Legal Pad

Meet Tigar, Hear Him Purr

[Vanessa Blum]

There was a yin and yang to U.S. District Judge Jon Tigar’s investiture ceremony Thursday afternoon at the federal courthouse in San Francisco.
 
The Northern District's newest judge was lauded first by a lover — longtime friend Dacher Keltner, director of UC Berkeley’s Greater Good Science Center and an expert in compassion, gratitude and other positive emotions.
 
Keltner described Tigar as a “searcher” with an appreciation for the “sublime.” (Practitioners take note: According to Keltner, if Tigar ever takes a pause on the bench, turns away and returns with misty eyes, you’ll know your argument is resonating.)
 
Next up to fete Tigar was a fighter — veteran S.F. trial lawyer John Keker, who hired Tigar in 1994 fresh from a stint in the federal public defender’s office.
 
Th ex-Marine described the young Tigar as a talented and brash attorney who was “a little cocky sometimes.” He added: “We made him a partner as quickly as we could.”

The Keltner-Keker line up was like having a speech from the Dali Lama followed up by martial arts actor Chuck Norris, Tigar joked when it was his turn at the podium in the ceremonial courtroom.

The induction was classic Northern District, with speeches about justice and service, and a little good-natured ribbing of the new member of the club, in the presence of local legal luminaries from the Ninth Circuit, California Supreme Court, the Alameda bench (where Tigar served for 11 years), along with big-name litigators and judicial vetters like Cristina Arguedas.

With an audience of nearly every judge from the Northern District, Keker declared: "When the job is done right, district judges are the most important people in America," because they decide "how free we are."

"Judge Jon Tigar, we tell you we are all counting on you to protect us."

Chief Judge Claudia Wilken performed the ceremonial swearing in, assisted in donning the robe by Tigar's wife Caroline Avery — a "fully recovered" attorney, as he put it.

His high-school and college-aged sons led the pledge of allegiance with Tigar’s 96-year-old grandmother and his father, the legendary human rights lawyer Michael Tigar, looking on. (Also in attendance: Northern District judicial nominee Bill Orrick, whose appointment has lagged in the U.S. Senate for more than nine months. Both Tigar and Orrick were recommended to the White House by U.S. Senator Barbara Boxer and nominated in June 2012.)

True to Keltner’s predictions, Tigar was visibly moved by the ceremony and the gathering of supporters. He choked up — and a pin drop could be heard — when he recalled his clerkship in Alabama for Judge Robert Vance of the U.S. Court of Appeals for the Eleventh Circuit in 1989, the year Vance was murdered by an angry litigant.
 
“I’m sorry Judge Vance isn’t here,” said Tigar, who keeps the judge’s photo in his chambers.
 
Tigar pledged to approach his role with humility and gratitude and to remember the difference “between the size of the office and the size of the person.”
 
As a judge in Alameda County, Tigar said he posted a quote from the Book of Proverbs on the back side of the bench that read: “If one gives answer before he hears, it is folly and shame.”

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.

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." 

New CJA President Hungers for Judicial Unity

[Cheryl Miller]

Maybe it was the approaching lunch hour. Maybe he was just hungry when he wrote his speech. Whatever the reason, new California Judges Association President Allan Hardcastle delivered an inaugural address Saturday that was well-spiced with dining analogies.

On the judiciary’s shrinking budget: “My mother used to tell me that the table manners changed when the pie got smaller. That’s so true,” the Sonoma County Superior Court judge told a receptive gathering of State Bar and CJA leaders in Monterey. “And that pumpkin pie we used to have? It’s looking like a three-day- old Pop-Tart to me right about now.”

And on the need for judges to “unite” against state budget cuts: “Like a family coming home for Thanksgiving, we must ensure that the front door is open, and we must ensure that everyone gets a seat at the table. And once they’ve gotten that seat at the table, we need to ensure there’s adequate food on the table to feed everyone.

“Once we win that goal, then there’ll be time to discuss whether two years ago mom should have used the stainless steel flatware or the sterling silver flatware,” Hardcastle continued. “Only when everyone’s at the table and their needs are met should we have a debate about whether the dinner fork goes on the right or the left.”

Some judges may not find Hardcastle’s message so palatable. Critics, most notably the Alliance of California Judges, have described the call to quell dissent as stomach-churning. Hardcastle, a Harley-riding Army veteran, has the next 12 months to make his plea bear fruit.

 

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.

Judges Can't Accept Gifts. Can Branch?

[Cheryl Miller]

"Under no circumstance shall a judge accept a gift, bequest, or favor if the donor is a party whose interests have come or are reasonably likely to come before the judge."--  Judicial Canon 4D(5)

The California Code of Judicial Ethics is pretty clear about judges eschewing gifts. But what if the gift recipient is not a judge but the whole judicial branch? And what if the gift isn't a tchotchke but a much-needed $20 million?

On Thursday, most Judicial Council members seemed pretty giddy about billionaire Patrick Soon-Shiong's eight-figure offer of cash and services to help install the Court Case Management System. And who could blame them? The state isn't exactly showering the courts with money these days.

