San Diego Superior Court provides no reporters for civil cases--but it's building a brand new courthouse. Justice doesm't seem to be the top priority here.

What is said by the judge and the litigants in Superior Court is a critically important part of the case record.

The court's ability to dispense justice is impaired by the budget-driven decision to stop providing court reporters in civil cases.

But it now seems that the Court's decision to stop paying for court reporters might have been political. It seems that a whole lot of money is available to the San Diego Superior Court, but it's being used to build a new courthouse BEFORE restoring a service as basic as court reporters.

The developers must be very happy--as well as their friends in positions of power.

Now I understand why people have been complaining about car allowances for judges.

Why aren't San Diego Superior Court judges raising their voices in a united, ear-shattering cry for a return to basic court services before building a new courthouse?


Los Angeles Superior Court also stopped providing court reporters in most civil cases:

EFFECTIVE JUNE 14, 2013: The Los Angeles Superior Court will no longer provide court reporters for general jurisdiction civil matters, except in the writs departments – 82, 85 and 86 - located in the Stanley Mosk Courthouse. The writs departments will continue to use the established matrix for court reporter assignments.

$555M courthouse construction beginning

22-story building downtown will replace 1961 county courthouse in 2016
By Roger Showley
SDUT
Feb. 21, 2014

The new courthouse will rise 22 stories and 389 feet on the block bounded by State, Union, B and C streets. Note top cornice which doubles as a shade structure for the east-facing corridors. — Skidmore, Owings & Merrill

San Diego will break ground next month on its most expensive public office building ever: The $555.5 million, San Diego Central Courthouse.

Funded from increased court fines and fees, the 704,000-square-foot building at Union and C streets downtown will replace the obsolete county courthouse that opened 53 years ago.

“I think, in part, we live in a very different world than when the current buildings we occupy were built,” said David J. Danielsen, presiding judge of the San Diego Superior Court. “I don’t think any of us had any clue way back in the day of the potential danger of asbestos. I don’t think anybody ever designed a building with modern terrorists in mind.”

Due for completion in 2016, the building also breaks the mold in courthouse design. No more Classical columns or bell towers, such as those that existed in earlier San Diego courthouses. This courthouse is a 22-story skyscraper — 389 feet tall...


Judges keep car perks
Despite enormous service cutbacks, Superior Court maintains nearly $1 million in vehicle allowances
By Dave Maass
City Beat
Sep 25, 2012

...“The cuts envisioned by our budget reduction plan will affect every judge, court employee and ultimately the litigants, court users and citizens in San Diego County,” Presiding Judge Robert Trentacosta said in a June statement. “These cuts will significantly reduce or eliminate access to our court system and are devastating to those of us who have worked so hard to convince the Governor and Legislature that such cuts threaten the stability of our third branch of government.”

The California budget crisis has trickled down to the local justice level, with the San Diego County court looking to make up a $33-million shortfall in what had been a $190-million budget. The court was ordered to drain its rainy-day reserves—roughly $22 million—leaving $11 million left to slice in the coming fiscal year, with even bigger cuts predicted in the next cycles.

As fall arrives, the court has begun shutting down outlying courtrooms, shortening hours, laying off some employees and furloughing others.

But the Superior Court did not cut one line item: nearly $1 million per year in transportation allowances set aside for judges and executive managers.

...The court has shut down probate-court operations and a juvenile-dependency courtroom in Vista. The Ramona court facility was shuttered, and six criminal courtrooms and one civil courtroom were closed at the Downtown courthouse. Employees are being forced to take 24 unpaid furlough days during the next two years. The court also plans to close down civil courtrooms in East County and South County, remove court reporters from civil cases and lay off at least 60 employees.

“At a time when we are asking all levels of government to reduce spending, any and all additional perks should be scrutinized for potential savings,” Chris Cate, vice president of the San Diego County Taxpayers Association, wrote in an email reacting to CityBeat’s research. “Taking into account total compensation, these car allowances should be the first item eliminated as a means to reduce spending by close to $1 million.”

This is one of the few occasions when the Taxpayers’ Association and public-employee unions are on the same page.

“A benefit such as a car allowance is quite a luxury, especially in these economic times and especially in the public sector in California,” says Michelle Castro, California director of government relations for Service Employees International Union. So far, 27 of the 125 court reporters represented by the union are being laid off...

California attorney's oath

Attorney’s Oath

I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.


