End of the Month

July
31,
2001

A report on where
things
stand

Commission Hears Argument on Couwenberg...Court Mourns O’Neill, Cappai...Magistrate Judges Selected

Judges, Lawyers Under Scrutiny

Patrick Couwenberg
Los Angeles Superior Court Judge

The Commission on Judicial Performance heard argument July 19 in a disciplinary proceeding that could result in Couwenberg, a Los Angeles Superior Court judge since 1997, being removed from the bench.

COUWENBERG

A panel of special masters found May 15 that Couwenberg misrepresented his educational and military backgrounds to various sources, including the governor who appointed him.

CJP lawyer Jack Coyle argued that Couwenberg should be removed from the bench because his lies about his military service and his educational and professional experience were a factor in his appointment to the bench.

Couwenberg’s lawyers said the judge deserved an opportunity to remain in office. They argued that his statements were not malicious, but were the product of a psychological impairment, and pointed to praise the jurist has received for his work from both prosecutors and defense attorneys who have appeared before him.

Couwenberg is continuing to hear criminal cases in Norwalk.

The judge has admitted that he falsely claimed to hold a master’s degree in psychology and made false claims of military experience, including an award of a Purple Heart, in Vietnam.

The special masters found that he also lied to the commission itself, in sworn testimony, by claiming to have participated in covert operations with the CIA in Southeast Asia in 1967 and 1968. Couwenberg testified that those claims are true, although he no longer maintains he was with the CIA and says he doesn’t know what agency he was looking for.

A CIA official testified that Couwenberg wasn’t working for that agency and that it’s highly unlikely that any other agency would have recruited Couwenberg for operations in Laos because no such missions were authorized.

Couwenberg claimed that some of his misstatements were intended to be humorous. Other statements, he claimed, were typed onto official forms by his wife, based on statements he had made to her 20 years earlier, a claim the masters found lacking in credibility.

A psychiatrist testified that the judge suffers from "pseudologica fantastica," a symptom of low self-esteem rooted in the judge’s early childhood in what is now Indonesia followed by difficult relocations, first to Holland and then to the United States.

The doctor said that the condition causes Couwenberg to mix fact and fantasy, but that it is treatable with therapy and doesn’t render him unfit for judicial service.

The masters, however, largely agreed with a psychiatrist called by commission lawyers at the masters’ hearing. Psychological testing data, Dr. James Rosenberg said, doesn’t show that the judge’s "repetitive lying" as an adult is due to childhood trauma, nor that he suffers from any recognized mental illness.

James Simpson
Los Angeles Superior Court Judge

Simpson, who became a Glendale Municipal Court judge in 1994 and joined the Superior Court through unification last year, has applied for disability retirement.

SIMPSON

Simpson has been under preliminary investigation by the Commission on Judicial Performance, and the investigation is apparently still open.

The investigation centers on charges that Simpson attempted to influence court commissioners in their handling of traffic cases involving friends of the judge.

The judge, who is currently on extended medical leave, is also accused of bringing his dog into court at the conclusion of jury trials and introducing him as the "low-budget bailiff."

Other allegations are that Simpson discussed personal business on the telephone while court was in session, and that he stood in his chambers bathroom "urinating with the door wide open" after giving his court clerk permission to enter.

Judiciary: Vacancies, Appointments

Ninth Circuit

President Bush on June 22 nominated Los Angeles Superior Court Judge Carolyn B. Kuhl and Hawaii attorney and Republican activist Richard R. Clifton to the Ninth Circuit. No confirmation hearing is scheduled for either nominee.

Kuhl, 48, is a six-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 was solicitor general during the Reagan administration.

There are three vacancies on the 28-judge court. Judge James Browning took senior status Sept. 1 of last year. Previous vacancies resulted when Judge Cynthia Holcomb Hall took senior status Aug. 31, 1997 and when the late Judge Charles E. Wiggins took senior status Dec. 31, 1996.

President Clinton’s nominees for the Hall and Wiggins seats, attorneys Joseph Duffy Jr. of Honolulu and Barry Goode of San Francisco, never received confirmation hearings.

Central District of California

Judge J. Spencer Letts took senior status Dec. 19, creating a fifth vacancy.

Earlier vacancies resulted from the elevation of Judge Richard Paez to the Ninth Circuit in March of last year, Judge William Keller’s taking senior status Oct. 29, 1999, and the retirement of Judge John Davies and Judge Kim Wardlaw’s elevation to the Ninth Circuit, both of which occurred in July 1998.

