End of the Month

California Supreme Court Justice Kathryn M. Werdegar Retires Today...San Diego Superior Court Judge Gary Kreep Incurs ‘Severe Censure’...State Bar Dues Bill and Judicial Elections Reform Bill, Passed by Senate, Are Ripe for Assembly Action

Judges, Lawyers Under Scrutiny

Carmen Trutanich
Former Los Angeles City Attorney

Trutanich, as the deputy district attorney prosecuting a capital murder case in 1985 and 1986, put on a witness who testified that she witnessed defendant fatally shooting a victim from a van. The witness said she was in a station wagon being driven by one Jean Rivers. The Office of Chief Trial Counsel is alleging that when he “knew, or was grossly negligent in not knowing” that the testimony was false insofar as the identity of the driver, whose actual name was Arlene McKay. In failing to divulge the driver’s true identity, as well as her home address, Trutanich breached his constitutional obligation of making disclosures to the defense of potentially exculpatory evidence, as required by Brady v. Maryland (1963) 373 U.S. 83, it is asserted.

The initial notice of charges was dated Feb. 9. A second amended notice was filed July 10.

The current charges are that Trutanich:

•By committing a Brady violation, ran afoul of Business and Professions Code §6068(a) (duty to “support the Constitution and laws of the United States and of this state”).

•Suppressed evidence “in willful violation of Rules of Professional Conduct, rule 5-220.”

•Committed “an act(s) of moral turpitude, dishonesty, or corruption in willful violation of Business and Professions Code, section 6106.”

•By “intentionally or with gross negligence” failing to correct the testimony, “committed an act involving moral turpitude, dishonesty or corruption in willful violation of Business and Professions Code §6106.”

Trutanich, who served as city attorney from 2009 to 2013 and is now at Tucker Ellis LLP in Los Angeles, is also charged with allowing a police detective to testify falsely at a pretrial hearing in the same murder case. Trutanich has repeatedly denied the charges.

A status conference was held Tuesday. Trial dates were set for Nov. 13-17 and Nov. 28-30.

Gary Kreep
San Diego Superior Court

Kreep on Aug. 16 received a “severe” censure from the Commission on Judicial Performance. The commission said in a statement the following day:

“The commission determined dial Judge Kreep engaged in 29 acts of judicial misconduct: one act of willful misconduct, 17 acts of conduct prejudicial and 11 acts of improper action between 2012 and 2015. The commission determined that the acts of conduct prejudicial and willful misconduct afforded a sufficient basis for a severe public censure. Those acts included misconduct during his judicial campaign, making numerous comments in the courtroom reflecting a lack of courtroom decorum and an appearance of bias, engaging in an improper ex parte communication, acting out of hostility toward the San Diego City Attorney’s Office after they filed a “‘blanket” challenge against the judge, soliciting legal opinions from counsel not on the case and telling an African-American court employee that she should not say she did not win a Halloween costume contest ‘due to racism’ or words to that effect. The commission concluded that Judge Kreep had engaged in a pattern of misconduct that demonstrated a lack of judicial temperament.”

The commission faulted Kreep for soliciting money in 2012, while running for a judgeship, for the effort to defeat then-President Obama’s re-election bid.

But watchdog group said the evidence warranted removal but it decided against that measure because most of the misconduct occurred early in Kreep’s term and he has been striving to improve his performance

Michael S. Williams
Napa Superior Court Judge

Williams on July 17 received a censure from the Commission on Judicial Performance, pursuant to a stipulation, based on stealing at least two business card holders from a club in San Francisco during a bar association dinner. As part of the negotiated settlement, he will resign from office Dec. 5.

Williams will use up his accumulated leave time, going on vacation on Oct. 20 and remaining away from the courthouse until the resignation takes effect. It was also stipulated:

“Judge Williams also agrees that he will not seek or hold judicial office, accept a position or an assignment as a judicial officer, subordinate judicial officer, or judge pro tern with any court in the State of California, or accept a reference of work from any California state court, at any time after December 5, 2017.”

Judiciary: Vacancies, Appointments

Ninth U.S. Circuit Court of Appeals

There are four vacancies on the 29-judge court. Judge Harry Pregerson took senior status Dec. 11, 2015; Judge Barry Silverman took senior status Oct. 11; and Judges Richard Clifton and Diarmuid O’Scannlain took senior status Dec. 31. Senior Circuit Judge John T. Noonan, Jr. died April 17. There are no nominees for their seats.

There are five vacancies. Judge Audrey B. Collins retired Aug. 1, 2014 to join the state Court of Appeal; Judge Margaret Morrow took senior status Oct. 29, 2015 and subsequently left the bench to become president and chief executive of Public Counsel; Judge Dean Pregerson took senior status Jan. 28 of last year; Judge Christina A. Snyder took senior status Nov. 23 of last year; and Judge George H. King retired Jan. 6. There are no nominees to replace them.

Justice Kathryn M. Werdegar is retiring today.

