End of the Month

Gov. Davis Nominates Superior Court Judges to Serve on Courts of Appeal for This, Fourth, Fifth and Sixth Districts...Justice Judith McConnell Named Presiding Justice of Div. One,
Fourth District...Bill Creating Client Confidentiality Exception Sent to Governor

Judges, Lawyers Under Scrutiny

Patrick B. Murphy
Attorney and former Superior Court judge

Murphy, who resigned from the Los Angeles Superior Court in May 2001 while on the verge of being removed from office, had asked to enter the State Bar Court's diversion program for lawyers with mental health or substance abuse problems but was placed on involuntary inactive status Aug. Aug. 9 pusuant to Business and Professions Code Sec. 6007(e). That section permits the State Bar Board of Governors or the State Bar Court to place an attorney on inactive status when a default is entered in a disciplinary proceeding.

Murphy responded in pro per Jan. 7 to disciplinary charges filed in November.

The proceeding largely tracks the action taken against Murphy by the Commission on Judicial Performance, which censured him and barred him "from receiving any assignment, appointment, or reference of work from any California state court."

Murphy denied "committing acts involving moral turpitude, dishonesty or corruption," in violation of Business & Professions Code Sec. 6106, as charged by the State Bar.

The charges parallel those which were found by the commission to be true: excessive absenteeism over a four-year period, engaging in outside activities when he should have been on the bench, lack of candor with the presiding judge of the Citrus Municipal Court (on which he sat prior to unification), creating administrative problems by virtue of his absences, and malingering.

The notice recites that Murphy was absent from Sept. 20, 1999, until April 3, 2000; stopped working as of June 8, 2000; and resigned on May 4, 2001. Largely drawn from the commission's May 10 decision, the notice chronicles Murphy's activities during the time he was supposedly too sick to work: teaching one or two night law classes a week, completing pre-med physics and chemistry courses at Cleveland Chiropractic College in Los Angeles, and attending classes at a school of medicine on the island of Dominica in the West Indies from January to April of 2000.

Murphy does not deny those allegations, but claimed in his response that he was indeed ill, suffering from various maladies including a "phobia" regarding judicial service. His outside activities were a diversion he hoped would eventually enable him to return to the bench, he said.

Murphy also denied lying about his state of health to Rolf Treu, the presiding judge of the Citrus court.

Judiciary: Vacancies, Appointments

Ninth U.S. Circuit Court of Appeals

There are two vacancies and one scheduled future vacancy on the 28-judge court.

A cloture vote on the nomination of Los Angeles Superior Court Judge Carolyn Kuhl, which was scheduled for Aug. 1, was called off after Senate Republican and Democratic leaders agreed to deal with other issues before going home for the summer recess. If Democrats persist in their willingness to filibuster the nomination, a new cloture vote would be scheduled once the Senate convenes this week.

The Judiciary Committee on May 8 approved Kuhl by a vote of 10-9. Kuhl was tapped by Bush in 2001 to succeed Judge James Browning, who took senior status Sept. 1, 2000.

The president nominated San Francisco Superior Court Judge Carlos Bea April 11 for the seat left vacant when the late Judge Charles Wiggins took senior status on Dec. 31, 1996. Sens. Barbara Boxer and Dianne Feinstein signed "blue slips," with Feinstein indicating support for Bea, while Boxer indicated that she favors a confirmation hearing before the Judiciary Committee but "reserves judgment" on the nomination itself.

The American Bar Association reported that a "substantial majority," meaning at least two-thirds, of its evaluating committee rated Bea "qualified" for the court, with the remaining member or members voting him "not qualified."

President Bush on May 15 nominated William G. Myers III of Idaho, currently solicitor of the Department of the Interior, to succeed Judge Thomas G. Nelson, who takes senior status Nov. 14. A majority of the ABA committee found Myers qualified, with at least six members voting not qualified.

Los Angeles Superior Court Judge Dale Fischer was nominated May 1 for a new seat created by the Department of Justice Appropriations Authorization Act. Sens. Dianne Feinstein and Barbara Boxer have signed blue slips in support of the nomination.

Fischer was unanimously rated "well qualified" by the American Bar Association's evaluating panel.

There are no vacancies, but one would be created if the Senate confirms Justice Janice Rogers Brown to the U.S. Court of Appeals for the District of Columbia Circuit, to which she was nominated July 25.

This District (Second District)

Gov. Davis named Los Angeles Superior Court Judge Laurie Zelon Aug. 26 to fill a vacancy in Div. Seven resulting from Justice Dennis Perluss' elevation to presiding justice, and on the same day nominated Los Angeles Superior Court Judge Madeleine Flier to a seat in Div. Eight that has been vacant since the division's creation in 2001. A confirmation hearing has been set in Los Angeles Sept. 25.

