Wednesday, April 30, 2014

Montana teacher's 1-month rape sentence overturned

Montana teacher's 1-month rape sentence overturned
Associated Press
By MATTHEW BROWN
Yahoo
April 30, 2014

BILLINGS, Mont. (AP) — The Montana Supreme Court has overturned a one-month sentence that was widely condemned as too lenient for a former high school teacher convicted of raping a 14-year-old student.

The court ordered a new judge to re-sentence defendant Stacey Dean Rambold, who has been free since completing the previous term last fall.

Yellowstone County Attorney Scott Twito says that according to state sentencing laws, the decision means Rambold must serve a minimum of two years in prison.

The high court's decision cited in part the actions of District Judge G. Todd Baugh, of Billings, who suggested the young victim shared responsibility for her rape because she had some control over the situation.

The office of Rambold's attorney, Jay Lansing, says he is traveling and not immediately available for comment.

See Role Model Lawyers posts on Judge Todd Baugh.

Monday, April 28, 2014

How A Public Corruption Scandal Became A Fight Over Free Speech

How A Public Corruption Scandal Became A Fight Over Free Speech
NPR News
April 28, 2014

Monday the Supreme Court hears the case concerning what kind of speech is protected for public employees.

The current conservative Supreme Court majority has a well-earned reputation for protecting the First Amendment right to free speech, whether in the form of campaign spending or protests at military funerals.

But in one area — the first amendment rights of public employees — the conservative majority has been far less protective of the right to speak out. Now the court is revisiting the issue, and the result could have far-reaching consequences for public corruption investigations.

Edward Lane was fired because he testified truthfully that an Alabama state legislator was a no-show employee, being paid by the taxpayers for no work.

He was hired in 2006 to head a program for juvenile offenders, providing counseling and education as an alternative to incarceration. The program was run out of Central Alabama Community College and received substantial federal funds.

After he was hired, Lane conducted an audit and learned that one of the program's best paid employees, a state representative named Suzanne Schmitz, was not showing up for work. After Schmitz refused to change her ways, Lane had what he describes as an "ugly" meeting with the state legislator.

"She began to tell me who she was, and did I know who she was for real," said Lane.

Lane says that people in his office warned him not to tangle with Schmitz because of her influence, but, as he puts it, "To me, it's like being president of the bank. If I know one of my tellers is stealing from the bank, and I allow it to go on, I'm complicit."

And so he fired Schmitz.

About that time, the FBI came calling, Lane says. The bureau was conducting an investigation of public corruption in Alabama and subpoenaed Lane to testify first before the grand jury, and later at Schmitz's two trials. She was subsequently convicted in federal court of fraudulently obtaining $177,000 in public funds.

Lane, however, was not rewarded for his conduct. He was fired just before the community college was to request additional money from the state Legislature for the program he headed.

"I was the only one who was terminated," Lane said. "And to me, it made it look like I had done something wrong. You know, I was the one who was doing what was right."

And so he sued, contending that he was fired in retaliation for his testimony and that such retaliation violates the First Amendment guarantee of free speech.

While the Supreme Court in 1968 extended to public employees protection for statements made as a matter of public concern, the court has since narrowly defined what constitutes a matter of public concern.

In 2006, the court upheld disciplinary actions against a Los Angeles deputy district attorney after he testified in a trial that an affidavit to obtain a critical search warrant was false. By a 5-to-4 vote, the conservative Supreme Court majority ruled that the First Amendment offers no protection for speech that public employees engage in "pursuant to their official duties."

The court said that a public employee's speech is only protected when he speaks as a citizen on a matter of public concern, not as an employee.

In Edward Lane's case, the federal court of appeals based in Atlanta ruled that Lane was not protected because he was testifying about information he had learned as an employee.

Lane appealed to the Supreme Court. Monday his lawyers will argue that public employees have a duty to testify truthfully when subpoenaed, and that the First Amendment protects public employees from retaliation for performing that duty. If there is no such protection, say Lane's lawyers, employees who know about fraud, waste and abuse in government will be afraid to come forward, and public corruption will thrive.

A decision in the case is expected by summer.

Friday, April 25, 2014

Justice at last for Jason Moore? Prosecution by Bonnie Dumanis for taking two hours off work now proven to be political


It's about time that the abusive political prosecution of Jason Moore should be rectified. Steve Castaneda also seeks information about the political prosecution he endured.

See recent revelation: Phone Call Raises Questions About DA Dumanis’ Chula Vista Investigations


News Of Dumanis Call Prompts Request To Strike Plea Deal
By Amita Sharma
KPBS
April 24, 2014

An aide to former Chula Vista Mayor Steve Padilla wants to undo his 2008 misdemeanor guilty plea.

Jason Moore's defense attorney says his client should have been told about District Attorney Bonnie Dumanis' call when he was charged.

The request follows news of a call San Diego District Attorney Bonnie Dumanis made before she investigated Chula Vista city officials.

In 2007, former Padilla aide Jason Moore faced five felony charges for perjury. Moore was caught spying on the political enemy of his boss at an event during work hours. Prosecutors said Moore lied about when he submitted a request to take time off from work. Moore ultimately pleaded guilty to a misdemeanor in a deal with the DA’s office.

Moore’s attorney Knut Johnson said that deal would have never been cut today. Johnson says revelations in a KPBS story this week changed everything.

The story reported that Dumanis called then-Mayor Padilla in 2006 just weeks before she started investigating Chula Vista city officials. Padilla said Dumanis asked him to appoint her own aide to a vacant Chula Vista City Council seat. Padilla refused and soon afterward, she launched her probes.

"If the district attorney called up Mr. Moore’s boss and tried to get that boss to make a city council seat available for one of her employees and then when refused a week later started an investigation that included subpoenaing Mr. Moore to the grand jury, that was undisclosed and we should have known about that," John said. "It's such an obvious conflict of interest."

Johnson said he plans to file court papers arguing that Moore’s plea deal was obtained illegally. The DA’s office said it had no comment at this time.



Here's one of my early posts about the Jason Moore case:

Is Jason Moore the Dale Akiki of Bonnie Dumanis?
May 20, 2007

Tanya Mannes writes about Bonnie Dumanis' mysterious "Public Integrity Unit" in this morning's San Diego Union-Tribune:

"In existence about 14 months, it has filed charges against one person: Jason Moore, a former Chula Vista mayoral aide." Jason Moore worked for Steve Padilla, a Democrat who was in a run-off election against Republican Cheryl Cox.

The investigation of Moore, for taking two hours off work to take pictures of Cheryl Cox with David Malcolm at a Cox fundraiser, began in August 2005, well before the November election. Oddly, Bonnie Dumanis says, that in the future, in most cases, "we will not investigate a complaint until after an election."

Bonnie says her office is determined to be nonpolitical. When will that start, Bonnie? Specifically, when will you investigate complaints against Cheryl Cox and her associates?
v Dumanis did not even announce the existence of her "Public Integrity Unit" until March 1, 2007. Jason Moore was indicted on March 27, 2007.

O'Toole and Dumanis have each claimed to be personally interested in prosecuting perjury. But Dumanis' office recently refused to investigate proven perjury regarding illegal actions committed at Chula Vista Elementary School District when Bertha Lopez and Cheryl Cox were trustees of CVESD.

UPDATE April 25, 2014:

Maura Larkins' note: I imagine that readers are more likely to believe me regarding illegal actions and perjury committed by school officials in the South Bay after the recent revelations of pay-for-play deals with contractors. See related posts. I think these revelations will hurt Bonnie Dumanis in her contest against Bob Brewer in the upcoming election for district attorney in San Diego. But I hope that Bob Brewer, if he wins, won't give all public officials a free pass. I worry about that since Bob Brewer has made most of his money defending powerful white collar players. And he even has Bonnie's henchman Patrick O'Toole, who savagely prosecuted Jason Moore and Steve Castaneda, in his camp. That's sort of scary...

I just discovered that Bertha Lopez pled guilty yesterday to an extremely small potatoes transgression: accepting a gift over the limit. Bonnie Dumanis has not gone after the serious, truly high-stakes corruption in schools. I blame Bertha Lopez for harming students by rubber-stamping corrupt actions by both Republicans and Democrats in schools, but I believe that her prosecution by Bonnie Dumanis was largely political. Obviously, Bonnie Dumanis didn't want a trial because Bertha might have revealed too much about the corruption she knows about.

The San Diego Union-Tribune reports: "Two more Sweetwater school board members pleaded guilty Thursday to minor charges in the South County political corruption investigation, effectively ending a case once described as the worst corruption scandal in a decade on a muted note. Board President Jim Cartmill and trustee Bertha Lopez each pleaded guilty to a misdemeanor charge of accepting gifts over the state limit. They will be sentenced in June."


In a related case, another political target of Bonnie Dumanis also asks for follow-through on the new information about the D.A.'s political motives.

Ex-Chula Vista Councilman Wants DA To Release Emails
By Amita Sharma
KPBS News
April 22, 2014

Former Chula Vista City Councilman Steve Castaneda called on District Attorney Bonnie Dumanis to release emails connected to his 2008 prosecution.

Former Chula Vista City Councilman Steve Castaneda called Thursday on District Attorney Bonnie Dumanis to release emails connected to his 2008 prosecution.

Castaneda's request followed a KPBS report that Dumanis investigated him and his colleagues after failing to get her aide appointed to a vacant Chula Vista council seat.

In 2006, Dumanis opened an inquiry into whether Castaneda received favors from a developer. That was months after then-Chula Vista Mayor Steve Padilla said he refused Dumanis' phone request to appoint an aide, Jesse Navarro, to a vacant council seat. Castaneda was later indicted on accusations of lying to a grand jury.

A jury acquitted him on most of the charges and hung on others.

