Legal Pad

DA Regrets Misconduct, Supreme Court Says Not So Fast

[Scott Graham]

When the Sixth District Court of Appeal found “flagrant” prosecutorial misconduct in the case of Daniel Shazier last December, the Santa Clara County district attorney’s office was contrite.

"Based on the court's opinion, if I had it to do over again, I would make my arguments differently,” Chief Assistant DA Jay Boyarsky told the San Jose Mercury News at the time.

But the California attorney general’s office, which is prosecuting the appeal, didn’t have the same misgivings. Nor may the California Supreme Court, which granted the AG’s petition for review this week by a 4-3 vote.

The court of appeal “distorted the substantive standard for misconduct claims by ignoring material facts in order to infer the most damaging inference from the prosecutor’s comments,” Deputy Attorney General Bridget Billeter wrote in her petition.

Is New Funding Formula Key to Governor's Judicial Happiness?

[Cheryl Miller]

In the quest to answer Governor Jerry Brown's call to make trial court funding more equitable, a group of judges and court executives may have come up with a solution.

The Funding Methodology Subcommittee, a Judicial Council bunch led by Sacramento County Superior Court Judge Laurie Earl, has unveiled a model that purports to link individual court allocations with their workloads, not their historical -- and historically unequal -- funding levels.

The formula is complex and a little wonky, and it still has some holes. It would be phased in through 2018. Bottom line, some-better off courts would lose money under the plan while others that have gone begging would gain. But Earl and her subcommittee colleagues aren't making public yet the full list of winners and losers.

"It's a very, very rough draft, and there's more tweaking to be done," she said Tuesday after briefing the Trial Court Funding Working Group. (That's the panel appointed by the governor and chief justice to analyze the success of 16 years of state funding for courts).

She did say her own court would lose funding under the plan. So would Santa Clara County Superior Court. Courts in Riverside, San Bernardino, Kings, Riverside and Los Angeles would also benefit, at least under the formula's first draft.

In addition to tweaking its model, Earl's group has a formidable sales job ahead of it. Will judges from courts that would lose money still back the plan? Will organized labor?

The group's best hope may be convincing the governor that the funding formula is fair, or at least more fair than the current method. A satisfied governor may be more inclined to retore branch funding, and that should mean more money for everyone. That may be why the proposal seems to have some momentum behind it.

Earl's subcommittee is presenting its model to judges and court executives in private meetings around the state. The Sacramento judge said she expects to make the proposal final before it goes to the Judicial Council in late April.

'Harris' Already Being Invoked by Employment Counsel

[Scott Graham]

It didn't take long for the California Supreme Court's big employment discrimination decision, Harris v. City of Santa Monica, to prompt a request for a new trial.

Thursday afternoon -- less than seven hours after the high court issued Harris -- attorneys for Lucasfilm Ltd. incorporated the decision into a brief seeking relief from a $1.27 million pregnancy discrimination judgment.

In Veronese v. Lucasfilm, the First District Court of Appeal has already reversed the judgment obtained by Julie Gilman Veronese, ruling that the trial judge failed to instruct the jury on the business judgment rule, among other things. Veronese, represented by Altshuler Berzon and the Law Offices of Mayor Joseph L. Alioto and Angela Alioto, petitioned for review to the Supreme Court last month.

Lucasfilm filed its answer on Thursday. Among several reasons for denying review, it noted the jury was instructed with CACI 2500, which let it rule for Veronese if discrimination was a motivating factor in the employment action. "On Feb. 7, 2013, in Harris v. City of Santa Monica, No. S1081004, this court held that CACI 2500 is wrong," wrote attorneys Steven Drapkin of the Law Offices of Steven Drapkin and Paul Cane of Paul Hastings in their answer filed Feb. 7.

Because Harris requires that discrimination be a substantial motivating factor, Lucasfilm is entitled to a new trial, even if the Supreme Court were to agree with Veronese about the business judgment instruction, they contend. 

It's not clear how much relief Harris might ultimately convey to Lucasfilm, if a new trial were ordered on that ground. Of the $1.27 million awarded to Veronese, $1.15 million was for attorneys fees. And even post-Harris, Veronese could make a claim for fees.

First District May Have Vacancy Soon

[Scott Graham]

We’re hearing that James Marchiano, presiding justice of the First District Court of Appeal’s Division One, is nearing retirement. Marchiano was feted by his colleagues earlier this month and is said to no longer to be taking new cases, although it’s unclear whether he’s set a formal retirement date.

Marchiano did not respond to a voice mail or email Wednesday, and his Division One colleague, Justice Sandra Margulies, referred an inquiry to him.

A fixture in the Contra Costa County bench and bar, the affable Marchiano would mark 25 years of judicial service this summer. He served 10 years on Contra Costa County Superior Court before his appointment to the court of appeal by Gov. Pete Wilson in 1998 and subsequent elevation to the PJ role in 2002 by Gov. Gray Davis.

