Feb.
28,
2005

A report on where
things
stand



Hearing Tomorrow on Controversial Nomination of William G. Myers of Idaho to Ninth Circuit...Judges and Commissioner Slate Retirements...State Bar Dues Bill Introduced, Would Eliminate Discount for Lawyers Whose Income
Is Not From Practicing Law



Judges, Lawyers Under Scrutiny

John D. Harris
Retired Los Angeles Superior Court Judge

The Commission on Judicial Performance heard argument in San Francisco Jan. 26 on the misconduct charges against Harris, a 30-year judicial officer who retired in October.

A staff attorney urged the commission to reject the findings of a panel of special masters, which absolved Harris of nearly all of the charges of misconduct brought against him.

The special masters-Court of Appeal Justice Eileen C. Moore of the Fourth District's Div. Three, San Bernardino Superior Court Judge Patrick J. Morris, and Ventura Superior Court Judge Henry J. Walsh-heard evidence for five days in Pasadena in May.

The CJP accused Harris of seeking to establish personal relationships with sexual assault victims, making inappropriately personal comments to jurors, attorneys, and court staff, throwing a file at a deputy city attorney, and lying during an investigation into his conduct.

The masters rejected charges that after two felony sexual assault trials in 2000, Harris met in chambers with the victims and sought to initiate personal relationships.

Harris acknowledged that he spoke to the victims in chambers and that the meetings were improper because the cases were not yet final. But he testified that he sought only to comfort the victims because he was moved by their plight, and did not intend to have any extensive or improper continuing relationships with them.

The masters found that testimony credible, citing many witnesses who said that Harris was an empathetic person by nature and noting that despite his years of judicial experience, he was new to handling felony sex crimes.

The masters also found that the commission had failed to prove that comments made by Harris to or about female attorneys, court staff members, or jurors on various occasions were inappropriately flirtatious or sexual. The comments included invitations to have lunch, a remark that a staff member was "cute," and thanking a lawyer for not challenging an attractive female juror because a judge "has to have something to look at during trial."

The panel accepted Harris' testimony that in hindsight, he recognizes that some of his remarks could have been taken as offensive, but that he had no intention of making anyone feel ill at ease.

Kevin A. Ross
Los Angeles Superior Court Judge

Final arguments were heard by the special masters this month on the charges against Ross, the subject of a misconduct hearing last November.

Ventura Superior Court Judge Vincent J. O'Neill, Fourth District Court of Appeal Justice Judith Haller, and San Bernardino Superior Court Judge Michael A. Smith were the special masters for the hearing, which was postponed from September after the commission brought additional charges.

The CJP asserted in its original formal notice of proceedings that Ross made comments about pending cases on a public television program on four occasions, was twice absent from court without authorization, and in four instances treated criminal defendants inappropriately. It later added allegations that the jurist improperly sought to promote a courtroom simulation television program in which he would star.

The CJP originally cited appearances by Ross, a former prosecutor, on the KCET public television program "Life and Times Tonight" during 2001 and 2002. Ross, a frequent guest on the public affairs discussion program, gained a seat on the Inglewood Municipal Court in 1998 by defeating Judge Lawrence Mason and became a Superior Court judge upon unification in 2000.

Among the canons of the Code of Judicial Ethics violated by the four appearances, the CJP asserted, is Canon 3B(9), which says that a judge shall not shall not "make any public comment about a pending or impending proceeding in any court."

Both of the unauthorized absence allegations also relate to public appearances made by the judge.

Ross testified that his television appearances were consistent with the California courts' efforts to educate the public on the judicial process and noted that other judicial officers had appeared with him or on similar programs. He also contended that the restrictions on judicial comment on pending cases are unconstitutional.

The CJP also cited four instances in which Ross allegedly improperly communicated with criminal defendants or became "embroiled" in their cases and "abandoned [his] judicial role." Ross admitted that in one case, he inappropriately ordered a traffic court defendant jailed because he believed she had provided false information about her identity, and that in another matter, he improperly interrogated an unrepresented defendant after the man said he wanted to consult with an attorney.

Ross defended his conduct in the other matters, including one in which he ordered a lawyer escorted from the courtroom for having continually interrupted him while he was sentencing her client for a probation violation.