Castaneda said he should have been told about Dumanis' call to Padilla. He now wants the District Attorney's Office to release all emails regarding his case because he wants to know "what happened and why it happened."

"Frankly, if she were on my side of the prosecutorial desk, she'd be at a grand jury right now," Castaneda said. "And she's hiding behind her status and her position, and I think she owes it to not only me and my family, but she owes it to the people of San Diego County."

A Dumanis spokeswoman released a statement on the matter saying, "Mr. Castaneda's criminal case is closed and we will not allow the District Attorney's Office to be used as a political pawn."

KPBS also asked for the same emails but was told the records didn't exist and would be exempt from disclosure anyway.

Monday, April 21, 2014

Phone Call Raises Questions About DA Dumanis’ Chula Vista Investigations


Update: See Justice at last for Jason Moore? Prosecution by Bonnie Dumanis for taking two hours off work now proven to be political

ORIGINAL POST:

“If you have a prosecutor personally requesting something that is refused and soon thereafter there is a criminal investigation that would effectively open up the opportunity that the prosecutor had requested, the appearance of impropriety is that the prosecutor is using his or her office to obtain this benefit.”


Phone Call Raises Questions About DA Dumanis’ Chula Vista Investigations
The chief prosecutor in the investigations says a phone call by Bonnie Dumanis to the then mayor of Chula Vista should have been disclosed and the District Attorney's Office should have recused itself from the probes.
By Amita Sharma
KPBS News
April 21, 2014

As Bonnie Dumanis campaigns for a fourth term as district attorney, a prosecutor in her office and some former elected officials in the South Bay are raising questions about whether she blurred the boundary between politics and law enforcement in a high-profile case six years ago.

At issue is the prosecution of former Chula Vista Councilman Steve Castaneda, who was accused in 2008 of lying to a grand jury. A jury acquitted him on most charges and hung on others.

At the time, the case perplexed people in the media and legal circles who suspected political motives. KPBS recently learned of a phone call Dumanis made in late 2005 that some now say could lend credence to those suspicions.

Jesse Navarro

”I received a call from Bonnie in my office, asking me, encouraging me to support one of the candidates who was an employee of hers in her office and a friend,” said former Chula Vista Mayor Steve Padilla, who needed to fill a vacant City Council seat at the time.

The employee was Dumanis aide Jesse Navarro. Padilla said he told Dumanis that Navarro wouldn’t do because he needed to replace outgoing Councilwoman Patty Davis with another female Democrat.

“She was disappointed,” Padilla said. “She felt strongly about Jesse.”

Critics have long accused Dumanis of improperly wading into politics by endorsing candidates. But they argue the 2005 phone call to Padilla crossed a new line. It melded politics and prosecutor, undercutting her credibility and raising questions about her motives in the events that followed.

Just weeks after the call, Dumanis’ office opened an investigation into Padilla and the rest of the Chula Vista City Council for allegedly not attending redevelopment corporation meetings but collecting pay for them. No charges were filed.

The office did charge Padilla’s aide Jason Moore in 2006 with lying to a grand jury about spying on his boss’s political opponent at a fundraising event. In a deal with prosecutors, Moore pleaded guilty to a misdemeanor.

That same year, Dumanis launched a probe into whether then-Councilman Castaneda had received special favors from a developer. A grand jury later indicted Castaneda for perjury.

Dumanis declined a request for an interview for this story. Her spokesman said the office cannot discuss past or present investigations.

Former federal prosecutor Jason Forge

Former federal prosecutor Jason Forge, who is not aligned with any of the three candidates in the district attorney's race, said the series of inquiries following Dumanis’ call to Padilla creates a perception problem.

“If you have a prosecutor personally requesting something that is refused and soon thereafter there is a criminal investigation that would effectively open up the opportunity that the prosecutor had requested, the appearance of impropriety is that the prosecutor is using his or her office to obtain this benefit,” Forge said.

Patrick O'Toole statement

The chief prosecutor in all of those investigations — Deputy District Attorney Patrick O’Toole — also declined an interview for this story.

But he provided a written statement, saying he was unaware of Dumanis’ call to Padilla until early 2008, but if he had known about it he would have insisted the office recuse itself from prosecuting Castaneda.

O’Toole wrote that he first learned of the call in a letter from the Chula Vista Better Government Association, which claimed Dumanis abused her power by trying to influence the Chula Vista council appointment process, among other allegations. O’Toole said he tried to discuss his concerns with Dumanis’ top staff member, Assistant District Attorney Jesse Rodriguez, but “was interrupted and told just to do my job,” O’Toole wrote.

Rodriguez also declined to be interviewed for this story.

O’Toole said at that point he still doubted Dumanis had called Padilla to get her own employee appointed to the vacant Chula Vista council seat. He said he believed that if the call had been made, the office would have told him because of the obvious conflict of interest.

O’Toole said he got confirmation of that call around the time of the Castaneda trial in April 2008. Padilla was a witness in the case.

“Steve Padilla informed me that Bonnie Dumanis had contacted him and requested that he appoint Jesse Navarro to the vacant Chula Vista City Council Position,” O’Toole wrote. “I believe that Steve Padilla also offered that he thought the Castaneda prosecution was 'politically motivated,’ which I thought was strange because Steve Padilla was saying something sympathetic to Steve Castaneda when previously he and Steve Castaneda had each been highly and publicly critical of the other during the previous mayoral primary race.”

O’Toole is supporting former federal prosecutor Bob Brewer in his bid to unseat Dumanis.

O’Toole said had he known about the call, at the very least he would have recommended that Castaneda’s lawyer, Marc Carlos, be told of the conflict of interest. But O’Toole did not address in his written statement why he himself didn’t tell Carlos about the call once Padilla confirmed it. He declined to answer that question, saying he would not go beyond what he had put in his statement already.

Carlos first learned of Dumanis’ 2005 call from KPBS recently.

“If she was trying to do something to get a political favorite in a position of power at the expense of my client, it clearly shows a vexatious prosecution,” Carlos said. “It's illegal for one. And it's unethical. It's certainly something I needed to know."

Former federal prosecutor Forge agreed. He said at a minimum, the defense should have been informed of Dumanis’ call to Padilla.

“That way the defense can make their own assessment of whether they think this is a significant conflict,” Forge said. “The defendant can raise the issue with a judge. And then that third party — the judge — can make a determination about whether or not the fairness of the criminal proceeding is affected by this conflict.”

Steve Castaneda

Former Councilman Castaneda said he had heard scuttlebutt of Dumanis’ call to Padilla while he was being investigated in 2006. But Castaneda said he never raised it as an issue because he didn’t think he could prove the call took place. He said Padilla’s recent confirmation of the call cements his belief that political considerations played a role in his prosecution. Castaneda said it also explains why the District Attorney's Office insisted he resign as a part of a plea deal.

"It is interesting that on the one hand she's asking that a staff member be appointed, I'm indicted,” Castaneda said. “I'm offered a bargain which is rescinded within 24 hours, before I even have an opportunity to say yes or no. These things are circumstantial. But they all lead to the same supposition -- there's something more here than meets the eye."

Patty Chavez

Beyond disclosing information about the call to the defense in the Castaneda case, there was precedent for recusal within the district attorney's Chula Vista investigations.

When the District Attorney's Office asked to question Chula Vista City Councilwoman Patty Chavez in its probe of the redevelopment corporation, her attorney, Colin Murray, balked.

Chavez was in the middle of a re-election race and one of her opponents was Dumanis aide Jesse Navarro.

When Murray learned of Navarro’s connection to the district attorney, he asked that Dumanis recuse herself from the case.

“Why were these subpoenas being issued, including one for my client, when somebody within Bonnie Dumanis’ kitchen cabinet was running for my client’s seat,” Murray asked. “I thought it was improper.”

The District Attorney's Office granted the request.

This story was edited by Lorie Hearn, executive director and editor of inewsource, a KPBS media partner. See also SDER inewscource posts.

Sunday, April 20, 2014

Justice Scalia Tells Law Students ‘Perhaps You Should Revolt’ If Taxes Become Too High

Justice Scalia Tells Law Students ‘Perhaps You Should Revolt’ If Taxes Become Too High
By Adam Peck
Think Progress
April 19, 2014

During an event at the University of Tennessee’s law school on Tuesday, Supreme Court Justice Antonin Scalia suggested to the capacity crowd that perhaps they should revolt against the U.S government if their taxes ever get too high.

During a question and answer part of the event, a student asked Scalia about the constitutionality of a federal income tax. Scalia assured the questioner that the tax was in fact permissible by the constitution, but added that if it ever became too high, “perhaps you should revolt.”

The remark, first reported by the Knoxville News Sentinel, has become a common rhetorical flourish for conservatives nationwide during the Obama presidency.

A state Tea Party chairman in Mississippi called for armed rebellion ahead of Obama’s reelection in 2012, and a Texas Judge told a local news station that he was prepared to join a “civil war” if Obama agreed to sign away U.S sovereignty to the United Nations. Michele Bachmann found herself in hot water in 2009, shortly after Obama took office, for calling upon a violent uprising against Obama, and faced accusations of using treasonous language.

Supreme Court justices have largely refrained from such rhetoric. Still, in recent years, Scalia has shifted even further to the right than when he was first appointed.

Days later, at a joint appearance with fellow Supreme Court Justice Ruth Bader Ginsburg, Scalia offered a bit of ironic commentary on inflammatory rhetoric. “It sometimes annoys me when somebody has made outrageous statements that are hateful,” he told the audience at the National Press Club. “Sometimes the press will say, ‘well, he was just exercising his first amendment rights’…You can be using your first amendment rights and it can be abominable that you are using your first amendment rights. I’ll defend your right to use it, but I will not defend the appropriateness of the manner in which you are using it.”

