End of the Month

Jan.
31,
2003

A report on where
things
stand

Five Newly Elected Judges Join Superior Court...Ex-Judge Patrick Murphy Tells State Bar Court He Did Not Commit Misconduct...Orange County Jurist James Selna Nominated for U.S. District Court

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

MURPHY

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

The nominations of Assistant Attorney General Jay Bybee and Los Angeles Superior Court Judge Carolyn B. Kuhl to the court were resubmitted on Jan. 7.

There are four vacancies, the most recent being a result of Judge Ferdinand F. Fernandez taking senior status June 1 of last year.

Judge James Browning took senior status Sept. 1, 2001, Judge Procter Hug Jr. on Jan. 1 of last year, and the late Judge Charles Wiggins on Dec. 31, 1996.

President Bush on May 23 of last year nominated Bybee, a former law professor at the University of Nevada-Las Vegas, to succeed Hug. He did not receive a confirmation hearing in the 107th Congress.

Kuhl was tapped by Bush in 2001 to succeed Browning. Kuhl has not received a confirmation hearing, as Democratic Sen. Barbara Boxer would not sign a "blue slip."

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., declined to schedule confirmation hearings for judicial nominees without the approval of both senators from a nominee's home state.

With the Republican takeover of the Senate as a result of the Nov. 5 elections, Sen. Orrin Hatch, R-Utah, will become chairman of the Judiciary Committee and has said he will revise the blue-slip policy. Opposition from home state senators will be taken into consideration, Hatch said, but will not necessarily preclude a confirmation hearing.

Kuhl, 48, is a seven-year veteran of the Superior Court bench. She previously served in the U.S. Department of Justice as a special assistant to Attorney General William French Smith, and worked in the office of the solicitor general during the Reagan administration. She is married to Los Angeles Superior Court Judge William Highberger.

She clerked for Anthony J. Kennedy, then a Ninth Circuit judge, after graduation from Duke University School of Law.

The president will reportedly nominate San Francisco Superior Court Judge Carlos Bea and Third District Court of Appeal Justice Consuelo Callahan to fill the two remaining vacancies.

The nominations of Los Angeles Superior Court Judge S. James Otero and Orange Superior Court Judge Cormac J. Carney were resubmitted on Jan. 7, and Orange Superior Court Judge James V. Selna was nominated on Jan. 29.

OTERO

Otero was nominated by President Bush on July 18 of last year to succeed Judge Richard Paez, elevated to the Ninth Circuit in March 2000. Otero's nomination was returned when the Senate adjourned, but he received a highly favorable rating from the American Bar Association, as well as the support of Sens. Barbara Boxer and Dianne Feinstein, and is expected to receive a confirmation hearing in the near future.

The president nominated Carney, a former UCLA football star who became a successful litigator, on Oct. 10 of last year to fill the vacancy resulting from Carlos Moreno's confirmation as a California Supreme Court justice on Oct. 17, 2001.

Selna would fill a vacancy resulting from Judge J. Spencer Letts taking senior status Dec. 19, 2000. A new judgeship was created by the Department of Justice Appropriations Authorization Act signed into law last year, but it cannot be filled until July 15 of this year.

There are no vacancies.

This District (Second District)

Justice Dennis Perluss was confirmed and sworn in as presiding justice of Div. Seven on Jan. 10 to succeed Presiding Justice Mildred Lillie. Lillie, California's longest-serving jurist, died Oct. 27 at age 87.

PERLUSS

There is a vacancy in Div. Seven as a result of Perluss' elevation to presiding justice, and a seat in Div. Eight that has been vacant since the division's creation in 2001.

The names of Los Angeles Superior Court Judges Charles Lee, Richard Rico, Aurelio Muñoz and Thomas Willhite Jr. have been sent to the Commission on Judicial Nominees Evaluation as potential appointees.

Fourth District

Presiding Justice Daniel Kremer of Div. One will retire sometime in July, a court official said.

Three new justices were confirmed and sworn in Jan. 10. Cynthia G. Aaron, formerly a U.S. magistrate judge, joins Div. One, Jeffrey King was elevated from the San Bernardino Superior Court to Div. Two, and Raymond Ikola was elevated from the Orange Superior Court to Div. Three.

Aaron and King fill new seats created by SB 1857, which was effective Jan. 1, 2001. Ikola succeeds Justice Thomas Crosby, who retired June 1, 2001.

Sixth District

Justice Conrad Rushing was confirmed and elevated to presiding justice Jan. 21. He succeeds Christopher Cottle, who retired in August 2001.

Seats in other districts are filled.

Los Angeles Superior Court

Four judges elected on Nov. 5, and another who won outright in the March primary, took office Jan. 6. Hank Goldberg succeeds retired Judge Michael Pirosh, Paul Bacigalupo replaces retired Judge David Finkel, Richard Naranjo succeeds Judge Richard Spann, and Richard Walmark replaces Judge Reginald Dunn.

Lauren Weis, who defeated three opponents in the March primary, succeeds Judge Michael Kanner.

WEIS

Bacigalupo was a State Bar Court judge at the time of his election. The other new judges were deputy district attorneys.

Three vacancies were created last month when Judges Pamela Rogers and Reginald Yates had their disability retirements approved and Judge R. Gary Klausner took the oath as a U.S. district judge for the Central District of California.

Judge Keith Groneman has scheduled retirement for today and Judge Robert Mackey for Feb. 25.

Judge David W. Perkins is expected to return next month following a successful liver transplant.

Judge Aurelio Muñoz remains on assignment to Div. Seven of this district's Court of Appeal through next month.

H. Don Christian was elected a court commissioner in balloting that concluded last week, and is expected to be sworn in around the middle of next month. Another commissioner will be elected in a runoff between attorneys Dennis Mulcahy of Woodland Hills and Stuart Rice of Long Beach, with results due to be announced Feb. 14. The new commissioners replace David Sotelo and Robert Schnider, who were appointed judges.

Legislation of Interest to the Legal Community

The following legislation related to the legal profession was acted upon in January.

•AB 2, by Assemblyman Russ Bogh, R-Yucaipa, which would allow crime victims to submit statements to parole boards on CD-Rom or DVD. The bill was amended Jan. 29 to include the CD-Rom and DVD language.

•AB 112, by Assemblywoman Jackie Goldberg, D-Los Angeles, which would alter the "three strikes" sentencing law so it would apply to violent or serious felonies, rather than to any felony. The bill was introduced Jan. 13.

•AB 155, by Assemblywoman Christine Kehoe, D-San Diego, which would provide that there is good cause for a continuance in a homicide or forcible sex crime case if there is a temporary unavailability of forensic DNA analysis results and reports, when the DNA evidence at issue is pending analysis at a laboratory at the time a motion for continuance is made. The bill was introduced Jan. 22.

•AB 161, by Assemblyman Mervyn Dymally, D-Compton, which would encourage law enforcement officers, including district attorneys, to voluntarily videotape interviews and interrogations in felony cases. The bill was introduced Jan. 22.

•SBX1 8 , by the Senate Budget and Fiscal Review Committee, which would eliminate state prison as a sentencing option for people convicted of petty theft with a prior who have no prior felony convictions. The bill was introduced Jan. 27 and was sent to the Senate floor without committee hearings.

•SJR 4 , by Sen. Joseph Dunn, D-Garden Grove, which would ask Congress and the president to repeal language in the Homeland Security Act of 2002 which bars lawsuits by parents of children who allege that Thimerosal, a preservative in some vaccines, led to their children's health problems. The non-binding resolution was introduced Jan. 15.