California Business and Professions Code Section 6068

It is the duty of an attorney to do all of the following:

(a) To support the Constitution and laws of the United States and of this state.

(b) To maintain the respect due to the courts of justice and judicial officers.

(c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense.

(d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

(e) (1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.

(2) Notwithstanding paragraph (1), an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.

(f) To advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.

(g) Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.

(h) Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.

(i) To cooperate and participate in any disciplinary investigation or other regulatory or disciplinary proceeding pending against himself or herself. However, this subdivision shall not be construed to deprive an attorney of any privilege guaranteed by the Fifth Amendment to the Constitution of the United States, or any other constitutional or statutory privileges. This subdivision shall not be construed to require an attorney to cooperate with a request that requires him or her to waive any constitutional or statutory privilege or to comply with a request for information or other matters within an unreasonable period of time in light of the time constraints of the attorney's practice. Any exercise by an attorney of any constitutional or statutory privilege shall not be used against the attorney in a regulatory or disciplinary proceeding against him or her.

(j) To comply with the requirements of Section 6002.1.

(k) To comply with all conditions attached to any disciplinary probation, including a probation imposed with the concurrence of the attorney.

(l) To keep all agreements made in lieu of disciplinary prosecution with the agency charged with attorney discipline.

(m) To respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.

(n) To provide copies to the client of certain documents under time limits and as prescribed in a rule of professional conduct which the board shall adopt.

(o) To report to the agency charged with attorney discipline, in writing, within 30 days of the time the attorney has knowledge of any of the following:

(1) The filing of three or more lawsuits in a 12-month period against the attorney for malpractice or other wrongful conduct committed in a professional capacity.

(2) The entry of judgment against the attorney in a civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity.

(3) The imposition of judicial sanctions against the attorney, except for sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000).

(4) The bringing of an indictment or information charging a felony against the attorney.

(5) The conviction of the attorney, including any verdict of guilty, or plea of guilty or no contest, of a felony, or a misdemeanor committed in the course of the practice of law, or in a manner in which a client of the attorney was the victim, or a necessary element of which, as determined by the statutory or common law definition of the misdemeanor, involves improper conduct of an attorney, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type.

(6) The imposition of discipline against the attorney by a professional or occupational disciplinary agency or licensing board, whether in California or elsewhere.

(7) Reversal of judgment in a proceeding based in whole or in part upon misconduct, grossly incompetent representation, or willful misrepresentation by an attorney.

(8) As used in this subdivision, "against the attorney" includes claims and proceedings against any firm of attorneys for the practice of law in which the attorney was a partner at the time of the conduct complained of and any law corporation in which the attorney was a shareholder at the time of the conduct complained of unless the matter has to the attorney's knowledge already been reported by the law firm or corporation.

(9) The State Bar may develop a prescribed form for the making of reports required by this section, usage of which it may require by rule or regulation.

(10) This subdivision is only intended to provide that the failure to report as required herein may serve as a basis of discipline.

Vote in Carla Keehn in place of Lisa Schall for Judicial Office 20, and Brad Weinreb for Office 25, but keep Prager and Popkins

 Update April 2016:

Carla Keehn is challenging Keri Greer Katz, daughter of judge Michael Greer, in 2016 election for Superior Court Judge

 Original post:

Superior Court Judge; Office 9 • Ronald S. Prager

Superior Court Judge; Office 19 • Michael J. Popkins

Superior Court Judge; Office 20 • Carla Keehn: This race receives special attention. Keehn is running against the incumbent Lisa Schall. The problem with Schall is that during her term as judge she has been admonished three times by the state Commission on Judicial Performance. After 30 years on the bench it is time for a change. Vote for Keehn

Superior Court Judge; Office 25 • Brad Weinreb

Brad Weinreb, a state deputy attorney general for more than 20 years, was rated by the Bar as “qualified.” He has extensive experience in major criminal cases and claims one of the highest active caseloads in death penalty cases. He won the endorsement of Goldsmith, Gore, Chula Vista Police Chief David Bejarano, county Public Defender Henry Coker, numerous organizations and some 50 current judges. Both his opponents, Michele Hagan and Ken Gosselin, received the lowest rating of “lacking qualifications” from the Bar. And Gosselin has been accused of misleading voters about his education and experience.

