Monday, December 31, 2012

Federal judge denied Michael Roddy's Motion to Dismiss lawsuit by Michael Coulter

See also recent shenanigans on Michael Roddy's watch.

See decision in Coulter v. Roddy

Michael Roddy seems to be compiling a record of repeated efforts to deny justice.

From the Coulter v. Roddy ruling:

"...According to Plaintiff, in May of 2009, Murrell obtained a “request for dismissal” of the state court action executed by Plaintiff on an outdated form, knowing the form would not be accepted by the superior court clerk’s office.

"Plaintiff alleges Roddy, the Executive Officer of the clerk’s office, enacted and enforced “policies, regulations and customary practices” which caused the clerk’s office employees to “improperly and illegally deny filing” the request for dismissal.

"Murrell’s and Roddy’s actions allegedly prevented Plaintiff from proceeding with the state court action, in violation of his due process rights. In addition, during the six-month period between when Plaintiff signed the request for dismissal form in May of 2009 and when the state court finally dismissed the action in November of 2009, the Estate of Daniel T. Shelley was depleted, leaving nothing to satisfy his claims...

"Roddy’s only argument is that Plaintiff fails to sufficiently allege a conspiracy between Roddy and Murrell. Roddy cites Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003), for the proposition that conclusory allegations that the lawyer was conspiring with state officers to deprive him of due process are insufficient to support a § 1983 claim.

"However, in Simmons, the Ninth Circuit held that such conclusory allegations were insufficient to support a § 1983 claim against a private attorney who was not acting under color of state law. Id. Here, Roddy does not dispute that as Executive Officer of the clerk’s office, he was acting under color of state law with respect to the allegedly unlawful conduct.

"Thus, the only issue is whether Plaintiff sufficiently alleged Roddy’s conduct violated Plaintiff’s rights under the Constitution or federal law. Construing the FAC in light most favorable to Plaintiff, as the Court must, the § 1983 claim against Roddy does not depend on a conspiracy theory.

"Indeed, Plaintiff only alleges the clerk’s office confirmed for Murrell that the outdated form would not be accepted. (FAC ¶ 5.) Plaintiff alleges Roddy, by enacting and enforcing certain policies and practices, caused the deprivation of Plaintiff’s due process rights."

signed by Judge Irma Gonzalez

Friday, December 28, 2012

California State Auditor blasts Superior Court Executive Michael Roddy for kowtowing to judges who ignore the law

Michael Roddy has been complaining about budget cuts, but he's been falling down on the job when it comes to procedures for making sure that violent criminals make appropriate payments.

San Diego Superior Court judges blasted by state auditor for waiving domestic violence payments
Matt Potter
San Diego Reader
October 1, 2012

The California State Auditor has issued a blast at the San Diego Superior Court, saying that judges here have been waiving legally required payments due from those convicted of crimes of domestic violence.

According to the state auditor's report, issued September 6, San Diego courts have the worse collection record of four counties the office sampled over a four-year period. The other counties were Los Angeles, Santa Clara and Sacramento.

The money paid by the domestic violence probationers is earmarked to fund a network of local shelters for domestic violence victims.

"Because of the relatively low rate of collections of payments in the four counties, fewer resources are available for local shelters to provide services to victims of domestic violence."

"Some counties had higher collection rates than others—collections in Los Angeles County averaged 57 percent of the amounts owed while collections in San Diego County were only 12 percent," the audit found.

The state auditor identified one San Diego court problem in particular: its judges, who according to the audit have been arbitrarily reducing some probationers’ payments.

"Although state law specifies that assessed domestic violence payments may be reduced or waived if the court finds that the defendant has an inability to pay, judges in one of the counties reduced or waived the payment for other reasons, such as the probationer’s successful completion of batterer intervention programs."

“This practice results in fewer resources being available for domestic violence programs."

"In San Diego County, of the probationers in the 16 misdemeanor cases that we reviewed at San Diego Court’s central division, eight had completed batterer intervention programs. For each of those eight cases, the court reduced domestic violence payments, and the reductions ranged from 25 percent to 43 percent.

"San Diego Court should ensure that procedures are in place so that courts do not reduce or waive domestic violence payments for reasons other than a probationer’s inability to pay."

