March.
31,
2005

A report on where
things
stand



Votes To Be Counted April 7 in Balloting for Superior Court Commissioner, With Another Election to Follow...Newest Superior Court Judge Sworn in...Bill to Ease Mandatory Disqualification of Judges Over Discussions With ADR Providers Set for Hearing



Judges, Lawyers Under Scrutiny

John D. Harris
Retired Los Angeles Superior Court Judge

The Commission on Judicial Performance last week publicly admonished Harris, a 30-year judicial officer who retired in October.

The CJP found that Harris had inappropriate ex parte discussions with two women who were sexual assault victims following their victim impact statements, that he made an inappropriately personal comment to a staff member, that he made inappropriate attempts at humor in the courtroom, and that he acted improperly in throwing a file in the direction of a deputy city attorney and improperly commented on the deputy's having filed a declaration of prejudice in order to disqualify him from one of her cases.

The commission also found that Harris improperly interjected himself into the social life of a deputy city attorney who regularly prosecuted cases in his courtroom by arranging dates for the prosecutor with the daughters of friends of the judge.

Kevin A. Ross
Los Angeles Superior Court Judge

A report is due next month from the special masters who heard evidence regarding 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.

The Judiciary Committee this month sent the nomination of William G. Myers III, to succeed Nelson, to the floor 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.

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 Terry J. Hatter Jr. will take senior status April 22 and Judge Dickran M. Tevrizian will do so 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 last 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 today. 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, 2004 to become a U.S. magistrate judge based in Yosemite National Park.

Seats in other districts are filled.

Los Angeles Superior Court


Judge Dorothy Reyes, who formerly practiced in Claremont and was appointed last month, took the oath March 22. Deputy District Attorney Eleanor Hunter, also appointed last month, has not yet taken the oath but is expected to do shortly.

Hunter will replace Judge Dale Fischer, who joined the U.S. District Court for the Central District of California on Nov. 17, 2003. Reyes replaced Judge Alan Haber, who retired Feb. 9 of last year.

Vacancies resulted 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, the death of Judge L. Jeffrey Wiatt Feb. 9, the death of Judge Alan Buckner Dec. 12, the retirement of Judge Veronica McBeth Dec. 9, the retirement of Judge John Harris Oct. 29, the retirement of Judge Susan E. Isacoff July 1, and the retirements of Judges John Ouderkirk and Lawrence Crispo April 5.

Another vacancy resulted from Judge Ronni B. MacLaren's appointment to the Alameda Superior Court, to which she was named Feb.23.

Additional vacancies will occur when Judge Judith Abrams retires April 30, and when Judge Lorna Parnell retires May 4.

Judge Charles Lee is on yearlong sabbatical in China. Judge Stephen Suzukawa has been assigned to Div. One of this district's Court of Appeal through April 30.

Among those whose names have gone to the State Bar Commission on Judicial Nominees Evaluation as possible appointees are Deputy District Attorney Richard M. Goul; Commissioners Sanjay Kumar, Martha Bellinger, Stuart Rice and Roger Ito; and Referee Steven Berman.

Anthony Drewry of Munger, Tolles and Olson won a runoff election March 4 to succeed Commissioner Roberta Kyman, who died Dec. 7.

Ballots will be counted April 7 in an election to choose a new commissioner to succeed Michael Levanas, who was appointed a judge last month. Once that election, including a possible runoff, is completed, a new election will be held to fill three vacancies that will occur as a result of retirements effective today.

Commissioners Mitchel Harris, H. Kirkland Jones, and Stephen Leventhal are the latest retirees. Harris and Jones last held court Feb. 25 and have been taking accrued leave since that date.

Commissioners Patricia G. Schwartz and H. Ronald Hauptmann are also expected to retire shortly.


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, but has been reset for April 12.

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 heard by the Committee on Public Employees, Retirement and Social Security on March 16.

AB 182, by Assemblyman John J. Benoit, R-Riverside, which would make a technical change in the form of a search warrant. The bill passed the Assembly Public Safety Committee by a vote of 7-0 March 1 and was placed on the consent calendar for a vote March 7.

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 heard by the Judiciary Committee 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 passed the Committee on Public Safety by a vote of 6-0 March 15 and was to be the subject of a Judiciary Committee hearing on Tuesday, but the hearing was postponed.

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 has been scheduled for a Judiciary Committee hearing April 5.

AB 557, by Assemblywoman Betty Karnette, D-Long Beach, which would permit the issuance of a criminal complaint upon the testimony of an honorably retired peace officer. The bill has been scheduled for a Public Safety Committee hearing April 5.

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 referred to the Judiciary Committee March 10 and is scheduled for hearing April 5

AB 1528, by Assemblyman Dave Jones, D-Sacramento, which would overrule the holding in +Action Apartment Assn., Inc. v. City of Santa Monica+ (2004) 123 Cal. App. 4th 47 by holding that certain communications by landlords to tenants are not protected by the litigation privilege. The bill was referred to the Judiciary Committee March 14.

AB 1529, by Jones, 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 was derived from the practice of law. The bill was referred to the Judiciary Committee March 14.

SB 16, by Sen. Elaine Alquist, D-San Jose, which makes permanent changes in criminal statutes of limitations that were made following a U.S. Supreme Court ruling that precludes revival of time-barred causes of action. The bill was signed by the governor and took effect as an urgency measure March 1.

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. A hearing was to be held by the Committee on Public Safety on Tuesday but was cancelled at the request of the author.

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, but not a judicial officer. The bill is set to be heard by the Committee on Public Safety April 5.

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 referred to the Committee on Business, Professions, and Economic Development March 1.

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 heard by the Committee on Public Safety on Tuesday.

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 heard Tuesday by the Committee on Public Employees, Retirement and Social Security, amended by the author, and re-referred to the committee, with another hearing scheduled for April 11.

SB 442, by Sen. Joseph Simitian, D-Pittsburg, which would increase the jurisdictional limit of the small claims court from $5,000 to $10,000 in most cases, was to be heard by the Judiciary Committee March 17, but the hearing was postponed.

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 referred to the Rules Committee March 3.

SB 529, by Sen. Bill Morrow, R-Oceanside, which would make a technical change with respect to the attorney-client privilege. The bill was referred to the Rules Committee March 3.

SB 815, by Sen. Deborah Ortiz, D-Sacramento, which would make a technical change with respect to service by publication. The bill was referred to the Rules Committee March 10.



 

 

 


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