Superior Court Judge; Office 44 • Joseph Adelizzi (SDER choice to replace incumbent Judge Jacqueline Stern)

Judge has been admonished three times
No jurist in the state has a less favorable record
By Greg Moran
U-T San Diego
May 12, 2014

The campaign website for San Diego Superior Court Judge Lisa Schall touts her three decades of experience on the bench, including assignments in every division of law, from criminal courts to probate matters and family law.

What it doesn’t talk about is Schall’s record of discipline with the state agency that oversees judges.

No other active judge among the state’s 1,827 judges on the Superior Court, appeals court and Supreme Court bench has been publicly disciplined more times than Schall has, a review of disciplinary records from the Commission on Judicial Performance shows. She has received two public admonishments and one private admonishment.

Only one other judge, in Contra Costa, has a similar record.

Schall said the record involves three incidents over a nearly-30-year career on the bench, that she has learned from her mistakes, and that her work record has earned her the continuing support of the legal community.

The record shows Schall has been publicly admonished twice, most recently in March 2008 when she pleaded guilty to an alcohol-related driving charge. A public admonishment is the third most-serious level of punishment the commission can hand out, behind only public censure and removal from the bench.

She was stopped while driving the wrong way on Centre City Parkway in Escondido in September 2007 and found to have a blood-alcohol level of 0.09. That is just over the legal limit.

The arrest came just months before she was up for re-election to her fourth term and was not made public at the time. Court records show the case was delayed for six months, and Schall pleaded guilty to a lesser offense — one week after the filing period for a candidate to run against her had closed.

Under state election law, if a sitting judge does not draw a challenger during the filing period, they are deemed automatically re-elected to the office for another term.

Both the judge and her attorney, William Wolfe, said she was not given any special consideration and that Schall did not seek to delay the disposition of the case until after the filing period.

Shall said this week she was dealing with a divorce and caring for her elderly parents at the time of the DUI arrest. She said that is not an excuse, and has apologized to colleagues and family since.

“I took ownership of that,” she said. “I didn’t try to hide it or cover it up.”

Schall was also publicly admonished in 1999 for abusing her power and not following the law when she jailed a woman for five days for contempt of court. The woman was disruptive in the courtroom during a hearing on a restraining order and was taken out of the courtroom.

When the woman said to Schall’s bailiff that she would “go off” if not allowed to tell her story, Schall cited her for contempt without holding a hearing or making factual findings — and when the woman was not in the courtroom.

In 1995 Schall received a private admonishment from the commission for what commission records describe as “her embroilment in a juvenile dependency matter.” Schall said during a child welfare case she was told an appellate lawyer for one parent had been revealing confidential testimony from the court proceedings. She held a hearing with the appellate lawyer and others to find out what had happened, and the commission concluded that was wrong.

...The disciplinary commission has doled out public admonishments just 75 times since 1995 to 22 judges, records show. Several judges who received two public admonishments either retired or were removed by the commission after the second...

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.

Union-Tribune endorses Judge Lisa Schall, then reports that "No jurist in the state has a less favorable record" than Judge Schall

Incumbent Judge Lisa Schall [U-T file] — Charlie Neuman

The apparent contradiction in San Diego Union-Tribune articles about Judge Schall actually make perfect sense. The U-T is saying that it's better to have a bad Republican than a good Democrat. The U-T thinks it's okay for a judge to improperly throw citizens in jail, to become embroiled in juvenile dependency cases, and to drive drunk, as long as the status quo is maintained in the courts.

I think it should also be noted that the three official admonishments of Judge Lisa Schall don't tell the whole story. The Commission on Judicial Competence is often loathe to criticize judges even when they behave very badly.

This article from the Los Angeles Times from September 1986 recounts how the judge, shortly after being appointed, showed her gratitude to Governor George Deukmejian by appearing at one of his campaign events.

The article notes, “[Mike] Aguirre filed a complaint with the California Commission on Judicial Performance alleging that Guy-Schall’s talk was a violation of judicial ethics guidelines that prohibit judges from endorsing or campaigning for candidates for non-judicial office.”

Apparently Schall did NOT get a reprimand for this shockingly inappropriate behavior, which makes me wonder if there were also other complaints against Judge Schall to the Commission on Judicial Performance that failed to result in admonishments.

See also: After 2 days, Clear Channel pulls down billboards that reveal that Judge Lisa Schall was convicted of a crime

Judge has been admonished three times
No jurist in the state has a less favorable record
By Greg Moran
SDUT
May 12, 2014

Private admonishments are issued by the commission in cases where serious misconduct has been found, but are confidential and only become public if revealed in future disciplinary matters.