A procedure for naming successors was announced last month by U.S. Sens. Barbara Boxer and Dianne Feinstein and Judiciary Advisory Committee chair Gerald Parsky.

Parsky, an attorney and investment banker, was President Bush’s state campaign chair. The committee will have four subcommittees, one for each district.

Under an agreement between the White House and the two Democratic senators, three members of each subcommittee were chosen by Parsky and three by the two senators. The subcommittee, by majority vote, will recommend three to five people for each vacancy, and Parsky will review the choices and advise the president.

The Central District subcommittee is chaired by retired Presiding Court of Appeal Justice Elwood Lui, chosen by Parsky. The other Parsky selections are attorneys Thomas Malcolm of Irvine and Robert Bonner of Los Angeles, while Boxer picked Burlingame attorney Joseph Cotchett, Feinstein chose Los Angeles litigator Holly Fujie, and the two senators jointly chose Santa Ana trial lawyer Wiley Aitken.

Five new magistrate judges were sworn in this month to serve on the Central District, one in Santa Ana and four on the ninth floor of the courthouse at 312 N. Spring St. in downtown Los Angeles.

Magistrate Judge Marc L. Goldman sits in the Ronald Reagan Federal Building in Santa Ana. Magistrate Judges Victor B. Kenton, Jennifer T. Lum, Fernando M. Olguin, and Patrick J. Walsh sit in the downtown federal courthouse.

Stanley Mosk, the longest-serving California Supreme Court justice in history, died June 19 at age 88.

The governor’s office gave no indication of who it was considering to fill the vacancy, but news reports have named U.S. District Judges Carlos Moreno and Nora Manella, both of the Central District of California, state Court of Appeal Presiding Justice Arthur Gilbert of Div. Six, Justices Candace Cooper and Kathryn Doi Todd of this district’s Div. Two, and Justice Kathleen O’Leary of the Fourth District’s Div. Three.

First District

Presiding Justice Gary Strankman will retire from Div. One today.

Presiding Justice Daniel Hanlon retired from Div. Four Dec. 31.

Justice Herbert W. Walker retired from Div. Three at the end of March.

Div. Five also has a vacancy, a new position as a result of Senate Bill 1857, which took effect Jan. 1.

This District (Second District)

Justice Ramona Godoy Perez of Div. Five died June 6.

Justice Richard Neal retired from Div. Seven Feb. 9.

All four seats in Div. Eight, created by SB 1857, are vacant.

Third District

There is one vacancy, a new position created by SB 1857.

Fourth District

There are four vacancies—one in Div. One, one in Div. Two, and two in Div. Three-in new positions created by SB 1857. There is a second vacancy in Div. One as a result of the May 16 death of Justice Don Work, and a third vacancy in Div. Three resulting from the June 1 retirement of Justice Thomas Crosby of Div. Three.

Fifth District

There is one vacancy, a newly created position under SB 1857.

Sixth District

There is one vacancy, a newly created position under SB 1857.

Presiding Justice Christopher Cottle is retiring at the end of next month, when Justice Patricia Bamattre-Manoukian will take over as acting presiding justice.

Los Angeles County

Judge Dan Oki was named supervising judge of the criminal courts on July 20 to succeed Judge Stephen O’Neill, who died July 10.

Judge Kurt J. Lewin is slated to retire this month.

Not including Lewin, the total number of vacancies on the court reached 19 with the death of O’Neill and the death July 17 of Judge Ronald Cappai.

Four judges retired in May—Paul Metzler on May 1, Richard Kalustian May 8, Arnold Gold May 21, and Kenneth Chotiner May 31.

Judge Patrick Murphy resigned May 4.

Two judges retired earlier this year—Thomas Schneider on Feb. 6 and Harvey Schneider April 16.

Seven judges retired last year and have not yet been replaced—Roy Carstairs July 24, George Schiavelli July 31, Donald Pitts Aug. 31, Glennette Blackwell Sept. 30. Richard Berry and Thomas P. Allen Oct. 1, and William McVittie Dec. 4.

Kathryn Doi Todd and Robert Mallano were elevated to the Court of Appeal on Aug. 18 of last year.

There is also a newly created position under SB 1857.

The court is temporarily without the services of Judge Paul Boland, assigned to this district’s Court of Appeal, Div. Seven, through Aug. 22, and Thomas Willhite, assigned to the court’s Div. Five through Sept. 30.

There are four commissioner vacancies as a result of Norman Tarle and Allen Webster Jr. receiving judicial posts in April, Ulysses Burns retiring June 4 and Anthony Luna retiring July 5.

