End of the Month

Sept.
28,
2001

A report on where
things
stand

Davis Nominates Moreno to Supreme Court...Perluss, Mosk Named to Appeals Court.Marshall Replaces Hatter as Chief Judge of U.S. District Court

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.

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

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 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.

Central District of California

Judge Consuelo B. Marshall replaced Judge Terry J. Hatter Jr. as chief judge of the Los Angeles court Sept. 20.

Judge J. Spencer Letts took senior status Dec. 19, creating a fifth vacancy. There will be a sixth vacancy if, as expected, Judge Carlos Moreno is confirmed as a member of the state Supreme Court.

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 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 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.

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.

An Oct. 17 confirmation hearing has been scheduled in San Francisco for U.S. District Judge Carlos Moreno, nominated by Gov. Gray Davis to fill 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)

An Oct. 22 confirmation hearing has been scheduled in Los Angeles for two candidates nominated to the court by Gov. Gray Davis Wednesday.

MOSK

Davis nominated Richard Mosk, a judge of the U.S.-Iran Claims Tribunal and the son of the late Supreme Court Justice Stanley Mosk, to a seat in Div. Five. He would succeed Justice Ramona Godoy Perez, who died June 6.

PERLUSS

The governor also nominated Los Angeles Superior Court Judge Dennis Perluss to succeed Justice Richard Neal, who retired from Div. Seven Feb. 9.

All four seats in Div. Eight, created by SB 1857, remain vacant.

Associate Justice Candace Cooper of Div. Two is under consideration for elevation to the post of Div. Eight presiding justice. Those known to be under consideration for the other seats are Los Angeles Superior Court Judges Gregory Alarcon, Judith Ashmann, Paul Boland, Laurence D. Rubin, 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

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, but an Oct. 3 confirmation hearing has been set for San Diego Superior Court Judge Judith McConnell, nominated by the governor on Aug. 29 for Work's seat.

There is a third 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

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

Presiding Justice Christopher Cottle retired August 31.

Los Angeles County

Judge Elva Soper retires this weekend, bringing the number of vacancies to 21, 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.

Judge Kurt J. Lewin retired last month. Two of the court's judges died in July, Stephen O'Neill July 10 and Ronald Cappai July 17.

Four judges retired in May-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.

Judges 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. Four more vacancies are slated.

Judge David Perez retires next Friday. Judge Richard Charvat, who originally planned to retire Oct. 23, has extended his date to Nov. 5, the same day Judge Elvira Austin is stepping down.

Judge Michael Pirosh is leaving at the end of January.

The court is temporarily without the services of Judge Laura Matz, assigned to Div. Two of the Court of Appeal through Oct. 31.

Jeffrey Marckese, formerly a referee, was named a commissioner this month. Marckese, the top choice of the court's rating panel, was the only candidate named on a majority of the ballots cast by the court's judges.

A runoff election, to be completed next month, will fill two more vacancies. A fourth vacancy-created by the retirement of Commissioner Anthony Luna July 5-will not be filled for the time being, a court official said, because the funds for the position 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 September:

•AB 84, by Assembly Speaker Robert Hertzberg, D-Sherman Oaks, which would protect the home address of a trial court employee from public release by the Department of Motor Vehicles, upon request of the employee. The bill passed the Senate on a 23-9 vote Sept. 13, cleared the Assembly the same day, and was sent to the governor.

•AB 146, by Assemblyman Howard Wayne, D-San Diego, which would specify 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 passed the Senate on a 28-4 vote Sept. 4, was approved by the Assembly Sept. 6 and was sent to the governor.

•AB 479, by Assemblyman Kevin Shelley, D-San Francisco, which would delete an existing limit on fees payable to attorneys handling estate matters involving non-profit corporations. The bill passed the Senate on a 36-1 vote Sept. 6, passed the Assembly the same day and was sent to the governor.

•AB 830, by Assemblywoman Rebecca Cohn, D-Saratoga, which would require the state Department of Aging to create a task force with a budget of $100,000 to study whether the state should establish a statewide telephone hotline for seniors who need legal advice. The bill was approved by the Senate on a 27-6 vote Sept. 12, passed the Assembly the same day, and was sent to the governor.

•AB 913, by Steinberg, which would require 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 approved by the Senate on a 21-12 vote Sept. 4, passed the Assembly on Sept. 6 and was sent to the governor.

•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 was approved by the Senate on a 40-0 vote Sept. 10, was approved by the Assembly the same day, and was sent to the governor.

•SB 11, by Sen. Martha Escutia, D-Montebello, which would provide that in any action based upon great bodily injury or wrongful death allegedly caused by a defective product 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 narrowly defined circumstances. The bill was approved by the Assembly Judiciary Committee on a 6-3 vote Sept. 5, and was sent to the Assembly floor.

•SB 475, by Escutia, which would require the Judicial Council to collect information on the use of referees in discovery matters, whether the referees were appointed upon agreement of the parties or without their consent. The bill passed the Assembly on a 60-16 vote Sept. 5, was approved by the Senate on a 31-7 vote Sept. 12 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 Assembly Sept. 14, cleared the Senate on a 31-2 vote the same day, and was sent to the governor.