The oath taken by Justice Scalia:

"I, Antonin Scalia, do solemnly (swear or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

General Mills scraps controversial new legal terms: customers would lose right to sue if they used website

General Mills scraps controversial new legal terms
April 20, 2014
(AP)

General Mills is scrapping a controversial plan to strip consumers of their right to sue the food company.

The company, which owns Cheerios, Progresso and Yoplait, had posted a notice on its website notifying visitors of a change to its legal terms — visitors using its websites or engaging with it online in a variety of other ways meant they would have to give up their right to sue.

Instead, the new terms said, people would need to have disputes resolved through informal negotiation or arbitration.

The Minnesota-based company's decision was widely denounced on social media after The New York Times wrote a story Wednesday bearing the headline, "When 'Liking' A Brand Online Voids the Right to Sue." The next day, General Mills clarified the meaning of its new terms to say they did not apply when people engaged with its brands on Facebook and Twitter.

"No one is precluded from suing us merely by purchasing our products at the store or liking one of our brand Facebook pages. That is just a mischaracterization," the company said.

The terms would apply in instances such as when people subscribed to one of its publications or downloaded its coupons from its websites, General Mills said.

Despite the clarification, the company apparently continued to feel pressure regarding its new terms, and issued another statement late Saturday saying that it decided to return to the previous legal terms.

"We are announcing today that we have reverted back to our prior legal terms, which contain no mention of arbitration," the email said.

Sunday, April 13, 2014

The Secret World of Judicial Appointments

See also posts re electing judges (which is an even worse way to choose judges) in Role Model Lawyers blog.

The Secret World of Judicial Appointments
By: WILL CARLESS
Voice of San Diego
April 18, 2008

Wednesday, Feb. 13, 2008 | On Oct. 17, William Gentry, Jr., a local prosecutor with the District Attorney’s Office, announced he was running for election as city attorney against the incumbent Democrat, Mike Aguirre. Gentry had the support of District Attorney Bonnie Dumanis, who wrote a gushing letter to local lawyers urging them to back him in the race.

“I’m in this to win and 100 percent committed to it,” Gentry told The San Diego Union-Tribune the day he entered the race.

But three months later, despite raising more money than any other candidate, Gentry suddenly dropped out of the race. After a fellow Republican, Superior Court Judge Jan Goldsmith, decided to run against Aguirre, Gentry said he didn’t want to split the vote against Aguirre and urged his supporters to vote for Goldsmith.

A week later, Gentry had a new gig. He was appointed as a Superior Court judge by Republican Gov. Arnold Schwarzenegger. The move raised eyebrows in the local legal and political communities, with many pontificating that Gentry’s appointment was a trade-off for dropping out of the race against Aguirre and clearing the way for Goldsmith.

And a number of local attorneys, who spoke anonymously because they could appear in front of Judge Gentry, questioned whether the former district attorney was the best qualified of several local lawyers sitting on a waiting list for Superior Court judgeships.

But the screening and appointment process undergone by Gentry, and all other prospective judges, is shrouded in secrecy, leaving details of nominations, including the rating given to applicants by an independent commission and the number of potential rivals for each judgeship, outside of public view.

“We’ll never ever know whether this was an inducement to leave,” said Steve Erie, a political science professor at University of California, San Diego. “But the timing of it raises eyebrows. It’s like remarriage after a divorce. The timing is awkward, the timing is unseemly — that it’s occurring so shortly afterwards.”

Gentry said there’s no connection between his leaving the race and his appointment. He said he applied to the Governor’s Office two years ago and had long cleared the vetting process to become a judge when he decided to have a stab at the city attorney’s job. The governor’s judicial appointments secretary, Sharon Majors-Lewis, who used to be a San Diego district attorney herself, said Gentry was chosen purely because of his outstanding qualifications. Before being appointed, Gentry joined the San Diego District Attorney’s Office in 1998, and he is an Iraq War veteran.

“He’s absolutely got the qualifications necessary to be a judge, not to mention his community service involvements and so forth,” Majors-Lewis said. “If he didn’t have the qualifications, he could not have been considered or appointed.”

Becoming an appointed Superior Court judge in San Diego begins with an application to the Governor’s Office.

The Governor’s Office sends each application to a committee in San Diego, the Judicial Selection Advisory Committee. The identity of the members of that group is secret, as is the number of people on the committee and the process by which they assess the applications sent to them. A number of members of the local legal and political communities said District Attorney Bonnie Dumanis is a member of the committee, but the Governor’s Office would not answer any questions about the group.

After its own team has vetted the applicants, the Governor’s Office passes applications it approves of to an independent state Bar commission that’s tasked with assessing the qualifications of potential judges: The Commission on Judicial Nominees Evaluation, known as the JNE Commission.

The JNE Commission, which is made up of active members of the state Bar, former members of the judiciary and members of the public, then begins an exhaustive assessment of each candidate’s qualifications. That includes canvassing present and former colleagues and acquaintances of the applicant and gathering feedback on everything from the aspiring judge’s temperament, to their character, to their record as an attorney.

Those meetings take place behind locked doors. Every document that’s viewed in the meetings is shredded. William Kopeny, the current chairman of the commission, said if a non-commission member enters the meeting to change the air conditioning, the meeting stops until the non-member leaves.

And almost every single element of the JNE Commission’s evaluation of each candidate is strictly confidential. Releasing information from the commission to the media or anyone else is a misdemeanor, Kopeny said.

Past and present commission members said there are very good reasons why the information gathered on each applicant is kept confidential. To accurately assess each candidate’s eligibility, the commission relies on frank and honest feedback from people who know that candidate well and who may have a close relationship to them. The commission would not get that sort of frank information if journalists and members of the public were allowed to pick through the feedback they collate, the commission members said.

“If participating lawyers thought their information was going to be vetted in public, they would be loath to pass it on,” said Diane Karpman, a legal ethicist and former member of the JNE Commission.

Once the commission has considered each candidate, it awards them one of four ratings: Extremely well qualified, well qualified, qualified or not qualified. This rating is sent to the Governor’s Office.

Theoretically, the governor can still appoint someone who has been rated “not qualified” by the JNE Commission. If that happens, the state Bar can choose to make public the fact that they rated the governor’s appointee as such but the governor appointed them anyway.

But the state Bar doesn’t have to say anything.

One former commissioner said the bar could choose to keep quiet about an unqualified appointee in order to protect the governor from embarrassment.

Gentry’s rating by the JNE Commission isn’t public information. Assuming he was considered by the commission as qualified to be a judge, there is no public record whether he was rated as merely qualified, or well qualified or extremely well qualified.

Kopeny said Gentry, or any other applicant’s rating, can be made public by the Governor’s Office if they chose to do so. But the governor’s officials don’t have to say anything if they don’t want to. A spokeswoman for the Governor’s Office said anything related to the JNE Commission is confidential, and that the office could not release Gentry’s rating.

And, in theory, the governor doesn’t have to answer to anyone when it comes to his judicial appointments. Because the appointments are, by nature, political, Kopeny said it’s the governor’s prerogative to appoint whomever he wants, whenever he wants, for whatever reason.

“The governor’s supposed to use political considerations. That’s the reason some people vote for him, so that he’ll appoint people who are of a like mind or that he’ll appoint people who will, in some way, serve the political party that he’s a member of,” Kopeny said.

For his part, Aguirre said there’s no doubt Gentry’s judicial appointment was made to further the ambitions of the Republican Party to knock him out of office.

“If any of my friends who are Republicans want to be appointed judges, this is the time to announce your candidacy for city attorney,” he said.

Saturday, April 12, 2014

Did District Attorney Bonnie Dumanis actaully want Terri Wyatt to run against Bonnie? Are the two of them trying to split the anti-Bonnie vote?

(Updated) While watching the video on this page of a debate between Robert Brewer and Terri Wyatt, candidates for San Diego District Attorney, I heard Ms. Wyatt say this:

"This is a very specialized office. It has a certain culture and Mr. Brewer has not worked in it."

What exactly is this "certain culture"?

Is it something we want to maintain?

Shouldn't the district attorney's office be staffed by professionals who aren't guided by a "culture"?

Then Ms. Wyatt attacked Bonnie for accepting illegal campaign contributions, and I decided that Wyatt probably wasn't planted in the race by Dumanis.

When Wyatt said that Donna Frye endorsed Bob Brewer. I'm guessing that Frye is appalled at the way Bonnie Dumanis' Public Integrity Unit has targeted women, Mexicans and Democrats. Bonnie has focused on political opponents of her boss's wife, Cheryl Cox, and other South Bay officials. (Bonnie's boss is County Supervisor Greg Cox.)

I'm pretty sure that there will be virtually NO public integrity prosecutions under Bob Brewer. He owes his livelihood largely to white collar miscreants. They pay well when they get in trouble.

WHICH IS WORSE: GREEN LIGHT FOR THE BIG FISH OR POLITICALLY-TARGETED PROSECUTIONS OF THE MINNOWS?

I'm trying to decide which is worse: a green light for the big-time corrupt officials, the ones with real power, who subvert entire government agencies to their own purposes, or politically-motivated prosecutions for very small-time misbehavior of people who occupy the lower echelons of the San Diego power structure.

We've had the green light for the very powerful for long time. They serve the needs of themselves and other powerful people rather than the public that bankrolls the whole endeavor. Mike Aguirre found that you can't change that.

DID BONNIE DUMANIS EXPOSE ONE BIG FISH?

I am pleased that Bonnie Dumanis seems to have inadvertently exposed one big fish when she was chasing the minnows who have dinner with contractors: high profile school attorney Dan Shinoff. Mr. Shinoff was discovered during FBI surveillance having a meeting with Manuel Paul and a prospective witness to discuss testimony in the Ecobusiness v. San Ysidro School District case. During one of several meetings with the witness, only one of which was attended by Mr. Shinoff, Manuel Paul had offered a reward to the witness for his testimony.