In their response to the audit's findings, San Diego court officials generally agreed with most of its findings and said they would implement the auditor's recommended reforms.

But San Diego Superior Court executive director Michael Roddy said in a letter dated August 17 that he didn’t have the authority to overrule judges when they reduced the domestic violence payments.

"Judges are independently elected officials and have the discretion to impose a sentence that they deem to be appropriate for the offense," wrote Roddy.

"Court administration is not in a position to establish procedures to ensure that domestic violence payments are not reduced or waived for reasons other than inability to pay.

"The court has established Sentencing Guidelines, which include a recommended fine amount and also include information about each fine and fee and whether they can legally be reduced for reasons other than inability to pay.”

That drew this response from the auditors:

"We recognize that the San Diego Court administration is not in a position to establish procedures unilaterally that affect sentencing practices.

“However, as discussed at our exit conference, we would expect the court administration to discuss our report findings with the court’s judicial officers and work together to establish procedures so that the San Diego Court can ensure that domestic violence payments are not reduced or waived for reasons other than inability to pay.”

Oct. 2, 2012 @ 1:32 p.m.

"Judges are independently elected officials and have the discretion to impose a sentence that they deem to be appropriate for the offense," wrote Roddy.

That is an outright, whopper lie. Roddy better go back to court executive school and get a clue.

Judges must follow the laws passed by the state legislature, they are not kings and courtrooms are not their fiefdoms. They cannot impose, or not impose, legally mandated laws-including fines. The Auditor should file for a writ of mandamus with the DCA and force the idiot judges to comply with the law.

Monday, December 24, 2012

Judges don’t reveal relationships; fairness questioned

Judges don’t reveal relationships; fairness questioned
By Jeff Chirico
Oct 29, 2012

A CBS Atlanta News investigation revealed some Georgia judges fail to disclose relationships they have with attorneys in open court. It raises questions about how fairly the judges dispense justice.

In August, Fulton County Superior Court Judge Bensonetta Tipton Lane awarded custody of Usher's two sons to the Atlanta-based singer and actor. The decision stunned Usher's ex-wife, Tameka Raymond, according to her attorney, Lisa West.

Since the decision was rendered, West said she learned Usher's celebrity attorney, John Mayoue, may have helped Lane get reelected in 2008. According to campaign finance reports, Mayoue's law firm donated $1,000 to Lane's campaign and hosted a fundraising reception that raked in thousands of dollars. According to West, Mayoue also sat on Lane's reelection committee.

"I would classify the relationship as a special relationship," said West.

West said she believes Lane should have disclosed that relationship in open court so she has asked for a new trial and for Lane to recuse herself.

Georgia law allows for attorneys to contribute to judicial campaigns but judges have a heavy legal burden to avoid even the appearance of being biased.

Lane isn't the only judge accused of not revealing special relationships with attorneys. Lane's colleague, Judge Gail Tusan, also failed to tell Ed Dort that his ex-wife's attorney, Robert Boyd, sat on her reelection committee.

"The final judgment and divorce decree basically financially buried me," Dort said.

According to records, Boyd donated to Tusan's campaign days before Dort's wife filed for divorce.

"There's no question she was influenced by the attorneys," Dort said.

Joanna Shepherd Bailey, a professor for Emory University School of Law, said money does influence judicial outcomes.

Shepherd Bailey conducted an extensive study of more than 21,000 State Supreme Court cases and found a strong correlation between judicial campaign contributions and judges' decisions.

"A $1,000 contribution will increase the likelihood of a judge voting in a particular way by, depending on the case, between 1 percent and 7 percent increase in likelihood," Shepherd Bailey said.

Some are calling on judges to be more transparent in open court about contributions they receive and relationships they have with attorneys arguing before them.

"There's no harm in laying all your cards on the table," said Charles Hall, representative of the Justice At Stake Campaign, a group fighting against money's influence on courts.

Hall recommends judges be up front about connections they have with parties involved in a case. If there's any question whether a judge can be fair, then he or she should step aside, Hall said.

Tusan, the judge who presided over Dort's divorce, denied that she is influenced by contributions to her campaign or attorney's efforts to help her get elected.

Tusan said she is in full compliance with state law and discloses all campaign contributions as required by state law.

