneys for both the trust and Carla Glade attempted on Sept. 22, without success, to notify Schacter of the stay.

On Sept. 23, the trust’s attorney, John D. Rowell, stepped right up to the counsel table when the case was called; Carla Glade’s lawyer, Randy E. Bendel, had not yet arrived. Rowell submitted on the briefs, failing to share with Schacter the matter of the stay. Schacter ruled in favor of the trust. Just then, Bendel arrived. (He had driven past the courthouse because a view of it was obliterated by construction.) Schacter refused to hear from him, proclaiming: “Well, I just called it. So that’s it.”

Carla Glade moved for reconsideration on the basis of the stay order. Schacter denied the motion, contesting Pirosh’s power to stay the foreclosure action.

“He has no authority over me,” Schacter said of his colleague. “It’s a court of equal jurisdiction.

“The only person that can stay me is the court of appeal....”

Schacter noted he had never been served with Pirosh’s order, but declared that if he had, he would have telephoned Pirosh and would have said: “What are you doing? The answer is basically: no.”

He continued:

“Here is the way—I will look at it another way. I am happy to give another judge all my cases. They can have my whole calendar, if somebody wants my cases. So if they ask for it, I will be happy to give it to them. Nobody asked for it. That’s the problem we have here....”

Div. Five reversed in an opinion by Justice Ramona Godoy Perez (since deceased). She explained that while one department of a superior court ordinarily may not interfere with proceedings in another department, there is an established exception. Where two departments have acquired jurisdiction over the same subject matter, the department which first gained jurisdiction may, under the “principle of priority of jurisdiction,” preclude further action by the second department, the jurist wrote.

(That principle was recently ignored by another cantankerous jurist, Los Angeles Superior Court Judge David Yaffe. He restrained a party from showing up for a scheduled appearance in an unlawful detainer action pending in the courtroom of another judge. The factor he ignored was that the other department of the same court had gained jurisdiction first.)

The fact of the stay order had not been brought to Schacter’s attention at the Sept. 23 hearing 1.) because of Rowell’s unethical failure to divulge its existence, and 2.) because Schacter unreasonably—and unconscionably— refused to hear from a lawyer who arrived a mere five minutes late (and who happened to have a good excuse for his tardiness). Once the matter of the stay order did come to Schacter’s attention through the motion for reconsideration, his obstinacy in refusing to honor that order, based on a mere hunch that he was not bound by it, was indefensible.

•In Kane v Hurley (1994) 30 Cal.App.4th 859, Div. Five reversed a frivolous sanction imposed by Schacter on attorney Jonathan B. Cole. Invoking Code of Civil Procedure §128.5, then in effect, he ordered Cole to pay $1,500 to the court. Justice Margaret Grignon pointed out `that under Code of Civil Procedure §177.5, a sanction of up to $1,500 may be imposed in favor of the county for violations of a court order, but the hitch was that no court order was breached. She wrote:

“Based on the clear language of section 128.5, its legislative history, and the enactment of subsequent related legislation, we conclude section 128.5 sanctions may not be awarded in favor of the trial court. Accordingly, the trial court acted in excess of its authority when it imposed sanctions payable to the court pursuant to section 128.5.”

Again, Schacter had acted rashly without bothering to look up the law.

•In Coe v. City of Los Angeles (1994) 24 Cal.App.4th 88, a judgment of dismissal was reversed by Div. Four. Schacter had scuttled the action based on a violation of the rule that cases be brought to trial within five years—yet the judge had rebuffed the plaintiff’s pleas that he set the case for trial before that time. The opinion by Justice Gary Hastings said:

“The evidence amply supports a finding of abuse of discretion. The evidence suggests that when the court noted on the minute order of March 16, 1992, that it was aware it was setting the matter beyond the five-year date, the court was apparently making a conscious choice at that time that this matter would be dismissed. Although trial courts bear a substantial burden with increasing workloads, it is essential they exercise judicial power so that expediency does not paralyze judicial discretion or frustrate justice.

“The abuse of discretion is compounded by the fact that when the trial court ordered the matter dismissed, it did not give appellants credit for the time that the matter could not go forward because of illness of the trial judge and the three continuances due to congestion of the court’s calendar. Appellants had no control over these circumstances. The five-year statute must be tolled by the aggregate period of court-ordered continuances based upon courtroom unavailability.”

The judge’s conduct in that case does appear to be that of an arbitrary jackass. So does his conduct in the other cases mentioned above, as well as in the case I discussed yesterday in which he conducted the trial in bits and pieces, at intervals weeks apart, until the Court of Appeal ejected him.

Schacter’s willful and bizarre departures from the norm are shameful. Yet, he’s gotten by with his erratic behavior for years, and in all probability he’ll keep on victimizing lawyers and litigants in the years ahead.