Legal Pad

Lucasfilm Pregnancy Case Heading Back to Trial Court

[Scott Graham]

The California Supreme Court may be feeling some pregancy discrimination fatigue.

Six weeks after handing down its blockbuster decision in Harris v. City of Santa Monica, the high court on Wednesday said no thanks to a bitterly fought contest between Angela Alioto and Altshuler Berzon on one side and Lucasfilm Ltd. on the other.

Instead, the court left intact an appellate decision that wiped out Julie Gilman Veronese's $113,830 jury award and a $1.1 million attorney fee, sending it back to Marin County Superior Court. Veronese, Alioto's daughter-in-law, alleges that Lucasfilm withdrew a job offer after learning she was expecting twins and that one had miscarried.

Plaintiffs counsel had warned that Justice James Richman's opinion in Veronese v. Lucasfilm Ltd. carved a dangerous exception into discrimination law by excusing employers who had well-meaning concerns about the health of a fetus. It will make it "far more difficult for victims of discrimination to prove their claims," they argued — not only pregant women, but older and disabled workers as well.

Lucasfilm's attorneys, Steven Drapkin at the Law Offices of Steven Drapkin and Paul Cane of Paul Hastings, had called the argument exaggerated, and countered that Harris compelled a new trial anyway on Lucasfilm's motives.

None of the justices voted to grant review the case.

Beth Jay, Principal Attorney to 3 Chief Justices, to Retire

[Scott Graham]

The consigliere to three chief justices is stepping down.

Beth Jay, who has served as principal attorney to California Chief Justices Tani Cantil-Sakauye, Ronald George and Malcolm Lucas and long been regarded as an influential behind-the-scenes player, will retire at the end of the year, the Supreme Court announced Friday.

"I will be forever grateful for her wise counsel and fidelity to the cause of justice," Sakauye said in a news release. "And, although I will miss her energy, passion, and feistiness, I wish my friend all the greatest in her well-deserved retirement."

A 1975 graduate of Stanford Law School who's worked at the court nearly 33 years, Jay said in the news release that she is leaving primarily to focus on some longstanding health challenges, and that she may return to the court in a few months in a part-time capacity "if the chief will have me and if I can be of service."

Jay worked in private practice and at the Ninth Circuit before joining California Supreme Court Justice Frank Richardson's staff in 1980. Richardson was succeeded by Lucas in 1984, and after becoming chief justice in 1987 he elevated Jay to principal attorney.

In that role Jay has worked regularly with the leadership of the Administrative Office of the Courts on policy, budget, legal affairs and legislative issues. Her duties also have included serving as the court's liaison to the Judicial Council, the Commission on Judicial Performance, State Bar, State Bar Court, Administrative Office of the Courts, the Habeas Corpus Resource Center, Office of the State Public Defender and California Appellate Project. She drafted speeches for the chief justices, helped them prepare for weekly case review conferences, and served on the search committees that hired William Vickrey and Steven Jahr as adminstrative directors of the California courts.

"I have had a ringside seat from which to watch California’s judicial branch mature and focus on the administration of justice and access to justice for all -- and to contribute to the development of a truly statewide judicial branch that can really make a difference in people’s lives," Jay said.

Lucas and George used the same word in the news release to describe Jay's contribution: "invaluable."

A spokesman for the court said there was no immediate word on who would succeed her.

Supreme Court Depublishes Recalcitrant Wage Ruling

[Scott Graham]

Management-side employment lawyers were not happy when the Second District Court of Appeal, under orders from the California Supreme Court to reconsider an important wage-and-hour issue, issued a new opinion last July with practically the identical holding.

The California Employment Law Council was so unhappy, it not only asked the Supreme Court to depublish the ruling, it even suggested the Supreme Court send the case back to a different appellate division for another round of reconsideration.

Well, the Supreme Court didn't take that unprecedented step, but last month it did depublish Harris v. Superior Court. That probably won't make real party Liberty Mutual Insurance Co. happy, but it was welcomed by CELC, a group of in-house counsel and HR officials around the state represented by Paul Hastings.

"We felt that the decision of the court of appeal in Harris III was inconsistent in many respects with the analysis of the Supreme Court in Harris II, and that conflict would have led to confusion in the lower courts," said Paul Hastings partner Paul Grossman, general counsel to the CELC. "And therefore we are delighted at the depublication order which leaves the law clear now in California on the basis of the Supreme Court's decision."

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.

At Bradstreet Bash, Kennard Sings Praises. Literally.

[Kate Moser]

Clocking in at nearly two hours, the induction ceremony for San Francisco Superior Court Judge Angela Bradstreet must have set several records.

Aside from its duration, it’s safe to suppose that the investiture for Bradstreet -- the former state labor commissioner, BASF president and Carroll, Burdick & McDonough managing partner -- was the only one in San Francisco (in the state?) that has ever featured a singing tribute by a California Supreme Court justice.

The rotunda at City Hall was packed Tuesday night with Bradstreet devotees, public officials and judges (many of whom Bradstreet, having served on Sen. Dianne Feinstein’s judicial committee, probably had a hand in getting appointed). It took the master of ceremonies, S.F. Presiding Judge Katherine Feinstein, a good three minutes or so to read the names of all the judges in attendance: federal judges, appellate judges, retired judges, and even a judge from Kentucky.