But after Dort launched an online petition calling for Tusan to step aside, she recused herself.

If there's any question that attorneys know contributions can influence judges, Ken Sullivan of Forsyth County said he has proof.

His divorce attorney, Margaret Washburn, sent him an email in 2010 discussing strategies for their case.

The email suggested, "We find who [the judge's] campaign manager or treasurer was, hopefully an attorney, and add him/her to the team ASAP."

Sullivan said he believes Washburn was suggesting that he contribute to the judge's campaign.

"I don't think padding the judge's campaign manager should have any bearing on the outcome of your case," Sullivan said.

Campaign finance records reveal Washburn, who is also a municipal court judge, has contributed more than $15,000 to judicial campaigns in the last six years.

Washburn emphatically denied she recommends clients make campaign contributions to curry favor with judges.

She claimed the email was intended to help Sullivan find a new attorney.

Friday, December 21, 2012

San Diego Superior Court Judge-to-be Gary Kreep thinks City Beat is the voice of "powers that be"

Poor Gary Kreep. He's being picked-on by City Beat, one of the few progressive papers in San Diego.

Mr. Kreep says that City Beat is trying to court the favor of the movers and shakers of San Diego by writing about him. (See the last two paragraphs of the story below.) No, Mr. Kreep. City Beat is writing about you because your becoming a judge in San Diego is an affront to the constitutions of California and the United States. The June 2012 election was one of those rare occasions when progressives voted for a Republican, Garland Peed, for Superior Court judge, because you don't respect the institutions on which our country is based.

I believe Mr. Kreep should not accept the position as judge, since his judicial integrity is hopelessly compromised after he sent out deceptive mailers to fool South Bay citizens into voting for him. In South Bay, progressives did vote for Gary Kreep because he sent out a mailer linking himself to Obama.

Gary Kreep's family-law record
Birther judge-elect opposed parental rights for communists and lesbians as a lawyer, and faced allegations of spousal abuse
By Dave Maass
City Beat
Dec 19, 2012

“You give muckrakers a bad name…. Now, you’re even using the legendary ‘when’s the last time that you beat your wife’ ploy.”

—Judge-Elect Gary Kreep, Nov. 30, 2012

The signs were staked in the ground across the street from Gary Kreep’s law office in Escondido. One read “Divorce Lawyers Lie,” the other “You’re in Good Hands With Kreep—Not.”

It was 1991, and Kreep—who’ll be sworn in as a Superior Court judge in January— was being stalked by a client who’d gone off the deep end. The signs were just the beginning of a Cape Fear-style threat to Kreep and his staff; the man allegedly idled outside Kreep’s office and sent postcards featuring images of skeletons and bloody bodies. The client defended his actions in court, saying his goal was “to protest Kreep’s unscrupulous, careless and impious actions towards me and to warn the community about an archetype of ill repute.” Kreep successfully obtained a restraining order, and the court record indicates that was the end of it.

Among attorneys who practice family law, unhinged clients are considered part of the cost of doing business. Yet, as Kreep hopes to be assigned to domestic court next year, the controversial attorney’s record in family law certainly deserves scrutiny.

After running a stealth campaign, Kreep won the June 6 primary election by less than half a percentage point. His election has raised grave concerns in the legal community and the press due to his history as a polarizing political force. A lifelong Republican, Kreep pursued a career as a self-styled constitutional-law attorney. Over three decades, he’s represented myriad conservative interests, such as the anti-abortion and Minutemen movements, and, as a Republican activist, headed up numerous political action committees. These days, he’s best known as one of the primary “Birther” attorneys suing over the supposed illegitimacy of President Barack Obama’s birth certificate.

(Read CityBeat's previous in-depth reporting on Kreep here.)

Soon, he’ll leave all that behind to become a judge in the Superior Court of California, serving San Diego County. He’s told multiple media outlets that he won’t let his right-wing and Christian fundamentalist leanings (such as his ardent opposition to LGBT marriage equality) impact his rulings. However, Kreep’s record in family court—as a private attorney, as the executive director of a far-right nonprofit and as a party in his own domestic matters—raises questions about whether families will be in good hands.