Her opponent in the race, federal prosecutor Carla Keehn, is making an issue of Schall’s record. This week billboards went up saying Keehn was the “only candidate for this office NOT convicted of a crime.”

“I think a judge should be above reproach,” Keehn said “Judges should set the standard for law abiding behavior.”

The disciplinary commission has doled out public admonishments just 75 times since 1995 to 22 judges, records show. Several judges who received two public admonishments either retired or were removed by the commission after the second.

Schall said voters should assess her ability over a full career and based on what her peers and others say.

She has been rated well qualified, the highest rating, by the county bar association, she said. All of the Superior Court bench has endorsed her. Keehn received a rating of qualified, the second highest of three rating categories.

Schall has been a judge for nearly 29 years. She was first appointed to the now defunct Municipal Court bench in 1985 at age 32, then elevated to the Superior Court bench in 1989. She has been re-elected four times to six-year terms and has never been challenged, until this year when Keehn decided to run against her.

Private admonishments are issued by the commission in cases where serious misconduct has been found, but are confidential and only become public if revealed in future disciplinary matters.

Her opponent in the race, federal prosecutor Carla Keehn, is making an issue of Schall’s record. This week billboards went up saying Keehn was the “only candidate for this office NOT convicted of a crime.”

“I think a judge should be above reproach,” Keehn said “Judges should set the standard for law abiding behavior.”

The disciplinary commission has doled out public admonishments just 75 times since 1995 to 22 judges, records show. Several judges who received two public admonishments either retired or were removed by the commission after the second.

Schall said voters should assess her ability over a full career and based on what her peers and others say.

She has been rated well qualified, the highest rating, by the county bar association, she said. All of the Superior Court bench has endorsed her. Keehn received a rating of qualified, the second highest of three rating categories.

Schall has been a judge for nearly 29 years. She was first appointed to the now defunct Municipal Court bench in 1985 at age 32, then elevated to the Superior Court bench in 1989. She has been re-elected four times to six-year terms and has never been challenged, until this year when Keehn decided to run against her.

HERE IS THE ENDORSEMENT OF THE UNION-TRIBUNE:

FOR THE SAN DIEGO COUNTY SUPERIOR COURT BENCH
By U-T San Diego Editorial Board
May 12, 2014
The only real decision for voters is in Office 20. Incumbent Judge Lisa Schall is a former prosecutor who has been on the bench since her appointment by Gov. George Deukmejian in 1985. She received the Bar’s highest rating of “well qualified,” and she has the endorsement of virtually all other judges on the bench, numerous retired judges, Goldsmith, Coker and a variety of professional organizations. But she has been admonished three times by the state Commission on Judicial Performance, including once for her guilty plea in 2008 to alcohol-related reckless driving. Her opponent is Carla Keehn, a former Army captain and an assistant U.S. attorney for the past 18 years who was rated as “qualified” by the Bar. The admonishments Schall received are a legitimate issue for voters to consider. The U-T editorial board believes her overall solid record of 29 years on the bench trumps those controversies. We endorse Judge Schall for re-election.

[Maura Larkins's response: "Overall solid record" of doing exactly what? Protecting friends of U-T owner Doug Manchester?

Sharon Kramer May 12, 2014 at 10:55 am

Does the UT have a typo in their story yesterday? They wrote of Schall, “overall solid record of 29 years on the bench”. Surely they meant to write, “overall SOILED record”.

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.

After 2 days, Clear Channel pulls down billboards that reveal that Judge Lisa Schall was convicted of a crime; also, Judge Schall's website is down (perhaps for changes in her endorsements?)

San Diego 10 News reports that billboards have been taken down by Clear Channel two days after they were put up.

Federal prosecutor Carla Keehn is challenging Judge Lisa Schall in the June 3, 2014 election for San Diego Superior Court judge. The advertisements correctly stated that Judge Schall has been convicted of a crime.

See newscast video on You Tube.

Judge Schall has been admonished three times by the Commission on Judicial Competence. The offenses were political support for the governor who appointed her, abusing her contempt power, and drunk driving.

See all posts on Carla Keehn and Judge Schall.

Judicial candidate Carla Keehn wants to know who took her billboards down

Billboards critical of incumbent Judge Lisa Schall

Joe Little

KGTV

May 12, 2014

SAN DIEGO - A local judicial candidate wants answers after her factually accurate billboard was taken down without any explanation.

