End of the Month

June
29,
2001

A report on where
things
stand

Legal, Political Leaders Remember State Supreme Court Justice Mosk, Dead at 88...Bush Nominates Kuhl, Clifton to Ninth Circuit...State Bar Dues Bill Sent to Governor

Judges, Lawyers Under Scrutiny

Patrick Couwenberg
Los Angeles Superior Court Judge

A July 19 public hearing has been slated for Couwenberg before the state Commission on Judicial Performance for argument on a report prepared in May by a panel of special masters.

The masters found May 15 that Couwenberg, a Los Angeles Superior Court judge since 1997, misrepresented his educational and military backgrounds to various sources, including the governor who appointed him.

After next month’s hearing, the commission will determine whether punishment is warranted, and could consider a letter of admonishment or more serious actions up to removal from the bench.

The hearing is scheduled to take place in San Francisco in Courtroom One of the Ninth U.S. Circuit Court of Appeals at 2 p.m.

Earlier this month, commission lawyer Jack Coyle filed a brief in which he asserted that Couwenberg must be removed for persistent lies about his military service and his educational and professional experience.

Couwenberg’s lawyers answered with a brief asserting that the special masters’ findings failed to take into account the numerous letters and testimony in the judge’s support, his traumatic upbringing in wartime Indonesia, or the opinions of mental health professionals that he suffers from "pseudologica fantastica," a condition that compels him to make up stories about himself.

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 panel also found that the judge 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 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. The appointments are subject to confirmation by the Senate, which earlier this month came under Democratic Party control with the transfer of Sen. James Jeffords of Vermont from the Republican to independent status.

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.

Bush had been expected to nominate Kuhl and Rep. Christopher Cox, R-Newport Beach, for two of the seats, but the nominations were delayed after Democratic U.S. Sens. Barbara Boxer and Dianne Feinstein complained they had not been consulted. Feinstein later said she spoke with the White House, and supported a hearing and a vote.

Boxer, in a letter to the editor published in the New York Times May 14, said Cox was unacceptable because of his staunchly conservative voting record on social, environmental, and gun-control issues. When Jeffords bolted the GOP, giving Democrats control of the Senate, Cox said he feared a divisive confirmation battle and asked Bush not to nominate him.

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 will be chosen by Parsky and three by the two senators. The subcommittee, by majority vote, will then 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.

The court is in the process of selecting four magistrate judges to fill new positions, along with a replacement for Santa Ana-based Magistrate Judge Elgin Edwards, who is retiring next month.

A vacancy was created with the death on June 19 of Stanley Mosk, the longest-serving California Supreme Court justice in history. He was 88. Gov. Gray Davis and dignitaries from the legal and political communities honored the former Los Angeles Superior Court judge, state attorney general and 37-year Supreme Court justice at a memorial service June 26 at Wilshire Boulevard Temple in Los Angeles.

Continuing tributes from around the state and nation did not slow immediate speculation about whom Davis would appoint to fill the vacancy. The governor’s office gave no indication of whom it was considering, but news reports have named U.S. District Judges Carlos Moreno and Nora Manella, both of the Central District of California, state Court of Presiding Justice Arthur Gilbert of this district's 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 at the end of next month.

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 August, when Justice Patricia Bamatre-Manoukian will take over as acting presiding justice.

Los Angeles County

There are now 17 vacancies on the court.

Four judges retired last month—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.

There are three commissioner vacancies as a result of Norman Tarle and Allen Webster Jr. receiving judicial posts in April and Ulysses Burns retiring June 4.

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 June:

•AB 36, by Assemblyman Darrell Steinberg, D-Sacramento, which would provide that in an action based upon bodily injury or wrongful death allegedly caused by a defective product or environmental hazard, certain information contained in settlement discussions or acquired during discovery may not be kept confidential as part of the settlement if that information would be beneficial in protecting the public. The bill passed the Assembly on a 41-4 vote June 7, and was sent to the Senate.

•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 underwent minor amendments July 26, and was referred to the Senate Judiciary Committee.

•AB 913, by Steinberg, which would require that any contract with the state for legal services which exceeds $50,000 must certify that the contracting law firm agrees to make a good faith effort to provide a minimum amount of pro bono services per year, using a formula based on the number of attorneys in the contracted firm. The bill passed the Assembly on a 59-17 vote June 4, and was referred to the Senate Judiciary Committee.

•AB 982, by Assemblyman Marco Firebaugh, D-Los Angeles, which would require the State Bar to report to the Legislature by July 31, 2002, regarding its efforts to develop standards for accreditation of law schools that offer their entire educational program via the Internet. The bill also would require the State Bar to review its library content requirement for law school accreditation and to study the scope and effectiveness of the "baby bar" exam for first-year students at unaccredited law schools. The bill passed the Assembly on a 70-3 vote June 6, and was referred to the Senate Judiciary 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 Assembly on a 74-0 vote June 5, and was referred to the Senate Public Employment and Retirement Committee.

•SB 11, by Sen. Martha Escutia, D-Montebello, which would provide that in any action based on injury, wrongful death or financial loss allegedly caused by a defective product, unlawful energy price manipulation, an unfair insurance claims practice or an environmental hazard, information acquired through discovery or information contained in a secret settlement agreement not filed with the court may not be kept confidential except in specific situations. The bill passed the Senate on a 21-16 vote June 6, and was referred to the Assembly Judiciary Committee.

•SB 110, by Sen. Richard Ackerman, R-Fullerton, which would create a test program in which collectors would be allowed to file small claims actions pursuant to certain conditions. The bill passed the Senate on a 34-1 vote June 7, and was referred to the Assembly Judiciary 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 approved by the Assembly Judiciary Committee on a 9-0 vote June 19, and was sent to the Assembly floor.

•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 approved by the Assembly Judiciary Committee on a 10-0 vote June 12, passed the Assembly on a 45-26 vote June 14, and was sent to the governor’s desk. The bill cannot become law unless SB 479, below, is signed into law.

•SB 476, by Escutia, which would require an appellate court to accept supplemental briefs from the parties before affirming a summary judgment on a ground not relied upon by the trial court. The bill passed the Senate on a 22-14 vote June 4 and was referred to the Assembly Judiciary Committee.

•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 is double-joined to the State Bar dues bill, SB 352, was approved by the Assembly Judiciary Committee on a 7-2 vote June 12, approved by the Assembly on a 43-23 vote June 21, approved by the Senate on a 24-11 vote June 25, and was sent to the governor.

•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 approved by the Assembly Judiciary Committee on a 10-0 vote June 12, approved by the Assembly on a 78-0 vote June 18, approved by the Senate on a 37-0 vote June 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 approved by the Assembly Judiciary Committee on a 10-0 vote June 19, passed the Assembly on a 78-0 vote June 25, passed the Senate on a 38-0 vote June 25 and was sent to the governor.

•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 Senate on a 30-6 vote June 4, and was referred to the Assembly Committee on Public Employment, Retirement and Social Security.