End of the Month

Status Conference in Murphy Discipline Set for Monday...Judge Consuelo Callahan Takes Oath as Newest Member of Ninth Circuit...Assembly Passes 2004 State Bar Dues Bill

Judges, Lawyers Under Scrutiny

Patrick B. Murphy
Attorney and former Superior Court judge

A State Bar Court pre-hearing conference is scheduled Monday for Murphy, who resigned from the Los Angeles Superior Court in May 2001 while on the verge of being removed from office.

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

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

Judge Consuelo Callahan, formerly a justice of the state's Third District Court of Appeal, was sworn in Wednesday to succeed Judge Ferdinand F. Fernandez, who took senior status June 1 of last year. Callahan's nomination was confirmed May 22 by a Senate vote of 99-0.

Callahan's confirmation leaves two vacancies and one scheduled future vacancy on the 28-judge court.

President Bush on May 15 nominated William G. Myers III of Idaho, currently solicitor of the Department of the Interior, to succeed Judge Thomas G. Nelson, who takes senior status Nov. 14.

The Senate Judiciary Committee on May 8 approved the nomination of Los Angeles Superior Court Judge Carolyn Kuhl by a vote of 10-9. Kuhl was tapped by Bush in 2001 to succeed Judge James Browning, who took senior status Sept. 1, 2000.

The president nominated San Francisco Superior Court Judge Carlos Bea April 11 for the seat left vacant when the late Judge Charles Wiggins took senior status on Dec. 31, 1996. Sens. Barbara Boxer and Dianne Feinstein last month signed "blue slips," with Feinstein indicated support for Bea, while Boxer indicated that she favors a confirmation hearing before the Judiciary Committee but "reserves judgment" on the nomination itself.

There are no current vacancies, but Los Angeles Superior Court Judge Dale Fischer was nominated May 1 for a new seat, created by the Department of Justice Appropriations Authorization Act signed into law last year. The seat will come into existence July 15.

Sen. Barbara Boxer signed a blue slip, endorsing the nomination, on May 13.

There are no vacancies.

This District (Second District)

There is a vacancy in Div. Seven as a result of Justice Dennis 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 Emilie Elias and Marvin Lager have been sent to the Commission on Judicial Nominees Evaluation as potential appointees. Among those whose names were sent to the commission earlier were Los Angeles Superior Court Judges Charles Lee, Richard Rico, Aurelio Munoz, Thomas Willhite Jr., Laurie Zelon, Ralph Dau, Madeline Flier, and Gregory Alarcøon.

Third District

There is a vacancy resulting from Justice Consuelo Callahan's appointment to the Ninth U.S. Circuit Court of Appeals.

Fourth District

Presiding Justice Daniel Kremer of Div. One will retire July 31.

Sixth District

There is a vacancy resulting from the elevation of Justice Conrad Rushing to presiding justice Jan. 21.

Seats in other districts are filled.

Los Angeles Superior Court

There are four vacancies on the court.

Judge J. Michael Byrne retired March 8, Judge S. James Otero took the federal bench Feb. 28, Judge Robert Mackey retired Feb. 25, and Judge Raymond Mireles retired April 1.

In addition, Judge Marilyn Hoffman has completed her service to the court and will officially retire June 6.

The court is without the services of Judge David Workman, due to be out another month after back surgery, and Commissioner Robert Axel, scheduled to return June 23 following hip surgery.

There are currently no commissioner vacancies. The court is soliciting applications for future vacancies through the end of June.

Legislation of Interest to the Legal Community

The following legislation related to the legal profession was acted upon in April:

•AB 69, by Assemblyman Lou Correa, D-Santa Ana, which would put a number of restrictions on attorneys and others who file unfair competition suits under Business and Professions Code Sec. 17200. The bill failed passage from the Assembly Judiciary Committee on a 5-6 vote May 8, but was granted a chance for reconsideration.

•AB 688 , by Assemblyman Alan Nakanishi, R-Sacramento, which would authorize the Judicial Council to consider the availability of federal matching funds in determining the allocation of bonds for court facilities. The bill was approved by the Assembly Judiciary Committee on a 14-0 vote May 7 and was sent to the Assembly floor.

