End of the Month

Arguments Scheduled Before CJP in Ross Controversy...Federal Prosecutor Lawrence Cho To Join Superior Court Next Friday...Bill on Law Clerk Classification Wins Approval in State Senate Judiciary Committee

Judges, Lawyers Under Scrutiny

Kevin A. Ross
Los Angeles Superior Court Judge

Arguments are scheduled for Aug. 24 in San Francisco on misconduct charges against Ross, a judge since 1998.

A panel of special masters found that Ross:

•Committed willful misconduct by adding charges -for which there was no factual basis - against a defendant, arraigning her without counsel present, and summarily remanding her to custody.

•Engaged in prejudicial, but not willful, misconduct by disregarding one defendant's right to counsel, becoming embroiled in the case and acting in a prosecutorial role; disregarding another defendant's right to a formal probation violation hearing and continuing the proceedings in the absence of her counsel; revealing on a public television program information he had learned while presiding over a confidential juvenile matter; and participating in the filming of a pilot for a television program which was "degrading to the judge and all the participants" in the course of which his name and title were used for promotional purposes and he arbitrated actual disputes.

•Engaged in improper conduct, but not prejudicial misconduct, by making ex parte telephone contact with a defendant.

•Violated no canons of judicial ethics by speaking on a radio program about a statewide ballot proposition during courtoom hours, participating in a community outreach program different from the one for which he had obtained an approved leave without notifying the court of the change, or commenting during three public television appearances about legal issues involved in two high-profile pending cases in which he was not personally involved.

Ross was 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.

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 also acknowledged problems with his 2002 arrangement 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.

In making the deal, the masters said, Ross violated 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 in favor of 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.

The charges rejected by the masters involved 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 related to public appearances made by the judge.

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.

The nomination of William G. Myers III to succeed Nelson was sent to the floor by the Senate Judiciary Committee on a party-line vote of 10-8. 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. No agreement concerning Myers was reached when a bipartisan group of senators reached a compromise to avert filibusters on several other nominees.

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 W. Yang of the Central District of California has reportedly been under consideration for appointment to the court.

Judge Robert J. Timlin took senior status Feb. 1. Judge Terry J. Hatter Jr. took senior status April 22, and Judge Dickran M. Tevrizian will do so next Friday.

Judge Gary Taylor took senior status Dec. 8 of last year and retired to become a private judge with JAMS on June 30.

A vacancy exits as a result of Justice Janice Rogers Brown leaving June 30 to join the U.S. Court of Appeals for the District of Columbia Circuit, to which she was confirmed June 8.

First District

Presiding Justice Laurence Kay of Div. Four is retring Aug. 31.

Second District

Justice Michael Nott retired from Div. Two April 1. Among those whose names have been sent to the Commission on Judicial Nominees Evaluation are Los Angeles Superior Court Judges Joanne O'Donnell, James Chalfant, Stephen Suzukawa, Emilie Elias, Aurelio Munoz, Owen Lee Kwong, Peter Lichtman, Carl West, Ronald Coen, Frank Y. Jackson, William Highberger and Fumiko Wasserman.

Seats in other districts are filled.

Los Angeles Superior Court

Gov. Arnold Schwarzenegger Wednesday named Superior Court Commissioners Ross Klein and Stuart Rice, Deputy District Attorney Daniel Feldstern and environmental lawyer Gail Ruderman Feuer to the court.

Klein and Rice fill vacancies resulting from the April 4 elevations of Judges Thomas Willhite and Sandy Kriegler to the Court of Appeal. Feuer succeeds Judge Dean Farrar, who retired Feb. 18. Feldstern's predecessor, Judge David Perkins, also retired Feb. 18.

Beverly Reid O'Connell, who was an assistant U.S. attorney at the time of her appointment, was sworn in July 6 to succeed Judge Thomas Stoever, who retired in February.

Rex Heeseman, former managing partner of the Los Angeles office of Luce Forward, was sworn in July 1. He succeeded Judge C. Robert Simpson Jr., who died Feb. 13.

Lawrence Cho, an assistant U.S. attorney, is to be sworn in next Friday to succeed Judge Alan Buckner, who died Dec. 12.