I have been trying for years to expose disregard for the law and criminal cover-ups at San Diego County Office of Education's Risk Management Department, which pays Dan Shinoff close to $1 million a year to try lawsuits against school districts. Voice of San Diego reporter Emily Alpert started asking questions about SDCOE and Shinoff a few years ago, but her investigation was stopped and she was fired.

Maybe now someone will do a real investigation. Both SDCOE and individual school districts need to be looked at.

So, Bonnie may have accomplished some good.

I believe that politically-targeted prosecutions aren't acceptable. It deeply damages the right of the people to choose their representatives when small-time crooks of one party are targeted while the district attorney looks the other way (as far as she is able) in the face big-time corruption of the other party.

I believe that Bob Brewer will handle white-collar criminals with kid gloves, and I think that's bad for the three million people in San Diego County. But I will probably vote for Bob Brewer.

Wednesday, April 9, 2014

Christie Aides Don’t Have to Turn Over Bridge Scandal Documents, Judge Rules

A judge appointed by a Republican says emails of public officials must be kept out of investigation.

Christie Aides Don’t Have to Turn Over Bridge Scandal Documents, Judge Rules

By KATE ZERNIKE
APRIL 9, 2014
NYT Now

In a major setback to the legislative investigation into the George Washington Bridge lane closings scandal, a New Jersey judge ruled on Wednesday that two of Gov. Chris Christie’s former aides do not have to comply with subpoenas seeking emails and other communications about the closings and attempts to cover them up.

In the ruling, Judge Mary C. Jacobson of State Superior Court in Mercer County criticized the subpoenas as “a fishing expedition” by the State Legislature, controlled by Democrats, which is investigating why Mr. Christie’s allies closed two access lanes at the bridge in September — and what the governor, a Republican, knew.

Judge Jacobson agreed with lawyers for the two aides, Bridget Anne Kelly and Bill Stepien, saying the subpoenas “clearly violate” federal and state protections against self-incrimination and unlawful search and seizure. She disagreed with lawyers for the legislative panel who had argued that Ms. Kelly and Mr. Stepien were required, as public employees, to turn over their records.

“The fundamental problem with the subpoenas is that they are overbroad,” she wrote.

Judge Jacobson left open the possibility that the Legislature could compel the aides to testify by offering them immunity from prosecution. But that could significantly tie the hands of the United States attorney who is conducting a separate inquiry into the closings and allegations that emerged in the wake of the scandal — about misuse of Hurricane Sandy funds and the politicization of the Port Authority of New York and New Jersey, which runs the bridge.

The court’s decision is likely to renew calls, among even Democrats in the Legislature, to shut down the investigation and defer to the United States attorney, Paul J. Fishman.

Judge Jacobson, who was appointed by a Republican governor, Christie Whitman, is widely praised for her evenhandedness, and ruled against Mr. Christie last summer in a case that established a right to same-sex marriage in New Jersey. But in this case, she was harsh on the investigators in the Legislature, repeatedly emphasizing that the subpoenas had overreached.

“A blanket subpoena calling for a fishing expedition without the promise of immunity calls for a blanket response,” she wrote.

Ms. Kelly, a former deputy chief of staff to Mr. Christie, sent an email calling for “some traffic problems in Fort Lee,” the town at the end of the bridge that was gridlocked for four days as a result of the closed lanes. Mr. Stepien held the job before her, and managed Mr. Christie’s campaigns for governor.

The bipartisan investigative committee was formed in January after legislators learned that Ms. Kelly and the governor’s allies at the Port Authority had worked to shut down the lanes soon after the mayor of Fort Lee declined to endorse Mr. Christie for re-election.

Republicans have criticized the investigation as a partisan witch hunt against the governor, whose overwhelming re-election victory last year had put him among the expected leading candidates for the Republican presidential nomination in 2016.

In recent weeks, Democrats have begun to worry they are overplaying their hand against a weakened governor — and trying the patience of taxpayers, who are paying Mr. Christie’s lawyers ($650 an hour) as well as the special legislative counsel ($350 an hour).

Mr. Christie’s popularity has dropped significantly since the scandal. He has told allies that he can rebuild his national prospects by isolating the bridge scandal as the work of rogue aides.

State Assemblyman John Wisniewski, a Democrat who is co-chairman of the legislative committee, said on Wednesday that he was confident the committee could continue its work despite the judge’s ruling.

“There is more than one method for the committee to pursue the information that it seeks,” he said. “We’re going to continue to explore all those resources to get to the fundamental question of why Bridget Kelly sent the email she did and who authorized her and how this abuse of power could have happened in the first place.”

Kevin Marino, a lawyer for Mr. Stepien, said the judge’s ruling was “a complete vindication of Bill Stepien” and called into question Mr. Christie’s decision to sever ties with him.

Ms. Kelly’s lawyer, Michael Critchley, said, “To all those naysayers who doubted our position and our desire to protect our client’s constitutional rights, I suggest Judge Jacobson’s opinion as a free tutorial on what the Fifth Amendment means.”

Tuesday, April 8, 2014

The Stutz Artiano Shinoff & Holtz v. Larkins case is a window into how San Diego Superior Court functions; also, two decisions by Judge Lisa Schall overturned


Our justice system works some of the time. But is that enough? How much of the time does it function adequately? And how often is it abused by the powerful to achieve unjust goals that harm the public good?

Is Judith Hayes a typical San Diego Superior Court judge or is she unusual in her brazen refusal to follow the law when she wants a litigant to lose?

See a synopsis of Judge Hayes' actions in the defamation case against me by Stutz Artiano Shinoff & Holtz. The case record could serve as a manual for judges who want to deprive a defendant of a jury trial. I have not been able to find any attorney who knows of another case in which a default was granted AFTER summary adjudication. If Judge Hayes' actions are upheld by the Court of Appeal, I imagine it will happen more often.

I don't want to believe that Judith Hayes is typical of San Diego judges. I want to believe that many, if not most, of our Superior Court judges are interested in honestly applying the law to every case. Still, assuming that there is a majority of judges who carefully follow the law, I have come to believe that it is not an overwhelming majority.

I have learned over the past few years that a good number of Judge Hayes' colleagues feel that their job is simply to churn out decisions that preserve the status quo for people in power in both public and private spheres. It's not a justice system for these judges, it's a decision-making system meant to preserve the power of whatever individuals, no matter how incompetent or corrupt, have attained positions of influence. It's no wonder our schools are failing, our pocketbooks are shrinking and our quality of life is diminishing.

This is why I support the election of federal prosecutor Carla Keehn to replace Judge Lisa Schall. We need judges who aren't completely plugged-in to the current web of alliances at the court.

We need to chip away wherever we can at the power of those who prevent change for the better in how people and organizations treat each other in San Diego.

My own case is a testament to the disregard for the law by many highly respected members of the local bar, including attorneys who have contracts with local public entities.

I have defended myself from Stutz Artiano Shinoff & Holtz to the best of my ability even though I knew that I would continually make serious errors in my conduct of the case. My goal was to create a record, which would be valuable whether I won or lost. In fact, it is more valuable when I lose. By winning, I don't prove that the justice system works, I only prove that it worked on one occasion.

The record of my case is a fascinating story. USD professor Shaun Martin was kind enough to take over one of my appeals pro bono (and give me a win in the Court of Appeal), but he was not in a position to work on the complex and compromised Superior Court case. If one of the other 5000 local members of the bar had been willing to stand up to Stutz Artiano Shinoff & Holtz, I would have more money, but I wouldn't know how corrupt the Superior Court--and the myriad officers of that court--can be. I'm glad I know. Ignorance isn't as blissful as some people claim.

Et tu, ACLU? Can the ACLU be "bought" by those opposed to free speech?

I owe a debt of gratitude to David Loy, the San Diego ACLU general counsel, for providing me with some hard evidence of the connection between power and injustice in San Diego. Mr. Loy instructed me to take down every mention of Stutz law firm on my websites--even though Mr. Loy said the ACLU wasn't going to give me any legal advice. Perhaps Mr. Loy figured that if he was simply intimidating me, that wouldn't count as legal advice. Obviously, Mr. Loy's behavior was diametrically opposed to the principles to which he has devoted his career.

I would never have believed the truth if I hadn't experienced it directly.

Mr. Loy is on the record praising himself for reaching settlements with Stutz lawyer Dan Shinoff regarding student speech in schools. It would seem that the deals Mr. Loy struck with Stutz caused him to feel obliged to undermine employee speech in schools on be. His goal was apparently to get good publicity for the ACLU, and he figured no one would ever know how much effort he put into enforcing an injunction that the Court of Appeal found to be unconstitutional.

Perhaps money also has something to do with the actions of the San Diego ACLU. They may have figured that they needed money to achieve SOME of their goals, and calculated that it would be a good bargain to abandon some of their principles in exchange for contributions. The San Diego ACLU has made it clear that it wants to focus on certain specific issues, including immigration and gay rights. But are immigrants and gay individuals really being served by making San Diego a 1st-Amendment-free zone?

I am not surprised that former executive director Kevin Keenan chose to leave the San Diego ACLU. I suspect he tries not to think about some of the cases he was forced to work on, or prevented from working on. The bizarre Johnson v. Poway Unified School District case comes to mind, in which the San Diego ACLU insisted that local high school students should be forced to sit in class under large signs with Christian messages on them. That was a case in which the San Diego ACLU should have been on Dan Shinoff's side.

IF SHE IGNORES THE LAW AND THE FACTS IN CIVIL COURT, THEN WHAT DID JUDGE HAYES DO BEFORE SHE WAS FORCED OUT OF CRIMINAL COURT?

It seems likely that mine is not the only case in which Judge Judith Hayes ignored the facts and the law. Certainly District Attorney seems to believe that Judge Hayes did the same thing in the criminal court. Hayes was forced to move to civil court when the district attorney's office refused to try any cases before Judge Hayes.