In the amended notice filed Sept. 1, the CJP said the judge contracted in 2002 with a production company for a show to be called "Mobile Court." Ross was to resolve small claims cases, with the parties stipulating to be bound by his rulings.

Among the ethical canons violated by Ross' conduct, the CJP asserted, was Canon 2B(2), which provides that a judge "shall not lend the prestige of judicial office to advance the pecuniary or personal interests of the judge or others."

Ross' attorney and agent testified that his name and title were not supposed to be used in connection with the presentation. Ross said he unintentionally violated the ethics code by signing arbitration awards to the winning "litigants," since judges cannot engage in private alternative dispute resolution, but denied that he abused his office by participating in the effort to sell the program.


Judiciary: Vacancies, Appointments




Ninth U.S. Circuit Court of Appeals

There are four vacancies on the court.

Judge Stephen S. Trott took senior status Dec. 31, Judge A. Wallace Tashima took senior status June 30, Judge James Browning took senior status Sept. 1, 2000, and Judge Thomas G. Nelson took senior status Nov. 14, 2003.

A hearing is scheduled for tomorrow on the nomination of William G. Myers III to succeed Nelson. President Bush resubmitted Myers' nomination on Feb. 14.

Republican senators tried and failed in July of last year to force a floor vote on the nomination of Myers. The vote on the motion to invoke cloture was 53-44, short of the three-fifths required, with both California senators voting against.

Myers, who was first nominated on May 15, 2003, is a former solicitor of the Department of the Interior and now practices law in Boise, Idaho. He has drawn opposition from native American activists and environmental groups.

His supporters say he holds mainstream, balanced views on environmental and other issues.

U.S. Attorney Debra Yang of the Central District of California is reportedly under consideration for appointment to the court.

 

Judge Gary L. Taylor took senior status Dec. 8 and Judge Robert J. Timlin took senior status Feb. 1. Judge Dickran M. Tevrizian will assume senior status Aug. 5.




There are no vacancies. 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.

Brown's nomination to that court was resubmitted Feb. 14. She was originally nominated July 25, 2003.

Brown cleared the Judiciary Committee on a party-line vote of 10-9, but an attempt to invoke cloture and force an up-or-down vote on her nomination failed on Nov. 14, 2003. The vote was 53-43 in favor of cloture, seven short of the required three-fifths majority of the entire Senate.


Second District

Gov. Arnold Schwarzenegger this month nominated Los Angeles Superior Court Judges Sandy Kriegler Frances Rothshchild, and Thomas Willhite Jr. to fill the three existing vacancies on the court. The three face confirmation hearings April 4.

If confirmed, Willhite will fill the vacancy created last October when Norman L. Epstein, a member of Div. Four since 1990, was confirmed and sworn in as presiding justice. Kriegler will fill the position left open by the retirement of Justice Reuben Ortega of Div. One on Dec. 3, while Rothschild would succeed Justice Margaret Grignon, who retired from Div. Five Dec. 31.

Other candidates whose names were sent to the State Bar Commission on Judicial Nominees Evaluation were Judges Elihu Berle, Stephen D. Petersen, Michael M. Johnson, and Marvin Lager.

Justice Michael Nott is retiring from Div. Two April 1. Potential appointees to his seat whose names were sent to the JNE Commission include Judges Aurelio Munoz, Owen Lee Kwong, Peter Lichtman, Carl West, Ronald Coen, Chris R. Conway, Frank Y. Jackson, William Highberger and Fumiko Wasserman.

Sixth District

Justice William Wunderlich resigned April 30 to become a U.S. magistrate judge based in Yosemite National Park.

Seats in other districts are filled.

Los Angeles Superior Court


Gov. Arnold Schwarzenegger appointed four new judges Feb. 16. They are Michael Levanas, who was a commissioner prior to his appointment; Deputy District Attorneys Eleanor Hunter and Scott Millington; and Claremont attorney Dorothy Reyes.

