The bizarre choices of San Diego ACLU legal director David Loy

UPDATE Dec. 8, 2014 10:39 am:

 Wow!  It took less that 10 minutes for Leagle.com to fix the defaced Stutz v. Larkins decision after I complained. ACLU legal director David Loy didn't want the First Amendment to be enforced in this case, perhaps because of loyalty to someone he worked with.  But I doubt that he was involved in defacing the decision.  Here's the comment I sent to Leagle.com:

Who defaced this decision?  This page was perfectly legible for several years after the 2011 decision.   On December 8, 2014, I find that a large amount of the decision has been overwritten, making it indecipherable.  Was this page hacked, or does Leagle.com want it to be largely unreadable?

Here is what the Leagle.com page looked like before 10:30 am today:

ORIGINAL POST:

Today I was reading David Loy's biography on the San Diego ACLU website, and I was struck by the irony of his claims to fame.  Freedom of speech?  Open government and public disclosure?  You've got to be kidding.

David Loy was indeed chosen as a Top Attorney in 2009 and 2010, but I suspect the reason was NOT that he defended free speech, but that he cozied-up to individuals who crafted a couple of agreements with him regarding student speech.

Those agreements generated some nice media attention for Mr. Loy.  But what was he doing behind the scenes?

He was pressuring me to remove the names of public entity attorneys from my website.  He wrote to me telling me that I must remove every mention of public attorneys he had worked with!

The Court of Appeal disagreed with Mr. Loy that I must remove those names.  See story in Voice of San Diego.

If you want to see something truly bizarre, look at the Stutz v. Larkins decision from the Leagle website.  It was largely unreadable for as much as several months in 2014. It was fixed on Dec. 8, 2014. You can see the repaired web page HERE.


I wonder what Mr. Loy thinks of concealing Court of Appeal decisions from the public. 

Here's the decision that somebody doesn't want you to see.  Clearly, David Loy didn't even want this case to be heard, so I'm sure he wasn't happy with the decision.

So how does David Loy get off claiming to be an expert in free speech and a champion of sunshine in government?  He most certainly is NOT a supporter of transparency in public entities, as shown by his efforts to silence public discussion of public attorneys.

Legal Director, David Loy
After graduating law school, Loy clerked for Judge Dolores K. Sloviter of the Third Circuit Court of Appeals. He worked as a staff attorney with Office of the Appellate Defender in New York City and public defender and civil rights attorney in Spokane, Washington before joining the ACLU in 2006. He previously served on the Southern District Lawyer Representative Committee and the board of California Appellate Defense Counsel. Loy was named one of San Diego’s Top Attorneys 2009 and 2010 by San Diego Daily Transcript. He supervises all legal advocacy at the ACLU of San Diego & Imperial Counties, and has particular expertise in freedom of speech and religion, open government and public disclosure, police misconduct, and constitutional criminal procedure. Loy has a law degree from Northwestern and a B.A. from Brown, and is licensed to practice in California and New York (with inactive licenses in Illinois and Washington).
--from ACLU website 

David Loy is also in the news today courtesy of the San Diego Union-Tribune due to his objections to a religious organization that is involved in raising money in public schools.

I share Mr. Loy's concern about a charity that public schools in San Marcos are involved with.  I have two criticism's of the charity.

First, I don't like the idea of feeding kids for a limited period of time and then walking away.

I would urge citizens of San Marcos to give to Oxfam rather than this questionable charity.

Oxfam helps people create better economic conditions.  They teach people how to fish rather than giving them a fish to eat.  They create jobs for parents, and let the parents feed their kids with the money they make.

The San Marcos charity simply serves meals to kids.

Well, actually, I suspect that's not all they do.  Which brings me to my second criticism: the violation of the First Amendment.

Second, I suspect that the charity is serving meals for a limited time because it wants to give religious training to kids.  After they're converted, the charity's goals have been achieved, and the feeding of the kids is no longer a priority.

I can understand that Mr. Loy would be worried about the slippery slopes that surround enterprises like this one, but if he's going to worry about the dangers of everyday activities that threaten the First Amendment, he should worry first about his own efforts to quash free speech.  Why should he hold San Marcos Middle School to such an exacting standard when he is so lax about the First Amendment in other situations?

ACLU says San Marcos school raising funds illegally

By Pat Maio 

SDUT

Dec. 8, 2014

San Marcos Middle School may be breaking state law by raising money with a religious group to feed children in East Africa, according to the San Diego and Imperial counties chapter of the American Civil Liberties Union.

