End of the Month

Nine New Superior Court Judges Appointed, Take Up Posts...Second, Fourth District C.A. Nominees Face Nov. 21 Confirmation Hearings...Chavez Day Made Court Holiday

Judges, Lawyers Under Scrutiny

Patrick Couwenberg
Los Angeles Superior Court Judge

The Commission on Judicial Performance ordered on Aug. 15 that Couwenberg, a Los Angeles Superior Court judge since 1997, be removed from the bench. The ruling is final unless review is granted in the discretion of the Supreme Court, and Couwenberg is barred from sitting pending action by the high court.

COUWENBERG

The commission found that Couwenberg misrepresented his educational and military backgrounds to various sources, including the governor who appointed him and the commission itself.

Couwenberg's lawyers said the judge deserved an opportunity to remain in office. They argued that his statements were not malicious, but were the product of a psychological impairment, and presented testimony before a panel of special masters from both prosecutors and defense attorneys attesting to the judge's fairness and competence.

Couwenberg 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 commission found that he also lied to the CJP staff, 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 working 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 commission 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 commission, 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.

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.

Judicial Elections

The declaration-of-intent period for Los Angeles Superior Court candidates began Monday. The deadline is next Wednesday for races involving incumbents and Nov. 12 for open seats.
There will be at least three open seats up for grabs in the March 5 primary. Judges Michael Pirosh and David Finkel are retiring in January of next year and Judge Michael Kanner will step down when his term expires in January 2003.

Judiciary: Vacancies, Appointments

Ninth Circuit

President Bush resubmitted the nominations of Los Angeles Superior Court Judge Carolyn B. Kuhl and Hawaii attorney and Republican activist Richard R. Clifton on Sept. 4.

Kuhl and Clifton were originally nominated June 22. The nominations were returned to the president on Aug. 3 when a disagreement over other nominees resulted in the Senate returning all pending nominations.

Senate rules require that all pending nominations be returned to the president prior to a recess absent unanimous consent.

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 worked in the office of the 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. Goode now serves as legal affairs secretary to Gov. Gray Davis.

Judge Carlos Moreno was confirmed as a California Supreme Court justice Oct. 17, creating a sixth vacancy.

Earlier vacancies resulted from Judge J. Spencer Letts taking senior status Dec. 19, 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 by U.S. Sens. Barbara Boxer and Dianne Feinstein and Judiciary Advisory Committee chair Gerald Parsky.

Parsky, a West Los Angeles attorney and investment banker, was President Bush's state campaign chair. The committee has four subcommittees, one for each district.

Under an agreement between the White House and the two Democratic senators, three members of each subcommittee were chosen by Parsky and three by the two senators. The subcommittee, by majority vote, will recommend three to five people for each vacancy, and Parsky will review the choices and advise the president.

Carlos Moreno was confirmed and sworn in Oct. 17 as the court's newest member, filling the seat of the late Stanley Mosk.

First District

Presiding Justice Gary Strankman retired from Div. One July 31.

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)

Richard Mosk, previously a judge of the U.S.-Iran Claims Tribunal and the son of the late Supreme Court Justice Stanley Mosk, was confirmed and sworn in Oct. 22 as a justice of Div. Five. He succeeds Justice Ramona Godoy Perez, who died June 6.

MOSK

PERLUSS

Also confirmed and sworn in Oct. 22 were Dennis Perluss, previously a Los Angeles Superior Court judge, to succeed Justice Richard Neal, who retired from Div. Seven Feb. 9, and Laurence Rubin, previously a Los Angeles Superior Court judge, to join the court's new Div. Eight.

Associate Justice Candace Cooper of Div. Two faces a Nov. 21 confirmation hearing following her Oct. 3 nomination for presiding justice of Div. Eight, created by SB 1857. Also scheduled for a confirmation hearing that day is Los Angeles Superior Court Judge Paul Boland, nominated as an associate justice of Div. Eight.

If Cooper and Boland are confirmed, there will be one vacancy remaining in the new division. Among those who have been evaluated by the Commission on Judicial Nominees Evaluation and could be appointed to that post are Los Angeles Superior Court Judges Gregory Alarcon, Judith Ashmann, Laurie Zelon and Madeline Flier and Ventura Superior Court Judge Melinda Johnson.

Third District

There is one vacancy, a new position created by SB 1857.

Fourth District

Judith McConnell, elevated from the San Diego Superior Court, was confirmed and sworn in Oct. 3 to fill the vacancy created by the May 16 death of Justice Don Work.

There are four vacancies-one in Div. One, one in Div. Two, and two in Div. Three-in new positions created by SB 1857. A Nov. 21 hearing has been scheduled in Los Angeles for Orange Superior Court Judge Richard Aronson, nominated by the governor for one of the Div. Three vacancies.

There is also another vacancy in Div. Three, resulting from the June 1 retirement of Justice Thomas Crosby.

Fifth District

There is one vacancy, a newly created position under SB 1857.

Sixth District

Presiding Justice Christopher Cottle retired Aug. 31. There is also a newly created position under SB 1857.

Los Angeles County

Nine judges were named Oct. 3, reducing the number of vacancies to 14, not counting the seat of Judge Patrick Couwenberg. The Commission on Judicial Performance's Aug. 15 removal order bars Couwenberg from sitting, but his seat cannot be filled while possible state Supreme Court review is pending.