I suspect that Judge Hayes abused many individuals who didn't have enough money to pay for their own attorneys. The Public Defenders office is famous for getting criminal defendants to plead guilty. I sometimes felt that when Hayes spoke to me, she was repeating the exact words she had said to threaten criminal defendants.


Two decisions of Judge Lisa Schall reversed

Sometimes I think judges might just be lazy, repeating their usual actions instead of thinking hard about a case.

San Diego Trial Court REVERSED (Again) in MOVE-AWAY Case
Thurman Arnold
May 3, 2011

Parental Relocations and Move-Away

In response to a recent article I posted about the case of F.T. vs. L.J., the mother of the Mother in Mark T. vs. Jaime Z. submitted a comment about a new reversal of a case involving Judge Lisa C. Schall, in San Diego, on this Blog - for which I thanked her. I am grateful that family law litigants in these published appeals are increasingly airing their side of the experience here, and I invite you to as well!

The decision in her daughter's case was published on Friday, last week, so I now understand what the maternal grandmother, "Shelly," was referencing.

My sense is that appellate courts are expecting more out of trial judges, like never before, and lawyers too, to be sure, and therapists and court services personnel and litigants themselves! An interesting footnote is that the father's attorneys in this case were certified family law specialists, and (presumably) local San Diego heavyweights, and the mother represented herself and yet succeeded "against all odds." Is this an Elkins Aftermath, leveling the playing field for unrepresented parties against experienced adversaries?

Mark T. and Jamie Z. (2011) 194 Cal.App.4th 1115

In Mark T. v. Jamie Z. certified for publication on April 28, 2011 by the Fourth Appellate District, a San Diego trial court was again reversed in a move-away case where she effectively refused to permit a custodial parent to move out of state without addressing what custody orders should issue if the parent did move. In F.T. vs. L.J. it was the Father who wanted to relocate - here it was the Mother but in both cases it was the same judicial officer.

Judge Lisa C. Schall doesn't like move-aways, it appears. These applications challenge the non-moving parent and can negatively impact a child's access to that parent, and disrupt parent-child bonding, if a holistic parenting plan under the move-away regime is not developed.

Judge Schall bears the indignity of being reversed twice now in less than 30 days in a reported appellate decision - quite a scolding. Family law is damned tough for judicial officers, who are doing their best to protect children and weigh in consistently with the cutting edge policies of current mental health science as well as their in-house (FCS) advisors. The problem at present is that the opinions of MHP's (mental health providers), and the wisdom of the reviewing courts, are in conflict. The science of move-away as it affects families from the MHP perspective is still developing, and it collides with certain cherished assumptions the law makes about the rights of Americans, and specifically parents in California under our current statutory scheme (see Family Code section 7501 and the Burgess case) to move freely.

In both cases Judge Schall accepted (mostly) the independent opinions of outside, court-appointed, mental health forensics and ignored the opinions of the Family Court Services mediator - here the very same Lynne Waldman who made recommendations in the F.T. case. FCS mediator Waldman's belief was that Jamie's move away request should be granted, noting that Jamie had been L.'s primary caretaker since his birth, that Jamie had been unable to find a job in San Diego and was "living in poverty," and that Jamie appeared "to have a clear plan for the move."

Judge Schall now has two strikes against her for using judicial body language to create a result that she felt was fair and appropriate, and her findings on the record illustrate her dilemma. I'm reminded of my early youth playing pool (not so much) and hoping if I twisted my body hard enough, the ball would fall in the pocket. Most of us are doing the best we can. Trial judges, however, have a script they must follow.

In effect, Judge Schall's mistake was to refuse to permit a move-away by a Mom with a 22 month old child who had indeed been the child's "primary caretaker since birth." By effectively coercing Mom not to move by denying her move-away request, and by ignoring the question of "in whose custody" the child's best interests were served" or what arrangement should be imposed were Mom to move, Judge Schall committed reversible error. The justices ruled:

"The court must decide de novo what physical custody arrangement would be in the child's best interests, assuming that the requesting parent will relocate ." Therapist Dr. Lori Love (we can't invent this name stuff) was appointed to evaluate the family for the Court and opined that "[t]his examiner understands the importance of having extended family around for support however this cannot be justified as being in [L.'s] best interest[s] when it means removing him from a loving and capable father. Jamie stated that she did not have an active father in her life and very much wants that to happen for [L.] It would be virtually impossible for Mark to be an active father from across the country." Dr. Love urged the child was too young for the move and went on to recommend that Mom not "be permitted to move out of the County of San Diego. At the same time, this forensic therapist was unwilling to recommend a primary change in custody and assumed that the mother would in fact remain the primary caretaker in San Diego county. She made no recommendations about what custodial arrangement should become effective when or if the Mother moved.

The appellate justices ruled: "Where, as here, a parent who shares joint custody of a minor makes a request to relocate the child in the context of an initial custody determination, the trial court must decide de novo what physical custody arrangement would be in the child's best interests. In making its custody determination, the court must proceed on the assumption that the parent who is making the request will relocate his or her own residence, regardless of whether the court grants or denies the request. In this case, the court erroneously failed to conduct its best interests analysis based on the presumption that Jamie would be relocating to Minnesota."

The trial court adopted the recommendations of Dr. Love, even though Dr. Love failed to address what should happen if and when Jamie relocates out of state. "The very issue that Dr. Love was supposed to address is what parenting plan would be in L.'s best interests, given that Jamie intended to move to Minnesota .... The court misapplied the law in adopting Dr. Love's recommendations, because in making those recommendations, Dr. Love incorrectly assumed that preserving the status quo parenting arrangement was an option, even in the face of Jamie's expressed intent to move...." At trial the Father's attorney asked Mother whether she would move if the court were to deny her request to relocate, and Mom's response showed she was tortured by the question. The appellate court ruled that this question by counsel was improper - courts cannot consider whether the primary parent might alter their plan of relocate depending upon how the court rules. As a trial lawyer this is interesting to me, because this question is often used to telegraph a message to the Court that implies it can deny the move because the moving parent evidently doesn't want to move 'badly enough.'

Apparently the trial court suspected Mother's motives for moving might include frustrating Father's access, but the court did not actually make such findings. "The court's comments regarding Jamie's reasons for moving to Minnesota appear to constitute second-guessing as to the wisdom of Jamie's decision to move (i.e., questioning the "necessity" of the relocation), as opposed to a finding that her decision to move was made 'simply to frustrate the noncustodial parent's contact with the minor child.'" There is no requirement that a parent who has the right to custody of a child establish the necessity of a proposed move. "[E]ven where the court finds that a move away request is being made in bad faith, the court must view this finding as only one potential factor in deciding whether to allow the child's residence to be moved; it does not permit the court to deny the move away request on the presumption that in denying the request, the court can assure that the requesting parent will not in fact move, and that the court can thereby maintain the status quo parenting arrangement. That one parent may have been motivated, in part, to relocate the child's residence by a desire to lessen the child's contact with the other parent does not mean that the court should apply any standard other than what would be in the best interests of the child."

How The Justice System Is Rigged Against These Cheerleaders Suing The Raiders For Wage Theft

See all posts re arbitration.

Arbitration contracts should be outlawed. And while we're talking about the NFL, when are we going to take away tax-exempt status from this greedy, abusive organization?

How The Justice System Is Rigged Against These Cheerleaders Suing The Raiders For Wage Theft
By Nicole Flatow
Think Progress
March 28, 2014

The cheerleaders for the Oakland Raiders have alleged a laundry list of labor law violations by the NFL team that employs them. They claim they are paid less than minimum wage and deprived overtime, that their wages are withheld until the end of the season, and that they face fines docked from their $1,250 a season salary for violations like forgetting to bring their pom poms.

A number of Raiderettes filed a class action lawsuit in January against the franchise. But rather than respond to their legal claims, the Raiders are arguing that the cheerleaders have no right to take their allegations to court in the first place, thanks to a clause in their contract. Instead, they are required to take their qualms to arbitration before the NFL commissioner, who is charged with making an unbiased assessment of claims against one of his own teams.

The Raiderettes’ lawyers anticipated this, and argued in their initial complaint that the contract does not stand up to California law.

“As we see it, this is a contract full of illegal provisions, and trying to appoint the NFL commissioner to act as judge and jury is just one more,” the Raiderettes’ attorney Sharon Vinick told the Los Angeles Times. “It just doesn’t pass the smell test for the Raiders to suggest that the NFL commissioner is unbiased when it comes to a dispute between the team owners who elect him and pay him his $44-million salary and a group of non-unionized cheerleaders.”

If this seems unfair to you, you have something in common with four U.S. Supreme Court justices who have signed on to scathing dissents in cases on just this problem. But thanks to the other five justices who prevailed in those cases, scenarios like the one Vinick described are all too common.

Consider this scenario. Substitute the cheerleaders for consumers, and the NFL for AT&T or some other major corporation. Imagine that consumers who purchase mobile phone service are bound to a boilerplate contract that requires them to take their claims to a private individual who is paid by AT&T, and who has a docket full of claims also involving AT&T, the overwhelming majority of which AT&T wins. Going to court to challenge legal violations is not an option.

The contract doesn’t end there. It also says that, when these consumers do take their claims against AT&T to this private individual known as the arbitrator, they are not permitted to argue their claim together, even though they all have the same claim that they were overcharged $30 by the firm, and even though no one person alone can afford to hire a lawyer to challenge their own $30 fee.

This is the simplified fact pattern of a case that went before the U.S. Supreme Court less than four years ago. And the court sided with AT&T. The plaintiffs initially took their case to the California courts also, and a California court held their contract was unconscionable, as the cheerleaders in this case are arguing. But the five conservative justices on the U.S. Supreme Court said that the Federal Arbitration Act trumps state law, and interpreted that law as not allowing the California courts to invalidate the contract. The high court has since issued similar rulings in denying Comcast consumers the right to allege monopolistic practices, denying workers the right to file a collective claim alleging they had been docked pay, and even rejecting the attempt of several small businesses to together sue American Express.

