End of the Month

Bipartisan Deal Reached on Janice Rogers Brown Nomination to D.C. Circuit...Suzukawa, Elias Among Judges Under Consideration for Court of Appeal Appointment...Balloting for Los Angeles Superior Court
Commissioner to End Next Week

Judges, Lawyers Under Scrutiny

Kevin A. Ross
Los Angeles Superior Court Judge

A panel of special masters last month found that Ross, a judge since 1998:

•Committed willful misconduct by adding chargesófor which there was no factual basisóagainst 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.

The discipline to be imposed, if any, will be determined by the Commission on Judicial Performance after further briefing and arguments.

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.

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.

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.

Sen. Larry Craig, R-Idaho, said last week that an effort would be made after the current recess to confirm William G. Myers III to succeed Nelson. The nomination was sent 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. 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 Yang of the Central District of California is reportedly under consideration for appointment to the court.

Judge Gary L. Taylor, who took senior status Dec. 8, will leave the court a the end of June. 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 Aug. 5.

There are no vacancies. One would be created if, as expected, the Senate confirms Justice Janice Rogers Brown to the U.S. Court of Appeals for the District of Columbia Circuit.

Brown is one of the beneficiaries of an agreement reached May 23 by a bipartisan group of senators, under which at least six Democrats will vote for cloture, assuring that there will be at least 60 votes to prevent a successful filibuster and bring the nomination to an up-or-down vote.

Brown's nomination was resubmitted Feb. 14, and was approved by the Judiciary Committee on a 10-8 party-line vote last month.

She was originally nominated July 25, 2003 and cleared the Judiciary Committee on a vote of 10-9, but an attempt to invoke cloture 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

Justice Michael Nott retired from Div. Two April 1. Potential appointees to his seat whose names were sent to the JNE Commission include Judges Stephen Suzukawa, Emilie Elias, Aurelio Munoz, Owen Lee Kwong, Peter Lichtman, Carl West, Ronald Coen, Chris R. Conway, Frank Y. Jackson, William Highberger and Fumiko Wasserman.

Sixth District

Monterey Superior Court Judge Wendy Clark Duffy was confirmed and sworn in May 16. She succeeds Justice William Wunderlich, who resigned April 30 of last year to become a U.S. magistrate judge based in Yosemite National Park.

Seats in other districts are filled.

Los Angeles Superior Court

There are currently 15 vacancies on the court.

Vacancies 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; the elevation of Judges Thomas Willhite, Sandy Kriegler, and Francis Rothschild to the Court of Appeal April 4; 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, and the retirement of Judge John Harris Oct. 29.

Another vacancy will occur when Judge Phillip Argento retires Aug. 1. His last day on the bench is July 8.

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, Loren DiFrank, Martha Bellinger, Stuart Rice, Ross Klein, and Roger Ito; and Referee Steven Berman.

James Bianco, H Jay Ford, and Pam Davis were elected commissioners in balloting ending April 28, and David Bianchi was elected in balloting ending May 19. They fill seats previously held by Commissioners Mitchel Harris, H. Kirkland Jones, and Stephen Leventhal, all of whom retired March 31, and Sanjay Kumar, who was appointed a judge last month.

Commissioner Guillermina Byrne is retiring June 6 and Commissioner Patricia G. Schwartz, whose last day on the bench is today, retires July 18.

There is a commissioner vacancy resulting from Stanford Reichert's appointment as a San Bernardino Superior Court judge. Reichert is to be sworn in to his new post today, and balloting for the commissioner post is scheduled to end June 8, with ballots tabulated the next day, a court spokesperson said.

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 approved by the Assembly May 19 by a vote of 74-0 and sent to the Senate.

•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 passed the Appropriations Committee May 25 by a vote of 13-5.

•AB 182, by Assemblyman John J. Benoit, R-Riverside, which would make a technical change in the form of a search warrant. The bill, which passed the Assembly in March, was sent to the Senate Committee on Public Safety May 5.

•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, which passed the Assembly last month, was sent to the Senate Judiciary Committee May 19.

•AB 415, by Harman, which, as amended, would extend to Jan. 1, 2009 the sunset date of legislation allowing non-California attorneys to appear in arbitration proceedings under certain circumstances. The bill passed the Assembly May 19 by a vote of 74-0 and was sent to the Senate Judiciary Committee.

•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, which passed the Assembly by a vote of 76-0 last month, was sent to the Senate Committee on Public Safety May 5 and faces a June 7 hearing.

•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. A Senate committee hearing scheduled for this month was postponed to June 14 at the request of the author.

•AB 1529, by Jones, which, as amended, would authorize the State Bar to impose dues for 2006 and 2007, increase active member dues by $5, 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 passed the Assembly May 16 by a vote of 49-25 and was sent to the Senate and referred to the Judiciary Committee.

•AB 1553, by Evans, which would provide that any contractual limit on the time in which to seek arbitration is tolled during the pendency of a lawsuit regarding the same occurrence. The bill, which passed the Assembly last month by a vote of 45-33, was referred to the Senate Judiciary Committee May 5.

•SB 56, by Sen. Joseph Dunn, D-Garden Grove, which, as amended, would authorize creation-subject to appropriations-of up to 50 new superior court judgeships in each of the next three years, plus the conversion of up to 161 subordinate judicial officer positions to judgeships, according to uniform criteria established by the Judicial Council. The bill was heard by the Appropriations Committee May 26.

•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 was heard by the Committee on Appropriations May 26.

•SB 151, by Sen. Nell Soto, D-Ontario, which, as amended, would make it a crime, punishable as a wobbler, for a litigant to seek to influence a judicial officer by corrupt means, including bribery, threat or intimidation.. The bill was amended May 3 to eliminate a provision that would have designated an unauthorized communication as one of the proscibed means, and was heard by the Judiciary Committee May 26.

•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 and require attorneys serving as temporary small claims judges to take a course given by the Department of Consumer Affairs. The bill was heard by the Appropriations Committee May 26.

•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 and that The bill was approved by the Judiciary Committee May 9 by a vote of 4 to 2 and was amended on the Senate floor May 10.