•AB 862, by Assemblyman Marco Firebaugh, D-Los Angeles, which would require the state to notify a state employees' union whenever contracts are planned to be issued for legal services from outside counsel. The bill was approved by the Assembly on a 73-0 vote May 8 and was referred to the Senate Judiciary Committee.

•AB 883, by Assemblyman George Runner, R-Lancaster, which would clarify and expand the current law which generally bans witnesses of a crime from being paid for testifying in court. The bill was approved by the Assembly Appropriations Committee on a unanimous vote April 30, was approved by the Assembly on a 73-0 vote May 8 and was sent to the Senate Public Safety Committee.

•AB 903, by Assemblyman Darrell Steinberg, D-Sacramento, which would revise the definition of "builder," as the word is used in provisions regarding construction defect suits. The bill was approved by the Assembly on a 76-0 vote May 15 and was referred to the Senate Rules Committee.

•AB 1055, by Assemblyman Todd Spitzer, R-Anaheim, which would limit the use of special appropriations by district attorneys to expenses that are "necessarily incurred." The bill was approved by the Assembly on a 76-0 vote May 15 and was referred to the Senate Rules Committee.

•AB 1095, by Assemblywoman Ellen Corbett, D-San Leandro, which would require the Judicial Council to create a task force on county law libraries, to makes recommendations to the Legislature by Jan. 1, 2005. The bill was referred to the Assembly Appropriations Committee's "suspense file" May 7 due to its $50,000 cost to the Judicial Council.

•AB 1101, by Assemblyman Darrell Steinberg, D-Sacramento, which would create an exception to an attorney's duty to maintain a client's confidence if the lawyer reasonably believes the disclosure of a confidence or secret is necessary to prevent the commission of a criminal act likely to result in death or substantial bodily harm to an individual. The bill was approved by the Assembly on a 78-0 vote May 1 and was referred to the Senate Judiciary Committee and the Senate Public Safety Committee.

•AB 1708, by the Assembly Judiciary Committee, which would authorize the State Bar to collect base dues of $310 per active member through Jan. 1, 2005. With already authorized fees for the State Bar's building fund, discipline program, drug-assistance program and Client Security Fund, the total fee would be $390 per year for most lawyers. The bill was approved by the Assembly on a 55-19 vote May 12 and was sent to the Senate Judiciary Committee.

•AB 1712, by the Assembly Judiciary Committee, which would authorize the court to hold certain arbitration hearings earlier to expedite the resolution of disputes. The bill was approved by the Assembly on a 76-0 vote May 15 and was sent to the Senate Rules Committee.

•AB 1713, by the Assembly Judiciary Committee, which would prohibit an arbitrator or private arbitration company from conducting or administering further arbitration of a dispute if a court vacates the award, unless the consumer party elects otherwise in writing. The bill was sent to the Assembly's inactive file by Assemblywoman Ellen Corbett, D-San Leandro, on May 27.

•AB 1715, by the Assembly Judiciary Committee, which would invalidate arbitration agreements between employers and employees that relate to employment practices covered by the Fair Employment and Housing Act that are required as a condition of employment. The bill was approved by the Assembly on a 44-33 vote May 19 and was sent to the Senate Rules Committee.

•ACR 44, by Assemblyman Mervyn Dymally, D-Compton, which requests that bronze bas relief memorials be installed in Sacramento and Washington, D.C., in the memory of Chief Justice Earl Warren. The resolution won the approval of the Assembly Rules Committee on an 8-0 vote May 1, and was sent to the Assembly Appropriations Committee.

•SB 328, by the Senate Judiciary Committee, which would correct erroneous references in the provisions for the Court Facilities Trust Fund. The bill was approved by the Senate on a 39-0 vote May 8 and was sent to the Assembly Judiciary Committee.

•SB 638 , by Senate President Pro Tem John Burton, D-San Francisco, which would allow juries in criminal cases to return a verdict of "not proven," which would have the same legal effect as a "not guilty" verdict. The bill failed passage from the Senate Public Safety Committee on a 1-3 vote May 6, but was granted a chance to be reconsidered at a later date.