Levanas was sworn in Feb. 17 and replaces Judge Margaret Hay, who retired March 31; Hunter, who is presently engaged in a trial, will replace Judge Dale Fischer, who joined the U.S. District Court for the Central District of California on Nov. 17, 2003; Millington took the oath Feb. 18 and succeeds Judge Chesley N. McKay Jr., who retired April 1; and Reyes will replace Judge Alan Haber, who retired Feb. 9 of last year.

There are currently 11 vacancies on the court. Vacancies resulted this month from the retirements of Judges David Perkins and Dean Farrar Feb. 18, the retirement of Judge Thomas Stoever Feb. 14, the death of Judge C. Robert Simpson Feb. 13, and the death of Judge L. Jeffrey Wiatt Feb. 9.

Previous vacancies occurred when Judge Alan Buckner died Dec. 12, Judge Veronica McBeth was granted disability retirement Dec. 9, Judge John Harris retired Oct. 29, Judge Susan E. Isacoff retired July 1, and Judges John Ouderkirk and Lawrence Crispo retired April 5.

Additional vacancies will occur when Judge Ronni B. MacLaren resigns to join the Alameda Superior Court, to which she was appointed Feb. 23, when Judge Judith Abrams retires April 30, and when Judge Lorna Parnell retires May 4.

MacLaren, who relocated to Northern California in connection with her husband's employment, had been sitting on assignment in Alameda County in place of Judge Alfred Delluchi while he presided over the Scott Peterson trial in San Mateo County. She subsequently sat in Marin and San Francisco.
Abrams' last day on the bench will be March 30; Parnell's is yet to be determined.

Commissioner Roberta Kyman died Dec. 7. Her successor will be chosen in a runoff election between attorney Anthony Drewry of Munger, Tolles and Olson and retired Commissioner John Murphy.

Ballots in that election are to be counted Friday.

Commissioners Mitchel Harris and H. Franklin Jones retired Friday, leaving three commissioner vacancies, including the one created when Levanas became a judge.

Commissioner Stephen Leventhal is retiring March 31. Commissioner Patricia G. Schwartz is also expected to retire shortly but has not officially set a date.


Legislation of Interest to the Legal Community

AB 27, by Assemblyman Gene Mullin, D-South San Francisco, which would expedite the process by which a county's costs are reimbursed after venue of a homicide trial has been transferred to that county. The bill was referred to the Committee on Local Government Jan. 6.

AB 108, by Assemblyman Guy S. Houston, R-Walnut Creek, which would require an advertisement by a lawyer or law firm that urges a person or entity to take an action that may lead to the filing of a claim for residential construction deficiencies to disclose specified information, including the availability of alternative dispute resolution. A hearing on the bill was cancelled this month at the author's request.

AB 112, by Assemblywoman Rebecca Cohn, D-Saratoga, which would require a court to verify the identity of the petitioner before granting a modification or early termination of a domestic violence restraining order. A scheduled hearing was postponed Feb. 22 by the Assembly Judiciary Committee.

AB 120, by Cohn, which would authorize a pilot project, in any county where local governments are willing to provide funding, for improved recordkeeping by superior courts in domestic violence cases. A hearing on the bill was cancelled this month at the author's request.

AB 176, by Assemblyman Rudy Bermudez, D-Norwalk, which would clarify the status of certain workers hired as temporary trial court employees by providing that any such employee will be reclassified as permanent after 180 days of employment. The bill was referred to the committees on Public Employees, Retirement and Social Security, and Appropriations, on Feb. 22.

AB 182, by Assemblyman John J. Benoit, R-Riverside, which would make a technical change in the form of a search warrant. The bill was referred to the Committee on Public Safety Feb. 15.

AB 192, by Assemblyman Van Tran, R-Costa Mesa, which would limit public entity tort liability to $250,000 per person or $500,000 per occurrence, and would provide that the applicability of design immunity is a question of law rather than of fact. The bill was referred to the Judiciary Committee Feb. 3 and is scheduled for a hearing March 8.

AB 202, by Assemblyman Tom Harman, R-Huntington Beach, which would specify that the filing of a petition under the California Arbitration Law is the exclusive means by which an agreement to arbitrate may be enforced. The bill was introduced Feb. 3 and referred to the Judiciary Committee, which is scheduled to hold a hearing on March 15.