The school is partnering with a local nonprofit called Friends and Family Community Connection, with the support of Illinois-based Kids Around the World, to raise $3,500 to provide 14,000 meals for children in Tanzania..

Remittitur issued in Stutz v. Larkins on Aug. 20, 2014--but Judge Judith Hayes issued new default judgment TWO WEEKS EARLIER

See all posts regarding this case.

On August 20, 2014 the Court of Appeal issued a remittitur in Stutz v. Larkins. 

But Judge Judge Hayes issued a new judgment two weeks earlier--on August 6, 2014--in San Diego Superior Court!  [In typical fashion, Judge Hayes didn't bother to have her clerk serve me with the judgment.  I didn't know about it until I was served with a copy by plaintiff on August 19, 2014.]

I have no idea why the Court of Appeal bothered to issue the remittitur.  Judge Hayes certainly wasn't waiting for it.



UPDATE: It turns out that there's case law that says that Judge Hayes did not have jurisdiction on August 6, 2014 to issue a new judgment:

‘Until remittitur issues, the lower court cannot act upon the reviewing court’s decision; remittitur ensures in part that only one court has jurisdiction over the case at any one time.”  (People v. Saunoa (2006) 139 Cal.App.4th 870, 872.) 

So why did she do it?

Don't ask me.  I still don't understand why she felt it was in the interest of justice to throw out my opposition to summary judgment because I made a small mistake in format.  For good measure, she also threw out my evidence (which seems sort of redundant, right?) and then granted plaintiff's motion for summary judgment.

NO WEIGHING OF EVIDENCE, NO JURY TRIAL FOR DAMAGES

Why didn't Judge Hayes want to weigh the evidence?

And then why did she rant and rave about defamation ever since, as if the evidence had been weighed and there had been a factual finding of defamation?

There was no justification for outrage or anger when the decision was based on a pure technicality.  And there was no justification for denying me a jury trial regarding damages for four years.

Judge Hayes granted default four years after granting summary judgment.  She then awarded nominal damages of $30,000 based on the fact that there were TWO (yes, 2!!!) Internet searches for Plaintiff in a certain month. 

Here's what I wrote in my Opening Brief regarding the $30,000 in "nominal" damages:

The calculation for the $30,000 is based on a ludicrous,
unreasonable and illogical conclusion drawn from Exhibits D and E...
If the trial court had looked at Exhibit E of the prove-up, it would
have seen that visitors to Defendant’s site were looking for CVESD, CTA,
MEA, Fagen Friedman Fulfrost, Emily Shieh, Voice of San Diego Education,
Procopio, Kaiser Permanente, Vickie Gilbreath, medical records,
insurance, the new teacher project, Cornell, Bonifacio Bonny Garcia, CTA
lawyer, and Councilman Castaneda.

It isn’t until page AA 2510 that we see the

two (2!) total queries...referring to Plaintiff. 

These two queries would appear to

justify damages of $.86...

It was unreasonable for the trial court to order Defendant to pay Plaintiff
$.43 every single hit on the site, when almost all of the hits were by
Defendant herself; search robots; visitors who only stayed on the site a
second or two; people looking for health and insurance information--
particularly Kaiser Permanente; visitors wanting information about
schools, education and San Diego politics; or non-Plaintiff lawyers.

The Court of Appeal backed-up Judge Hayes, also based mostly on technicalities.

Erasing information on my websites

I've been working hard erasing web pages and blog posts that could be considered violations of  Judge Judith Hayes' injunction.

In the past couple of months I've depublished hundreds of blog posts and erased or edited several web pages.  I'm starting to erase web pages with public records:

Deposition page plus six additional pages

Motion to compel

Oral arguments took place May 16, 2014 in Stutz V. Larkins defamation case; James Holtz did not appear

I was very nervous yesterday when I made my oral argument before the Court of Appeal, but apparently James Holtz was even more nervous. He didn't show up at all, nor did any of the other Stutz Artiano Shinoff & Holtz attorneys who have been involved in this case. James Holtz had been appearing frequently in the Superior Court hearings in the case, but he was nowhere in sight on Friday.

Stutz law firm sent a new contender, Scott Ingold, to do the honors.

Mr. Ingold spoke smoothly, while I had a couple of embarrassing pauses. Mr. Ingold seemed detached, which was appropriate. It would have been unseemly for him to get up on his high horse when the whole case was based on a summary adjudication based on a technicality, devoid of any weighing of evidence.