Around the country, there are, literally, tens of millions of individuals subject to these arbitration clauses just for contracts in the financial industry. In addition to binding these individuals to an outside, private arbitrator, they also deprive individuals of the right to appeal the outcome of the determination. And they impose additional terms, such as the one barring class arbitration in the AT&T case.

Justice Elena Kagan, who has been among the dissenters in several of these cases described the situation this way in a 2013 case challenging alleged monopolistic practices by American Express: “The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse. And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad. That answer is a betrayal of our precedents, and of federal statutes like the antitrust laws.”

Proponents of arbitration clauses argue that they are more economical for both parties, and that consumers and workers actually prefer the ease of arbitration. But research by the Consumer Financial Protection Bureau has found that worries about these arbitration clauses are not hypothetical: While 3,000 class action lawsuits involving potentially millions of consumers were filed to challenge credit card disputes between 2010 and 2012, almost no one opted to go to arbitration.

Pending before Congress is a measure, the Arbitration Fairness Act, that would impose an outright ban on these clauses. But barring congressional action, the cheerleaders’ odds of succeeding in court are not high, and their lawyers are likely gunning for a settlement of their claims to quell the negative publicity.

Monday, April 7, 2014

Court rules BPI lawsuit against ABC News may continue


Illustration by Tim O'Brien for Mother Jones

Court rules BPI lawsuit against ABC News may continue
nicoleweddington
Daily Kos member
Mar 31, 2014

A defamation lawsuit filed by Beef Products, Inc., in 2012 against ABC News, will be heard in the state court of South Dakota, a circuit court judge ruled March 27. Defamed meat product and lost profits are at the lawsuit’s core.

Defamed meat product and lost profits are at the lawsuit’s core. The circuit court judge retained a majority of the counts against the defendants in her decision, which stemmed from a hearing Dec. 17.

The lawsuit’s claims are allowed under the state’s disparagement laws regarding food. The statements ABC News made in regards to BPI’s meat product were in fact disparaging, the judge said, however, the court does not recognize if the statements are true or false.

News anchors report BPI meat product is pink slime

Back in 2012, ABC News reported on BPI’s Lean Finely Textured Beef, deeming it “pink slime,” because, as ABC states, the meat product was pink and slimy. Not only was the term pink slime itself inappropriate, but the frequency in which it was used totaled 137 times while ABC also made over 100 false statements during the smear campaign, BPI asserts. The news outlet also paired its negative reports with positive statements about the meat product’s validity regarding approval from the FDA, but followed up by discounting the FDA.

The campaign made headway with consumers, who accounted for an 80-percent loss in sales. That equates to $400 million in profit. Three out of four plants closed and over 700 jobs were lost. Beef Products, Inc., is a private family business.

Reporters named in lawsuit

Other defendants in the case are two U.S. Department of Agriculture employees, two reporters who have a history with the story and a former employee of BPI who granted interviews. Diane Sawyer, anchor for ABC World News, is another defendant. All have a deadline of April 16 to file an answer on the current counts against them. Attorneys for ABC News, say the ruling may affect the First Amendment in an uncomfortable way.

The injury lawyer argued to dismiss the claims against ABC, but the judge was guided to the decision based on a reasonable fact-finding method and concluded the plaintiffs’ claims of defamation were satisfactorily alleged based on the defendants’ public statements.

Gagged by Big Ag
Horrific abuse. Rampant contamination. And the crime is…exposing it?
By Ted Genoways
Mother Jones
July/August 2013

Shawn Lyons was dead to rights—and he knew it. More than a month had passed since People for the Ethical Treatment of Animals had released a video of savage mistreatment at the MowMar Farms hog confinement facility where he worked as an entry-level herdsman in the breeding room. The three enormous sow barns in rural Greene County, Iowa, were less than five years old and, until recently, had raised few concerns. They seemed well ventilated and well supplied with water from giant holding tanks. Their tightly tacked steel siding always gleamed white in the sun. But the PETA hidden-camera footage shot by two undercover activists over a period of months in the summer of 2008, following up on a tip from a former employee, showed a harsh reality concealed inside.

The recordings caught one senior worker beating a sow repeatedly on the back with a metal gate rod, a supervisor turning an electric prod on a sow too crippled to stand, another worker shoving a herding cane into a sow's vagina. In one close-up, a distressed sow who'd been attacking her piglets was shown with her face royal blue from the Prima Tech marking dye sprayed into her nostrils "to get the animal high." In perhaps the most disturbing sequence, a worker demonstrated the method for eutha­nizing underweight piglets: taking them by the hind legs and smashing their skulls against the concrete floor—a technique known as "thumping." Their bloodied bodies were then tossed into a giant bin, where video showed them twitching and paddling until they died, sometimes long after. Though his actions were not nearly as vicious as those of some coworkers who'd been fired immediately, Lyons knew, as the video quickly became national news, that the consequences for him could be severe.

As we sat recently in the tiny, tumbledown house he grew up in and now shares with his wife and two kids, Lyons acknowledged—as he did to the sheriff's deputy back then—that he had prodded sows with clothespins, hit them with broad, wooden herding boards, and pulled them by their ears, but only in an effort, he said, to get pregnant sows that had spent the last 114 days immobilized in gestation crates up and moving to the farrowing crates where they would give birth. Lyons said he never intended to hurt the hogs, that he was just "scared to death" of the angry sows "who had spent their lives in a little pen"—and this was how he had been trained to deal with them. Lyons had watery blue eyes that seemed always on the verge of tears and spoke in a skittish mutter that would sometimes disappear all the way into silence as he rubbed his thin beard. "You do feel sorry for them, because they don't have much room to move around," he said, but if they get spooked coming out of their crates, "you're in for a fight."

Lyons had been trained in these methods of hog-handling (many of them, including thumping, legal and widely practiced), but a spokeswoman for Hormel—one of the largest food processors in the country and the dominant buyer of MowMar's hogs—had already called the video "appalling" and "completely unacceptable," and MowMar's owners had responded by vowing that any additional workers found guilty of abuse as authorities pored over the tape would be terminated. Still, it came as a surprise when his boss informed him that he had been formally charged and immediately fired. "We don't want to do it," the supervisor told him, "but we got to—because Hor­mel will quit taking the sows." He told Lyons to turn himself in at the courthouse.

While Lyons filled out paperwork and had his mug shot taken, his wife's cellphone buzzed again and again: Her husband's name was already on the evening news. Lyons hired a lawyer—but he was on video and he'd confessed to the deputy sheriff. "They got you, dude," Lyons said his attorney told him. He accepted a plea agreement—six months' probation and a $625 fine plus court fees—and signed an admission of guilt. It may seem like a slap on the wrist, but Lyons was the first person ever convicted of criminal livestock neglect on a Midwestern farm—and only the seventh person convicted of animal abuse in the history of the American meat industry. He wasn't alone for long: Five of Lyons' coworkers soon signed similar agreements.

It was a major PR win for PETA—which often appeals to local authorities to make arrests but rarely gets the kind of cooperation they got from the Greene County Sheriff's Office—but it was also a hollow victory. "Who in their right mind would want to work in a dusty, ammonia-ridden pig shed for nine bucks an hour but somebody who, literally, had no other options?" asked Dan Paden, the senior researcher at PETA who helped run the investigation. "And at the end of a long, frustrating day, when you are trying to move a pig who hasn't been out of its crate in [months], that's when these beatings occur—and people do stupid, cruel, illegal things." PETA was urging prosecutors to go beyond plea agreements for farmworkers; they wanted charges against farm owners and their corporate backers, to hold them responsible for crimes committed by undertrained, overburdened employees.

Don't Squeal
Which states have ag gag provisions? This prospect scared industrial-scale meat producers into organizing a coordinated pushback. Recognizing that, in the era of smartphones and social media, any worker could easily shoot and distribute damning video, meat producers began pressing for legislation that would outlaw this kind of whistleblowing. Publicly, MowMar pledged to institute a zero-tolerance policy against abuse and even to look into installing video monitoring in its barns. And yet last summer, at the World Pork Expo in Des Moines, MowMar's co-owner Lynn Becker recommended that each farm hire a spokesperson to "get your side of the story out" and called the release of PETA's video "the 9/11 event of animal care in our industry."

As overheated as likening that incident to a terrorist attack may seem, such thinking has become woven into the massive lobbying effort that agribusiness has launched to enact a series of measures known (in a term coined by the New York Times' Mark Bittman) as ag gag. Though different in scope and details, the laws (enacted in 8 states and introduced in 15 more) are viewed by many as undercutting—and even criminalizing—the exercise of First Amendment rights by investigative reporters and activists, whom the industry accuses of "animal and ecological terrorism." Ag gag laws allow industry "to completely self-regulate," says a whistleblowers' advocate. That should "scare the pants off" consumers who want to know how their food is made.

Using a legal cudgel to go after critics wasn't entirely a new tactic for agribusiness. PETA first began undercover investigations around 1981—getting video of rhesus monkeys being vivisected in a Maryland medical research lab by posing as employees—and a few legislatures responded by enacting laws to protect animal research from exposés. (Only Kansas had the foresight to expand its law to cover "livestock and domestic animals.") Then, in 1992, when two ABC PrimeTime Live reporters shot undercover video of Food Lion workers in the Carolinas repackaging spoiled meat, Food Lion sued—not for libel, since the tapes spoke for themselves, but for fraud and trespass, because the reporters had submitted false information on their job applications. (A jury awarded $5.5 million, but an appeals court reduced it to just $2.) In 1996, at the height of the mad cow scare, the Texas Beef Group launched a two-year lawsuit against Oprah Winfrey over an episode that questioned the safety of hamburger. Recently, not only has the rhetoric heated up, but so has the coordinated legislative effort. Deeply invested in industrywide methods that a growing number of consumers find distasteful or even cruel, agribusiness has united in making sure that prying eyes literally don't see how the sausage is made.