Federal prosecutor Carla Keehn recently paid Clear Channel Outdoors $14,000 for four billboards that attack her opponent for Superior Court Judge Seat 20.

Incumbent Judge Lisa Schall has held that seat for almost three decades.

The billboard reads: "Vote Carla Keehn: The only candidate for this office not convicted of a crime. Because no one is above the law, not even judges."

The billboards went up last week and were almost immediately taken down.

"Well, it was a complete surprise," said Keehn. "They would not tell me who or what group told them to bring it down."

Schall has been disciplined three times by a state commission, including once after a DUI in 2008.

Keehn paid Clear Channel for 30 days to share that fact on her billboards. A Clear Channel representative told Keehn the order came from above her to take them down.

"I asked her specifically, 'Can you tell me the name?' She said, 'No.' I asked her, 'Can you tell me the location?' She said, 'No. We've been getting a lot of pressure,'" Keehn recounted.

The same representative declined to speak with 10News. 10News also tried tracking down Schall, whose website was also down Monday.

Keehn said Clear Channel is refusing to give her a full refund.

"They were going to charge us for the whole week and for the cost of tearing all four billboards down," said Keehn.

She's now weighing her legal options.

"We're still reviewing that. It just happened and we're still reviewing and we're still in negotiations with Clear Channel," she said.

A Clear Channel spokesperson issued this statement on the matter:

"Unfortunately our protocol for political ads was not followed and we took the ad down. We have offered the client a variety of resolutions, including the fullest refund allowable under the laws governing political contributions."

Besides the DUI, Schall was also admonished for "abuse of power" in 1999 and for holding an inappropriate hearing in 1995 while working in juvenile court.

Stutz Artiano Shinoff & Holtz is heavily represented on the San Diego Legal Secretaries board

Legal secretaries install 2014-15 board
By DOUG SHERWIN
The Daily Transcript
May 6, 2014

Linda L. Moore of Stutz Artiano Shinoff & Holtz APC was installed last month as president of the San Diego Legal Secretaries Association for 2014-2015.

Other new officers and members of the board of directors include Latham & Watkins' Becky Neidhardt as vice president; McKenna Long & Aldridge's Heather Schlaefli as secretary; Cynthia Halvax of Neil, Dymott, Frank, McFall & Trexler APLC as treasurer; Ann Posthill of Stutz Artiano Shinoff & Holtz APC as governor; Stokes Wagner Hunt Maretz & Terrell's Leanna Pierce as executive advisor; and J. Cori Mandy of Procopio Cory, Hargreaves & Savitch LLP as parliamentarian;

David Merino, Donna Mihalco, Maria Simental of Wingert, Grebing, Brubaker & Juskie LLP, and Procopio's R. Marina Durazo were installed as directors while Merino, Mihalco and Maria Simental were named as annual conference delegates.

Prosecutor Confirms Records Sought By KPBS Exist In DA’s Office

See all posts regarding the Jason Moore/Bonnie Dumanis political prosecution issue.

Prosecutor Confirms Records Sought By KPBS Exist In DA’s Office
By Amita Sharma
KPBS
May 5, 2014

The office said it will decide by Monday whether to release records.

Records concerning a prosecution of Chula Vista officials are at the San Diego County District Attorney's Office after all.

A month ago, officials in the office of District Attorney Bonnie Dumanis said the records requested by KPBS did not exist.

KPBS asked the DA's Office in early March for records, including emails, about a call former Chula Vista Mayor Steve Padilla said he received from Dumanis in late 2005. Padilla said Dumanis asked him to appoint her aide to a vacant council seat.

A recent KPBS story noted that within weeks of Padilla's refusal, Dumanis began investigating the entire Chula Vista City Council without revealing her call to Padilla. In late March, the DA's Office told KPBS it did not possess records related to the request.

KPBS sent another Public Records Act request two weeks ago seeking the same records from Deputy District Attorney Patrick O'Toole. He oversaw the Chula Vista investigations. Within hours, O'Toole wrote that he had the records and sent them up the chain of command for consideration.

The DA's Office also told KPBS in March that records pertaining to the investigation are legally exempt from disclosure.