AB 220, by the Committee on Public Safety, which would change the name of the "battered woman syndrome" defense to "intimate partner battering." The bill was introduced Feb. 3 and referred to the committees on Public Safety and Judiciary on Feb. 22.

AB 262, by Assemblywoman Patty Berg, D-Eureka, which would provide that the Judicial Council may not require that a structure proposed for transfer from a county to the state for court occupancy meet a building code standard stricter than the standard adopted for county buildings in the county proposing the transfer. The bill was introduced Feb. 8.

AB 265, by Assemblyman Ray Haynes, R-Temecula, which would prohibit a court from modifying an order granting custody of a child if the party who was granted custody of the child is a member of the California National Guard and he or she has been called to active duty, unless the court determines that modifying the order is in the best interest of the child and the party has either died while on active duty or is no longer able to provide adequate care for the child. The bill was introduced Feb. 8 and referred to the Judiciary Committee.

AB 415
, by Harman, which would repeal the Jan. 1, 2006 sunset date of legislation allowing non-California attorneys to appear in arbitration proceedings in this state. The bill was introduced Feb. 15.

AB 1322, by Assemblywoman Noreen Evans, D-Santa Rosa, which would amend the requirement that a judge who has had discussions with an ADR provider regarding potential employment recuse himself or herself, absent waiver, from matters involving the possible appointment of an ADR neutral. The bill would provide that this is only grounds for disqualification if the discussions were "more than casual." The bill was introduced Feb. 22.

AB 1529, by Assemblyman Dave Jones, D-Sacramento, which would make permanent the State Bar's authority to impose annual membership dues, increase the assessment for the Client Security Fund by $5, substantially increase dues for inactive members, and require members with income of more than $40,000 annually from all sources to pay the full amount of dues even if none of that income is derived from the practice of law. The bill was introduced Feb. 22.

SB 16, by Sen. Elaine Alquist, D-San Jose, which would make technical changes in certain criminal statutes of limitations. The bill passed the Senate Feb. 2 by a vote of 30-0 and passed the Assembly Feb. 22 by a vote of 72-0.

SB 111, by Alquist, which would permit prosecution of sex crimes against minors at any time prior to the victim's 30th birthday, replacing the current 10-year statute of limitations as well as the law permitting otherwise time-barred prosecutions to be brought, in some circumstances, up to one year after a police report is filed. The bill was referred to the Committee on Public Safety Feb. 10.

SB 151, by Sen. Nell Soto, D-Ontario, which would make attempts to corruptly influence judicial officers punishable under Penal Code Sec. 95. The statute currently makes it a felony to use corrupt means, including bribery, threat, intimidation, and unauthorized communication, to influence a juror, arbitrator or referee. The bill was introduced Feb. 7 and referred to the Committee on Public Safety Feb. 24.

SB 232, by Sen. Liz Figueroa, D-Fremont, which would extend to an unspecified date the July 1, 2006 sunset provision of legislation establishing the Court Reporters Board. The bill was introduced Feb. 15.

SB 252, by Sen Dick Ackerman, R-Tustin, which would prohibit the payment of money or anything of value by a party to a proceeding to any person who served as a juror if the payment is related to that person's jury service. The bill was introduced Feb. 15.

SB 265, by Sen. John Campbell, R-Costa Mesa, which would limit the number of annual holidays observed by state employees to 12 and encourage the judiciary, which currently observes 13 holidays each year, to follow suit. The bill was introduced Feb. 15 and referred to the committees on Public Employees, Retirement and Social Security and Rules Feb. 24.

SB 444, by Sen. Martha Escutia, D-Montebello, which would increase the limit of small claims jurisdiction from $5,000 to $10,000. The bill was introduced Feb. 17.

SB 528, by Ackerman, which would declare the Legislature's intent to evaluate the impact of trial court unification on the judges' retirement systems and the resulting increase in the judges' age at the start of their judicial service. The bill was introduced Feb. 18.

SB 529, by Sen. Bill Morrow, R-Oceanside, which would make a technical change with respect to the attorney-client privilege. The bill was introduced Feb. 18.

SB 815, by Sen. Deborah Ortiz, D-Sacramento, which would make a technical change with respect to service by publication. The bill was introduced Feb. 22.



 

 

 


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