In February 2009 Judge Hayes threw out my opposition because of a small mistake in format. Then, based on this technicality rather than a jury verdict, Judge Hayes issued a couple of unlimited injunctions. One was thrown out by the Court of Appeal in 2011 for being an overly broad prior restraint on speech.

Now the other injunction is at issue. Here's how Judge Hayes explained this injunction in June 2012: "I'm not giving you permission to put anything on [your website]." In other words, it's exactly the same injunction that was found "exceedingly broad" by the Court of Appeal in 2011.

The Presiding Justice pointed out to Mr. Ingold that there didn't seem to be any information in the record about my financial condition. A showing of my ability to pay should have been required by Judge Judith Hayes of the San Diego Superior Court before she approved punitive damages against me.

But perhaps Judge Hayes wasn't focused on such small details after granting a default to Plaintiff FIVE YEARS AFTER I FILED MY ANSWER--and four years after she had granted summary adjudication with NO weighing of evidence. I paid my jury fees and asked repeatedly over the years for a jury trial on damages, but was always ignored or refused. The judge didn't want a jury trial on damages; she wanted a default.

Young Mr. Ingold admitted that he, too, had failed to find any evidence in the record of my financial condition, but he insisted that I should pay punitive damages anyway. I didn't bother to say anything in response to that.

I did respond when Mr. Ingold said that there was no evidence in the record about my negotiations with James Holtz on April 6, 2009 (regarding the agreement I signed that day). I pointed out that there were multiple declarations signed by me under penalty of perjury in the record, and that Mr. Holtz had never denied the truth of my declarations. I'm guessing that James Holtz didn't want to discuss this issue in person.

See all posts re Stutz v. Larkins in San Diego Education Report Blog.

Updates on San Diego Reader story about Stutz Artiano Shinoff & Holtz v. Larkins

The San Diego Reader has finally allowed me to correct an error and add some crucial information to a June 26, 2013 article about me:

1. There was no weighing of evidence involved in Judge Judith Hayes' decision that I had defamed Stutz law firm. The judge's decision was based on a technicality--that I hadn't used the updated format in my opposition to summary adjudication--so the decision was not based on fact. Stutz won the decision automatically when my opposition was thrown out.

2. Regarding the Vito Corleone error: documents show that I was not the author of the Vito Corleone quote.

Here are my comments on this story in the San Diego Reader:

MauraLarkins May 11, 2014 @ 11:45 a.m.

I liked Mr. Hargrove's article about me, but I would like to correct one error. In fact, the comment about Vito Corleone was not written by me, but rather by an anonymous visitor to my website. Mr. Hargrove's mistake can be explained by the fact that Judge Judith Hayes ignored the documentary evidence (exhibits that included printouts of my blog) when she issued a decision saying that I had published the comment!

In fact, I don't believe that Dan Shinoff makes Vito Corleone look like an altar boy. I'd say the exact opposite: that Vito Corleone makes Dan Shinoff look like the personification of moral purity.

I bear no malice toward Mr. Shinoff. I simply believe that the public has a right to know what our tax dollars are paying for, and how our schools are being run.

MauraLarkins May 12, 2014 @ 10:02 a.m.

There was no trial in this case. In fact, there was no weighing of evidence by the judge, either. Judge Judith Hayes made her decision based ONLY on a technicality: that I hadn't used the updated format when I prepared my opposition to summary adjudication.

My statements were NOT found to be defamatory in fact, but only as a matter of law.

The judge could have weighed the evidence, but she chose not to do so. Why not?

To insulate herself even further from the facts of the case, Judge Hayes also threw out all my evidence. That was overkill, of course, since she had thrown out my opposition to summary adjudication.

MauraLarkins May 12, 2014 @ 4:33 p.m.

The law does NOT allow prior restraint of speech except for statements found to be defamatory "at trial". Judge Hayes did not have the right to deprive me of my constitutional rights without due process. Obviously, throwing out my evidence and my opposition to summary adjudication does not constitute due process.

Michael Roddy silent after receiving reports of shenanigans by clerks at San Diego Superior Court

*
UPDATE JANUARY 30, 2013

In the same case discussed below, Stutz v. Larkins, we now have documents missing from the case file.