"To the extent your request is for 'records pertaining to or discussing the Padilla or Castaneda investigation, or any investigation pertaining to this,' these records are exempt from disclosure under the 'investigative files' exemption," wrote Deputy District Attorney Julie Reizen in a letter to KPBS.

Reizen also cited the "deliberative process" privilege.

But Peter Scheer, executive director of the California First Amendment Coalition, said neither of those exemptions apply to records such as emails discussing the call to Padilla, or how it might have affected subsequent investigations.

"The communications, the email communications that raised questions or doubts, were not part of the investigative file for the prosecution," Scheer said. "The deliberative process privilege is a much abused, very broad privilege. They have to justify a determination that the public interest in keeping it secret outweighs the public interest in making it public. There's no reason to keep it secret except to avoid embarrassment."

Scheer added that even if the records were legally exempt from disclosure, Dumanis could choose to release them.

The DA's Office said it will decide Monday whether to release the emails.

San Diego’s Post-Kreep Judicial Landscape: A Reader’s Guide

See all posts on electing judges.

San Diego’s Post-Kreep Judicial Landscape: A Reader’s Guide
By: Ari Bloomekatz
Voice of San Diego
May 2, 2014

...This time around, San Diego will have to settle for a candidate who’s defended white supremacists pro bono and once wrote that a judge he was facing should be disqualified “by virtue of her permanent disability as a Negro racist;” and an incumbent with a drunk-driving conviction who was also admonished by a state commission for incorrectly putting a woman in custody for five days.

Those are two Superior Court candidates in five of the contested races – where an incumbent judge faces at least one challenger – for the June 3 election. Another 42 races for the bench are uncontested, meaning the sitting judge doesn’t have an opponent and will coast to another six-year term.

...There are currently 125 active Superior Court judges in San Diego County. Generally speaking, Superior Court judges are first appointed by the governor, but those judges can be challenged in the following election cycle.

The Contested Races

Office No. 9

Incumbent: Judge Ronald S. Prager ["well qualilfied"]

Challenger: Attorney/recycler Douglas Crawford ["lacking qualifications"; found culpable on one count of professional misconduct.]

Office No. 19

Incumbent: Judge Michael J. Popkins

Challenger: U.S. Justice Department attorney Paul Ware

Office No. 20

Incumbent: Judge Lisa Schall[officially admonished for campaigning for the governor who appointed her and wrongly jailing a woman, drunk driving]

Challenger: Federal prosecutor Carla Keehn

Office No. 25

The incumbent, Judge Cynthia Bashant, was recently confirmed as a U.S. District judge, so this is now an open election.

Challengers: Attorney/court volunteer Ken Gosselin, attorney [Bar Assoc. says "lacking qualifications"]/
fraud examiner Michele Hagan [Bar Assoc. says "lacking qualifications"] and
Deputy Attorney General Brad A. Weinreb

Gov. Jerry Brown could technically fill Bashant’s now-open seat, a court official said, but that is unlikely because there are people running in the election. The court official said there are currently seven more open bench seats that have not been filled, likely because of funding issues.

Office No. 44

Incumbent: Judge Jacqueline M. Stern

Challenger: Attorney Joseph Adelizzi

The Candidates

There are 11 candidates in the five contested Superior Court races and of those, the San Diego County Bar Association rated three – Crawford, Gosselin and Hagan – as “Lacking Qualifications.”

Of those three, Crawford has received the most attention recently because of a legal statement he penned in 2011 arguing the National Association for the Advancement of Colored People is a “militant, ‘black power’ organization” and that Judge Randa Trapp, who is black, should be disqualified from a particular case because she has a “racist bias and prejudice in favor of negroes and against whites.”

“Moreover, Crawford is well known in the legal community as an attorney that openly and vocally supports white supremacy causes by providing pro bono legal counsel to white supremacists,” Crawford wrote about himself, according to a copy of the legal statement.

“Plaintiff’s attorney contends that Judge Trapp will be unable to properly perceive the evidence and/or properly conduct the proceedings by virtue of her permanent disability as a Negro racist,” he wrote.

Crawford said recently that if he “could go back in time, I would never represented the client.” He said he does not share any white supremacist philosophies and was only doing his best to help his client at the time.

Crawford also has his own case pending in the State Bar Court – which hears attorney misconduct complaints – where he has been found culpable on one count of professional misconduct.

The misconduct, according to court records, refers to a threat Crawford allegedly made that he would have his client trigger a federal audit against their opponents if they didn’t start settlement talks.