Second District

Presiding Justice Paul A. Turner of Div. Five died May 18. There is a prior vacancy in that division, due to the retirement of Justice Richard Mosk, who left the court March 30 of last year and died 18 days later. There are also vacancies in Div. Two, due to the Jan. 31 retirement of Presiding Justice Roger Boren; Div. Three, due to the Oct. 5, 2015 retirement of Justice Patti S. Kitching; and Div. Seven, due to the retirement of Justice Fred Woods on March 31, 2015.
Among those whose names have been sent to the Commission on Judicial Nominees Evaluation as possible appointees to the court are Los Angeles Superior Court Judges Gail Ruderman Feuer, Ann H. Egerton, Rita Miller, Richard Rico, Helen Bendix, Ann Jones, and Sanjay Kumar; Los Angeles attorneys Kent Richland and Bradley Phillips; Ventura Superior Court Judge Tari Cody; and Southwestern Law School Professor Christopher Cameron.

A pro tems who is ending his service today is Los Angeles Superior Court Judge Dennis Landin.

Presently assigned to the Court of Appeal, and remaining through Sept. 30, are Los Angeles Superior Court Judges Monica Bachner, Natalie P. Stone, and Frank Menetrez. Remaining onboard will be Orange Superior Court Judge Kim Dunning.

Los Angeles Superior Court Judge Michael J. Raphael will be returning tomorrow to Div. Five, on which he previously served. He will be there until Oct. 3.

Fourth District

Justice Alex McDonald of Div. One died Sept. 8.

Seats in other districts are filled.

Los Angeles Superior Court

Three judges retired recently: Leland H. Tipton on July 31, Lloyd Nash on March 3, and David Minning on April 6.

Vacancies that remain to be filled from last year were created by the retirements of Judges Soussan Bruguera Dec. 15, Sally Meloch Dec. 10, Steven Van Sicklen Nov. 1, and John Henning Sept. 8.

Legislation of Interest to the Legal Community

The Legislature took the following action on bills of interest to the legal community in August.

•AB 3 , by Assemblymember Rob Bonta, D-Oakland, which would, as amended, require the State Department of Social Services to seek proposals and issue grants to provide indigent immigrants with assistance in seeking relief from the consequences of past criminal convictions, subject to appropriations. The bill was passed by the Assembly June 1 and was referred to Senate committees June 14. No action has been taken since then.

•AB 42 by Assemblymember Rob Bonta, D-Oakland, which, as amended, would implement a revised pretrial release procedure. The bill was defeated in the Assembly June 1 by a vote of 35 in favor and 37 against. A motion has been made to reconsider.

•AB 84 by Assemblymember Gene Mullin, D-South San Francisco, which would move the statewide primary election for all offices, including judges, to the first Tuesday after the first Monday in March, in presidential election years only. The bill is active but lumbering.

•AB 360 by Assemblymember Al Muratsuchi, D-Torrance, which would require the State Bar to coordinate legal aid programs for indigent veterans. The bill passed the Assembly May 11 by a vote of 77-0 and was sent to the Senate, where the Judiciary Committee on July 19 voted 7-0 in favor of passage. On Aug. 23, it was ordered to special consent calendar.

•AB 638 by Assemblymember Anna Caballero, D-Salinas, which, as amended, would prohibit nonlawyers from practicing as immigration consultants unless authorized by federal law to represent persons before the Department of Homeland Security or the Department of Justice. The bill was passed by the Assembly May 31 and on July 17 was approved by the Senate Committee on the Judiciary by a 4-2 vote. It is scheduled to be heard tomorrow in the Senate Appropriations Committee.

•SB 6 by Sen. Ben Hueso, D-El Centro, which, as amended, would create the Expanding Due Process Act, and would, among other things, appropriate $12 million to pay lawyers to represent immigrants, other than those convicted of violent felonies, facing removal from the United States. The bill, which passed the Senate as an urgency measure April 3 by a vote of 28-11, was referred to the Assembly committees on Judiciary and Human Services May 18. A June 20 hearing was canceled at the request of author. No further action has been taken, and the bill appears dead.

•SB 8 by Sen. Jim Beall, D-San Jose, which would expand mental health diversion, currently available only to misdemeanor defendants, to those charged with low-level felonies. The bill passed the Senate May 30 and has been sent to the Assembly Committee on Appropriations which approved it on June 27 by a vote of 4-2; it has been re-referred to that committee in light of author’s amendments. It is scheduled to be heard tomorrow.

•SB 29 by Sen. Ricardo Lara, D-Bell Gardens, which would prohibit local governments from contracting with private entities to detain immigrants facing deportation. The bill passed the Senate on May 30, was approved by the Assembly Judiciary Committee June 28, and has been referred to the Appropriations Committee. It was set for hearing there July 19 but was placed on the suspense file. It is scheduled to be heard by that committee tomorrow.

•SB 36 by Sen. Hannah-Beth Jackson, D-Santa Barbara, which would authorize the State Bar to impose 2018 and 2019 dues in the same amounts as in 2016. The bill would also replace the current 19-member Board of Trustees with a 13-member board consisting of seven attorneys and six public members, and spin off the State Bar sections into a separate organization. The bill passed the Senate May 15 by a vote of 38-0 and was sent to the Assembly, where it was referred to the Judiciary Committee May 26. It was approved by that committee on July 19 11-0. It could be acted on as early as today.

•SB 235 by Sen. Ben Allen, D-Santa Monica, which would regulate the use of ballot designations by judicial candidates. The bill passed the Senate May 22 by a vote of 34-1 and was sent to the Assembly. It passed the Elections Committee June 28 by a vote of 6-1 and by the Judiciary Committee on July 18 10-1. It could be acted on as early as today.