O'Connell, Heeseman, and Cho are among six people named to the court last month. Judges Martha Bellinger, Roger Ito, and Dalila Corral were sworn in previously.

Five vacancies remain. They resulted from the retirements of Judge Meredith Taylor May 11, Judge Lorna Parnell May 4, and Judge Judith Abrams April 30; Judge Ronni B. MacLaren's resignation March 12 to accept appointment to the Alameda Superior Court, to which she was named Feb. 23; and Judge Francis Rothschild's elevation to the Court of Appeal April 4.

Another vacancy will occur when Judge Phillip Argento retires Monday. Also retiring, effective Aug. 7, is Judge Gregory O'Brien, whose last day on the bench was June 22.

Judge Charles Lee is on yearlong sabbatical in China.

Among those whose names have gone to the State Bar Commission on Judicial Nominees Evaluation as possible appointees to the court are Deputy District Attorney Richard M. Goul, Commissioners Dennis Mulcahy and Loren DiFrank, Referee Steven Berman, attorney Amy L. Lew, and Irvine attorney Raymond Earl Brown.

Amy Pellman, former legal director for the Alliance for Children's Rights, was sworn in July 22 to fill a commissioner vacancy resulting from the June 6 retirement of Commissioner Guillermina Byrne.

Graciela Freixes, Susan K. Weiss, and Alan H. Friedenthal were elected as commissioners this month to fill vacancies created by the appointments of Bellinger and Ito as judges, and by the June 14 death of Commissioner Preciliano Recendez.

Balloting is underway for the seats previously held by Commissioners Robert Zakon, who retired July 11, and Patricia G. Schwartz, who retired July 18. Once those seats are filled, there will be two more vacancies as a result of Rice and Klein being appointed judges.

Legislation of Interest to the Legal Community

•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. The bill was signed into law Wednesday by the governor.

•AB 176, by Assemblyman Rudy Bermudez, D-Norwalk, which as amended would provide that the classification of a Los Angeles Superior Court law clerk be changed from temporary to regular employee after 180 days of employment. The bill, which passed the Assembly May 31 by a vote of 46-33, passed the Senate Judiciary Committee July 13 by a vote of 4-2.

•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 vetoed by the governor, who said it "compromises the State's and other public employers' legal defenses in litigation involving labor contracts" by failing to clearly exempt collective bargaining agreements.

•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 ADR-related matters. The bill, as amended in the Assembly, would provide that this is only grounds for disqualification if the discussions were initiated by the judge or involved a substantive offer of employment, and would limit disqualification to matters involving the ADR provider with which the discussions occurred. The bill passed the Assembly in April by a vote of 74-0 and passed the Senate Judiciary Committee July 13 by a vote of 7-0.

•SB 56, by Sen. Joseph Dunn, D-Garden Grove, which, as amended, would authorize creation-subject to appropriations-of an unspecified number of new superior court judgeships in each of the next three years, plus the conversion of an unspecified number of subordinate judicial officer positions to judgeships, according to uniform criteria established by the Judicial Council. The bill passed the Senate June 1 by a vote of 36-2 and was assigned to the Assembly Judiciary Committee, which approved it July 12 by a vote of 9-0.

•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 passed the Senate June 1 by a vote of 36-0, passed the Assembly Judiciary Committee June 20 by a vote of 6-0, and was referred to the Assembly Appropriations Committee.

•SB 442, by Sen. Joseph Simitian, D-Pittsburg, which as amended would increase the jurisdictional limit of the small claims court from $5,000 to $7,500 in most cases, would require attorneys serving as temporary small claims judges to take a course given by the courts, and provide that a $75 filing fee, $2 of which would go to law libraries, be charged for claims exceeding $5,000, passed the Senate May 31 by a vote of 24-14 and was amended in the Assembly July 7.

•SB 815, by Sen. Deborah Ortiz, D-Sacramento, which as amended would allow a plaintiff, in lieu of service by publication, to serve the defendant's liability insurer if the defendant could not be personally served despite due diligence, provided that a plaintiff who serves the defendant in this manner waives any recovery in excess of policy limits. The bill passed the Senate June 1 by a vote of 25-15, passed the Assembly Judiciary Committee July 7 by a vote of 6-3, and was amended in the Assembly July 11.