He is challenging that ruling.

Crawford said he knows he’s not a traditional judicial candidate and that he “would never have a chance in any way, shape or form of ever being appointed to the bench,” which is why he decided to run.

He says his nickname is “Dirty Doug” because he prefers junkyards and fixing cars to working in courthouses.

Meanwhile, the Bar Association ranked three of the four incumbent judges as “Well Qualified” and the last, Stern, as “Qualified.”

Of those four, Schall – ranked as “Well Qualified” – is the only one who has been called out (and not in a good way) by the state Commission on Judicial Performance.

Schall was first appointed by Gov. George Deukmejian in the 1980s and says she is facing her first contested race.



According to court records, Schall received a private admonishment in 1995 related to her involvement in a juvenile dependency case.

Then in 1999, she was admonished for “an abuse of the contempt power” after incorrectly ordering a woman into custody for five days, according to a copy of the admonishment.

And about a decade later, Schall was again admonished by the commission after she was arrested and found guilty of drunk driving. According to a copy of that admonishment, Schall had a blood alcohol level of approximately 0.09 percent after she drove on the wrong side of an Escondido highway.

Schall said that it has been about seven years since her drunk-driving conviction and that she has “been a better judge out of that very bad choice that I made.”

Schall said she was going through a divorce at the time and her parents’ health was declining. She said that she served her probation and sometimes speaks at civic events about the dangers of drunk driving.

Schall said two of the other admonishments had to do with not following proper procedures.

Schall’s challenger is, unsurprisingly, using the drunk-driving conviction and admonishments as part of a platform.

“Ninety-nine percent of all judges get through their entire careers with nothing and that’s how it should be,” Keehn said. “This is the first election to hold Judge Schall accountable not just for her three judicial admonishments, but her criminal conviction.”

Elected vs. Appointed

By the time California became a state in 1850, much of the country had already moved toward the popular election of judges.

“The idea was to make government as inclusive and democratic as possible … in terms of white men … and the idea of electing judges fit right in with that idea,” said Reuel Schiller, professor of Law at UC Hastings.

But at the beginning of the 20th century, there was a radical change: People started to want partisan politics out of government, Schiller said.

So California developed a sort-of hybrid system where judges would generally be initially appointed by the governor with approval by a commission and then those judges would eventually face voters.

“In some ways Californians have tried to split the difference,” said Schiller.

The debate over whether Superior Court judges should be elected or appointed recurs nearly every election cycle.

Jon Williams, head of the San Diego County Bar Association, said candidates who run for a bench seat avoid the usual vetting that would occur if they were appointed.

“It’s been my observation that there is more interest these days in obtaining the position of judge through the election process,” Williams said. “Back in the day, you didn’t see as many people raising their hand to challenge a sitting judge.”

Uh-Oh, Scalia Screws Up Royally. Time To Retire.

Uh-Oh, Scalia Screws Up Royally. Time To Retire.
by pollwatcher
Daily Kos
Apr 30, 2014

The Obama administration won a rare Supreme Court victory regarding the rights of the EPA to regulate pollution from coal plants. Instead of the usual 5-4 decision against anything the Obama Administration wants, this decision was a 6-2 decision. And you get 1 guess as to who the 2 opposed were. Yep, Scalia and Thomas.

Well, the minority dissent opinion was written by Scalia, and according to this report from TPM Scalia really screwed up the opinion.

"This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA's contention that it could consider costs in setting [National Ambient Air Quality Standards]," Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.

The problem: the EPA's position in the 2001 case was exactly the opposite. The agency was defending its refusal to consider cost as a counter-weight to health benefits when setting certain air quality standards. It was the trucking industry that wanted the EPA to factor in cost. The 9-0 ruling sided with the EPA. The author of the ruling that Scalia mischaracterized? Scalia himself.

The conservative justice's error was noted by University of California-Berkeley law professor Dan Farber, who called it "embarrassing" and a "cringeworthy blunder."

But wait, it gets better.

"This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won!

... "It is a mind-blowing misstatement of a basic fact of the American Trucking Association ruling which Justice Scalia himself wrote. And it's not just a stray passage -- it's the basis for an entire section of the dissent,"

Looks like someone isn't taking their job very seriously, or maybe it's time to "spend more time with the family". Of course, does anyone really believe Scalia isn't the most political of the Justices?

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.

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.

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.

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.

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.

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.

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.

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.”

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."