The new commissioners will be chosen from among more than 200 candidates, including a number of the court’s full-time and part-time referees, who applied. A list of qualified candidates will be culled from that group and will be used to fill future vacancies.

Bills Affecting the Legal Community

The following bills relating to the legal profession were acted upon in July:

•AB 84, by Assembly Speaker Robert Hertzberg, D-Sherman Oaks, which would protect the home address of a trial court employee from public release by the Department of Motor Vehicles, upon the request of the employee. The bill passed the Senate Public Safety Committee on a 4-0 vote July 11 and was sent to the Senate Appropriations Committee.

•AB 145, by Assemblyman Robert Pacheco, R-Los Angeles, which would authorize the courts to accept credit card payments for the deposit of bail for any offense not declared a felony or for any court-ordered fee or fine. The bill passed the Senate on a 38-0 vote July 19 and was sent to the governor.

•AB 479, by Assemblyman Kevin Shelley, D-San Francisco, which would delete an existing limit on attorney fees in estate matters involving non-profit corporations. The bill passed the Senate Judiciary Committee on a 5-0 vote July 11 and was sent to the Senate floor.

•AB 732, by Assemblyman Howard Wayne, D-San Diego, which would provide that statutes pertaining to the recovery of attorney fees following the rejection of a settlement offer do not apply to any enforcement action brought by the attorney general, district attorneys or city attorneys. The bill was approved by the Senate Judiciary Committee on a 6-1 vote July 5, cleared the Senate on a 27-7 vote July 19 and was sent to the governor.

•AB 830, by Assemblywoman Rebecca Cohn, D-Saratoga, which would require the state Department of Aging to create a task force with a budget of $50,000 to study whether the state should establish a statewide telephone hotline for seniors who need legal advice. The bill was approved by the Senate Health and Human Services Committee on a 10-0 vote July 2 and was sent to the Senate Appropriations Committee.

•AB 1099, by Assemblywoman Sally Havice, D-Cerritos, which would allow judges to include time served as a court commissioner in the calculations for benefits under the Judges’ Retirement System II, and would allow for changes in a retirement allowance when the judge’s spouse predeceases him or her. The bill passed the Senate Public Employment and Retirement Committee on a 5-0 vote July 10 and was sent to the Senate Appropriations Committee.

•SB 303, by Sen. Tom Torlakson, D-Martinez, which would exempt San Francisco Bay Area Rapid Transit District police from jury duty in civil or criminal cases. The bill was signed by the governor July 11.

•SB 352, Sen. Sheila Kuehl, D-Santa Monica, which would reduce State Bar fees $5 a year for most attorneys, reflecting a decrease in the fee for the Client Security Fund. The bill was signed by the governor June 27.

•SB 479, by Senate President Pro Tem John Burton, D-San Francisco, which would require the State Bar to administer a diversion program to facilitate treatment and recovery of lawyers due to abuse of drugs or alcohol, or due to mental illness. The bill would authorize the State Bar to increase its annual fees $10 per lawyer to cover the costs of the program. The bill, which had been sent to the governor in June, was returned to the Legislature for amendments. It returned to the governor’s desk after an Assembly vote of 46-22 on July 18 and a Senate vote of 24-12 on July 20.

•SB 562, by Sen. Bill Morrow, R-Oceanside, which would update the codes to reflect the demise of the municipal courts in California pursuant to the adoption of trial court unification in all 58 counties. The bill was signed by the governor July 4.

•SB 742, by Sen. Martha Escutia, D-Montebello, which would give a 4 percent pay raise to the chair of the state Judicial Council and to administrative presiding judges of the Court of Appeal and presiding judges of superior courts with 15 or more judges. It would give a 2 percent raise to presiding judges in superior courts with four to 14 judges. The raises would take effect Jan. 2. The bill passed the Assembly on a 77-0 vote July 19, passed the Senate on a 34-3 vote July 21 and was sent to the governor.

•SB 817, by Sen. Ross Johnson, R-Irvine, which would change the application requirements and deadlines for State Bar examinations, based on recommendations of the State Bar. The bill was signed by the governor July 4.

•SB 1018, by Sen. Don Perata, D-Alameda, which would create a "local prosecutor and local public defender member" category within the Public Employees’ Retirement System, with specified benefits. The bill passed the Assembly Committee on Public Employment, Retirement and Social Security with a 6-0 vote July 11 and was sent to the Assembly Appropriations Committee.