No one questioned, at least not publicly, whether such a generous gift (the council is calling it a "grant") might spawn some ethical dilemmas for the branch. Those who quietly put the preliminary deal together insist there are no strings attached. But Soon-Shiong is, by all accounts, a brilliant, wealthy businessman who has a lot of interests -- financial and otherwise. What happens the next time Soon-Shiong or a company of his winds up in court? (Medical device developers never get sued, do they?)

If, as expected, the Judicial Council approves a letter of intent today, branch negotiators will have 12 weeks to draft a final agreement with Soon-Shiong. Presumably, the two parties could hash out conflict concerns then.

The whole issue is reminiscent of California's on-again off-again dalliance with selling state-owned buildings, including the Supreme Court complex, to private investors. Reporters and judges have joked about imagined corporate sponsorships like Justice by Jack-in-the-Box or Coca-Cola Courthouse. Maybe the state's dire budget cuts have infused those whimsies with a little more reality.

The Judicial Council is scheduled to discuss Soon-Shiong's CCMS offer at approximately 11:20 today.

Monterey Bar Honors Former 6th District Justice Nat Agliano

[Kate Moser]

So many people showed up at a Monterey County Bar Association lunch honoring former Sixth District Justice Nat Agliano on Thursday that more tables and chairs had to be brought in.

Current and former Monterey judges and lawyers, plus a big gathering of Sixth District justices and his current colleagues at the Silicon Valley JAMS office, turned out to see Agliano accept a lifetime achievement award from the bar association. (Pictured here with Agliano are, from left, Justices Nathan Mihara, Patricia Bamattre-Manoukian, and Wendy Clark Duffy). The low-key jurist looked rather uncomfortable amid all the attention, and when Duffy introduced him, she showered him with praise almost apologetically.

“I know you’re almost reluctantly here because you’re so modest,” she said.

Agliano’s former colleagues on both the appellate and trial court benches said he has always been a great person to work with.

Bamattre-Manoukian said Agliano showed her the ropes when she first joined the Sixth District. “He’s a kind, gracious, smart, engaged jurist,” she said.

“You write something really good,” she ordered.

Another one of Agliano’s mentees, retired Judge Richard Silver -- who’s now also at JAMS -- said Agliano was a steadying influence on the Monterey court. He said Agliano helped him as a young judge when he was assigned some high-profile cases involving labor strikes led by Cesar Chavez.

“When you say Nat Agliano, it’s the same as saying ‘gentleman,’” he added.

There was one anecdote about a time that Agliano was not so calm and genteel. As Duffy told the story, Agliano, an avid golfer, had bought a new driver with plans to take it out over the weekend. The following Monday, the court’s veteran clerk and administrator, Michael Yerly, asked him how it went.

“Well, it’s in the lake,” Agliano replied.

Duffy said she wished someone had been there to snap some video of the even-keeled judge losing his cool on the golf course. “I think that would have gone viral on YouTube,” she said.

When the honorary lunch crowd cleared out of the National Steinbeck Center in Salinas, Agliano stood, smiling, and said he had a good time. Not so much because of the lifetime achievement award, he said, but because it’s nice to see the legal community get together.

“It’s good for morale,” he said.

 

Next Up for Calderon: Trial Court Beauty Act

 

[Cheryl Miller]

Correction: I goofed. The video of the hearing shows Assemblyman Charles Calderon refered to the chief justice as "attractive," not "pretty" as I originally reported. The item below has been fixed to reflect that.

The chairwoman of the Senate Judiciary Committee is demanding an apology from Majority Floor Leader Charles Calderon, D-Montebello, after the assemblyman called the chief justice “attractive” during Tuesday’s committee debate on Assembly Bill 1208.

Calderon had been asked by Judiciary Committee members whether it was fair to demand significant branch management changes when Chief Justice Tani Cantil-Sakauye has only been in office for four months. Calderon responded that the bill was not a personal attack on Cantil-Sakauye and that any chief justice would have difficulties managing the branch’s large bureaucracy.

“It doesn’t mean that she isn’t nice, because she is,” Calderon said. “It doesn’t mean that she isn’t smart, because she is. It doesn’t mean that she isn’t attractive, because she is.”

The remark drew murmurs of protest and some hissing from the committee audience, which included many members of the Consumer Attorneys of California.

“Your remarks regarding the chief justice were degrading and inappropriate,” Evans, who is chairwoman of the legislative women's caucus, wrote in a letter to Calderon. “As the leader of California’s judiciary, Chief Justice Cantil-Sakauye should be taken seriously and not spoken about in such a dismissive and frivolous manner.”

Reached Tuesday afternoon, Calderon said his comments were taken out of context and the issue is "a sideshow."

"I'm surprised at the response because that's certainly not the way I view women in power," he said. "That's not the way I interact with my colleagues."

Avoiding Your 'That's Not How We Used to Do It' Moment

[Vitaly Gashpar]

New judge assignments mean new rules — which can mean surprises for lawyers appearing in their courtrooms. On Tuesday, the Association of Business Trial Lawyers invited four judges with new assignments to preview what attorneys can expect.

Superior Court Judge James Kleinberg took over Santa Clara County’s complex litigation department in January. When asked what attorneys should know about him, Kleinberg reflected on his years of experience as an attorney — “I know what you are doing, and I know what you’re not doing,” he said. “Come prepared!”

Kleinberg emphasized that there will be changes to the department.

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?”