Appointed Oct. 3 were:

• Magistrate Judge Ann I. Jones to fill a vacancy created by the Oct. 1, 2000 retirement of Judge Richard G. Berry. Jones began sitting in the East District Oct. 24.

• Superior Court Commissioner John T. Doyle to fill a vacancy created by the Aug. 31, 2000 retirement of Judge Donald F. Pitts. Doyle remains in Compton.

• Assistant City Attorney Leslie E. Brown to fill the vacancy created by the Sept. 30, 2000 retirement of Judge Glenette Blackwell. Brown took up his assignment Monday in the Northeast District.

• Assistant City Attorney William N. Sterling to fill a vacancy created by the Aug. 18, 2000 elevation of Kathryn Doi Todd to the Court of Appeal. Sterling has been sitting in the Criminal Courts Building since Oct. 18.

• Assistant U.S. Attorney Dorothy L. Shubin to fill the vacancy created by the July 24, 2000 retirement of Judge Roy M. Carstairs. She took up her assignment in the East District Oct. 24.

• Deputy District Attorney Martin L. Herscovitz to fill the vacancy created by the elevation of Judge Dennis Perluss to the Court of Appeal. Herscovitz has been assigned to the North District since yesterday.

• Deputy District Attorney Cynthia Rayvis to fill the vacancy created by the July 31, 2000 retirement of Judge George Schiavelli. She began sitting in the Southeast District Oct. 17.

• Marjorie S. Steinberg, who was a partner in the now-defunct firm of Tuttle & Taylor, to fill the vacancy created by the Aug. 18, 2000 elevation of Judge Robert M. Mallano to the Court of Appeal. She has been sitting at CCB since Oct. 18.

• Richard H. Kirschner, a criminal defense attorney and former federal prosecutor, to fill the vacancy created by the Dec. 4, 2000 retirement of Judge William J. McVittie. His assignment to Van Nuys began last Thursday.

The new appointees are all up for election next year. The remaining vacancies all have occurred since Jan. 1, 2001 and those seats will not be on the ballot until 2004.

Herscovitz is on the ballot this year because Perluss, who was appointed two years ago, never ran for the office, a court official explained.

Judges who have retired this year are Thomas Allen Jan. 2, Thomas Schneider Feb. 6, Harvey Schneider April 16, Paul Metzler May 1, Richard Kalustian May 8, Arnold Gold May 21, Kenneth Chotiner May 31, Kurt J. Lewin Aug. 16, Elva Soper Sept. 30 and David Perez Oct. 5.

Other vacancies resulted from the deaths of Judge Stephen O'Neill July 10 and Judge Ronald Cappai July 17, the May 4 resignation of Judge Patrick Murphy, and the creation of a new position under SB 1857, effective Jan. 1.

Four more vacancies are slated-Judges Richard Charvat and Elvira Austin are stepping down Nov. 5, Judge David B. Finkel will retire Jan. 27, and Judge Michael Pirosh is leaving at the end of January.

S. Robert Ambrose and Sanjay T. Kumar were named commissioners this month. The appointment of Doyle as a judge creates a second commissioner vacancy, although the funds for one of those positions are presently allocated to a retired commissioner sitting on assignment.

Bills Affecting the Legal Community

The following bills relating to the legal profession were acted upon in late September and October:

• AB 84 , by Assembly Speaker Robert Hertzberg, D-Sherman Oaks, which protects the home address of a trial court employee from public release by the Department of Motor Vehicles, upon request of the employee. The bill was signed by the governor Oct. 12.

• AB 146 , by Assemblyman Howard Wayne, D-San Diego, which specifies that service on a governmental board or commission by an administrative law judge or an attorney employed by the state in a non-elected position shall not, by itself, be deemed a conflict of interest that requires the automatic vacation of one of the positions. The bill was signed by the governor Oct. 1.

• AB 479 , by Assemblyman Kevin Shelley, D-San Francisco, which deletes an existing limit on fees payable to attorneys handling estate matters involving non-profit corporations. The bill was signed by the governor Sept. 26.

• AB 830 , by Assemblywoman Rebecca Cohn, D-Saratoga, which requires the state Department of Aging to create a task force to study whether the state should establish a statewide telephone hotline for seniors who need legal advice. The governor signed the bill Oct. 10, but eliminated a $100,000 allocation for the task force and directed the Department of Aging to pay for it out of the department's existing budget.

• AB 913 , by Steinberg, which requires that certain contracts with the state for legal services which exceed $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 firm. The bill was signed by the governor Oct. 13.

• AB 1099 , by Assemblywoman Sally Havice, D-Cerritos, which allows judges to include time served as a court commissioner in the calculations for benefits under the Judges' Retirement System II, and allows for changes in a retirement allowance when the judge's spouse predeceases him or her. The bill was signed by the governor Oct. 2.

• SB 475 , by Escutia, which requires the Judicial Council to collect information on the use of referees in discovery matters, including whether the referees were appointed upon agreement of the parties or without their consent. The bill was signed by the governor Sept. 26.

• SB 1018 , by Sen. Don Perata, D-Alameda, which would have created a "local prosecutor and local public defender member" category within the Public Employees' Retirement System, with specified benefits. The bill was vetoed by the governor Oct. 14.

• SB 1112 , by Sen. Richard Polanco, D-Los Angeles, which establishes Cesar Chavez Day as an official holiday for the judicial branch. The bill was signed by the governor Oct. 4.