One of Kreep’s earliest family-related cases is stored on microfilm at the Vista courthouse. The records from 1983 and 1984 detail his representation of two foster parents who needed to obtain a restraining order against their troubled, adult adopted son, specifically to keep him away from their younger adopted child. Kreep had been hired to file the injunction, and he quoted the parents a fee of between $250 and $500. As the case became more complicated, involving Carlsbad police and a private investigator, Kreep racked up fees in excess of $1,500. When the couple couldn’t pay, Kreep took them to court.

Related content Birther attorney in the lead for judge seat Who’s behind Gary Kreep robocall? Gary Kreep needs your help to throw Obama off the ballot

The judge took the rare move of ruling that Kreep must write the case off as pro-bono.

“The lawyers of California have been told by the California Supreme Court and the Ninth Circuit Court of Appeal [sic] that they must contribute their time and talent to those less fortunate than themselves,” Judge Ross Tharp wrote in his ruling. “Such is the case at hand. Defendants, being borderline indigents, simply could not, and cannot, afford to pay $90 per hour for plaintiff’s professional services, no matter how exemplary or successful they may have been.”

Kreep declined to comment on this case, or any other case for that matter, citing attorney-client privilege, even though, at the time some of the cases were happening, he was eager to publicize them.

Through the U.S. Justice Foundation (USJF), often described as the right-wing’s answer to the American Civil Liberties Union, Kreep has inserted himself into several family-law cases. A 1987 profile in the Los Angeles Times referenced USJF’s assistance to a San Francisco man who was attempting to gain custody of his daughter. The argument was that the mother was an unfit guardian, since she’d been a leader in the Revolutionary Communist Party, a Maoist radical group. Kreep sent out a newsletter with the headline “USJF Wins First Round of Battle to Save 12-Year-Old From Communism,” the Times reported.

More than 20 years later, USJF signed on to Miller vs. Jenkins, a landmark custody dispute that cut to the core of LGBT parental rights.

The case involved a lesbian couple in a civil union who had a child together. The biological mother became an ex-gay, born-again Christian and sought to dissolve the relationship. Although a Vermont court awarded the other parent visitation rights, the biological mother—for whom the USJF served as cocounsel—left for Virginia, which doesn’t recognize LGBT unions, to invalidate the visitation rights. A federal law explicitly prohibits this kind of interstate judge-shopping; however, Kreep’s organization sought to publicize the case as a front in a larger culture war.

“We anticipate that this litigation, which centers around the issue of child custody and visitation rights resulting from a domestic partnership, will soon wind up before the United States Supreme Court as state courts are involved in more of these cases,” Kreep said in a press release. “The United States Justice Foundation believes that the time is now to engage in this battle to preserve the sanctity of traditional marriage and the best interests of children.”

The case didn’t reach the Supreme Court. When it was resolved in the other mother’s favor, the biological mother fled to Nicaragua with the child. A Mennonite pastor was convicted of kidnapping for helping the mother leave the country.

Ask Kreep about his own domestic life, and he’ll talk about how he cared for his terminally ill wife for two-and-a-half years. After she passed away, Kreep cared for his terminally ill mother-inlaw for another eight months.

He remarried in 2004, but after three years, they separated. Kreep filed for dissolution in September 2007, citing irreconcilable differences. A legal battle ensued over splitting property, including real estate, timeshares, insurance policies, IRS returns, Corvettes, art work, coin and sports-card collections and a cache of firearms. The protracted case grew bitter as Kreep accused his wife of a gambling addiction and she countered with multiple allegations of abuse.

“Since my marriage to my husband it has become very clear that he has a very strong need to control me emotionally, physically and financially,” Kreep’s ex-wife, a psychologist, wrote in a declaration on file at the East County court house. “The reason I left my husband is because he was verbally and physically and emotionally abusive. He is a recovering alcoholic and unfortunately has to lay blame on me for things he cannot accept in himself. He accuses me of addictive behaviors I don’t have, throws bottles at me, punches holes in walls, and belittles me.” Confronted with these allegations, Kreep points out they were not made at the beginning of the case, but two years into the dispute.