Third District

There is a vacancy resulting from former Justice Consuelo Callahan's appointment to the Ninth U.S. Circuit Court of Appeals.

Fourth District

On Aug. 26, Davis nominated Justice Judith McConnell of Div. One to replace Presiding Justice Daniel Kremer, who retired July 31. On the same day he named San Diego Superior Court Judge Joan Irion to replace McConnell. Both nomination will be considered at the Sept. 25 confirmation hearing in Los Angeles.

Fifth District

Davis nominated Merced Superior Court Judge Betty L. Dawson on Aug. 26 to replace Justice James Thaxter, who retired in May of 2001. Dawson's nomination will be considered at a confirmation hearing in San Francisco Sept. 26.

Sixth District

Santa Cruz Superior Court Judge Richard J. McAdams was named by Davis on Aug. 26 to fill the vacancy resulting from the elevation of Justice Conrad Rushing to presiding justice. His nomination will be considered at the Sept. 26 confirmation hearing in San Francisco.

Seats in other districts are filled.

Los Angeles Superior Court

There are three vacancies on the court, and two more will be added if, as expected, Zelon and Flier are confirmed to seats on this district's Court of Appeal.

Judge Marilyn Hoffman retired June 6, Judge James Sutton retired June 30 and Judge William C. Beverly Jr. retired Aug. 3.

Balloting is underway for two commissioner vacancies. The winners will succeed Joseph S. Biderman, who was appointed a judge, and Robert McIntosh, who retired Aug. 11.

Legislation of Interest to the Legal Community

The following legislation relating to the legal profession was acted upon in August:

•AB 862, by Assemblyman Marco Firebaugh, D-Los Angeles, which would require state agencies to notify certain unions when hiring private lawyers to provide representation in any judicial proceeding. The bill was approved by the Senate Appropriations Committee on an 8-4 vote Aug. 18, passed the Senate on a 22-14 vote Aug. 27 and was sent to the Assembly for a vote on Senate amendments.

•AB 1095, by Assemblywoman Ellen Corbett, D-San Leandro, which would require the Judicial Council, using its own money and county funds, to create a task force on county law libraries, to make recommendations to the Legislature by Jan. 1, 2005. The bill was approved by the Senate Appropriations Committee on a 9-0 vote Aug. 18, passed the Senate on a 35-3 vote Aug. 27 and was sent to the Assembly for a vote on Senate amendments.

•AB 1101, by Assemblyman Darrell Steinberg, D-Sacramento, which would create an exception to an attorney's duty to maintain a client's confidence if the lawyer reasonably believes the disclosure of a confidence or secret is necessary to prevent the commission of a criminal act likely to result in death or substantial bodily harm to an individual. The Assembly voted 75-1 on Aug. 25 to concur with Senate amendments, and the bill was sent to the governor's desk.

•AB 1708, by the Assembly Judiciary Committee, which would authorize the State Bar to continue collecting its current level of annual dues, a maximum of $390, in 2004. The bill would make changes to the dues "scaling" provisions for lower-income lawyers in order to raise more money for State Bar operations. The bill was approved by the Senate on a 28-8 vote Aug. 25 and was sent to the Assembly for a vote on Senate amendments.

•AB 1712, by the Assembly Judiciary Committee, which would authorize the court to hold certain arbitration hearings earlier to expedite the resolution of disputes. The bill was approved by the on a 39-0 vote Aug. 21 and was sent to the Assembly for a vote on Senate amendments.

•SB 328 , by the Senate Judiciary Committee, which would correct erroneous references in the provisions for the Court Facilities Trust Fund and would increase a Fresno County criminal penalty from $5 to $7. The bill was approved by the Assembly Appropriations Committee on a 23-0 vote Aug. 21 and was sent to the Assembly floor.

•SB 337, by Sen. Gloria Romero, D-Los Angeles, which would add the crime of the unauthorized practice of law to the list of offenses for which the statute of limitations does not commence until discovery of the offense. The bill was approved by the governor July 31 and was chaptered by the secretary of state Aug. 1.

•SB 660, by Sen. Jackie Speier, D-San Francisco, which would establish procedures for keeping the Social Security numbers of parties in dissolution proceedings in the confidential portion of court files. The bill was approved by the governor July 31 and chaptered by the secretary of state Aug. 1.

•SCA 1 , by Senate President Pro Tem John Burton, D-San Francisco, which would amend the state Constitution to establish that "the people have the right of access to information concerning the conduct of the people's business," and could require superior court executive committees to open their meetings to the public. The proposed amendment passed the Assembly Elections, Redistricting and Constitutional Amendments Committee on a 4-0 vote Aug. 19 and was referred to the Assembly Appropriations Committee.