Speakers included San Francisco Deputy City Attorney Therese Stewart, Golden Gate Law School Dean Drucilla Ramey, Joseph Cotchett of Cotchett, Pitre & McCarthy and Berkeley criminal defense attorney Cristina Arguedas.

They spoke of Bradstreet’s battles on behalf of women and gay people, her career that skyrocketed from a middle-class upbringing in London, her golf game, the loves of her life and her penchant for martinis.
But Justice Joyce Kennard pretty much stole the show when she serenaded Bradstreet with a few lines from America’s favorite singing cowboy, Gene Autry’s 1946 hit “Have I Told You Lately that I Love You?”

 

Carlos Moreno Retiring From California Supreme Court

[Scott Graham]

Legal Pad is hearing word that California Supreme Court Justice Carlos Moreno submitted his resignation today to Gov. Jerry Brown. A public announcement is expected later this week.

Moreno, 62, joined the court in 2002, succeeding Justice Stanley Mosk. He has been seen as a center-left jurist, and was interviewed by White House lawyers in 2009 for the U.S. Supreme Court seat that ultimately went to Sonia Sotomayor.

Rumors circulated a year ago that Moreno would retire if Brown won election for governor. though the justice squelched them at the time.

Moreno is said to be planning to depart in late February. That means the court will almost certainly have a vacancy for at least several months, if the recent history of judicial appointments in a governor's first year are any guide.

Whom Brown might appoint to the Supreme Court is a mystery. His Supreme Court picks were famously controversial during his first stint as governor, though he's seen as having developed a more pragmatic outlook since then. Moreno's departure will leave the court without any Latinos or Southern Californians. There have been no African-Americans on the court since Janice Brown's 2005 departure, and no openly gay person has ever served.

Justices Turn Governor Away on Sale of State Buildings

[Greg Mitchell]

Gov. Arnold Schwarzenegger's deal to sell 11 state office buildings, including the court complex in San Francisco that houses the state Supreme Court, First District and AOC, won't go through any time soon. Today, the state Supreme Court -- in the form of seven court of appeal justices filling in for the recused Supremes -- turned away Schwarzenegger's request that they undo the Sixth District's decision to hold the sale up to consider a challenge filed by Joseph Cotchett's firm.

Critics contend the deal, which would fill a billion-dollar hole in the budget, is a bad one for taxpayers. They contend it isn't clear who exactly would own the buildings, and where the purchase money would come from, and say the lease payments over the next 20 years will eclipse the sale price.

With today's order, the decision on whether to proceed with the sale may fall to new Gov. Jerry Brown, assuming the Sixth District ultimately clears it and assuming the buyers are still interested in doing the deal once the appeal is concluded.

Supreme Court Recuses Itself on Building Sale

[Scott Graham]

All seven California Supreme Court justices recused themselves today from a dispute over the sale of state buildings, including the building that houses the Supreme Court.

The Sixth District Court of Appeal last week stayed the sale, which outgoing Gov. Arnold Schwarzenegger has proposed as a way to raise $2.3 billion for the cash-strapped state. The governor, whose term ends Jan. 2, is asking the Supreme Court to take the unusual step of intervening while the case is pending before the court of appeal.

"All members of the Supreme Court recuse themselves in the matter of Schwarznegger v. California Court of Appeal, Sixth Appellate District, No. S189114," the court stated in a two-paragraph order signed by Justice Marvin Baxter. The order stated that the court will follow its usual procedure of appointing justices from the court of appeal to sit pro tem, based on alphabetical rotation and availability.

State Bar Notebook: Farewells and Introductions

[Scott Graham]

It was an emotional morning Saturday at the State Bar convention in Monterey when the chief justice gave his farewell address, his principal attorney was honored, and the incoming State Bar president described a family tragedy that renewed his appreciation of lawyers.

Supreme Court attorney Beth Jay, principal attorney to Chief Justice Ronald George, received the Bernard E. Witkin medal for outstanding contribution to California jurisprudence. Jay, the Winston Wolf of the Supreme Court who does her work behind the scenes, was described by outgoing California Judges Association President Michael Vicenzia as “the key” to the court. “Anyone who wants to be successful as a leader, you need a Beth Jay,” he said.

George, meanwhile, looked back at his 14 years as chief justice, ticking off accomplishments including trial court consolidation and state funding, improvements to jury service, services for pro se litigants, better community outreach, a courthouse construction program, and a “developing statewide case management system” -- developing being something of a euphemism.

 George reiterated the reasons he's stepping down from the bench, then, departing from his prepared remarks, added: “In a word, after 45 years in public service it was perhaps a time for some self-service.”

 

See Judges Err. Err, Judges, Err

[Scott Graham]

Former Second District Justice Miriam Vogel is taking an innovative approach to seeking review at the California Supreme Court.

Vogel is asking the court to reverse a Third District Court of Appeal ruling and let a shopping mall ban a youth pastor from approaching people in the common areas to talk about his faith. To make her point she's using not only words, but pictures -- check out this PDF. (Hat tip to Recorder opinion service director Jack Walker.)

Side note: The published Third District Court of Appeal ruling in favor of the pastor was authored by  Justice Tani Cantil-Sakauye, California's chief justice nominee.