"If you think this is an animal welfare issue, you have missed the mark," said Amanda Hitt, director of the Government Accountability Project's Food Integrity Campaign, who served as a representative for the whistleblowers who tipped off ABC in the Food Lion case. "This is a bigger, broader issue." She likened activist videos to airplane black-box recorders—evidence for investigators to deconstruct and find wrongdoing. Ag gag laws, she said, don't just interfere with workers blowing the whistle on animal abuse. "You are also stopping environmental whistleblowing; you are also stopping workers' rights whistleblowing." In short, "you have given power to the industry to completely self-regulate." That should "scare the pants off" consumers concerned about where their food comes from. "It's the consumer's right to know, but also the employee's right to tell. You gotta have both."

Until the 20th century, American meat production, especially in the Midwest, was necessarily seasonal. Cattle, hogs, and chickens were part of small, diversified farms that sustained livestock all year long but tended to fatten animals and bring them to market only after harvest, when feed was plentiful and cheap. After profits ballooned during World War II, packers were eager to keep upping output (and sales) by turning packing into a year-round activity.

But hog farming on the cold, windswept plains of the Midwest was difficult in those days. Even in milder winters, farmers often suffered deaths among their herds, and sows would farrow only once a year. Midwestern stockmen tended to raise either cattle, which were hardy enough to withstand the cold, or chickens, which could be cooped during winter months. But then some enterprising hog farmers began building large confinement barns with slotted floors and pits below to catch manure. Such enclosures not only overcame mortality due to bad weather, but they made it possible to farrow sows twice a year.

By the close of the 1960s, the practice was so successful that Midwestern family farmers worried that meatpackers would build their own confinement facilities, establishing feed-to-market monopolies that would squeeze out small operations. Between 1971 and 1982, laws devised to forbid vertical integration and price-fixing passed in every state between Wisconsin and Oklahoma. Thus, when big meat producers began erecting barns capable of holding thousands of animals, the boom centered in the unregulated South.

But as the 1990s drew to a close, the industry suffered a devastating one-two punch. First, in July 1999, a North Carolina grand jury handed down the first animal cruelty indictments of farmworkers in American history after a three-month PETA investigation at Belcross Farm documented "daily violent beatings and bludgeonings of pregnant sows with a wrench and iron pole." Then, in September, floodwaters from Hurricane Floyd ruptured and overtopped manure lagoons all across the state. As the New York Times reported, "Feces and urine soaked the terrain and flowed into rivers." The ensuing backlash pushed producers to reconsider the Midwest, already depopulated by farm consolidation, as a place they could build large facilities with little governmental oversight or public outcry.

Through a series of lawsuits, big meatpackers successfully rolled back the family-farm protection laws, and soon industrial producers were rushing to buy up smaller Midwestern meatpacking plants and finance large-scale confinement facilities and feedlots. Beef packers moved into cattle-rich Nebraska, but hog development tended to focus on Iowa, where three of the biggest packers—Smithfield, Cargill, and Hormel—had gained special exemptions to the family-farm protection law by agreeing to two conditions: They would not engage in price-fixing of feed or livestock, and they would not seek to punish whistleblowers.

This compromise led to a mind-boggling boom in Iowa factory farms. For example, Greene County—which had few large-scale facilities when MowMar Farms applied for its permit a decade ago—now has 70, with at least another 14 permitted for construction. In a county of roughly 9,000 people, the hog population is more than 250,000.

As in any boom, the quick money and minimal restrictions attracted a number of fly-by-night developers. They sold to long-distance owners who, via a few local management companies, often hired inexperienced workers. And before long, Iowa resembled North Carolina of a decade before: a state dotted with giant hog confinements, many operating in violation of health codes, environmental requirements, and animal cruelty laws.

The release of the MowMar Farms video could have been a gut-check for the industry, a moment to reflect on whether the runaway growth had led to conditions unsafe for man or beast, perhaps even an opening for dialogue with animal welfare advocates. Instead, Julie H. Craven, the spokeswoman for Hormel, went on the offensive against PETA, criticizing its practice of methodically building cases over a period of months in order to demonstrate patterns of abuse. "If they are truly concerned about animal welfare," she said, "they should release information when they obtain it."

It marked a transition in the industry's strategy: Where once it had pushed back against journalists and whistleblowers after their videos ignited public outrage, now they were looking for a way to prevent such exposure in the first place. Soon afterward, meat industry lobbyists dusted off a long-dormant piece of model legislation crafted by a conservative think tank that would not only make it harder to release undercover video but would criminalize obtaining, possessing, or distributing it to anyone—including journalists or regulators.

Cindy Cunningham, spokeswoman for the National Pork Board, told me she thought such legal protections could be appropriate. "I liken it to somebody walking into your living room and taking video," she said. "If you're at a cocktail party and somebody shoots video of you from behind a candle—like they did to Mitt Romney—is that legitimate?"

Back in September 2003, the American Legislative Exchange Council (ALEC) released a piece of model legislation it called the Animal and Ecological Terrorism Act. Like so many bills drafted by the free-market think tank, AETA was handed over, ready made, to legislators with the idea that it could be introduced in statehouses across the country with minimal modification. Under the measure, it would become a felony (if damages exceed $500) to enter "an animal or research facility to take pictures by photograph, video camera, or other means," and, in a flush of Patriot Act-era overreaching, those convicted of making such recordings would also be placed on a permanent "terrorist registry."

After a few years on the shelf, ALEC's pet project found new life when radical groups like the Animal Liberation Front and the Earth Liberation Front destroyed testing labs and torched SUVs, prompting FBI deputy director John Lewis to say in 2005 that "the No. 1 domestic terrorism threat is the ecoterrorism, animal-rights movement." The bill was overhauled—modifying the ban on shooting video to "damaging or interfering with the operations of an animal enterprise" and eliminating the section on creating a terrorism watch list. This defanged version, renamed the Animal Enterprise Terrorism Act, was repackaged to congressional leaders as a needed revision of existing laws protecting medical research from unlawful interference. Though it wouldn't become apparent until much later, it was the beginning of lobbyists and lawmakers conflating radical ALF-type incidents with the undercover work done by PETA and journalists. The bill sailed through the Senate by unanimous consent, and in the House encountered resistance only from Rep. Dennis Kucinich (D-Ohio). Kucinich warned it would "have a chilling effect on the exercise of the constitutional rights of protest," before a voice vote on the bill allowed it to be ushered through.

Application of the law soon nipped at the heels of the First Amendment. Most notably, a jury found a New Jersey chapter of a UK-based anti-animal-testing group guilty of conspiracy for publishing the home addresses of researchers at Huntingdon Life Sciences—handing down convictions for seven, including the chapter's webmaster. The case was chronicled in a low-budget documentary called Your Mommy Kills Animals, which discussed the case for prosecuting animal rights activist groups, including PETA and the Humane Society of the United States (HSUS), as homegrown terrorist organizations. The movie was underwritten by über-lobbyist Richard Berman, who runs the Center for Consumer Freedom and was immortalized by 60 Minutes as "Dr. Evil." Because nonprofits don't have to reveal their donor lists, it's impossible to know exactly how much money Berman takes in from particular corporations. However, a canceled check for $50,000, introduced as part of a lawsuit resulting from the documentary, revealed that Hormel was a backer—and Berman described them in testimony as a "supporter." (Berman sued the filmmakers because, contrary to his wishes, they made a movie that was too evenhanded.)

Next Page: Why would the industry possibly want to protect a few bad actors at the risk of major expense and public outcry?

Alabama Journalist Tells Us What It Was LIke To Spend Five Months In Jail For Reporting A Story

"[The] order included a vague mandate to take down all content related to the alleged affair, without ever deeming which content was actually defamatory."

Alabama Journalist Tells Us What It Was LIke To Spend Five Months In Jail For Reporting A Story
By Nicole Flatow
Think Progress
April 7, 2014

“You get down to survival mode.” That was blogger Roger Shuler’s state of mind after being arrested and hauled off to jail for writing about a politically connected Alabama lawyer.

“Once you’re arrested I mean there’s not much you can do,” he told ThinkProgress in a conversation after his release, explaining that he felt powerless to handle the legal defense of his case. “Your hands are tied literally and figuratively and just to try to figure out how to get out was almost impossible … I really was afraid for my life at times.”

Until last week, Shuler was the only known journalist in the Western Hemisphere jailed for doing his job. Shuler, a former sports reporter and university editor who developed the political blog Legal Schnauzer, is known as a controversial figure in his community. He has fielded other allegations of falsehoods and has been embroiled in numerous lawsuits over his blogging. But even his critics conceded that a court order banning him from writing anything about the alleged extramarital affair of a man rumored to be running for Congress was likely unconstitutional, and a First Amendment outrage.

First, a Shelby County judge ruled that Shuler could not continue writing about the alleged affair of Robert Riley, Jr., the son of former Gov. Bob Riley rumored to be running for Congress. Then, when Shuler refused to comply with the order, police came to his home one evening and arrested him for contempt of court. Contempt of court is a punishment for failure to comply with a court order. In many instances such as this one, it is a “civil” offense, meaning it doesn’t carry long-term criminal penalties. But officials use jail as a means of forcing compliance with the order. So Shuler sat in jail until he complied.

Shuler was initially resistant to the order. But even when he wanted to comply, he didn’t know how.