“I have never touched either of my wives in anger,” Kreep writes in an email to CityBeat. “The charges of ‘verbally and physically and emotionally abusive’ are completely false. As far as being ‘a recovering alcoholic,’ I have only been ‘blasted’ once in the past 30+ years. I do not feel that it is appropriate to comment on my ex-wife’s addictions. I never threw a bottle at her, never punched walls during our marriage, and I should point out that my ex-wife was 6’ tall in stocking feet, and not exactly petite.” [Maura Larkins comment: Apparently Mr. Kreep thinks that it's a fair fight for a man to assault a tall woman. A woman on steroids, perhaps, but in general a short man is much stronger than a tall woman. I'll bet Mr. Kreep would choose to fight the woman if he were forced to make a choice as to whether he'd fight a tall woman or a short man.]

CityBeat unsuccessfully attempted to reach his ex-wife directly or through her attorney of record.

Although Kreep has made a career of smearing politicians, he believes it’s unfair to bring up these issues about him.

“You REALLY must hate me, or you’re REALLY being paid a lot to go after me by the downtown crowd,” he writes. “I hope that your bootlicking is getting you the crumbs from the table of the ‘powers that be’ that you are seeking, as your journalistic integrity, and accuracy, certainly is lacking.”

Kreep will be sworn into office on Jan. 7, after which Presiding Judge Robert Trentacosta will assign him to a department.

Wednesday, December 5, 2012

New Media Rights will continue to defend Internet underdogs

Geek vs. Troll
Separating from UCAN, New Media Rights will continue to defend Internet underdogs
By Dave Maass
City Beat
Dec 05, 2012

There are some Internet questions that aren’t easy to answer online.

Let’s say you’re a citizen journalist who wakes up one morning to an alert from Google that, due to purported copyright infringement, it has removed one of your blog posts about a student in Scotland who’d been posing online as a Syrian lesbian to score a book deal. You know the copyright claim is crap, but what then?

“Yes, I’ll use the F-word: Frightening,” says gay-rights blogger Michael Petrelis, whose blog, The Petrelis Files, received such a “takedown notice” in August 2011. “To get that email from Google, I just knew, to keep my stress level down I was going to need expertise to challenge Google. Just saying that—‘challenging Google’—gives me tingles in a way. I’m a person with AIDS, struggling with disability in San Francisco, who now has to navigate Google’s rules.”

During the last decade-and-a-half, major online communities—most notably Google’s and You- Tube—have instituted a largely automatic, frustratingly bureaucratic system of censor-first self-regulation when it comes to alleged copyright infringement. It’s easily, and often, abused and tends to favor aggressive “trolls,” who use the system as a weapon. These trolls are sometimes corporate legal teams; other times, they’re just independent bullies seeking to block critical content from release.

“I think he saw me as an easy target,” Petrelis says of his troll. “He’s certainly intelligent, smarty-pants enough that he knew how to lodge the right kind of complaint with Google.”

After talking to attorneys at Harvard University’s Citizen Media Law Project, Petrelis was referred to a San Diego legal clinic, New Media Rights, whose executive director, Art Neill, personally talked him through the process and helped him file a successful counter-claim.

“For everybody who was exposing him as a fraud, [the faux Syrian] tried to get their sites taken down and their posts taken down using DMCA [Digital Millennium Copyright Act],” Neill says. “I think one of the problems with those kind of small-scale copyright takedowns is, obviously, folks don’t have an attorney on call, and they’re sort of worried because they get nasty letters that say, ‘You’re going to owe $150,000 for infringement,’ and they’re, like, ‘Well, I don’t want to lose my house... so I’m not going to do anything; I’m just going to let the content bully win.’”

New Media Rights (NMR) is one of the few programs in the country that offer one-to-one, free legal assistance to Internet users and creators. Since 2005, NMR had been a program of the Utility Consumers’ Action Network (UCAN), the well-regarded public-interest watchdog group, but NMR separated this year as political infighting and alleged financial mismanagement brought UCAN to its knees. NMR has found a new nonprofit home at California Western School of Law and a new physical home at the Ansir Innovation Center in Kearny Mesa. Now, with a solid foundation, NMR is prepared to move forward in not only championing the rights of bloggers like Petrelis, but also musicians, filmmakers and programmers.

A two-lawyer operation working on a budget of less than $135,000— hardly a competitive salary for one corporate intellectual-property attorney—NMR now has the administrative resources of the university, as well as a stable of law students eager for legal-clinic experience. That was a big part of the sell for Cal Western.