A Democrat who was twice appointed by Republican governors, Marchiano generally produced straightforward opinions free of ideological or rhetorical embroidery. He wrote the opinion last year upholding the involuntary manslaughter conviction and two-year sentence of BART officer Johannes Mehserle for the shooting of Oscar Grant. He ruled in 2011 that a cat owner could recover reasonable medical expenses for wrongful injury of the pet, even if they exceeded the pet's market value. And in 2009 he struck down a controversial state law that provided for incarceration of certain low-level substances abusers, on the grounds it was inconsistent with the 2000 drug diversion initiative Proposition 36.

“Even if these provisions of Senate Bill 1137 could be deemed to further Proposition 36's public health purpose, they would still be unconstitutional because they are inconsistent with the proposition's other primary purposes of saving jail cells for violent offenders and saving money with use of treatment instead of incarceration,” Marchiano wrote in Gardner v. Schwarznegger.

As a superior court judge, Marchiano was seen as the driving force behind a program that used direct calendaring, mediation and short trials with pro tem judges to reduce the court's civil backlog.

Marchiano was a litigator with Crosby, Heafey, Roach & May and Bledsoe, Smith, Cathcart, Boyd & Eliot before joining the bench.

In a 2001 profile of the judge, Kathleen Banke -- then a Crosby, Heafey appellate partner and today a Division One colleague of Marchiano's -- credited him with "the consummate judicial temperament."

As Marchiano put it, "You don't ever want to put down the lawyers." 

Appellate Ruling So Wrong, It Must Be Accident, Counsel Says

[Scott Graham]

Redwood City attorney Paul Carroll has a good issue that might get him in front of the California Supreme Court. But the way he’s presenting it probably won’t win him any friends at the Third District Court of Appeal.

Carroll’s Nov. 6 petition in People v. Wooten, S206473, points out that the Third District’s opinion in the case sets up a direct conflict with a 2001 opinion from the First District. So far, so good.

But, Carroll continues, the court’s discussion of the case is “with respect, wildly inaccurate. Indeed, it is so confused that we believe there has been some sort of inadvertent error.”

That may not sit well with Third District Justice Andrea Hoch, the author of Wooten -- especially given that Carroll did not petition for rehearing at the Third District before going to the state’s high court.

Carroll said Wednesday that he had not discovered the error until after the time to petition for rehearing, and “I should have.” But he had no regrets about his critique, saying the law clerk or judge who drafted the opinion “made an incredible error.”

'Bridges' Star Is Saved by the Toll

[Scott Graham]

If it seems like ages since the TV show Nash Bridges was airing regularly, that's because it is. The last regular season episode aired in 2001.

So when show star Don Johnson sued in 2009, saying he was still owed millions of dollars, the production company quite naturally raised the statute of limitations. Unfortunately for Rysher Entertainment and subsequent owners Mark Cuban and Todd Wagner, Rysher had agreed to toll the statute of limitations way back in 2002.

Although the California Code of Civil Procedure requires that waivers of the statute of limitations be renewed every four years, the same rule does not apply to tolling agreements, a divided California Court of Appeal ruled Monday in Don Johnson Productions v. Rysher Entertainment.

That issue of first impression will be worth $15 million to Johnson, who claims 50 percent ownership of the copyright, along with his guaranteed income of $167,000 per episode and 50 percent of the show's profits.

Trial Court Reserves Still on Negotiating Table

[Cheryl Miller]

Four days before the state constitutional deadline to pass a budget, the spending plan for California's courts remains a murky work in progress. But an Assembly document released Monday may offer a few clues.

The 108-page "plan" the Assembly Budget Committee will consider Tuesday suggests the judicial branch won't escape the $544 million in cuts proposed by the governor. The state's swipe of $240 million in construction funds appears to be a foregone conclusion. The judiciary is also expected to lose another $300 million, but whether it all comes from trial court reserves as the governor proposed was the topic of ongoing negotiations late Monday.

The Assembly's budget plan hints that lawmakers are considering a different formula. One proposal floated around the Capitol Monday called for a 15 percent cut to the Administrative Office of the Courts -- lower than the 30 percent one assemblyman put forward last month. Some $240 million would still be drained from trial court reserves and another $45 million in cuts would be made at the Judicial Council's discretion. Higher appellate filing fees are also on the table.

That could all change by Tuesday's committee meeting. But it's clear that the governor's plan to effectively end trial courts' ability to keep reserves is unpopular with lawmakers. What's less obvious is whether, with so many other cuts in the state budget, the governor's office and legislators have any interest in sparring over the courts' issues.

The Senate Budget Committee is scheduled to meet at 2 p.m. on Tuesday.