“At my Nov. 14 hearing, the only hearing I had in the case, the court gave me no direction on how I could purge myself of contempt,” Shuler told the Reporters Committee for Freedom of the Press. “I noted that I had no computer or Web access to take down the posts, even though I knew it was unlawful to be forced into taking them down. The court’s response was more or less that I had to resolve that problem myself. With that kind of response from the court I felt caught between the proverbial ‘rock and a hard place.’”

Shuler said if he was lucky, he got to make a 15-minute call three or four times a week. “That’s the only communication I had with anybody,” said.

And getting a lawyer wasn’t easy. While defendants in criminal cases who cannot afford a lawyer have a right to court-appointed counsel, the same is not true in civil contempt cases. Shuler called himself middle class, and said he would “really need either pro bono or contingency type of legal representation and I think it’s a possibility but it’s very slow in trying to make it happen.”

Shuler was supported by legal briefs in his case from the American Civil Liberties Union of Alabama, and the Reporters Committee for Freedom of the Press. But neither organization was representing him directly, and only he had the power to appeal his own case. Shuler didn’t appeal. He said he spent his time in jail fearing for his life, and figuring out how he could comply with a sweeping contempt order and get out of jail. As the Reporters Committee for Freedom of the Press explained in an October letter, the order included a vague mandate to take down all content related to the alleged affair, without ever deeming which content was actually defamatory.

What ultimately facilitated Shuler’s release was the intervention of his wife, Carol, who drafted an agreement to take down some material that allowed Shuler to be freed at least temporarily. “She was the one that really negotiated getting me out,” he said.

Shuler was perhaps the most prominent inmate in Shelby County jail these last few months, but he says he wasn’t the only one who shouldn’t have been there. Most of the people he met were there for drug and alcohol problems, he said, or for mental health issues the jail didn’t appear suited to handle.

“Jail is I guess by definition a holding facility for people a lot of whom have not yet been found guilty of anything,” he said. (Jails typically hold individuals who have been charged but not yet convicted, or those who receive short sentences, typically less than a year). “I go to bed at night and a lot of times I think there are guys still in there … I get the feeling we’re in a culture right now, it’s sort of like arrest first, and ask questions later.”

Sunday, April 6, 2014

Is the public served when attorneys and litigants do favors for judges? Let's take the politics out of choosing judges


See blog post: Chief Justice John Roberts: Judge Brent Benjamin doesn't have to recuse himself just because of a measly $3 million campaign contribution

Electing judges is a bad idea, but appointing judges is almost as bad. Why not create a pool of highly-rated attorneys, created by the Bar Association (we don't want to eliminate politics completely, right?), and then use a lottery to choose judges from that pool as positions become available?

Seriously, why not? The only reason not to do this is to keep politics in the courtroom.

But for now, we're stuck with judicial elections in San Diego. Let's choose the best candidates. Federal prosecutor Carla Keehn is running against Judge Lisa Schall in June 2014.


MATT TAIBBI'S NEW BOOK ABOUT OUR TWO-TIERED JUSTICE SYSTEM



The Divide
American Injustice in the Age of the Wealth Gap
Matt Taibbi and Molly Crabapple
PBS
April 6, 2014

...On how he discovered 'the divide'

I was covering these gigantic Wall Street white-collar-criminal scandals, and I became interested in the concept of why nobody was going to jail, why we didn't have criminal prosecutions. And then it occurred to me that it's impossible to really talk about the gravity of that problem unless you know who is going to jail in the United States, and how those people go to jail and how that works.

What I ended up finding is that it's incredibly easy for people who don't have money to go to jail for just about anything. There's almost an inverse relationship between the ease with which you can put a poor person in jail for, say, welfare fraud, and the difficulty that prosecutors face when they try to put someone from a too-big-to-fail bank in jail for a more serious kind of fraud.

On media coverage of white-collar crime

Over time I think a kind of Stockholm Syndrome develops, it's kind of the same thing that happens with campaign reporters and candidates: You start to sort of sympathize with the people you cover in this weird subterranean, psychological way.

'A Very Sordid Story'

Matt Taibbi On The Fairfax Financial Case

In this audio clip, NPR's Kelly McEvers asks Matt Taibbi about the most salacious case in his book, The Divide. Taibbi tells and the short-sellers who Fairfax alleges took revenge when a deal didn't go through as expected. The company sued in 2006.

Taibbi says it's a great example of the judicial divide between the rich and poor. It's easy to think hedge fund managers can't be criminals, he says, because they're often seen as polite and refined.

"[But] in many cases, they're really not," Taibbi says. "I mean, in this case, they're just as streety and gross as any other kind of criminal."

I think what ends up happening is these stories get written about, but they get written without outrage, or without the right tone, and they are also not written for the right audiences. They're written for Wall Street audiences who want to find out how this lawsuit turned out. They may not want to see those people thrown in jail, they just might be interested in seeing how far the government is willing to go this week in putting white-collar offenders in jail.

On comparing banks and people

The HSBC case was . This is a bank that admitted to washing over $850 million for a pair of Central and South American drug cartels. They admit to this behavior, they pay a fine, no individual has to do a day in jail. All I really wanted to say was, here are our actors at the very top of our illegal narcotics business who are getting a walk from the government, a complete and total walk ...

I went to court that day, I asked around and said, "What's the dumbest drug case you saw today?" I found an attorney who was willing to put me in touch with a number of people who had been busted and thrown in jail for having a joint in their pocket...


Retired Judge Linda Quinn is working with school attorney Dan Shinoff
of Stutz Artiano Shinoff & Holtz on a fundraiser for Judge Lisa Schall.


See all posts re Judge Lisa Schall.

See all posts re Judge Gary Kreep.


'Birther' judge Gary Kreep banished to traffic court


Gary Kreep

'Birther' judge banished to traffic court
Leader in questioning Obama's citizenship is reassigned
By Greg Moran
SDUT
Oct. 11, 2013

San Diego Judge Gary Kreep, a conservative legal activist who led a failed fight to challenge President Obama’s citizenship, has been exiled to traffic court after several Superior Court rulings favoring defendants’ constitutional rights.

Kreep, 63, was reassigned on Sept. 9 from the downtown San Diego courthouse to a Kearny Mesa facility that handles traffic offenses and small claims.

The move came after prosecutors from the City Attorney’s Office began to boycott his courtroom over his legal approach.

For instance, Kreep often declined to take away a defendant’s 4th Amendment rights against search and seizure — something prosecutors can legally request at various points during the criminal process.

No official reason was given for Kreep’s reassignment. Presiding Judge Robert Trentacosta said through a spokeswoman that the court doesn’t comment on judicial assignments.

Where should elected Judge Gary Kreep serve?
Superior Court 23% (378)
Traffic Court 3% (53)
Supreme Court 13% (213)
No court at all 61% (1019)

1663 total votes.


Kreep did not respond to numerous requests through the court and by email to comment for this story. San Diego City Attorney Jan Goldsmith also declined to comment on Kreep’s reassignment or what role his office had in it.

On a recent morning in Kearny Mesa Department B, Kreep worked through two dozen traffic cases — speeding, driving on a suspended license, busted taillight, windows too heavily tinted. All of the people appeared without lawyers, which is not uncommon in traffic court.

Most of the Kearny Mesa facility is staffed with court commissioners, who lack the prestige of a judge and are paid $152,000 a year. Superior Court judges, who are elected or appointed by the governor, earn an annual salary of $178,789.

Judges will occasionally fill in for a few days in traffic court, but it’s virtually unheard of to have a Superior Court judge assigned indefinitely to the Kearny Mesa facility.

Apparently Kreep earned the ire only of prosecutors. The Public Defender’s office, which handles the majority of the cases in Kreep’s former courtroom, said its lawyers had no problem with the judge. Private lawyers had the same view.

The reassignment came soon after prosecutors deployed the legal tactic known as a peremptory challenge to keep cases from Kreep’s court, according to defense lawyers and courthouse sources.

Under state law, each side can exert one such challenge to the judge assigned to their case. They don’t have to state a reason. Prosecutors can create a so-called “blanket challenge” by issuing the peremptory challenge for every case assigned to the judge.

“They (prosecutors) are so used to getting their way,” said Heather Boxeth, a criminal defense lawyer who represented many clients in front of Kreep. “But they blanket-challenged him over simple misdemeanors.”

One example was how Kreep handled petty theft cases. Often defendants were given a deferred prosecution deal: plead guilty and in six months — if they had attended classes, not been arrested again, and repaid the store — the pleas would be wiped out.

Kreep would often dismiss these cases long before the six-month period, after the defendant had only attended a session or two, several lawyers said.


He also would release defendants without bail on minor charges if they had a history of showing up at court appearances, Boxeth said. And he was reluctant to impose orders of protection against individuals who had yet to be judged guilty.

Kreep was elected to the bench in an upset win last year. His campaign attracted national attention because of his prominent role in the so-called “birther” movement questioning the constitutional soundness of Obama’s birth certificate through his Ramona-based U.S. Justice Foundation.

The local bar association gave him the lowest rating of “lacking qualifications” in his race against a veteran prosecutor, and Kreep edged out a win by about 1,000 votes. Instead of trumpeting his decades of work as a conservative activist, he ran a campaign as an outsider, challenging the downtown legal establishment.

When he was on the bench downtown, several lawyers said, Kreep would occasionally make inappropriate comments, such as mentioning the appearance of a female lawyer. He could be short tempered and condescending, too, according to two lawyers who did not want to be identified.

Ironically, it may have been the defense bar that had the most concerns about Kreep before he arrived on the bench. Instead, Boxeth and other lawyers said they appreciated his adherence to constitutional principles in the often minor cases that were assigned to his court.

“None of this crazy stuff we were all concerned about would come out, ever did,” Boxeth said. “He’s been good at apologizing when he crossed a line. I found him for the most part to be very professional, and by the book.”

It’s unknown how long Kreep will be assigned to the Kearny Mesa courts.