UPDATE JANUARY 3, 2013 re Michael Roddy silent about document falsified by clerk

Karen Dalton, in charge of public relations for the court, was able to get a response for me from Mr. Roddy. Here it is:

Dear Ms. Larkins,

The October 2012 inquiries cited in your blog were received and investigated by the court. After investigating the issues you raised, we concluded that no improper action has been taken by any court employees related to your case. The matter has been closed.


Sincerely,
Mike Roddy
Executive Officer

(I guess this means business as usual will continue in the court.)

Maria Hayes is the Supervisor of the Superior Court Appeals Division. Kathy Williams is the Manager of that Department and several other departments. Stephen Cascioppo is the Assistant Executive Officer, Central Division. And of course, Michael Roddy is the Executive Officer. Michael Roddy has clearly approved the creation of a false document to get rid of Appeal regarding one of the decisions of Judge Judith Hayes and her research attorney, Monica Barry.

ORIGINAL POST:

At a time of layoffs of clerks, why is the court forcing clerks to spend time creating false documents and then more time correcting the record?

Michael Roddy is silent regarding the bizarre and unsuccessful effort of the San Diego Superior Court Appeals Division to default my September 6, 2012 appeal regarding an injunction in the Stutz v. Larkins case.

The Court of Appeal has already ruled one of Judge Judith Hayes' injunctions unconstitutional in this same case. It would seem that Mr. Roddy wants to protect judges who ignore the law. He has not responded to either of the two letters below.

Notice the two signatures on the document at left. Someone has merely written "/s/" on each signature line! This suggests that the clerk didn't like having to sign this document, so she applied this imprecise symbol. Perhaps she feared she'd lose her job if she didn't put something on the signature line.

It appears that Superior Court Appeals division clerk ZZZ ordered her subordinate to dismiss my appeal, claiming that my Designation of Record was unacceptable because there were no hearings on three of the dates I had listed in my Designation of Record.

Even if the court had been correct regarding this issue, it is normal practice to allow the appellant a grace period to correct such mistakes.

In fact, the court was completely, absolutely, wrong.

Not only were there hearings on those dates, but the transcripts of those hearings had actually been received by the Superior Court Appeals division in 2010 for my earlier appeal about the other unconstitutional injunction in this same case. The court apparently invented this excuse in an effort to find any reason at all to justify defaulting my appeal.

What would be the motive? To make sure than Judge Judith Hayes didn't have another injunction overturned by the Court of Appeal in the Stutz v. Larkins case.


October 23, 2012

Michael Roddy, Executive Officer
Stephen Cascioppo, Assistant Executive Officer, Central Division
Third Floor
220 West Broadway
San Diego, CA 92101

Dear Executives of San Diego Superior Court:

Following is not necessarily word-for-word accurate, but all the ideas expressed are accurate. Not every word spoken is recorded here, but this transcript contains about 80% of what was spoken. Some parts were repeated.

I spoke to deputy clerk XXX in the Appeals Section on October 22, 2012 about the fact that all three of the dates she used to justify Defaulting my Appeal were, in fact, dates on which hearings had occurred.

Ms. XXX went to her computer and checked all three dates, then came back to me and said, “There were no minute orders on those dates.”

“Were there hearings on those dates?” I asked.

Instead of answering this question, she repeated a couple more times that there were no minute orders on those dates.

“What if the judge took the matter under submission?” I asked. “There wouldn’t be any minute order, even though there had been a hearing.”

Ms. XXX told me that her computer does not show whether a hearing has occurred—unless there was a minute order!!!!

I showed Ms. Rodriquez two Reporter’s Transcript cover sheets for my 2010 appeal in the same case. I had drawn circles around the three dates in question. Ms. XXX made copies of the two cover sheets, and said that this cleared up the problem.

I said, “No, it doesn’t. The fact that this happened is a problem. Someone told you to do this, didn’t they?”

She said that no one had told her to do it.

I said, “You’re going to take the fall for this?”

I said I didn’t believe she could have made three mistakes like this, and she didn’t have any motive to sabotage my appeal.

When she went to her desk, her supervisor ZZZ came up to her and told her she should leave. Then she said, “It’s your break. I’ll take care of it.”

Then they both came over to where I was sitting, and XXX explained the situation to ZZZ.

ZZZ said to XXX, “Did you look it up on the V3 system?”

XXX said she did.

I said, “So the name of the system you use is V3?

ZZZ waved her hand dismissively, ending the gesture with her palm stationary in front of my face, and said, “It’s nothing for you to worry about.”