 

Chief Justice Calls Out Lawmakers Over AB 1208 Shenanigans

SACRAMENTO – The battle in the state Assembly over AB 1208 may be over, but Chief Justice Tani Cantil-Sakauye isn’t walking away without a few parting shots.

In a speech to court executives and presiding judges last week, the chief justice accused Assembly members of parroting “meritless, false claims” about the Judicial Council and the Administrative Office of the Courts during the AB 1208 floor debate on Jan. 30.

(Here’s the entire 19-minute speech. The AB 1208 discussion starts around the 5:15 mark. The AOC has also released an abridged version of the speech.) 

Cantil-Sakauye also accused Assembly Speaker John Perez, D-Los Angeles, of reneging on pre-vote assurances that members would be allowed “to vote their conscience, that it wouldn’t be the subject of political maneuvering.” The chief justice said she was disturbed to learn that, after only 32 Assembly members voted “aye” on the first roll call, Perez worked the floor to help bill author Charles Calderon find another nine votes to secure AB 1208’s passage.

“It’s one thing to lose an argument based on merit. It’s another thing when the facts are not represented,” Cantil-Sakauye said. The bill, she added, isn’t headed to the Senate “on its own legs.”

In response, Perez spokesman John Vigna would only say “The Chief Justice certainly has an opportunity to present her case to the Senate.”

Maybe the chief justice’s remarks were simply aimed at rallying her troops for the possible fight ahead in the Senate. And only she and the speaker really know what was promised or not promised in terms of pressure on Assembly members.

But on its face, the indignation comes across as a bit naïve, especially when you consider Cantil-Sakauye worked for two years in the Deukmejian administration. Anyone who watched the AB 1208 debate in the Assembly Judiciary Committee last May could see the speaker was behind this bill from the start – and that he was willing to use his political clout to move it. And as for the speaker working votes after the first roll call on AB 1208, that’s the sausage-making process that goes on in the Capitol. Love it or hate it, it happens all the time, particularly on bills that are a tough vote for lawmakers.

Senate President Pro Tem Darrell Steinberg, D-Sacramento, has said he has no immediate plans to send AB 1208 to a committee hearing. In her speech, Cantil-Sakauye said she is grateful for the time-out and the time it gives the branch to focus on the budget. The judiciary, she said, is seeking another $100 million from the state’s general fund, $50 million in “redirections” from within the branch budget, $100 million from trial courts’ reserves “for [their] own needs” plus the $50 million in new fees included in the governor’s spending proposal.

That’s a big wish list from a branch whose leader just poked the Assembly and its leader with a sharp verbal stick.

Branch leaders: It's time to gamble on new court funding

[Cheryl Miller]

Three days into the simultaneous conventions of the State Bar and the California Judges Association, the leaders of both groups – plus the visiting chief justice – have synched their talking points.

Their message to Long Beach convention-goers has been clear: The courts’ financial situation is horrible. Next year will be worse unless the governor and lawmakers restore some money. The judicial branch taking an unfair share of state reductions. The branch is not like the DMV or another state agency. It deserves a guaranteed funding source to avoid the annual budget battles.

Such a measure “would embed into our state constitution a mandatory indexing formula designed to fundamentally change how the justice system is funded,” new State Bar President Jon Streeter said.

"We need a new funding mechanism," added David Rubin, the newly minted president of the California Judges Association.

No one was offering specifics. Like who would pony up for an initiative campaign. Or why voters, who have historically ranked courts right down there with prisons in funding importance, would give the judiciary special treatment.

“We feel that the gravity of the problems of the judicial branch is not fully understood,” said Chief Justice Tani Cantil-Sakauye.

Returning the branch’s good friend SAL would help a lot, too, she added. SAL, or state appropriations limit, was an automatic growth factor that boosted trial courts'funding annually without a demonstrated need. From 2000 to 2006 that factor averaged 5.3 percent – a tidy sum that added tens of millions annually. But when the budget crisis hit in 2009, the Legislature revoked the courts’ SAL.

Restoring SAL would be an impressive feat, especially with the governor signaling that the budget is likely to include more spending cuts next year. But Cantil-Sakauye didn’t appear fazed Saturday when she referenced her past as a blackjack dealer in preparing for the fight ahead.

“I always note the wager,” she said, “but I wait and watch for the tell.”.

 

Alliance of California Judges Targets AOC Operations and CCMS

[Cheryl Miller]

The Alliance of California Judges today issued its recommendations for dealing with the judiciary’s budget cuts, and as you might expect, the Administrative Office of the Courts is the primary target.

“The Judicial Council and Administrative Office of the Courts must bear the lion’s share of reductions to the extent possible,” Alliance directors wrote in a letter to judges statewide. “That is the only remaining source available without decimating the construction program and the trial courts.”