Neill says the idea for NMR began while he was at law school in 2004. A musician on the side, he was looking for ways to blend his interests. Meanwhile, social media was beginning to show its potential. “Certainly, this generation of students coming into law school have a great deal of personal experience with this,” Associate Dean for Academic Affairs William Aceves says. “I think for students to be able to learn more about how the law regulates their communication, their email usage, their Internet usage, their Facebook and Twitter accounts, I think that’s particularly interesting to them, and also gives them a chance to actually enhance their skills set with substantive law by working on real cases with real clients.”

“I realized that all of that stuff implicates the law,” he says. “I realized that there’s millions of folks that are just going to need to have more awareness of the laws they’re interacting with when they share content, when they’re out there speaking on the web.”

After graduation, Neill found a receptive outlet at UCAN and its then-director, Michael Shames, who’d begun to field calls from local businesses and artists on web matters.

“The musicians, the artists, they’re all wandering through this sort of Internet wilderness that has developed,” Shames says. “The rules, the laws are not clear, and they’re not clearly enforced. So, creating New Media Rights was the means by which we could sort of try to bring order and provide some degree of sheriffing to what otherwise was a Wild West frontier, and, to this day, still is.”

Shaun Spalding and Art Neill are the dynamic duo at New Media Rights.

Scrolling through his database, Neill counts hundreds of individuals who’ve been helped, including the high-profile case of Canadian-American pop-culture critic Anita Sarkeesian, founder of Feminist Frequency, whose music-video-style commentary on video-game characters, “Too Many Dicks,” was inexplicably removed from YouTube in early 2011. But Neill says that roughly 30 percent of NMR’s interactions are with locals, whether it’s helping freelance artproject manager Susan Myrland recapture a personal website that had been taken over by spammers or representing a San Diego app developer when his word game for Android devices was removed from the online store after Hasbro filed a complaint.

In that case, Neill went head-to head with the corporation’s legal team, explaining in detail how the game didn’t infringe on Scrabble. Hasbro backed down, but some of the damage was already done.

“A few weeks after they had withdrawn their DMCA notice, they actually launched Scrabble on the Android platform,” says David Almilli, CEO of Second Breakfast Studios. “I’m not sure if it was a tactic to disrupt my ecosystem to make their app look like a better player on the Android market, but I had a good number of users using Wordsmith, and it actually dropped significantly during that month of down time.”

Much of NMR’s work is geared toward preventive lawyering—that is, educating media creators to prepare in advance so they don’t need an attorney later. This is particularly important when an artist or writer intends to publish something they foresee could invite pushback.

Trolls “are going to find that one thing and that’s what’s going to give you a lot of problems,” says NMR’s other staff attorney, Shaun Spalding. “General resources can’t help with that. I’m pretty happy I’m able to use how much I know about board games, movies, video games for an actual purpose of helping someone else, and not just for doing well in trivia contests.”

NMR regularly receives grants for outreach through the California Consumer Protection Foundation and was recently awarded an $18,200 grant from city of San Diego’s Small Business Enhancement Program to work with 30 local businesses and host a series of workshops. The organization is also prolific in producing instructional web videos, including its 120-part “LAGD” (Legal Assistance for Game Developers) series, which features interviews with popular game designers, such as Edmund McMillen of Super Meat Boy (a central figure in the 2012 documentary Indie Game). NMR is crowd-funding now for “Season 2” of LAGD.

Then there’s NMR’s policy work. Neill and Spalding are gearing up for a battle over the implementation of a small-claims-court system for copyright infringement cases. At the end of November, Neill provided testimony at a U.S. Copyright Office hearing on the concept, which he says may not be a bad thing, but, done haphazardly, could be catastrophic.

“There’s a lot folks at the table saying, ‘Hey, we want to be able to sue Internet users, and we want to be able to sue people for copyright infringement,’ but there’s not a lot of people saying, ‘Well, wait, what are the consequences of that?’” Neill says. “Should these folks have the right to defend themselves? Shouldn’t they have representation? Aren’t there going to be a lot of dolphins caught in the tuna net, getting screwed in this process? [We’re there] to make sure there’s due process, that the process is fair, and this isn’t just some new way where large media companies or copyright holders can simply steamroll the little guy.”