I requested that she not stick her hand in my face and asked, “Do you not want me to have information about what system you use?”

ZZZ said she didn’t mind giving me the information, and said that V3 was the system used by the Court.

“Does it show when a hearing has occurred?” I asked.

“Yes,” ZZZ said.

“That’s interesting. XXX said that it didn’t,” I said.

ZZZ said, “No, it doesn’t show hearings. It shows the minute orders. The minute orders are printed on yellow paper and placed in the file.”

I said, “So there’s no record on your computer of hearings at which no minute order was issued?”

ZZZ said, “Well, yes, there’s a little one line notation showing that there was a hearing.” She held up her two index fingers, a short distance apart, to show how small the notation was, apparently to demonstrate how easily it could be overlooked. I said, “Someone must have told XXX to do this. Was it you?”

ZZZ said, “No.”

ZZZ turned to XXX and told her to leave.

XXX was obviously uncomfortable to be asked to leave. It was clearly not her normal break time. I happen to know that clerks sometimes take their breaks at their desks, so it was not necessary for XXX to leave even if it actually had been her break time. XXXX did not feel good to be told to leave; her facial expression and body movements revealed that she was unhappy and anxious. I interpreted the order to leave as ZZZ’s effort to prevent XXX from revealing that ZZZ had told her to create the Notice of Default. This was quite paranoid of ZZZ, since XXX was absolutely steadfast in sticking to the story that the Notice of Default was entirely her own idea.

I asked to speak to Ms. ZZZZ’s supervisor, but Ms. ZZZZ said the supervisor had her door closed and was in a meeting.

I gave ZZZ my 1-page letter with three attachments, addressed to Mr. Roddy, Mr. Cascioppo, and XXXX, and she stamped it received and stamped my copy. I went to Michael Roddy’s office, but it was closed for lunch. I went back and asked ZZZ to put another copy in Mr. Roddy’s mail box. I saw her put the letter in a mail box on the west wall.

It’s worse to force a young, vulnerable person to subvert justice than it is to simply subvert justice oneself. And whoever pressured ZZZ was worse than ZZZ. Sincerely,

Maura Larkins



October 21, 2012

Michael Roddy, Executive Officer
Stephen Cascioppo, Assistant Executive Officer, Central Division
XXXXXXXX, Deputy Clerk of the Superior Court, 3rd Floor, Room 3005
220 West Broadway, San Diego, CA 92101

Dear San Diego Superior Court:

Deputy Clerk of the Superior Court XXXXXX states in her October 18, 2012 Notice of Default (attached) that for the dates 4/25/08, 4/03/09 and 3/05/10 “there are no minutes/hearings for those dates according to our record.”

I can’t begin to imagine how Ms. XXX could come up with not one, but three separate mistakes of this type. Not only did hearings occur on all three of these dates, but court reporter Marvie Votaw delivered the transcripts of these three hearings to your Appeals Section in connection with my March 2010 appeal. I have attached Ms. Votaw’s cover pages showing that transcripts were prepared for these dates. Also, in September 2012 the court reporters had no trouble preparing estimates for the cost of preparing the current record because I obviously designated the record with adequate specificity.

It is bizarre that the Superior Court would interfere in this way with my appeals process. If the deputy clerk didn’t have enough time to check carefully, why would she go out of her way to prepare a Notice of Default? Left to her own devices, she would have left it alone rather than picking three dates and declaring that hearings didn’t happen on those days. More likely, someone else picked those three dates and told Ms. XXXX that no hearings occurred on those days.

I suspect that someone in San Diego Superior Court who wanted to get rid of my appeal asked XXXX to prepare this Notice of Default.

Please investigate this shocking subversion of the judicial process.

XXX had no motive to do this on her own initiative, but obviously there is at least one person in San Diego Superior Court who does have a motive. Judge Judith Hayes almost certainly wants to prevent another ruling by the Court of Appeal that finds one of her injunctions to be “exceedingly broad.” But Judge Hayes probably didn’t talk directly to Ms. XXXX. More likely it would have been xxxxxx or xxxxxx.

Sincerely,

Maura Larkins



The clerk seemed quite happy to reverse the default she had been forced to prepare. She sent me the following:

Here's a recent court transcript revealing the judge's bizarre behavior in this case.

See all posts re Stutz v. Larkins.

Michael Roddy is employed directly by the California Administrative Office of the Courts (AOC).